STATE OF GUJARAT versus PATEL RAGHAV NATHA & ORS.

This appeal by special leave is directed against. the judgment of che High Court of Gujarat (Vakil, J.) allowing the application filed by Pace! Ragbav Natha, respondent before us and hereinafCer referred co as the petitioner, and quashing the order daced October 12, 1961, passed by the Commissioner, Rajkot Division. The Commissioner by this order had set aside th~ order of che Collector, dated July 2, I 960, granting pennission co che pecicioner co use some land in Survey No. 417 for non· agricultural purpo'es.

p. 336, margin B

In order co appreciate che contentions raised before us ic is necessary to sec ouc a few facts. The petitioner was a resident of the Stace of Rajkoc and ac an auction effected by the State he acquired on or about September 22, 1938, aj!ricultural land bearing survey No. 417 which in all measured about 12 acres and 12 ganthas. After some acquisitions by the Scace out of this survey number he was left with 2 acres and 10 ganthas of agricultural land. On October 20, 1958, the petitioner applied to che Collector for permission lo converc chis land to non-agricultural use, under s. 65 of che Bombay Land Revenue Code, 1879, hereinafter referred to as the roc1e. This petition was first rejected by the Collector. but che Divisional Commissioner remanded the mauer co the Collector. On remand, the then Collector ol Rajkot, after holding an enquiry, granted permission to the petitioner to use the land for non-agricultural use by his order dated July 2. i 960. Pursuant co this order a sanact was issued by the Collector to th.e petitioner on July 27, 1960. It appears that the sanad was amended on !S'ovember 3. I 960 and December 1, 1960. The sanad was in form MI and a number of conditions were appended to the sanad. Condition 6 of the main sanad provided that "save as herein provided. the grant shall be subject to the provisions of the said code.'' The special conditions originally included a condition that the land shall be used exclusively for constructin)Z residential house> (condition 5) but this condition was altered in :'\ovember 1960.

p. 336, margin C

It appears that the Municipal Commitcee of Rajkot had ob· jected to the grant of permission before the Collector when sketch of the land was sent to the Municipality. The objections as they appear from the order of the Collector granting Che sanad were directed against Che accuracy of che sketch, showing the northern and the western corners of the Ramkrishna Ashram, and regarding the boundaries and situation of the roads in survey Nos. 417 and 418. The Collector had overruled these objections.

pp. 336–337, margin G

The Municipal Committee approached the Commissioner to exercise powers under s. 211 of the Code: The Commissioner noted the objections of the Municipality and after reciting the objections and the arguments of the learned counsel for the petitioner and after inspecting the site, observed :

p. 337, margin A

"From this inspection the contentions of the Municipality as to the existence of the various roads as well as the nature of the Kharaba land has been proved beyond doubt.

p. 337, margin B

In light of the above arguments as well as the site inspection and the papers of the case, I set aside the order of the Collector granting N .A. Permission. I consider, on weighing all evidence cited above, that the

p. 337, margin C

land does not belong to Shri Raghav Na th a." It is this order which has been quashed by the High Court.

p. 337, margin D

The following grounds were urged before the learned Judge :

p. 337, margin D

( 1) The Commissioner or the State Government had no authority under Section 211 of the Code to revise the order of the Collector so as to affect the agreement or sanad granted to him.

p. 337, margin D

(2) The Commissioner's order is not a speaking order as no reasons are given by him for setting aside the Collector's order and, therefore, it should be quashed.

p. 337, margin E

(3) The question of title to the land was not in controversy at all before the Collector and, therefore, it was not open to the Commissioner to permit the Municipality to agitate that question and the Commission had no jurisdiction to decide that question.

p. 337, margin F

( 4) In case the above points are not accepted, the order of the Commissioner is bad even on merits as the Commissioner had erred in law in allowing the question to be agitated before him which were not agitated before the Collector and which involved considerations which were completely foreign to those which were a ctn ally before the Collector.

p. 337, margin F

While dealing with ground No. 1 the learned Judge held that the Commissioner had no jurisdiction to pass an order which would nullify the sanad, and that the sanad was binding on both the parties till it was set aside in due course of law. On the second ground he held that there was some force in the submission. But he observed :

pp. 337–338, margin G

"But at the same time if I had to decide this case on this contention raised, I may not have interfered only

p. 338, margin A

on this ground, with the decision of the Ccmrnissioner". On the third ground he found that it was true that the question of title was agitated by the Municipal Committee for the first time before the Commissioner, though it was primarily for the petitioner to show that he was an occupant within the meaning of s. 65 of the Code. But then the learned Judge decided not to enter into the inerits of the case as he had come to the clear con· clusion that the Commissioner had no authority to pass the order that he did under s. 21 l of the Code.

