RAJASTHAN HIGH COURT

                              Kanti Chand Sharma

                              Vs.

                              Municipal Corporation

                Civil Revn.Petn. No. 417 of 2000
                          (A.C. Goyal, J.)

                              26.05.2004

                              ORDER

A.C. Goyal, J.

1. The petitioner-plaintiff has preferred this revision against the order dated 21-4-2000
whereby learned Additional Civil Judge (Junior Division) No. 4, Jaipur City, Jaipur
dismissed the execution application.

2. The relevant facts in brief are that the petitioner instituted a civil suit in January,
1994 against the defendant-non-petitioner No. 1 Municipal Corporation, Jaipur (in
short the M.C.) with the averments that disputed plot of land is situated near
Ambabari, Jaipur. The petitioner is in possession of that land for the last 30 years and
he has acquired title on account of adverse possession. On 29-1-1994 the employees
of M.C. came over the land and tried to demolish the constructions made by the
petitioner. Hence, the petitioner prayed for a decree of permanent injunction against
the M.C. This case was registered as Civil Suit No. 193/1994.

3. This case was placed in LokAdalat on 25-10-1996. The parties arrived at
compromise in LokAdalat and the trial Court passed a compromise decree in the
following terms :-

(Vernacular matter omitted.)

4. Thus, the M.C. was restrained from demolishing the constructions made over the
land under dispute and from making the interference in the peaceful enjoyment and
use of it without adopting due process of law and without affording a sufficient
opportunity of hearing to the petitioner.
5. On 20-1-1997 the petitioner filed an execution application under Order 21, Rule 11,
Civil Procedure Code for execution of the decree dated 25-10-1996 with the
averments that the employees of M.C. came over the disputed land and demolished
the constructions without giving any notice and an opportunity of hearing. They
caused damages to the tune of Rs. 6 lacs. It was also averred that entire activities of
demolition were carried out at the instance of non-petitioners No. 2 the Mayor and No.
3 the Commissioner of the M.C. It was prayed that the non-petitioner Nos. 2 and 3
should be sent to civil imprisonment, the non- petitioners should be directed to pay a
sum of Rs. 6 lacs with interest @ 2% per month as damages, to pay a sum of Rs.
10,000/- as monthly damages or they should be directed to reconstruct the building
and to hand over the same to the petitioner. Execution Case No. 1/1997 was registered.

6. Vide reply of this application, the M.C. denied all the allegations and pleaded that
the petitioner was trespasser over the land which belongs to the M.C. and the
petitioner himself removed his possession and the goods from the disputed land on 2-
11-1996. It was also stated in reply that one notice dated 21-8-1996 and the other
dated 30-10-1996 under Section 203 of the Rajasthan Municipalities Act, 1959 (in
short the Act) were served upon the petitioner but the petitioner failed to reply and
appear and thus, the encroachment was removed having followed the due process of
law.

7. After recording the evidence of the parties, the Executing Court i.e. Additional Civil
Judge No. 4, Jaipur City, Jaipur vide impugned order dated 21-4-2000 held that the
possession of the petitioner over the disputed land was removed by following due
process of law. It was also held that the petitioner himself removed his possession and
the goods vide Ex. 4, dated 2-11-1996 and thus dismissed the execution petition.

8. I have heard learned counsel for the parties. On the basis of the submissions,
following questions arise for consideration:-

       (i) Scope of revision under Section 115, Civil Procedure Code.

       (ii) What is due process of law ?

       (iii) Whether due process of law was adopted in the instant case ?

9. First Point :- A perusal of the provisions of Section 115, Civil Procedure Code
makes it clear that the High Court may interfere with the order in revision where (a)
the trial Court has exercised a jurisdiction not vested in it by law, or (b) has failed to
exercise a jurisdiction so vested, or (c) has acted in exercise of its jurisdiction illegally
or with material irregularity.

10. According to learned counsel for the petitioner the Executing Court has acted
illegally or at least with material irregularity in holding the service of notice dated 30-
10-1996 upon the petitioner. He referred the report of the process server as well as the
entries made in the dispatch register. According to learned counsel for the M.C. the
Executing Court considered the entire evidence and reappreciation of evidence in
revision is not permissible. It was also submitted that even an erroneous decision on a
question of fact and law cannot be set aside in revision. He placed reliance upon Shri
M.L. Sethi v. Shri R. P. Kapur,1herein it was held with regard to the jurisdiction of the
High Court under Section 115, Civil Procedure Code that it is a limited one and the
section is not directed against the conclusions of law or fact in which the question of
jurisdiction is not involved. An erroneous decision on a question of law reached by the
subordinate Court which has no relation to question of jurisdiction of that Court,
cannot be corrected by the High Court under Section 115, Civil Procedure Code.
Similar view was taken in M/s. D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup
Singh, 2 and Sher Singh (dead) through L.Rs. v. Joint Director of Consolidation, 3

