[Cites 10, Cited by 0]
Bombay High Court
Magan Harji Alias Magan Harji Dhodi And ... vs The Collector Daman And Anr on 2 December, 2025
2025:BHC-AS:52513
wp 8665-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8665 OF 2023
1. Shri Magan Harji @ Magan Harji Dhodi
@ Magan Harji Patel,
Age : 66 years, Occu.: Nil,
Address : Makat Faliya, Patlara, Moti Daman
2. Kantaben Magan Dhodi @ Kantaben
Kantaben Magan Patel
Age : 65 years, Occu.: Household
Makat Faliya, Patlara, Moti Daman
Taluka and District Daman
Represented through their Power of
Attorney Holder,
Suriakant Naranbhai Dhodi ... Petitioners.
Versus
1. The Collector, Daman,
Collectorate, Dholar, Moti Daman
Taluka and District Daman.
2. The Dy. Collector (HQ), Daman
Collectorate, Dholar, Moti Daman
Taluka and District Daman ... Respondents.
----------
Mr. Kamlesh P. Mali, Advocate for the Petitioners.
Dr. Sanjay Jain a/w. Mr.Harsh Dedhia, Advocate for the Respondents.
----------
Coram : Sharmila U. Deshmukh, J.
Reserved on : November 20, 2025
Pronounced on : December, 02, 2025
JUDGMENT :
1. By the present Petition, the challenge is to the order dated 21 st
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June, 2023 passed by the Administrative Tribunal, Daman dismissing
the Appeal arising out of order dated 3 rd August, 2018 passed by the
Respondent No 2- Deputy Collector (HQ) Daman Collectorate as well
as the notices dated 7th February, 2017 and 18th March, 2017 calling
upon the Petitioners to remove the purported encroachment on
government land.
Facts of the case :
2. On 7th February, 2017, notice came to be issued to the
Petitioners under Section 40(2) of the Goa, Daman and Diu Land
Revenue Code, 1968 (for short, "Act of 1968") directing the
Petitioners to remove encroachment carried out by them on
government land and restore the land to its original use. The notice
stated that the encroachment is upon the Government/Public land at
Patlara Coastal Highway to Patlara Tin Rasta, Moti Daman by way of
illegal, unauthorised, temporary or permanent/semi permanent
structure. The notice was replied on 13 th February, 2017 stating that
the Petitioner's house is standing on same location since last more
than 100 years and they have not encroached a single inch of
government land. It was stated that the house is well within the
boundary of land bearing Survey No.255/6 which is a private property.
3. On 23rd February, 2017, the Petitioners filed an application with
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the Enquiry Officer, City Survey Department to carry out the
measurement and demarcation of the house property situated on
land bearing Survey No.255/6 and also to issue site plan along with
the proposed costal highway. On 18th March, 2017, the Respondent
No.2 re-issued notice under Section 40(2) of the Act of 1968 directing
removal of the encroachment. The notice stated that in the hearing
held on 23rd February, 2017 at request of the Petitioners it was
decided to carry out fresh demarcation of Survey No.255/6. The staff
of the Enquiry Officer measured Survey No.255/6 in the presence of
the Petitioners and the representative of the PWD-Daman on 27th
February, 2017. At the request of Petitioners, the survey was again
carried out on 1st March, 2017 and it was found that the Petitioners
have illegally encroached the land from the eastern side of Survey
No.255/6 near to Patlara Ambawadi Road by way of illegal permanent
structure.