p. 338, margin A

The learned counsel for the State of Gujarat, Mr. Dheba :, challenges the decision of the High Court that the Commissioner had no jurisdiction to pass the order dated October 12, 1961. The relevant provisions of the Code and the Land Revenue Rules, 1921, hereinafter referred to a~ the Rules, are as follows :

p. 338, margin C

"The Bombay Land Revenue Code, 1879

p. 338, margin D

48. (I) The land revenue leviable on any land under the provisions of this Act shall be assc.;sed, or shall be deemed to have been assessed, as the c::se may be, with referonce to the use of the land- (a) for the purpose of agriculture, ( b) for the purpose of building, and ( c) for a purpose other than agriculture or build-

p. 338, margin D

ing.

p. 338, margin E

(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf.

p. 338, margin F

( 3) Where land held free of assessment on condition of being used for any purpose is used di any time for any other purpose, it shall be liable to ~ssessment.

p. 338, margin G

( 4) The Collector or a survey officer may, subject to any rules made in this behalf under section 214, prohibit the use for certain purposes of any unalienated

p. 338, margin H

(Sikri, ],) land liable to the payment of land revenue, and may summarily evict any hold.er who uses or attempts to use the same for any such prohibited purpose.

p. 339

65. An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct welis or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.

p. 339, margin A

But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first place be applied for by the occupant, The Collector, on receipt of such application,

p. 339, margin B

(a) shall s.end to t!1c applicant a written acknowledgment of its receipt, and

p. 339, margin C

(b) may, after due inquiry, either grant or refuse the permission applied for :

p. 339, margin D

Provided that, where the Collector fails to inform the applicant of bis decision on the application within a period of three months, the permission appli.ed for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknow1edgment, but in any other case it shall be reckoned from the date of receipt of the application.

p. 339, margin D

Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the occupant.

p. 339, margin F

When any such land is thus permitted to be used for any purpose unconnected with agriculture it shall be lawful for the Collector, subject to the general order of the State Government, to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of section 48.

p. 339, margin F

66. If any such land be so used without the permission of the Collector being first obtained, or before the expiry of the period prescribed by section 65, tbe occupant and any tenant, or other person holding~nder or through him, .hall be liable to be summarily evicted by the Collector from the land so used and from the entire field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to th.e new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used, such fine as the Collec- . tor may, sub_iect to the general orders of the Provincial Government, direct.

pp. 339–340, margin G

Any tenant of any occupant or any other person holding under or through an occupant, who shall without the occupant's consent use any such land for any such purpose, and thereby render the said occupant liaable to the penalties aforesaid, shall be responsible to th.e said occupant in damages.

p. 340, margin B

67. Nothing in the last two preceding sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rules made in this behalf by the Provincial Government."

p. 340, margin C

"Land Revenue Rules, 1921 87. (a) Revision of non-agricultural assessment-

p. 340, margin D

(b) When land is used for non-agricultural purposes is assessed under the provisions of rules 81 to 85, a sanad shall be granted in the Form M if the land is used for building purposes, in Form NI if the land is used temporarily for N-A purposes other than building in Form N in all other cases.

p. 340, margin D

Provided that if the land to be used for building purposes is situated within the limits of a municipal corporation constituted under the Bombay Municipal Corporation Act or the Bombay Provincial Municipal Corporation Act, 1949 the Sanad shall be granted in Form M-1; ........ "

p. 340, margin E

The relevant extracts from the agreement (sanad) are given below :

p. 340, margin F

"Whereas application has been made to the Collector (hereinafter referred to as 'the Collector' which expression shall include any officer whom the Collector shall appoint to exercise and perform his powers and duties under this grant) under section 65 of the Bombay Land Revenue Code 1879 (hereinafter referred to as 'the said Code' which expression shall where the context so admits include the rules and orders thereunder) by inhabitant of Madhya Saurashtra being the registered occupant of survey No. 417 in the village of (~ (hereilraI!Cr"refetted"fo~asl'the in the •. Taluka i!PJ)li· =t' which, ex~Oil'\.S.hli.ll·~ ,~"e' ,!:dfltext ~ M: "mils 'lliclude' his .heirs; ex\lclitors, '·1idlliin:i$tflltb~ and assigns).:'for permission.t:~·for bllildµig p~e.s the

pp. 340–341, margin F

plo' of Iand·{hereiirafter referred'. to 'as the ·~w.d Pio?'},'

p. 341, margin A

• describe.d -in 'Ille first Schedule hereto and indicated; by~-.; ,,, .the I7tters . . . . . . on. the '-sitll"' pli?ii ~ J1~11lt,ea . l:l&eto, -fontun'g _patt tof ~ey No. 41-7· anu me:tsih'iil_g, acre~ 2 gµnthas ·n,. be the t>ame aiittliVinote"or Jess. '

p. 341, margin A

" .When used wrl!er rul~.5l for Iand.alre~dy oc~upied·~ . • . l for'agncuni'rra! pufpo~es withfu cerlain surveyed cities ,the period for ;which the ass'essment is Ieviable -will be orijered· to coincide with the- expiry. of 99 years'· P,eriod .runninll in .. that city. " ·r·

p. 341, margin F

-Now'this is ·to' certify"th\lt pe~siop. use f6r building purpose~. th~' ~aid p!Ot 'is here)>y granted subr· ject to tl\e provisio'ns of·the said ·~de,,jllld .Of!, tlle,following conditions, namely" :L · ( 1) Assessment ..... , "

p. 341, margin C

.. • (6) <!:ode provisions applicable ':-Savy except

p. 341, margin C

herein provided, the.· grant shall 'be sub)e<;t to' the proviffeons of this code·.: , · ' '

p. 341, margin C

. . . .

