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Shivpalsing Bhagvatsing Pardeshi Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 247 of 1922
Judge
Reported inAIR1924Bom369; (1924)26BOMLR371
AppellantShivpalsing Bhagvatsing Pardeshi
RespondentThe Secretary of State for India
DispositionAppeal allowed
Excerpt:
.....65-agricultural land--occupant's application to use it for non-agricultural purposes--decision of collector-period of time--communication of decision to occupant--procedure under the section.;under section 65 of the bombay land pevenue code, the collector, on receiving an application, must first send a written acknowledgment of its receipt, and secondly, may, after due enquiry, either grant or refuse the permission applied for; provided that where the collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the..........collector fails to inform the applicantof his decision on the application within a period of threemonths, the permission applied for shall be deemed to have been granted; such period shall, if the collector sends a writtenacknowledgment within seven days from the date of receipt of theapplication, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt.of the application. that section clearly lays down the duties of thecollector. when he receives the application he has to inform the applicant that he has received it. he has no further powers there after until due inquiry is made. when due inquiry has been madethen he can either grant or refuse permission. but the decisioneither to grant or to refuse permission must be sent to.....
Judgment:

Norman Macleod C.J.

1. The plaintiff tiled this suit asking for a permanent injunction against the defendant, the Secretary ofState for India in Council, restraining him from demolishing theshed standing in Survey Number 32, pot No. 3, in the village ofVangaon, Taluka Dahanu, and from forfeiting the said SurveyNumber 32 and for the refund of the sum of Rs. 100 recovered asfine from the plaintiff by the defendant. The suit was dismissedby the District Judge on July 31, 1922.

2. It is not necessary for the purpose of this appeal to deal withthe history of the case before October 24, 1915, by which datethe cattle shed previously erected on the ground by the plaintiffhad been demolished. On October 24, 1915, the plaintiff appliedto the Collector for permission to erect a shed in the SurveyNumber for his cattle. In November by an order Exhibit 35the matter was referred by the Collector to the AssistantCollector. The plaintiff getting no answer to his applicationand hearing that the matter had been referred to the AssistantCollector made an application Exhibit 49 on December 10, 1915,to that Officer. On December 16, this was sent by the AssistantCollector to the Mamlatdar for report with the following direc-tions 'Reply; permission is refused. It should be grantedafter inquiry. Mamlatdar to report.' The plaintiff sought toprove that he had not received that reply to his application asdirected by the Assistant Collector, but it is clear that as amatter of fact he did receive it. Hearing nothing further fromthe Collector, he built a new shed on this plot in Survey Number32, pot No. 3, before the monsoon. On July 10, 1916, theAssistant Collector passed an order that the plaintiff should betold to demolish his shed and that he should be evicted from thewhole of Survey Number 32.

3. The question really is whether the Collector complied with theprovisions of Section 65 of the Bombay Land Revenue Code. Assumingfor the moment that the applicant was making an application touse his agricultural land for non-agricultural purposes, theCollector after receiving such an application must first send awritten acknowledgment of its receipt, and secondly, may, afterdue inquiry, either grant or refuse the permission applied for;provided that where the Collector fails to inform the applicantof his decision on the application within a period of threemonths, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a writtenacknowledgment within seven days from the date of receipt of theapplication, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt.of the application. That section clearly lays down the duties of theCollector. When he receives the application he has to inform the applicant that he has received it. He has no further powers there after until due inquiry is made. When due inquiry has been madethen he can either grant or refuse permission. But the decisioneither to grant or to refuse permission must be sent to the ap-plicant within a period of three months to be calculated accord-ing to the terms of the section. In this case the Collector in-stead of merely sending the acknowledgment to the plaintiffthat he had received the application, sent a reply that theapplication was refused. It has been urged that becausethat reply was sent to the applicant, the applicant couldnot take advantage of the proviso to the section and wasprevented from building until some future date, withoutany period of limitation, when the Collector should thinkfit to inform him of his decision. We cannot entertainsuch a construction of the section. It seems to us that it isclearly laid down that the applicant in such a case shouldreceive the decision of the Collector within three months, thatis to say, a proper decision after due inquiry, and that if hedoes not receive such permission within three months, he willbe entitled to be allowed to act as if permission had been grant-ed to build according to the terms of his application. Thelearned Judge in the Court below has entirely failed to re-cognize that this is the proper construction of the section. Heseems to have thought that because the Collector refused theapplication without due inquiry, that debarred the plaintiff en-tirely from building, even though he did not hear anything furtherin the matter with regard to the result of the inquiry withinthe period of three months. There having been no order afterdue inquiry within three months, the further proceedings of theCollector were defective and must be taken to have been entire-ly beyond his powers. The result must be that the plaintiff isentitled to the reliefs he sought for, and that there must be adecree in terms of prayer (A) of the plaint.

4. The appellant is entitled to his costs throughout.


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