4. The Petitioners filed Writ Petition No. 3410 of 2017 before this
Court challenging the notices, which came to be disposed of by order
dated 18th July, 2017, relegating the Petitioners to the alternate
remedy of Appeal. Pursuant thereto, the Petitioners filed
Miscellaneous Appeal No.6 of 2017 before the Respondent No.1. By
order dated 3rd August, 2018, the Respondent No.1 dismissed the
Appeal. The order records that by report of Mamlatdar on 21 st
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December, 2017, it was informed that the government land at Survey
No.255/7 which is part of major district road i.e. Moti Daman
Ambawadi to Zari Causeway Road via Patlara and Thanapardi notified
vide notification dated 24th August, 1994 has been encroached by the
Petitioners by constructing a house. The encroachment was re-verified
in presence of the Petitioners and joint site inspection report was
submitted on 17th April, 2018 stating that there are one Kaccha
construction on east side of land bearing Survey No.255/6 and one
pucca construction on the west side which is falling within the road
boundary, as per the Government records. The site plan was also
submitted showing encroachment. The order further noted that the
Petitioners again objected vide letter dated 26 th April, 2018, where
they have requested to remeasure the said land in question to get the
accurate measurement. The Respondent No.1 noted that before
passing the final order on 18 th March, 2017, survey was done thrice,
which shows that the Petitioners residing at Survey No.255/6
admeasuring 300 sqr. mtrs. has encroached upon the government land
beyond his boundary of Kaccha house and constructed the Pakka
house, and dismissed the Appeal.
5. As against the order of 3rd August, 2018, the Petitioners filed an
Appeal before the Administrative Tribunal being Appeal No.5 of 2018.
The Administrative Tribunal noted that the dispute about the area of
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land bearing Survey No.255/6 and that as per the revenue record, the
City Survey No.255/6 was shown as 400 sqr. mtrs. provisionally. It
noted that in the year 1980, again survey was carried out and as per
the actual position of site it was found to be the 300 sqr.mtrs and the
same was confirmed which has not been challenged by the Petitioners
who are relying on the provisional assessment of area of 400 sqr.mtrs.
It further held that the measurements were carried out on 21 st
February, 2017, and on 26th February, 2018 which report was
submitted on 17th April, 2018 and as per the report there are two
residential houses and as far as the permanent construction is
concerned a major part of construction falls within the road boundary
as per the records. The Administrative Tribunal further noted that
there is no document on record to show that objection was raised
during the measurement and it appears that those objections were
raised on 27th February, 2018 stating that the measurements were
carried out improperly and by an officer having no knowledge for
carrying out measurement work. It was held that without specifying
the flaws or irregularity committed by the measurement team a bare
statement would not suffice.
6. Taking note of the measurement carried out by the Competent
Authority, it held that there was encroachment. It further held that
though the Magarwada Panchayat had given NOC to carry out the
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renovation of the land but in the absence of any occupancy certificate,
the said contention is devoid of substance and dismissed the Appeal.
Hence, the present Petition.
7. The contention raised in the Affidavit in reply of the
Respondents reiterates the contents of the notice dated 7 th February,
2017 and 18th March, 2017. It is stated that survey was carried out and
land was measured in presence of Petitioners which shows
encroachment on government land.
8. The affidavit states that provisionally the area of the land
bearing Survey No.255/6 was shown 400 sqr.mtrs and as per actual
position on site the area was found to be 300 sqr.mtrs. It is further
stated that the Village Panchayat does not have any authority to
certify about the legality of the construction and even if the
renovation has been carried out in 2005, there is no occupancy
certificate obtained. The site plan is annexed at Exhibit "B" of the
affidavit-in-reply, highlighting the encroached portion on the
government land.
9. In the affidavit in rejoinder, it is stated that the Petitioners are
having residential house since more than seven decades and
renovation took place in the year 2005 with the necessary permissions
and hence the action for summary eviction not having been taken
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within reasonable time is barred by limitation. It was further stated
that the notification about the major district road was not placed on
record and the copy of the Mamlatdar's report dated 11 th January,
2017 was not furnished. It was stated that in the notification of 24 th
August, 1994, the major district road mentioned is mentioned
"Patalia" and not Patlara. Till today no land is acquired by the
Respondents or the Competent Authority. It is further contended that
the measurements are erroneous as the Petitioners had pointed out
flaws in the measurements carried out by the survey officers which
are not considered.