p. 341, margin C

In witness ~herebf the t;oil&t<>r b'f has set his hand and the seal of hi:;· office . .on beliall! 'Of the GoveiJ!or ·of J3omoay, and the- app!iCllnS nas .4lsa"here- Un,to §,et' his hand, this . clay the."'Of "·-._ "19. .' Signature of APpli.cant> ~ Signature an1! ~igttlftions

p. 341, margin E

• . ''Of Mtl)ess"s ' •. Si,gnature of Gol!ector i' Signaftire·llJi1f'desi!f.1ations

p. 341, margin E

~ • • of ·witnesses • We declare that wlio !fas sign&! thik no lice i~. to our personal knowledge', the" persoir'he 'reprd~nts hinise\f to.-~y. and that he ha~' affixed his 'lli!lnarure 'here- ·unto· in our pr~e:sence." ·L .,.,.

p. 341, margin F

It will be noticed that application 1s made under•s. 65· of the Code and it is under s. 65 that the Collector either grants or refuses th~ permission, applied' for . .It will' 9e. further noticed that if the Collector fails to inl'orrii the applic;int of 'his .aecision on the applicatiorr' \vithin a }ieriod of ihree' mont!ls the permission appliesJ for shall be deemi:d.,to,hav~ been gt/lnted~ but-if the Collector. sends a Written acla;i.o\V)edgme1w 'within . seven: day~ frd'ih the date• of receiJlt of the application then tfre !!)fee JIJ.Onths period is reckoned from'"the date-bf ackho'ivledgment, and' in other .cases this operioli is i:eckotfeil from"ihe' oate Of 'receipt' of the in the Taluka (hereinafter referred to as 'the applicant' which expression shall where the context so admits include his heirs, executors, administrators and assigns) for permission to use for building purposes the plot of land (hereinafter referred to as the 'said plot'), described in the first schedule hereto and indicated by the letters. . . . . . on the site plan annexed hereto, forming part of survey No. 417 and measuring acres 2 gunthas 17, be the same a little more or less.

pp. 341–342, margin G

When used under rule 51 for land already occupied for agricultural purposes within certain surveyed cities the period for which the assessment is leviable will be ordered to coincide with the expiry of 99 years' period running in that city.

p. 342, margin B

Now this is to certify that perm1ss1on to use for building purposes, the said plot is hereby granted subject to the provisions of the said code, and on the following conditions, namely :- ( 1) Assessment. .....

p. 342, margin C

(6) Code provisions applicable :-Save except as herein provided, the grant shall be subject to the provisions of this code :

p. 342, margin D

In witness whereof the Collector of has set his hand and the seal of his office on behalf of the Governor of Bombay, and the applicant has also hereunto set his hand, this day the of 1'9 . Signature of Applicant Signature and designations

p. 342, margin E

of witnesses Signature of Collector Signature and designations

p. 342, margin E

of witnesses

p. 342, margin F

We declare that who has signed this notice is, to our personal knowledge, the person he represents himself to be, and that he has affixed his signature hereunto in our presence."

p. 342, margin F

It will be noticed that application is made under s. 65 of ihe Code and it is under s. 65 that the Collector either grants or refuses the permission applied for. It will be further noticed that if the Collector fails to inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted, but if the Collector sends a written acknowledgment within seven days from the date of receipt of the application then the three months period is reckoned from the date of acknowledgment, and in

p. 342, margin G

other cases this period is reckoned from the date of receipt of the L!3SupCl/69-8 to them in any matter in which neither a formal nor a summary inquiry has been held, namely, .... a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.

pp. 342–343, margin H

Ii in any case it shall appear to the State Government or to such officer aforesaid that anv decision or order or proceedings so called for should. be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit;

p. 343, margin A

Provided that an Assistant or Deputy Collector shall not himself 11ass such order in any matter in which a formal inquiry ha~ been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit."

p. 343, margin B

The question arises whether the Commissioner can revise an order made under s. 65 at any time. It is true that there is no period of. limitation prescribed under s. 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

p. 343, margin B

It seems to us that s. 65 itself indicates the length of the reasonable time within which the Commissioner must act unde~ s. 211. Under s . .;5 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the pern1ission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up' his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading ss. 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the perillission. In this case the Commissioner set aside ilie order of the Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late.

p. 343, margin D

We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he badly stated his conclusions without disclosing bis ~. In a matter of this kind the Commissioner should indicate his reasons, however, briefly, so that an aggrieved party may carry the matter further if so advised.

pp. 343–344, margin G

We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant.

p. 344, margin A

In the result the appeal is dismissed with costs. V.P.S. Appeal dismissed.

p. 344, margin B