11. I have gone through the impugned order. The Executing Court considered the oral
testimony as well as the notice Ex. JD1 and entry Ex. JD2 in the dispatch register and
came to the conclusion that this notice was served upon the petitioner on 30-10-1996.
According to learned counsel for the petitioner, the entries after S. No. 123 by
manipulating the words 'A' and 'B' with the entry No. 123 were added in the dispatch
register and it shows that no notice dated 30-10-1996 was ever issued and if issued no
service of this notice was ever made upon the petitioner. I have considered the said
submissions in the light of the oral as well as documentary evidence and am of the
view that the Executing Court took into consideration the objections made in this
revision. It does not appear a case of misreading, non-reading or wrong-reading of
evidence and thus, the findings with regard to issuance and service of notice upon the
petitioner are in no way illegal or suffering from material irregularities. Keeping in
view the jurisdiction of the High Court under Section 115, Civil Procedure Code
which is limited one, such finding of fact cannot be set aside in revision.

12. Second Point :- On behalf of the petitioner it was submitted that the possession of
the petitioner over the disputed land was more than 30 years old, hence the petitioner
acquired title by adverse possession and such possession was not to be removed till
the M.C. gets a declaration of its title through a civil suit decided by the competent
civil Court and removal of encroachment by mere giving notice under Section 203 of
the Act does not amount to removal of possession by due process of law; that the
provisions of Section 203 of the Act were amended in the year 1991 and the same
were not applicable in the instant case as the possession of the petitioner was more
than 30 years old. He placed reliance upon PuranaNand Jain HitkariSamiti, Jaipur v.
Jaipur Development Authority, 4This judgment deals with various modes of execution
of a decree. Reliance was placed upon one judgment of this Court dated 9-9-1986
delivered in S.B. Civil Revision No. 446/1986 wherein while dealing with the
provisions of Sections 72 and 100 of the J.D.A. Act it was held that according to the
non-petitioner himself, Section 100 of the JDA Act is applicable for purposes of
taking possession over constructed building, hence notice under Section 72 of the JDA
Act for removal of encroachment over the building was not sufficient. In State of
Rajasthan v. Smt. Padmavati Devi (dead) by L.Rs., 5it was held that claim raising
questions involving applicability and interpretation of various laws, documents and
recording of evidence cannot be adjudicated in summary proceedings under Section
91 of the Rajasthan Land Revenue Act and such questions can be more properly
considered in regular proceedings. In Express Newspapers Pvt. Ltd. v. Union of India,6
it was held in a case of termination of the lease that recourse to summary eviction of
the lessee under Public Premises (Eviction of Unauthorized Occupants) Act cannot be
taken. While taking similar view this Court in Raja Fateh Singh v. State of Rajasthan,
7held that such questions could be decided only by civil Courts. It has to be borne in
mind that in the instant case, the petitioners himself instituted the civil suit which has
already been decided in terms of the compromise. In Chauthmal v. State of Rajasthan,
8it was held by this Court that 'Nazul' land belonging to Government does not vest in
Municipality. In Mehar Singh v. Municipal Committee, 9it was held on the point of
limitation that where a suit is brought by a Municipal Committee for possession of
land belonging to Government but vested in the Committee for Management, the
Committee cannot take advantage of 60 years' limitation. On the point of limitation
another judgment relied upon was delivered in Bhavnagar Municipality v. Union of
India, 10wherein it was held that the title cannot be proved on the basis of mere
evidence of claim for the land made by the plaintiff earlier. Possession and title having
not been proved by the plaintiff, it was not necessary for the defendant to plead and
prove adverse possession. On the same point reliance was placed upon Pyarelal v.
Municipal Committee, 11

13. Learned counsel for the M.C. submitted that due process of law means the
procedure prescribed by law and Section 203 of the Act provides the procedure for
removal of encroachment and that procedure provided under Section 203 of the Act
was adopted by the M.C. It was also contended that the petitioner himself removed his
encroachment vide Ex. D4, dated 2-11-1996 and thus no other procedure was required
by the M.C. for removal of the encroachment. Reliance is placed upon Anamallai
Club v. Government of T. N., 12

14. I have considered the rival submissions. In the instant case, the procedure for
removal of the encroachment over the land not being the private property, whether
such land or space belongs to or vests in the Board or not is provided under Section
203 of the Act. Filing of the suit by the M.C. for declaration of its title over the
disputed land was in no way required in the instant case. The petitioner himself
instituted the suit in the year 1994 claiming the title by adverse possession over the
disputed land with only prayer of permanent injunction and that suit was decided on
account of compromise arrived at between the petitioner and the M.C. Hence, no
separate suit for declaration of title or possession on behalf of M.C. was or is required
to be filed. Section 203 of the Act provides detailed procedure for removal of the
encroachment as well as for confiscating the property. Sub- section (10) of Section 203
of the Act provides that a notice in writing has to be given and after affording an
opportunity of making a representation in writing within reasonable time, the
encroachment may be removed or the goods may be confiscated. Sub-section (12) of
Section 203 of the Act further provides remedy by way of filing the appeal before the
concerned District Judge. The amendments in the provisions of Section 203 of the Act
relate only to the enhancement of the punishment which came into effect from 27-8-
1991. Thus, the procedure is provided under Section 203 of the Act and no civil suit
on behalf of the M.C. was required to be filed. The submission made by learned
counsel for the M.C. finds support from the judgment of the Hon'ble Supreme Court
delivered in Anamallai's case (supra). According to para 6 of this judgment, the
Hon'ble Supreme Court while dealing with the procedure prescribed under the Act for
taking possession of the land by the Government held in the case of East India Hotels
Ltd. v. Syndicate Bank, 13as under :-