Submissions:
10. Mr. Mali, Learned counsel appearing for the Petitioners submits
that as there was bonafide dispute about area of land the procedure
of summary eviction under Section 40 of Act of 1968 could not have
been adopted. He submits that since 1961, the Petitioners'
predecessors have been paying the house tax to the Grampanchayat,
in the year 1983, the permission for renovation was taken and in
1995, a certificate is issued by the Grampanchayat that the
construction is not illegal. He would further submit that in January,
2005, extensive repairs were carried out by the Petitioners after
seeking necessary permissions. He has taken this Court in detail
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through the impugned order and would submit that the authorities
have failed to appreciate that the long standing possession cannot be
disturbed by way of summary eviction. He submits that the site plan
of 2017 shows the area as 300 sqr.mtrs. whereas the erstwhile plan
showed the area of plot as 400 sqr.mtrs. He would further handover
the notification dated 24th August, 1994 declaring the major district
roads and would submit that the notification speaks of Moti Daman-
Ambawadi to Zari Causeway Road via Patalia Thana Pardi, whereas in
the present case, the encroachment is alleged on government land at
Patlara Coastal Highway to Patlara Tin Rasta, Moti Daman and that
there is clear discrepancy in the description of the major district road.
He submits that the report of the Mamlatdar of 11 th January, 2017 has
not been served upon the Petitioners. He submits that there is no
dispute about the title of the Petitioners over Survey No.255/6 or the
ownership of the structure, which has been constructed by the
Petitioners. He submits that the site plans which were obtained in the
year 2004 and 2017 does not show any encroachment on road. He
submits that for the first time, by the notice of 2018 an encroachment
has been alleged which has not been substantiated by the
Respondents. In support, he relies upon the following judgments.
(i) Government of Andhra Pradesh v. Thummala
Krishna Rao and Another1,
1 (1982) 2 SCC 134
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(ii) M. Sankaranarayanan v. Deputy Commissioner,
Bangalore and Others2
(iii) Santoshkumar Shivgonda Patil and Ors. v.
BalasahebTukaram Shevale and Others3
(iv) Joint Collector Ranga Reddy District And Anr. v.
D.Narsing Rao and Others4
(v) State of Goa and Anr. v. Serafino Mascarenhas,
deceased through his legal heirs and Ors.5
(vi) Mohan Raj and Others v. Secretary Revenue
Department, Government of Karnataka and Ors.6
11. Dr. Sanjay Jain, Learned counsel appearing for the Respondents
submits that the arguments which are canvassed before this Court,
were not canvassed before the Authority. He submits that the
Petitioners' case before the authority was that Survey No.255/6, is
admeasuring 400 sqr. mtrs. He points out to the pleadings in
paragraph 6 of the petition, about the present site plan showing only
300 sqr. mtrs. in the name of the Petitioners and his uncle, which was
his argued case before the Authorities. He points out the site plan
annexed to the affidavit-in-reply of the Respondents to demonstrate
that the site plan shows clear encroachment. He submits that a title
over Survey No.255/6 is not disputed and there being no title dispute,
the Respondents could have adopted the procedure of summary
eviction. He submits that before the Collector there was no dispute
2 (2017) 13 SCC 661
3 (2009) 9 SCC 352
4 (2015) 3 SCC 695
5 2012 (5) Bom.C.R.207
6 2024 SCC OnLine Kar 21503
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raised about the discrepancy in the description of the road. He would
further point out that the land was measured in the presence of the
Petitioners and accordingly report was submitted which showed the
encroachment and points out the site plan. He submits that the
Petitioners did not raise any dispute about the measurements were
and no counter measurements were carried out. He would further
point out the findings of the Tribunal accepting the measurements
carried out by the Competent Authority in presence of the Petitioners.
He further submits that the reliance on the Grampanchayat
permission of the year 2005 is misplaced as the application was not
for repairs but for purpose of demolition and fresh construction at
which time, the encroachment had taken place on government land.
He would further submit that the conduct of the Petitioners is
required to be noted as he relies upon an NOC of the Grampanchayat,
whereas there is no power vested in the Grampachayat after the
enactment of the Town and Country Planning Act, 1974, which was
applicable. He submits that under Section 44 of the Town and Country
Planning Regulation, the permission can be granted only by the
Planning Authority for carrying out any development and in the
present case, there is no plan, no occupation certificate produced by
the Petitioners. He submits that there are concurrent findings about
site plans showing encroachments which findings of fact cannot be
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assailed in exercise of powers under Article 227 of the Constitution of
India and there is no issue of jurisdictional error.
