Gujarat High Court
Devendra Chimanlal Dave vs Dist Collector G'Nagar on 31 August, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/4249/1995 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4249 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
======================================================
1 Whether Reporters of Local Papers may be allowed to see NO
the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
======================================================
DEVENDRA CHIMANLAL DAVE
Versus
DIST COLLECTOR G'NAGAR
======================================================
Appearance:
MR JAL SOLI UNWALA with MS TEJAL A VASHI(2704) for the
PETITIONER(s) No. 1,4
DELETED(20) for the RESPONDENT(s) No. 3
MR JK SHAH, AGP(1) for the RESPONDENT(s) No. 1,2,4
======================================================
CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 31/08/2018
ORAL JUDGMENT
1. By way of this writ petition under Articles 226 and 227 of the Page 1 of 27 C/SCA/4249/1995 JUDGMENT Constitution of India, the petitioner - a registered public trust has prayed for the following reliefs:
"8(A) to quash and set aside the order dated 6/5/1995 of the Gujarat Revenue Tribunal in Review Application No. TEN.C.A. 54/93 Ahmedabad;
(B) to quash and set aside the judgment and order dated 27/8/1993 of the Gujarat Revenue Tribunal in Appeal No. TEN.A.A. 22/92, Ahmedabad;
(C) to quash and set aside the Mutation Entry No. dated 19/12/1969 in Revenue Records of village Koteshwar; (D) to permanently restrain the respondent nos. 1, 2 and 3 and the officers and servants of the Government of Gujarat from treating the petitioners' lands bearing survey nos. 13, 151 and 152 of village Koteshwar as having vested in the Government of Gujarat under any provision of the Devasthan Inams Abolition Act, 1969 and from taking or disturbing the petitioners' possession thereof;
(E) xxx
(F) xxx
(G) xxx"
2. Facts of the case of the petitioner are that the petitioner is the Trust namely Koteshwar Mahadev Trust (for brevity, "the Trust"), who was given permanent grant under Sanad No. 113/1864 as back as in 1864 A.D. of lands admeasuring 564 acres, 4 gunthas of then unsurveyed Inam village: Koteshwar. The Trust is registered at No. A-1795 Page 2 of 27 C/SCA/4249/1995 JUDGMENT under the Bombay Public Trusts Act, 1950 (for brevity, "the Trusts Act") and the entire land was found under Section 19 of the Trusts Act as the property of the Trust. Of the said land, lands admeasuring 432 acres, 33 gunthas, given under survey Nos. 1 to 12 and 14 to 150 which were cultivated by the tenants of the Trust, were declared to have been deemed purchased by the tenants under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 and the remaining land bearing survey Nos. 13 (0.39 guntha), 151 (129 acres and 03 gunthas) and 152 (0.14 gunthas), total admeasuring 131 acres 11 gunthas continued to be of the ownership of the Trust, which is the subject matter of the present petition. The said land was partially cultivated, in part of the land, grass was cultivated and the part of the land was used for grazing for the cattle and remaining part remained fallow. It is the case of the petitioner that without holding an inquiry whatsoever under the Bombay Land Revenue Code, 1879 (for brevity, "the Code"), the Trusts Act or the Devasthan Act, a mutation entry dated 19.12.1969 was posted in the revenue records indicating that the land had vested in the State Government. The Mamlatdar, as designated Collector under the Code, started inquiry under Section 37(2) of the Code, which is numbered as 7 of 1972 and by order dated 15.11.1976, it was held that the subject land belonged to the Page 3 of 27 C/SCA/4249/1995 JUDGMENT Government. Against the said order of the Mamlatdar, appeal being TEN.A.A. 93 of 1980 was preferred before the Gujarat Revenue Tribunal (for brevity, "the GRT") and the GRT, by order dated 01.03.1982, set aside the order of the Mamlatdar on the ground of non-joinder of necessary parties and remanded the matter to the Mamlatdar. The Mamlatdar, thus again held inquiry under Section 37(2) of the Code and by order dated 01.09.1988 held that the subject land vested in the State Government under Section 8 of the Devasthan Act and was of the ownership of the State Government. Against the said order of the Mamlatdar, the trustees preferred appeal being No. 44/88 before the Deputy Collector, Gandhinagar (Prant Officer). The Prant Officer, Gandhinagar by judgment and order dated 24.10.1991 allowed the said appeal and set aside the order dated 01.09.1988 of the Mamlatdar. Pending the said appeal, the trustees had entered into an agreement with Manoramya Resorts on 20.07.1989. It is further the case of the petitioner that District Collector, Gandhinagar issued show-cause notice dated 15.01.1992 to the trustees under Section 211 of the Code as to why the order of the Prant Officer, Gandhinagar dated 24.10.1991 not be set aside. However, no appeal was filed by the State against the order dated 24.10.1991. The trustees objected the revision of the order dated 24.10.1991. The Collector, by Page 4 of 27 C/SCA/4249/1995 JUDGMENT judgment and order dated 06.04.1992, set aside order dated 24.10.1991 and restored the order dated 01.09.1988 of the Mamlatdar. Against the said order of the Collector, the trustees preferred appeal being No. TEN.A.A. 22/92 before the GRT, which, by order dated 27.08.1993, came to be dismissed, being aggrieved and dissatisfied with which, present petition is filed by the petitioner.
