Shri Kantilal Lavajibhai Kapadia Vs the Administrator Silvasa, Dadra and Nagar Haveli andO

2.	By	the	present	petition,		the	petitioner	is
seeking	declaration	in	the	nature	to	the	effect	that
the	action	of	responden	ts in	acq	uiring	the	land
alleged	to be	in	possession	of	the	petitio	ner and	on
the	demolition		of the	structure	s	standing	on	such
land	on	12th	June, 2001	to	be	illegal	and	further

¶19

:2:

¶20

for	writ	of	mandamus	in	the	nature	of	direction	to
the	res	pondent	to		reconst	ruct	the		demolished
structure	at	their	cost	on	the	said	land	and	further
to i	ssue	a	regrant	order	in	relation	to	the	area
admeasuring		1440	sq.ft.		from	the		land	bearing

¶21

survey No.877 Part-III, situated at Silvassa,

¶22

District Dadra and Nagar Haveli.

¶23

3.	The few facts relevant for the decision	are	that
the s	uit land bearing survey No.877/3 alon	gwith	some
other	pieces of land was granted to one	Na	rayanbhai
Rewalabhai	Rohit of Silvassa in terms	of	the
provisions	of Dadra and Nagar Haveli Land		Reforms
Regulation,	1971 under order dated 13th	June,	1977.
Consequent	to breach of condition of	the	grant
committed	by said Shri Rohit, the same was		ordered
to	be cancelled and the land forfeited und	er	order
dated	6th March, 1987 by the Collector of	Dadra	and
Nagar	Haveli. The said order was carried	in	appeal
before	the Administrator of Dadra and Nagar		Haveli
being	appeal No.94 of 1989 which came	to	be
dismissed	on 24th November, 1989. Thereu	pon	Shri
Rohit	filed a civil suit No.12 of 1990 in	the	Court
of	Civil Judge, Dadra and Nagar Hav	eli	seeking
declaration	to the effect that the order da	ted	6th
March,	1989 passed by the Collector and	order	dated
24th	November, 1989 passed by the		Appellate
Authority	were without jurisdiction and	b	ad-in-law
and	in the alternative prayed for dire	ction	for

¶24

:3:

¶25

regrant	of th	e area	admea	suring	1440 s	q.ft. out	of
survey	No.877/3	i.e.	the	suit	land.	In the	suit,
the	relief	in the	nature	of	declaration	that	the
petitioner	herein	had	no r	ight	to the	suit land	and
further	for	injunction	was	also	prayed	for.	During
the	pendency	of t	he	suit,	an	application	for
temporary	injunction	was	also	filed	which	came to	be
dismissed	by	order	dated	18th	January,	1991	and

¶26

further the suit itself also was dismissed by the judgment dated 27th September, 1991.

¶27

4.	It i	s t	he contenti	on of the p	etitioner	that
meanwhile,	he	filed	an	application	with	the
competent	autho	rity	for	fixation of the	o	ccupancy
price	in relati	on to	the suit	land viz.	area	1440
sq.ft.	out	of	survey N	o.877/3 but the	re	spondents
failed	to fix	the	oc	cupancy price	and	merely
demanded	that	the	petitione	r should furnish	a	map
showing	the	actual	area in	his possession.	In	that
regard,	the	petiti	oner	approached the		survey
authorities	to	demarca	te such	area and to	issue	him
the ne	cessary s	urvey	plan.	However, to	his	surprise
the	said	authority	refused	to issue any	such	plan
claiming	that	the	land	belongs to the	Go	vernment.
It is	further	case	of the	petitioner that	inspite	of
the	petitioner	havin	g submi	tted his willing	ness	to
pay	the occ	upancy	price in	respect of th	e suit	land
and,	without	acquiring	the	suit land as	well	as
without	affo	rding	any o	pportunity to	the	petitioner

¶28

:4:

¶29

of	being	heard	in	the m	atter, the r	espondents
illegally	dem	olished	the	structure	of the	petitioner
which	existed	in	the	suit land	and illegally	evicted
the	peti	tioner t	herefrom	without	due process of	law
under	the	guise	of	widening of	the road.	This,
according		to the	respo	ndents, was	done in the	month
of	June,	2001	and	request of	the petitioner to	give
him	further	time	to	approach the	court for	necessary
relief	was	not	attende	d to and	in high	handed
manner,	the	petitioner	was	sought	to be evicted	from
the	land	which	was	in lawful	possession of	the
petitioner		pursuant	to	the grant	thereof in	favour
of	the	petit	ioner	consequent to	the forfeiture	of

¶30

the grant in favour of Mr.Rohit in the year 1989.