Reasons and Analysis :
12. The provisions of Section 40 of the Act of 1968 vests the
Collector with the power of summary eviction of a person who is
unauthorisedly occupying or is in wrongful possession of the land
vesting in the Central Government. As per the said provision, if the
Collector forms an opinion that any person is unauthorisedly
occupying or wrongfully in possession of land vesting in the Central
Government, it is lawful for the Collector to summary evict such
person in a manner provided in sub-Section (2). Sub-section (2)
provides for service of notice by the Collector on such person claiming
upon him to vacate the land and in event the notice is not complied
with, the Collector may remove him from such land.
13. The proceedings commenced with the report of Talathi to the
Mamlatdar dated 11th January, 2017 which pointed out the
encroachments carried out on government land from the road
starting from Ambawadi Coastal Highway to Patlara Teen Rasta, Moti
Daman which includes the house constructed by the Petitioners. The
report states that there was field visit and demarcation was carried
out by Field Surveyor of the Enquiry Officer. The non submission of
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this report to the Petitioners is not fatal to the present proceedings as
by this report, the encroachments were brought to the notice of the
Mamlatdar. Subsequently, the notice was issued on 17 th February,
2017 under Section 40 of Act of 1968 and reissued on 18 th March,
2017. The order of removal of encroachment is not based on the
solitary report and survey of the Mamlatdar but is the consequence of
further joint site visit and surveys carried out on 27 th February, 2017,
1st March, 2017 and 26th February, 2018 in presence of Petitioners to
re-verify the status of encroachment. The site plans pursuant to the
surveys shows that the Petitioner's pucca construction has
encroached upon substantial part of government road. The
Petitioners would dispute the description of the road by pointing out
the discrepancy in the notification of 1994. In my view, the
discrepancy is immaterial in light of the clear contents of the notices
dated 7th February, 2017 and 18th March, 2017 as regards the
encroachment near to Patlara-Ambawadi road. The Petitioners were
well aware of the case of encroachment which they had to meet. It is
for the first time in the Petition that a dispute has been raised about
discrepancy in description which cannot be raised for first time in
these proceedings.
14. Coming to the dispute raised by the Petitioners, in response to
the notice of eviction, it is stated that there is no encroachment as the
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construction is on private land Survey No 255/6. The case put up in the
Appeal Memo is that the Petitioners are owners of Survey No 255/6
which was admeasuring 400 square meters as shown in the site plan
of the year 2017 and presently admeasuring 300 square meters as per
the present site plan. The house taxes are being paid since the year
1961 , the renovation permissions were granted by the Magarwada
Panchayat and that the road had been widened by about one to three
feet and it appears that the Respondent wants to widen the road
further by another few feet without adopting due process for
acquisition.
15. Admittedly the site plan of the year 1980 records the
provisional area of the Survey No 255/6 at 400 square meters. The
site plan of the year 1980 as well as the site plans of which copies
were obtained in the year 2004 and 2017 and placed on record at
Page 62 and 63, shows existence of a structure which is touching the
road. The revenue records of Survey No.255/6 reflects the area as 300
square meters. The Petitioners have not raised any challenge to the
revenue records or the reduction of the area of Survey No.255/6 in
any proceedings. It is also not the case of the Petitioners that they
were unaware of the reduction of the area of Survey No.255/6 or that
the reduction is illegal and the Petitioners are entitled to 400 square
meters on which the construction stands. Pertinently by
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communication dated 23rd February, 2017 addressed to the Enquiry
Officer seeking measurement, the Petitioner No.1 has stated that he
is unaware of the proper measurement of Survey No.255/6.
16. The case put up by the Petitioners is that the house property is
standing since last 100 years which has been granted renovation
permissions by the Magarwada Panchayat. The contention is belied
from the site plans which are placed on record showing the existing
site position. The site plan prepared pursuant to the survey carried
out on 26th February, 2018 shows the previous structure as per the
record as well as the new structure. Considering the position of the
structures, it cannot be said that the existing structure is the same old
structure which was renovated from time to time. It was also rightly
pointed out that the application of the year 2004 filed by the
Petitioners with Magarwada Group Gram Panchayat was not for
renovation but for reconstruction as the old structure was to be
demolished. Even if earlier the Petitioner's old structure was adjacent
to the road as shown in the site plans annexed at Page 62 and 63, the
current site plans show that major portion of the Petitioner's
renovated/constructed structure has encroached over the
government land.
