Kapur, J. - (1.)This is an appeal against the judgment and decree of the High Court of Judicature at Bombay. The appellant was the defendant in a suit brought by the respondent who was the plaintiff and the facts giving rise to the appeal are these:
(2.)The respondent was the occupant of unalienated land, Survey No. 145, Hissa No. 2 of Mahad in the district of Colaba. He applied on November 1, 1941, to the Collector for permission to construct a temporary shed for one year on the above-mentioned land and permission was granted on January 9, 1942. The respondent made another application for extension of the period of the permission of two years. On enquiry it was found that the respondent had constructed permanent structures without leaving an open space of 20 feet between the road and the building and when asked to leave this space open he refused to do so and therefore the application dated September 9, 1942 was dismissed. On March 28, 1943, the respondent made another application stating that he was prepared to remove the building which was within 20 feet of the road. The Collector accepted this request and asked the respondent to remove that portion of the building which was within 20 feet from the road. While the correspondence was going on between the respondent and the Collector, the respondent put up several structures which, for some reason or another, the Collector knew nothing about and it was in March, 1947, that the Collector asked the respondent to stop further building. On April 21, 1947, the respondent made another application to the Collector stating that he had begun to construct another building and asked for permission to complete it. It was then that the Collector made an inquiry and found that several buildings had been constructed deliberately without any permission. The Collector then asked the permission of the Government to take further action and on September 23, 1947, the Government accorded sanction in pursuance of which the Collector directed the Mamlatdar to evict the respondent. On October 19, 1947, the Mamlatdar served a notice upon the respondent for evicting him. The respondent thereupon appealed to the Bombay Revenue Tribunal and his appeal was dismissed on April 2, 1948. Another notice was served on the respondent calling upon him to remove the unauthorised structures. As he did not comply with the notice, he was evicted from the land and some of the buildings were demolished.
(3.)The respondent in August, 1948 filed a petition in the High Court and obtained an order of stay of the order of the Government and in execution of that order obtained possession of the land and then did not prosecute his petition. Thus in spite of his having flouted the orders made by the Revenue authorities, the respondent managed to get the possession of the land from which he had been evicted. On November 23, 1948, the respondent filed a suit for declaration that the order passed by the Government directing his eviction was illegal and void and for injunction restraining the Government from taking any action pursuant to that order and for recovery of Rs. 7,000 as damages for the portion of the building demolished by the Revenue authorities. The Civil Judge held that the buildings erected were unauthorised as the respondent had not obtained the permission of the Collector but he held that the Collector had no power under S. 66 of the Bombay Land Revenue Code (hereinafter termed the Code) to demolish the building. He decreed the suit in regard to the eviction holding the order of the Government and by the Collector as ultra vires and inoperative and issued an injunction against the appellant and also decreed the suit for Rs. 7,000 as damages for demolition of the structures. The appellant then took an appeal to the High Court and it was there held that the orders directing removal of structures was ultra vires of S. 66 of the Code and the injunction was therefore confirmed as also the decree as to the award of damages. The High Court further held that the order of eviction was legal and intra vires but in spite of the eviction, the land or the buildings did not vest in the Government and the occupant continued to be the owner of the buildings and the land and the only consequence of eviction was the physical removal of the occupant from the land. To put it in the language of the High Court it was held:-
"The legal consequences of eviction therefore will be to deprive the occupant of his possession of the land but not of his ownership or proprietary rights, which will continue to vest in him. As a corollary it must follow that the building erected by the occupant on the land will also continue to belong to him. We are also of the opinion that the power given to the Collector to evict the occupant does not include the power to remove a building erected by him." It is against this judgment and decree that the appellant has come in appeal to this Court on a certificate of fitness by the High Court.