¶31

Hence the present petition.

¶32

5.	The respondent	s,	on the	other	hand,	while
denying	the claim	of	the petitioner	have	stated	in
their	affidavit-in-reply	that	at no	point	of	time,
the	occupancy rights	of	the suit	land w	ere	granted
in fav	our of the	pe	titioner and	further,	the	illegal
occupation	sought	to	be made by	the	petitioner	in
the	suit land	was	removed	after	hearing	the
petitioner	and		after	affording		sufficient

¶33

opportunity to the petitioner to remove his

¶34

belongings from the suit land.

¶35

6.	The	learned ad	vocate	appearing	for	the
petitioner	d	rawing our	attention	to the	order	dated

¶36

:5:

¶37

6th	March,	1989 passed by the	Collector,	submitted
that	by the	said order, the	Collector who	is
otherwise	duly	empowered to pass	an a	ppropriate
order	regarding	grant of occupancy	rights had,	while
forfeiting	the	occupancy rights in	favour of	Rohit,
granted	those	rights in favour of	the	petitioner
subject	to	that the petitioner	should pay	the
occupancy	price	on the same bein	g ascertained	and
fixed	by the	competent authority.	It is,	therefore,
the	contention	on behalf of the	petitioner that	the
petitioner	had	been in lawful occupat	ion of the	suit
land	since 6th	March, 1989 and	the petitioner	cannot
be	blamed	for non-payment of the	occupancy pric	e as
the s	ame was	never fixed by the	competent	authority.
It	is h	is further submission that	the r	espondent
never	issued	any show-cause notice	nor called	upon
the	petitioner	for hearing in the	matter	before
taking	any	action for removal of	his structure	from
the	suit	land and on the contrary	, inspite of	the
specific	request	by the petitioner for	grant of	some
time	to	approach this court, taking	law in	their
hand	illegally	evicted the petiti	oner from	the
lawful	possession	of the suit land.	He	further
submitted	that	it was never	disputed by	the
respondents	in	the course of the	correspondence	that
the	occupancy	rights of the suit	land had, in	fact,
been	granted	to the petitioner and	this is	also
apparent	from	the fact that in	the course	of
acquisition	pro	ceedings, the suit	land granted	in

¶38

:6:

¶39

favour	of the petitioner was specifically	excluded.
The atten	tion is drawn in that regard to	the
schedule	which was annexed to the n	otification
issued	under section 4 in relation to	the
acquisition	of land for the purpose of widening	of
the road	and it was submitted that the suit land	was
specifically	omitted therefrom. The	learned
advocate	appearing for the respondents, on the	other
hand,	submitted that there was no grant	of
whatsoever	nature issued in favour of the	petitioner
in relation	to the suit land and even before	removal
of the	illegal structure which was sought to	be
erected	by the petitioner in the suit land,	the
petitioner	was heard and sufficient time was	granted
to him	for removal of his belongings from the	suit
land and	only upon failure on the part of	the
petitioner	to remove the same in the	specified

¶40

period, the respondents were left with no alternative than to demolish the illegal structure.

¶41

7.	Undispu	tedly,	the claim	of	the	occupancy	rights
in	relation to	the	suit land	is	based	solely on	the
basis	of the	order	dated 6th	March,	1989	passed	by
the	Collector	in	L.R.Case	No.21	1/74.	Undis	putedly,
the	said order		was passed	by	the	Collector	in
exercise	of	his	powers under	section	4(6)	of	the
Dadra	and	Nagar	Haveli	Land	Refor	ms Reg	ulation,
1971.	Clause	(6)	of section	4	of	the	said
Regulation	provides	that	no	person	shall	transfer	by

¶42

:7:

¶43

way	of sale,	lease, mo	rtgage, exchange	or o	therwise,
any	agricultural	land, in	cluding any par	t	thereof,
in	respect of	which occu	pancy rights are	deemed	to
have	been gra	nted to	him under the	said	section
except	in accord	ance with	such rules as	may be	made
in that	behalf.	It is	also undisputed	fact that	the
occupancy	rights	which we	re granted in	favour	of
Rohit	in respe	ct of the	suit land and	some	other
pieces	of land	were ca	ncelled and the	land	was
forfeited	under	order date	d 6th March,	1989	on
account	of	illegal lease	granted by said	Rohit	in
relation	to the	suit land	in favour	of	the
petitioner.	The	clear ob	servation in that	regard	is
to	be found	in the sai	d order which	reads that,	"It
has	been	reported that	Shri Naranbha	i Re	valabhai
Rohit,	the agri	culture holder	leased out 40’	x	36’
piece	of agric	ultural land	out of survey	N	O.877/3.
Total	area of	0.39 Pk.	to one	Shri	Kantilal
Lavjibhai	Kapadia".	It	was on account	of	illegal
transfer	in the	form of	lease in favour	of	the
petitioner	that	the occu	pancy rights in	favour	of
Shri	Rohit cam	e to be	forfeited under	the	said