3. Heard, learned advocate Mr. Unwala appearing on behalf of the petitioner and learned Assistant Government Pleader Mr. J. K. Shah, for the respondent - State.
3.1 The learned advocate for the petitioner submitted that the short question which is involved in the present petition is whether the authority concerned while exercising the powers under one enactment, can exercise the powers under the other. He submitted that the authority cannot exercise in such a way. It is submitted that the entire inquiry under Section 37(2) of the Code is incompetent and without jurisdiction and void and the mutation entry dated 19.12.1969 made in the village revenue record in favour of the Government is nullity as the said entry was made without giving any opportunity of hearing to the trustees. Besides, in inquiry under Section 19 of the Page 5 of 27 C/SCA/4249/1995 JUDGMENT Trusts Act, the land was held to be the property of the Trust and the findings to that effect were recorded under Section 20 of the Trusts Act and entries were made to that effect under Section 21(1) of the Trusts Act, which are final and conclusive. It is also submitted that there is no controversy as to the existence of the Trust, which is a Public Trust.
3.2 It is further submitted that before the Devasthan Act came into force, there was no controversy that the land was the property of the Trust. It is submitted that Section 80 of the Trusts Act bars jurisdiction of a Civil Court to decide or deal with any question which is under the Trusts Act to be decided by any officer or authority under that Act or in respect of which, the decision or order of such an officer or authority has been made final and conclusive. The learned advocate for the petitioner submitted that the Collector and the Survey Officers within the meaning of Section 37(2) of the Code, are Civil Court within the meaning of Section 80 of the Trust Act. The inquiry under Section 37(2) is a formal inquiry, the decision whereof is subject under Section 37(3) of the Code to any suit instituted in any Civil Court. If such a suit is barred under Section 80 of the Trusts Act, it would be obvious that any inquiry under Section 37(2) of the Code Page 6 of 27 C/SCA/4249/1995 JUDGMENT would also be barred.
3.3 It is further submitted that inquiry under Section 37(2) of the Code is also barred under the provisions of the Devasthan Act. Section 4 of the Devasthan Act provides that if any question arises as to whether any village or portion thereto or land is held under Devasthan Inam or whether any person is an Inamdar or authorized holder, unauthorized holder or inferior holder, the State Government shall hold a formal inquiry and decide the questions and under Section 4(1) of the Devasthan Act; the State Government may authorize an officer to decide the said questions in the like manner. It is submitted that the said decision is subject to appeal or revision before the State Government and the decision of the Government under Sub-section (1), (2) or (3) of Section 4 of the Devasthan Act is final and conclusive and cannot be questioned in any suit or proceedings in any Court. Thus, the question left for the decision of the authorized officer or the State Government under Section 4 of the Devasthan Act can be decided only in the manner provided under Section 4 of the Devasthan Act and not in any formal inquiry under Section 37 of the Code. It is submitted that a decision on the questions referred to in Section 4 of the Devasthan Act must precede the decision on any Page 7 of 27 C/SCA/4249/1995 JUDGMENT questions arising under Section 6 of the Devasthan Act. Unless such decision referred to in Section 4 has been taken in accordance with the provisions of Section 4, the question arising under Section 6 cannot be decided, much less in a formal inquiry under Section 37 of the Code.