17. The purpose of vesting the Collector with powers of summary
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eviction by the statute is to ensure that the government is not
compelled to undergo long drawn litigation. The decision in
Government of Andhra Pradesh vs Thummala Krishna Rao and
Another (supra), held in paragraph 9 as under:
"9. The view of the Division Bench that the summary remedy
provided for by Section 6 cannot be resorted to unless the
alleged encroachment is of "a very recent origin" cannot be
stretched too far. That was also the view taken by the learned
Single Judge himself in another case which is reported in
Meharunnissa Begum vs State of A.P., which was affirmed by a
Division Bench. It is not the duration, short or long, of
encroachment that is conclusive of the question whether the
summary remedy prescribed by the Act can be put into
operation for evicting a person. What is relevant for the
decision of that question is more the nature of the property on
which the encroachment is alleged to have been committed
and the consideration whether the claim of the occupant is
bonafide. Facts which raise a bonafide dispute of title between
the Government and the occupant must be adjudicated upon by
the ordinary courts of law. The Government cannot decide such
questions unilaterally in its own favour and evict any person
summarily on the basis of such decision. But duration of
occupation is relevant in the sense that a person who is in
occupation of a property openly for a appreciable length of
time can be taken, prima facie, to have a bonafide claim to the
property requiring an impartial adjudication according to the
established procedure of law".
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18. Applying the law laid down by the Hon'ble Apex Court to the
facts of present case, the encroachment appears to be of the year
2004-2005 when the Petitioners sought permission for reconstruction
from the Gram Panchayat. It was not disputed by Mr. Mali that the
application of the year 2004 filed by the Petitioners stated that the
structure was dilapidated and was required to be reconstructed. The
observation of the Hon'ble Apex Court as regards the long standing
occupation of a property giving rise to prima facie case of bona fide
claim must be read in context of facts of that case, where the title to
the property was in dispute as to whether the subject plots were
included in the acquisition. In the present case, the title of the
Petitioners over Survey No.255/6 is not disputed and the summary
removal is directed of a structure which encroaches upon the
government land. The encroachment is proved from the surveys
undertaken multiple times in presence of the Petitioners.
19. There is no case made out raising any complicated question of
law or facts requiring adjudication in ordinary courts of law. There are
no submissions canvassed to show the error in the site plans prepared
pursuant to the surveys carried out. It is not enough to state that the
surveys are erroneous without prima facie demonstrating the error.
There is no bonafide claim raised to litigate. It is necessary to make
out a prima facie bonafide dispute which can be resolved only by way
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of established procedure in ordinary courts of law. The discrepancy in
the area of Survey No.255/6 as to whether it is 400 square meters or
300 square meters is immaterial as the revenue records shows the
area as 300 square meters coupled with the fact that the Petitioners
have not raised a plea of the construction being erected by
considering the subject land as 400 square meters. The site plan
submitted alongwith the joint site report of 17 th April, 2018 clearly
shows the old structure as per the record and the present position of
the residential house encroaching upon the major portion of the
government road.
20. Dealing with the citations relied upon by Mr. Mali, a plea is
sought to be taken that the power ought to have been exercised
within a reasonable time. It needs to be noted that the proceedings
came to be initiated pursuant to the report by the Mamlatdar in the
year 2017. There is no material produced on record by the Petitioners
to show the year of construction, the approval of the construction, the
planning permission and the occupation certificate. In the absence of
any material produced by the Petitioners, it is not open for the
Petitioners to assail the summary removal of encroachment using the
shield of limitation. That apart, the decisions relied upon by Mr. Mali
are clearly distinguishable.
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21. In M. Sankaranarayanan v. Deputy Commissioner, Bangalore
and Others (supra), the title which was conferred by way of
conveyance deed in the year 1900 was sought to be disputed after
more than 100 years on allegation of fraud, which the Hon'ble Apex
Court held cannot be permitted. The decision was rendered in
completely different factual scenario and is distinguishable.