¶44

order. The operative portion of the said order

¶45

reads thus-

¶46

"The	occupan	cy rights		granted	vide	Land
Reforms	Offi	cer’s order		dated	13.6.1977	in
respect	of an	area of	40’	x	36’ i.e.	1440
sq.ft.	out	of	S.N	o.877	Pk.	total
admeasuring	0-39	hectares			shall	stand
forfeited	to	the Gov	ernme	nt.	However,	the
land	should	be gran	ted	to	purchaser	on
payment	of occupa	ncy price.		No	order as	to
cost. If purch	aser fails to mak	e payment

¶47

:8:

¶48

land shall vest in Government."

¶49

Referring	to		the said operative por	tion, it	was
strenuously	arg	ued	on behalf of	the petitioner	that
the	word	"pu	rchaser" referred to	in the	said
operative	po	rtion	refers to the	petitioner.	In
that	connec	tion,	attention was also	sought to	be
drawn	to	the	cause title of the	said order	wherein
infront	of		the name of the petitio	ner, the	word
"purchaser"	has	bee	n used. At the	outset, it	is to
be	noted		that merely because in	the cause	title,
the	name	of	the petitioner is follo	wed by the	word
"purchaser"		that	itself would n	ot make	the
petitioner	to		be purchaser as such.	Neither	the
operative	p	ortion	of the order nor	any other	part
of	the	order	passed by the	Collector,	the
petitioner	has		been either descri	bed as	the
purchaser	n	or	there is any finding	to that	effect
that	there	has	been any grant of	occupancy	rights
in fav	our o	f	the petitioner in relat	ion to the	suit
land	or	any	part thereof. On th	e contrary,	the
petitioner	ha	s	been identified	therein s	pecifically

¶50

as the "lessee" of Rohit. There is a specific

¶51

finding in that regard which reads thus-

¶52

"The	argu	ment		between	both	Shr	i Rohit	and
Kapadia		execut	ed	on	25.3.197	9	initially	to
be	valid	for	11	months	on	pay	ment of	lease
amount	of	Rs.16	1/-	per	month.		Shri	Kantilal
L.	Ka	padia		hereafter	ca	lled	as	lessee,
thereafter		cons	tructed			resid	ential	house
thereon	cove	ring	75	sq.m	trs.		which	includes
55 sq.mts.	of road	margin	land	of
Government	."

¶53

:9:

¶54

8. Considering the word	"argument" which is	found
in the said finding in the	copy of the order	placed
on record by the petitioner,	the learned	advocate
for the petitioner was requ	ested to forward	the
original certified copy of	the order for	our
perusal. However, no such co	py was produced by	the
learned advocate for the pe	titioner. Production	of
such copy was also necessar	y to ascertain	whether
in the said finding, the	word "argument"	was
wrongly typed instead of	the word "ag	reement";
likewise, whether the word	"purchaser" after	the
name of the petitioner was	also wrongly typed	or
not, needed to be ascertai	ned. It appears	that,
however, the petitioner did	not find it c	onvenient
to produce the certified copy	of the order.	Be
that as it may, the fact	remains that the	order
nowhere describes the petitioner	to be purchaser	of
the land nor it gives any	finding to the	effect
that any occupancy rights in	relation to the	suit
land were ever granted	in favour of	the
petitioner.The petitioner, by	no stretch	of
imagination, can take advantage	of the ob	servations
made in the operative portion	of the order to	the
effect that, "the land should	be granted to	the
purchaser on payment of	occupancy price" to	mean
that by the said observation	itself, the land	was
granted in favour of the	petitioner and only	the

¶55

occupancy price was required to be ascertained and

¶56

to be paid by the petitioner. Undisputedly, there

¶57

:10:

¶58

is	elaborate procedure presc	ribed for the grant	of
occupancy	rights in relation	to an i	mmovable
property	in favour of any	person under the	Dadra
and	Naghar Haveli Land Re	forms Regulation, 1971	and
rules	made thereunder.	Undisputedly,	the
petitioner	has not been able	to place on record	any
such	order having been	passed by the c	ompetent
authority	after following	such procedure	in
relation	to the suit land	in favour of	the
petitiioner.	Being so,	by misconstruing	the
observation	made by the	Collector in the	order
dated	6th March, 1989, th	e petitioner cannot	assume

¶59

to have acquired the occupancy right in the suit

¶60

land.