3.4 The learned advocate for the petitioner submits that the Deputy Collector (Prant Officer) rightly allowed the appeal No. 44 of 1988 and held that the Trust was the owner of the land and the Collector could not suo motu start the proceedings under Section 211 of the Code as has been done in the case on hand. It is submitted that the Deputy Collector (Prant Officer) had rightly held that the Mamlatdar had not taken any legal evidence much less any evidence recorded in presence of the trustees or after giving the trustees any opportunity of remaining present. Even the statements purported to have been recorded by the Circle Officer do not show the name or signature of the Circle Officer. Survey No. 151 as shown in village revenue records, comprises inter alia cultivable land which was in fact cultivated.
Page 8 of 27
C/SCA/4249/1995 JUDGMENT 3.5 Moreover, it is submitted that without dealing with the contention that the proceedings under Section 37(2) of the Code were incompetent on the ground that the GRT had in Appeal No. TEN.A.A. 22/92 remanded the matter to the Mamlatdar for fresh inquiry, the Collector, wrongly, set aside the order of the Deputy Collector (Prant Officer) dated 24.10.1991 and restored the order dated 01.09.1988 of the Mamlatdar. It is submitted that the Collector failed to appreciate that the GRT considered the only question as to non-joining of necessary parties and had not applied mind to the question of incompetence under Section 37 of the Code or any grounds urged before him. Even on merits, the Collector merely observed that the Prant Officer has not considered Section 8 of the Devasthan Act. 3.6 The learned advocate for the petitioner submitted that the order dated 27.08.1993 of the GRT is contrary to law inasmuch as the GRT has not properly appreciated the facts of the case as well as the contentions raised by the petitioner and thereby, has wrongly rejected the contention that the inquiry under Section 37(2) of the Code was not competent. The GRT also failed to appreciate that the entry made in the revenue record dated 19.12.1969 was made without giving any opportunity of hearing to the trustees and objection to the said entry Page 9 of 27 C/SCA/4249/1995 JUDGMENT does not confer jurisdiction under Section 37 of the Code in the Collector or a revenue officer. The GRT has also erred in observing that no formal order under Section 8 of the Devasthan Act was necessary. The GRT has also erred in upholding the findings of the Collector as to the usage of the subject land. It is also submitted that the GRT has failed to appreciate that the Collector had taken additional evidence which he was not competent to take and thereby, also erred in holding that the decision of the Collector was based on record and not on evidence.
3.7 Thus, making above submissions, the learned advocate for the petitioner has prayed to allow the present petition and to quash and set aside the orders impugned herein. In support of his case, the learned advocate for the petitioner referred and relied upon a decision in the case of Evergreen Apartment Co-operative Housing Society Ltd. Vs. Special Secretary (Appeals), Revenue Department, Gujart State, reported in AIR 1992 Guj 118, more particularly, para 12 of the same.
4. As against this, learned Assistant Government Pleader Mr. J. K. Shah for the respondent - State, by referring the impugned order of GRT, Page 10 of 27 C/SCA/4249/1995 JUDGMENT more particularly, at page 37, submitted that the contention of the petitioner is answered in the observations made by the GRT and no prejudice is caused to the petitioner by the impugned order. He then referred the affidavit-in-reply filed on behalf of the respondent Nos. 1, 2 and 3 and by emphasizing on para 4 onwards submitted that present petition deserves to be dismissed only on the count of suppression of material fact for the reason that present petitioner has entered into registered agreement to sale in the capacity of Trustee and Administrator of the Trust with Manoramya Resorts and Hotels Pvt. Ltd. He further submitted that there are concurrent findings of the authorities against the present petitioner and hence, no interference is called for at the hands of this Court. He also submitted that inquiry under Section 37(2) of the Code was conducted twice and no objection was taken by the petitioner and now, at belated stage, such prayers cannot be granted. Besides, in the aforesaid agreement, a false statement has been made that no litigation is pending and pendency of the litigation is not disclosed in the sale deed and thus, from the aforesaid conduct, it is ample clear that the petitioner has not come with clean hands before the Court and hence, is not entitled to any relief as claimed in the present petition and the petition deserves to be dismissed. In support, the learned Assistant Government Page 11 of 27 C/SCA/4249/1995 JUDGMENT Pleader has relied upon two decisions viz. i) Dalip Singh Vs. State of Uttar Pradesh and Others, reported in (2010) 2 SCC 114, para 1 and 2 and ii) the judgment and order dated 16.01.2018 passed by this Court (Coram: J. B. Pardiwala, J.) in Special Civil Application No. 5349 of 2017.
