V.B. Raju, J.
1. This is a second appeal by the State against the judgment and decree in appeal of the Extra Assistant Judge of Kaira decreeing suit No. 138 of 1953 filed against the State by the original plaintiff Patel Harmanbhai Nathabhai for a declaration that the defendant, viz., the State of Bombay, had no right to remove the Kachcha temporary huts erected on his land and for a permanent injunction to restrain the defendant from removing or demolishing the huts standing on his land. The land in question is Survey No. 2366/6/1 situated at Anand. The original owner Bai Kanku was granted permission on 6-6-39 for making non-agricltural use of the said land on condition that two thirds of the land should be kept open. The condition was that an area of 902-1 sq. yds., sq. ft. should be kept open to the sky as compound. In 1949 it was found that the plaintiff, who had purchased the land from the original owner Bai Kanku, had constructed huts in 71 sq. yards of this area without obtaining the permission of the Collector and contrary to the condition on which permission for non-agricultural use was granted. The Collector of Kaira thereupon issued a notice on 5-9-49 to the plaintiff to remove the said constructions made in 71 sq. yards of land within one month of the receipt of the said notice and threatening action under Section 79-A of the Land Revenue Code. By order, Ex. 37, dated 13-6-52, the Collector allowed the unauthorised structures to remain upto 31-12-52 on condition that they should be removed within a week from 31-12-52. The Collector further ordered that if those structures were not removed within the period allowed, the occupant would be evicted from the whole land and the structures should be got removed through the Government agency and the cost of their removal should be recovered from him as arrears of land revenue. As even after 31-12-52 the construction was not removed, the Collector passed an order (Ex. 38) which reads as follows:
In exercise of the powers conferred on him by Section 79-A. Bombay Land Revenue Code 1879 and the powers vested in him by Government under Government circular R.D. No. 4808/49 dated 19-10-50 the Collector of Kaira is hereby pleased to order that Shri. Harmanbhai Nathabhai Patel the occupant of S. No. 2366/671 of Anand should be evicted from this land and the unauthorised constructions of huts made by him in 71 sq. yards should be got removed at Govt, cost and the same should be recovered from him at arrears of land revenue. The personal concerned should be informed of the above orders by the Mamlatdar.
2. In view of the order the plaintiff Harmanbhai filed the suit which was dismissed by the trial Court but it First Appeal the learned Extra Assistant Judge allowed the appeal and decreed the suit notwithstanding that it was clearly admitted by the plaintiff that he had built huts on 71 sq. yards of land unauthorisedly and without obtaining the permission of the Collector. The learned Extra Assistant Judge held that under Sections 66 & 79-A of the Land Revenue Code the Collector had power only to evict the occupant but the Collector had no power to remove or destroy the unauthorised constructions. The Learned Extra Assistant Judge relied on State v. Fakir Umar Dhanse 57 Bombay Law Reporter 243 He therefore decreed the suit and granted the declaration and permanent injunction as sought by the plaintiff against the State. This order of the learned Extra Assistant Judge is now challenged in this second appeal.
3. I allow the appeal for the following reasons: Section 66 of the Land Revenue Code refers to summary eviction of the occupant by the Collector from the land and also provides that the occupant shall in certain circumstances be liable to pay in addition to the assessment such fine as the Collector may direct. Section 79-A also refers to summary eviction of a person unauthorisedly occupying or wrongfully in possession of any land to the use or occupation of which by reason of any of the provisions of the Act he is not entitled or has ceased to be entitled etc. This section also refers to summary eviction of the person by the Collector. Neither of these sections gives power to the Collector to remove unauthorised constructions or to get such constructions removed and to recover the costs of such removal as arrears of the land revenue. With great respect I agree with the view taken by the Bombay High Court in 57 Bombay Law Reporter 243 that those two sections confer power on the Collector of summary eviction but not of removing unauthorised constructions. But if the person is removed and evicted from the land then the question may arise whether the Collector can remove the construction after the eviction and removal of the person who has built the unauthorised construction. Apart from this question under Section 68 of the Land Revenue Code the occupants rights are conditional on the fulfillment of any terms or conditions lawfully annexed to his tenure. It is admitted that in the instant case the conditions lawfully annexed to the tenure had been violated by the constructions of huts in an area of 71 sq. yards without obtaining the permission of the Collector. The rights of the plaintiff would therefore come to an end and it is not necessary in view of the provisions of Section 68 of the Code to decide whether the Collector should have forfeited the holding or the rights of the plaintiff.
If the plaintiffs rights come to an end by reason of the provisions of Section 68 and if the Collector has power to evict the plaintiff under Sections 66 & 79-A of the Land Revenue Code it is open to the Collector to remove or demolish the construction. But neither Section 66 or Section 63 or Section 79-A gives him the power to recover the costs of such removal as arrears of land revenue. The Collector can impose fine under Section 66 of the Code but that has not been done in this case.
4. The question is whether the Collector has a right to recover the costs of the removal of the unauthorised constructions as arrears of land revenue. Such power is not conferred on the Collector under Sections 66 63 & 79-A of the Land Revenue Code but there are other sections in the Land Revenue Code which confer such a power on the Collector. Section 61 is one of such sections. The first para of this section reads as follows:
Any person who shall unauthorisedly enter upon occupation of any land set at art for any special purpose or any unoccupied land which has not been alienated and any person who uses or occupies any such land to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled shall,
if the land which he unauthorisedly occupies forms part of an assessed survey number pay the assessment of the entire number for the whole period of his unauthorised occupation and if the land so occupied by him has not been assessed, such amount of assessment as would be leviable for the said period in the same village on the same extent of similar land used for the same purpose:
and shall also be liable at the discretion of the Collector to a fine not exceeding five rupees or a sun equal to ten times the amount of assessment payable by him for one year if such sum be in excess of five rupees if he have taken up the land for purposes of cultivation and not exceeding such limit as may be fixed in rules made in this behalf under Section 214 if he have used it for any non-agricultural purpose.' The last two paras of this section are material and they are as follows: 'The person unauthorisedly occupying any such land may be summarily evicted by the Collector and any crop raised in the land shall be liable to forfeiture and any building or other construction erected thereon shall also. If not removed by him after such written notice as the Collector may deem reasonable be liable to forfeiture or to summary removal.