¶61

9.	It	was	also	sought	to be argued	on	behalf	of
the	petiti	oner	that	the	fact that	the		petitioner
was	gran	ted occ	upancy	rights	under the	said		order
of	6th	March,	1989	was	duly confirmed	by	the	Civil
Court	in	Civil	Suit	No.1	2 of 1990.		In	that
connection,		attention		was	drawn to the		order	dated
18th	January,	1991,	p	assed	by the trial		court	while
disposing		the	a	pplication	for tem	porary		injunction

¶62

as well as the specific observation therein which

¶63

reads thus-

¶64

"Copy		of this	order	is pl	aced	on	record
which		speaks	that	the	occu	pancy	rights
granted		to	the	plaintiff	rega	rding	suit
land		admeasuring	1440	sq.ft.		shall	stand
forfeited		to the	Gover	nment	and	further	it
was	to	be	granted	to the		purchaser	on
payment		of occ	upancy	price.		In	these
proceedings		the	purc	haser		was	the

¶65

:11:

¶66

defendant No.3 as it can be seen from the

¶67

	order itself. It means vide	this
	occupancy rights were granted in favour	of
	the defendant No.3 by the defendant after forfeiture of the suit land given to the plaintiff."	No.1
Undisputedly	the said observations were made in	the
order	disposing the application for	temporary
injunction	in a suit which was ultimately	dismissed
on	the ground of lack of jurisdiction to	entertain
the s	uit. Apart from the fact that any	order
passed	during the pendency of the suit would	stand
merged	in the final judgment passed in the	suit,
once	the Civil Court had come to the finding	that
it	had no jurisdiction to entertain the suit	and
therefore,	the suit was dismissed, all	the
observations	made in relation to the merits of	the
case	also stood without jurisdiction and	therefore,
no	value can be attached of whatsoever nature	to
the	said finding stated to have been given by	the
trial c	ourt in the order passed while disposing	the
application	for interim relief. Being so,	any
observation	which has been made	without
jurisdiction	will carry no value whatsoever and	no
right	can be claimed based on such findings	stated

¶68

to have been given by the trial court while

¶69

disposing the application for interim injunction.

¶70

10.	As	regards	the	contention	that	at	no	point	of
time	during		the	correspo	ndence	be	tween		the
petitioner	and		the	Government	autho	rities	on		the

¶71

:12:

¶72

point	of fixation of occupancy price, there was	any
objection	by the respondent as regards	the
contention	of the respondents in respect of	the
rights	to the suit land in favour of	the
petitioner,	it is to be noted that the	petitioner
has	not been able to point out any order	having
been	passed granting the occupancy right	in
relation	to the suit land. As regards the	rights
in	the Government land, the same cannot be	claimed
or acq	uired on the basis of the failure on the	part
of	the authorities to deny the alleged	rights
claimed	by any party nor any party can claim	rights
to	the Government land merely because the	claim
made	by such party in the course of corres	pondence
with	the Government officers, such officers fail	to
deny	such claim. The right to the Government	land
has	to be acquired by the procedure known to	law
and	when the procedure is specifically e	numerated
under	the statutory provisions, the person	can
claim	right to the Government land only	after
satisfying	those provisions of law relating to	the
acquisition	of the right to the Government land	and
not	otherwise. Being so, even assuming there	is
failure	on the part of the Government a	uthorities
to	deny the claim made by the petitioner	regarding
grant	of land, that itself can not ipso	facto
create	right in favour of the petitioner to	the

¶73

suit land, once it is undisputed that the suit land

¶74

belongs to the Government.