22. In Santoshkumar Shivgonda Patil and Ors. v. Balasaheb
Tukaram Shevale and Others (supra), and Joint Collector Ranga
Reddy District And Anr. v. D.Narsing Rao and Others, the Hon'ble
Apex Court held that where statute does not prescribe any time for
exercise of power, the same is required to be exercised within a
reasonable time. There is no quarrel with the said proposition,
however its applicability to the present case is doubtful. An
encroachment on government road which was brought to the
knowledge of the notice issuing authority only in the year 2017 can be
said to be exercised within a reasonable time. If the long standing
encroachments are permitted to remain on the ground of the
summary powers not having being exercised within reasonable time,
there is a danger of private parties colluding with the government
authorities and delaying the action and thereafter raising the aspect
of limitation and delay. In any event in the present case, the report of
Mamlatdar was of the year 2017 which was swiftly acted upon by the
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Deputy Collector by issuing notice and therefore the power was
exercised within reasonable time of acquiring knowledge.
23. In State of Goa and Anr. v. Serafino Mascarenhas, deceased
through his legal heirs and Ors., there was title dispute between the
parties for which civil suit was filed by the Respondents and the Court
considered that the adjudication with regard to title was under
consideration of the Civil Court. In present case there is not title
dispute and no pending adjudication.
24. In Mohan Raj and Others v. Secretary Revenue Department,
Government of Karnataka and Ors, the dispute arose out of
unauthorised occupation of government land in the background of
classification of lands. The subject lands were re-classified after
inordinate delay of five decades which was held to be contrary to law.
The decision is rendered in different factual scenario and is
inapplicable to facts of present case.
25. The present case is a clear case of structure being in existence
on Survey No.255/6, which structure was adjacent to the road.
Subsequently a new structure is erected on Survey No.255/6, which is
positioned differently from the old structure and encroaches upon
major portion of the government road. The site plans on record based
on surveys and measurements carried out in presence of Petitioners
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proves the encroachment. There is no acceptable submission
canvassed to dispute the site plan or the joint surveys carried out. The
Petitioners have neither carried out counter measurements nor filed
any Civil suit to claim title to the portion of encroached land. There is
no actionable claim requiring adjudication in ordinary courts of law by
following the established procedure. To drive the authorities to file a
suit in a case in which the encroachment is proved in respect of
structure which does not have planning permissions, sanctioned plans
or occupation certificate would do injustice to the power vested for
summary removal of encroachment from the government land.
26. The material on record does not indicate any grounds for
disbelieving the measurements carried by the competent authority at
the instance of the Petitioners and in his presence. The Administrative
Tribunal has further noted that no document has been placed on
record to show that objections were raised during the measurement.
It was necessary for the Petitioners to base their submissions on the
measurements which were carried out by the Competent Authority
and demonstrate that the measurements which were carried out
suffered for infirmity or were erroneous and could not have been
relied upon for the purpose of eviction of the Petitioners. There is no
specific challenge raised to the correctness of the measurements
carried out five times.
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27. Reliance placed on the tax receipts since the year 1961 as well
as the permissions from the Grampanchayat are not sufficient to
assist the case of Petitioners particularly considering that the record
shows old structure which did not encroach upon the government
road and it is only the new structure which has been erected without
any permission from relevant planning authorities, which has
encroached upon the road.
28. There are concurrent findings arrived at by the Appellate
Authority as well as the Administrative Tribunal based on the site
plans and surveys carried out by the competent authorities. Under
Article 227 of the Constitution, it is well settled that the High Court is
not vested with unlimited powers to correct erroneous decisions
made within the limits of jurisdiction of the Trial Court and the
Tribunal. As the findings of encroachment are based on the survey
plans and the measurements which do not demonstrate an error
apparent, I am not inclined to interfere in exercise of powers under
Article 227 of the Constitution of India.
29. Resultantly, Petition fails and stands dismissed.
30. Civil/Interim Application, if any, does not survive for
consideration and stands disposed of.
[Sharmila U. Deshmukh, J.]
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31. At his stage, request is made for stay of the judgment for a
period of six weeks. Dr. Sanjay Jain, learned counsel for the
Respondent opposes the said application. Considering that the issue
involves the removal of encroachment which is a house constructed
by the Petitioners, this Court is inclined to stay the judgment for a
period of six weeks.
[Sharmila U. Deshmukh, J.]
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 02/12/2025 19:44:45