       "They must obtain such possession as they are entitled to by proper course. In
       our jurisprudence governed by rule of law even an unauthorized occupant can
       be ejected only in the manner provided by law. The remedy under Section 6 is
       summary and its object is to prevent self-help and to discourage people to adopt
       any means, fair or foul to dispossess a person unless dispossession was in due
       course of law or with consent."

15. Thus, the possession by the M.C. was obtained with consent of the petitioner
himself according to the M.C.

16. Learned counsel for the petitioner contended that this consent in writing Ex. D4
was obtained under threat exercised by the officials of the M.C. The Executing Court
considered this objection in detail and held that the petitioner failed to prove that Ex.
D4 was executed by the petitioner under any threat as this document is dated 2-11-
1996 and the execution petition was filed on 20-1-1997 and during this period the
petitioner nowhere raised this objection that his signatures on this document were
obtained under any threat. It was also observed that the petitioner filed a writ petition
in the High Court against his dispossession and even in that writ petition no such
objection was taken by the petitioner. Keeping in view the above facts and
circumstances, the submission of learned counsel for the petitioner that the signatures
of the petitioner on this document were obtained by threat has got no merit. A perusal
of this document Ex. D4, dated 2-11-1996 makes it clear that the petitioner himself
voluntarily removed his encroachment and goods from the disputed land. Thus, the
second point is decided that the due procedure for removal of encroachment in the
instant case was provided under Section 203 of the Act.

17. Third Point :- According to learned counsel for the petitioner notice was not served
upon the petitioner. This objection has already been dealt with while deciding the first
point. It was next submitted that no reasonable time was given to the petitioner to
submit reply of the notice and to appear before the concerned authority. He placed
reliance upon State of J. and K. v. Haji Wali Mohammed, 14wherein twenty four hours'
time to dismantle the building was held to be unreasonable by the Honble Supreme
Court. In State of Haryana v. Ram Kishan, 15 it was held that in case of termination of
mining lease the Executive Authorities should take into consideration the principles of
natural justice by giving a right of hearing to the affected persons before taking any
decision. Learned counsel for the M.C. referred one earlier notice dated 21-8-1996
which was served upon the petitioner and the petitioner submitted a detailed reply of
this notice. It was next submitted that the notice dated 30-10-1996 was served upon
the petitioner on the same day and vide this notice he was required to file reply and to
appear before the M.C. on 1-11-1996 and thus two days' time was given to the
petitioner which was quite reasonable in the instant case and there is no violation of
any principle of natural justice. He placed reliance upon KondaLakshmanaBapuji v.
Govt. of A. P., 16 wherein it was held that finding of the Court that the defendant was
land grabber and his possession was without lawful entitlement, such finding is not
liable to be set aside. On the question of natural justice the Hon'ble Supreme Court in
Ahmedabad Municipal Corporation v. Nawab Khan Gulabkhan, 17 held that no
flexible rule of hearing and due application of mind can be insisted upon in every or
all cases. Each case depends upon its own backdrop. The removal of encroachment by
Municipality needs urgent action.

18. I have considered the rival submissions. At the cost of repetition, it is observed
that service of notice dated 30-10-1996 has rightly been found proved by the
Executing Court. Vide this notice, the petitioner was given two days' time to submit
his reply, if any, and to appear before the concerned authority, but he failed to do so
and thereafter the encroachment was removed on 2-11-1996 and that too it was the
petitioner himself who removed his encroachment and goods from the disputed land
and he acknowledged these facts vide Ex. D4 which admittedly was signed by him.
Thus, the encroachment of the petitioner was removed by adopting the procedure
established by the law.

19. In view of the entire discussions made hereinabove, this revision petition being
devoid of merit is hereby dismissed with costs.

Petition dismissed.

Cases Referred.

1. AIR 1972 SC 2379
2. AIR 1971 SC 2324
3. AIR 1978 SC 1341
4. 1990 (2) RLW 425
5. 1995 (1) RLW (SC) 117
6. (1986) 1 SCC 133: (AIR 1986 SC 872
7. 1986 RLR 966
8. 1971 WLN 213
9. AIR 1948 Lahore 153
10. 1989 Supp (2) SCC 758: (AIR 1990 SC 717)
11. AIR 1955 Punjab 1057
12. (1997) 3 SCC 169: (AIR 1997 SC 3650)
13. 1992 Supp (2) SCC 29
14. (1972) 2 SCC 402: (AIR 1972 SC 2538)
15. (1988) 3 SCC 416: (AIR 1988 SC 1301)
16. AIR 2002 SC 1012
17. AIR 1997 SC 152