¶75

:13:

¶76

11.	It is	then	sought	to be contended on behal	f of
the	petitioner	that	the	suit land does not	figure
in t	he sche	dule	appended	to the notification	issued
under	section	4	for t	he purpose of acquisition	of
land	for	road	widening	. One fails to un	derstand
the	logic b	ehind	the arg	ument. If the land	which
belongs	to	the	Government	in respect of which	the
occupancy	righ	ts	were	granted in favour of	Rohit
and	which	rights	were	forfeited under order	dated
6th	March,	1989,	on	such forfeiture, the	land
vested	in	the	Governm	ent free from any encu	mbrance
where	was	the	occasion	to the Government	for
acquisition	of	it	s own	land. The very fact	that
the	Government		did not	include such land in	the
land	acqui	sition	proceedi	ngs further confirms	the
stand	of	the	Government	that the occupancy	rights
were	never	granted	in	favour of the petitioner	in
relation	to the	suit	land.	The fact that there	was
conscious	omi	ssion	to	include survey No.877/3	in
the	notification	issu	ed un	der section 4 relating	to
the	land	acq	uisition	discloses that the Gov	ernment
always	held the	suit	land	as a piece of land of	the
Governmen	t itself	wi	thout	any encumbrance. For	the
reasons	stated		above,	therefore, there	is
absolutely	no	ca	se as	regards the grant	of

¶77

occupancy rights in relation to the suit land in favour of the petitioner.

¶78

:14:

¶79

12.	As	regards	the contention about the	illegal
demolition	of	the	structure and eviction of	the
petitioner	from	the	suit land, once it	is
established	that	the	petitioner has no right	to
occupy	the	said land	, merely because the	petitioner
had	illegally	sought	to erect the structure	in the
suit	land,	it cannot	be said that the eviction	of
the	petitioner	from	the suit land is	illegal.
Undisputedly	, the	petitioner	was fully aware of	the
fact	that	the road	was being widened and in	that
regard	the	structure	which was raised by	the
petitioner	in	the	suit land could be	demolished.
The	petitioner	hims	elf had filed application	on
18th	May,	2001	requesting the respondents not	to
demolish	the	structure.	In that regard, the	copy
of	such	application	filed by the petitioner	which

¶80

was placed on record by the respondents, the

¶81

relevant portion of which read thus-

¶82

"Sir, I am ready to demolish the	above
said portion of the structure for the	road
widening purpose subject to the	condition
that first the occupancy price of the	above
said land should be fixed and the o	ccupancy
rights of the said land should be	granted
in my favour and the possession of the	land
admeasuring 40’ x 36’ should be handed over to me, before demolishing the structure. Hence I humbly request your honour	to
direct the concerned authorities to	first
fix the occupancy price of the above	said
land and grant occupancy rights in	my
favour and hand over the possession of	the
above said land, then direct me to	demolish
the above said portion, which is	required
for the purpose of road widening. In	that

¶83

:15:

¶84

case I am ready to demolish the said construction."

¶85

The	letter	was written	, as already	stated above,	on
18th	May,	2001.	The letter	discloses	clear
admission		on the	part of the	petitioner that	there
was	no	occupancy	rights granted in	favour of	the
petitioner		in favour	of the suit	land till	that
date.		It further	discloses that	the possession	of
the	suit	land was	never handed	over to	the
petitioner.		Thus	apparently the	structure	which
was	sought	to be	erected in the	suit land	was
illegal	and	without	any authority.	It	also
discloses	a	clear	admission on the	part of	the
petitioner		that t	he demolition of	such	structure
was	necess	ary for	the purpose of	road	widening.
Considerin	g	all these	aspects, can	it be said	that

¶86

the respondents have acted in a high-handed manner

¶87

or having taken law in their hand.

¶88

13. Certainly, the ans	wer	to above	questi	on has	to
be in the negative.	If	at all,	there	was	any
high-handedness, it was	on	the	part	of	the
petitioner in erecting t	he	illegal	structure	in	the
suit land. It is	also	a matter	of	record	that
pursuant to such	applic	ation, the	petitio	ner	was
heard in the matter	and	only ther	eafter,	the	said
structure was demolishe	d.	Therefore,		there	was
absolutely no substance	in	the g	rievance	sought	to
be made by the petitio	ner	that there	was	failure	on

¶89

the part of the respondents to give prior notice

¶90

:16:

¶91

for demolition of the structure.

¶92

14.	For	the	reason	s s	tated	abo	ve, therefore,	there
is	absolutely	no	case	made	out	for	grant of	any

¶93

relief. The petition fails and is dismissed. Rule

¶94

is discharged. No costs.

¶95

(R.M.S.KHANDEPARKAR, J.)

¶96

(V.M.KANADE, J.)

Shri Kantilal Lavajibhai Kapadia v. the Administrator Silvasa, Dadra and Nagar Haveli andO

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Shri Kantilal Lavajibhai Kapadia v. the Administrator Silvasa, Dadra and Nagar Haveli andO

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