Forfeitures under this section shall be adjudged by the Collector and any property so forfeited shall be disposed of as the Collector may direct and the cost of the removal of any encroachment under this section shall be recoverable as an arrear of land revenue.
5. No doubt this section applies to land set apart for any special purpose or any unoccupied land which has not been alienated. If this section applies to the instant case then the Collector has got powers under the penultimate paragraph of this section to remove any building or other constructions and also to recover the cost of the removal as an arrear of land revenue. But it is contended that this section applies only to Government lands and not to the land which has been granted to an occupant either for agricultural purpose or for any non-agricultural purpose. If is also contended that the Collector has in fact not taken any action under Section 61 but has asked under Section 79-A of the Land Revenue Code. It is also contended that Section 61 refers only to Section 38 of the Land Revenue Code under which land may be assigned for special purposes by the Collector at any time and by the survey officers while survey operations are in progress for free pasturage for the village cattle for forest reserves or for any other public or municipal purpose. For the contention that Section 61 of the Land Revenue Code refers only to land assigned under Section 38 of the Land Revenue Code the Learned Counsel for the respondent relies on Vinayakrao v. The Secretary of State for India I.L.R. 23 Bombay 39. There is no reason to restrict the words 'special purpose in Section 61 to the purposes enumerated in Section 38 which are public or municipal purposes. The term 'special purpose is certainly wider than a public or municipal purpose. If land is set apart for agricultural purpose that would be for a special purpose. If land is set apart for building purposes that would also be for a special purpose although that would not be a public or municipal purpose. Similarly if a portion of land allowed to be used for building purposes is reserved for compound for the sake of the health of the people of the locality that would be setting apart land for a special purpose. In the instant case at the time of granting the permission for non agricultural use the Collector ordered that 2/3rd of the land should be kept open to the sky as a compound. Obviously the object of the Collector was to provide a pure atmosphere and clean air to the inhabitants of the locality. In I.L R. 23 Bombay 39 after a Sanad had been granted to the plaintiffs the Collector ordered that a portion of the land so granted should be set apart for a village site. If was therefore held that the Government was not competent to set apart a portion of the land comprised in the Sanad given to the plaintiffs for a village site and it was with reference to these facts that the observations were made in the Bombay case that Section 61 relates back to Section 38 and that the land which had already been granted and in respect of which a Sanad had been given to a person cannot subsequently be assigned for the purpose of village site. The Bombay case is therefore distinguishable from the present case.
6. As regards the contention that Section 61 of the Land Revenue Code applies only to Government lands there is no such restriction in the wordings of Section 61. The words 'any land set apart for any special purpose do not mean that the land should be Government land. In any case originally the land belonged to Government when it was set apart for the special purpose of agriculture and that is why the permission of the Collector had been taken for using it for a different purpose namely non-agricultural purpose. The land was Government land when it was reserved for the special purpose of agriculture. Subsequently the special purpose was changed and use of the land for non-agricultural purpose was permitted subject to the special condition that 2/3rd of the land should be kept open to the sky as compound. The change in the special purpose was at the request of the respondent and subject to the condition that 2/3rd of the land should be kept open to the sky. This change in the special purpose for which the land was set apart was accepted by the respondent. After this change part of the land was set apart for the special purpose of serving as a compound and the other part was set apart for the special purpose of construction of a house. The contention that Section 61 of the Land Revenue Code does not apply to this case cannot therefore be accepted.
7. It is next contended that the Collector purported to have passed his order under Section 79A of the Land Revenue Code and not under Section 61 of the Code. If the Collector has power under the Land Revenue Code to do a certain Act it is not necessary to specify the section under which he acted. It is also immaterial if he mentions a wrong section. In fact if we look at Ex. 38 no doubt it starts by referring to Section 79-A of the Bombay Land Revenue Code. It also refers to the powers vested in the Collector by Government under Government Circular R.D. No. 4808/49 dt. 19-10-50. No doubt the power to evict the plaintiff was exercised under Section 79A of the Land Revenue Code but the order does not purport to rely on Section 79-A as authority for the second portion of the order namely the removal of the unauthorised construction of huts. The order refers to (1) the eviction of the plaintiff from the land (2) the removal of the unauthorised constructions of huts and (3) the recovery of costs for the removal of the huts from the plaintiff as an arrear of land Revenue. Now in the first portion of this order reference has been made to Section 79-A of the Land Revenue Code. It is not clear whether this reference also relates to the second and third portions of the order. But in any case if the Collector has powers under the Land Revenue Code it is not necessary for him to mention the section under which he acted and it is also immaterial if he quotes a strong section.
8. I therefore reject all the contentions of the Learned Counsel for the respondent and hold that the order (Ex. 38) is justified under the powers conferred on the Collector under Sections 66 65 79 and 61 of the Land Revenue Code and that the learned Extra Assistant Judge has taken a wrong view. I therefore allow this appeal and dismiss the suit with costs throughout.