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.
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Mr. Kamlesh P. Mali, Advocate for the Petitioners.
Dr. Sanjay Jain a/w. Mr.Harsh Dedhia, Advocate for the Respondents.
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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 sa_mandawgad 1 of 22 wp 8665-2023.doc 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 sa_mandawgad 2 of 22 wp 8665-2023.doc 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 sa_mandawgad 3 of 22 wp 8665-2023.doc 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 sa_mandawgad 4 of 22 wp 8665-2023.doc 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 sa_mandawgad 5 of 22 wp 8665-2023.doc 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 sa_mandawgad 6 of 22 wp 8665-2023.doc 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 sa_mandawgad 7 of 22 wp 8665-2023.doc 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 sa_mandawgad 8 of 22 wp 8665-2023.doc
(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 sa_mandawgad 9 of 22 wp 8665-2023.doc 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 sa_mandawgad 10 of 22 wp 8665-2023.doc 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 sa_mandawgad 11 of 22 wp 8665-2023.doc 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 sa_mandawgad 12 of 22 wp 8665-2023.doc 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 sa_mandawgad 13 of 22 wp 8665-2023.doc 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 sa_mandawgad 14 of 22 wp 8665-2023.doc 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".
sa_mandawgad 15 of 22
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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 sa_mandawgad 16 of 22 wp 8665-2023.doc 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 sa_mandawgad 18 of 22 wp 8665-2023.doc 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 sa_mandawgad 19 of 22 wp 8665-2023.doc 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.]
sa_mandawgad 22 of 22
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 02/12/2025 19:44:45