5. Regard being had to the above submissions and looking to the facts and circumstances of the case, it appears that after the order dated 01.09.1988, passed by the Mamlatdar, Gandhinagar in remand proceedings under Section 37(2) of the Code against the present petitioner, the petitioner preferred appeal under Section 203 of the Code and by order dated 24.10.1991, the Prant Officer, Gandhinagar, allowed the said appeal and set aside the order of the Mamlatdar dated 01.09.1988. The said order of the Prant Officer (dated 24.10.1991) is taken in suo motu revision by the Collector, Gandhinagar and by order dated 06.04.1992, he sets aside the order dated 24.10.1991 against which, the petitioner preferred appeal before the GRT. The said appeal came to be dismissed by order dated 27.08.1993 and review application there against also came to be dismissed by the GRT by order dated 06.05.1995.
Page 12 of 27
C/SCA/4249/1995 JUDGMENT 5.1 As emerges from the record, the petitioner is a religious institution known as 'Shri Koteshwar Mahadev Trust', which is a public trust situated at village: Koteshwar, Taluka and District: Gandhinagar, registered under the Public Trusts Act having registration No. A- 1795. Koteshwar village is a Inamdar village and the land was given as permanent grant and its Sanad No. is 113/1864. Initially, the entire village was unsurveyed, however, in 1966, the record was promulgated and there were survey Nos. 1 to 152. The trust was occupying three survey numbers viz. survey Nos. 13, 151 and 152. It also emerges from the record that the Charity Commissioner, by his order dated 19.09.1969, showed the lands of aforesaid survey numbers as trust property. After enactment and enforcement of Gujarat Devasthan Inams Abolition Act, 1969 (for brevity, 'the Devasthan Act'), the petitioner became occupant of the land in question by virtue of Section 6 of the Devasthan Act. However, thereafter, on 19.12.1969, a mutation entry was posted in the revenue records indicating that the land in question vested in the State Government. Mamlatdar concerned also, by order dated 15.11.1976, held so. Said order came to be set aside by GRT by order dated 01.03.1982 remanding back the matter to the Mamlatdar for want of joining necessary parties. The Mamlatdar again, in the proceedings Page 13 of 27 C/SCA/4249/1995 JUDGMENT under Section 37(2) of the Code, by order dated 01.09.1988, hold the land to be vested in the State Government. Against which, an appeal was preferred by the petitioner and by order dated 24.10.1991, the Prant Officer, Gandhinagar held in favour of the petitioner. The Collector, Gandhinagar, however, in the proceedings under Section 211 of the Code, set aside the order dated 24.10.1991 of the Prant Officer, Gandhinagar and confirmed the order dated 01.09.1988 of the Mamlatdar, Gandhinagar. Against which, an appeal was preferred by the petitioner before GRT, which came to be dismissed by order dated 27.08.1993 and the revision application thereagainst also came to be dismissed by order dated 06.05.1995. 5.2 The learned advocate for the petitioner has raised contention that in view of specific provision made in Section 8 of Devasthan Act with respect to vesting of Devasthan land in Government, inquiry under Section 37(2) cannot be undertaken. In this regard, Section 8 of the Devasthan Act is relevant and hence, it is extracted hereunder:
"8. All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, beds of creeks below high water mark, and beds or rivers, streams and nallas, lakes, wells, tanks, canals and water courses, and all standing and Page 14 of 27 C/SCA/4249/1995 JUDGMENT flowing water, and all lands (excluding lands used for building or other non-agricultural puposes) in respect of which no person is deemed to be an occupant under this Act, and all mines whether being worked or not and minerals, whether discovered or not and all quarries, which are situate within the limits of any Devasthan land shall, except in so far as any rights of any person other than the inamdar may be established in or over the same and except as may otherwise be provided by any law for the time being in force, vest in, and shall be deemed to be with all rights in or over the same or appertaining thereto the property of the State Government and all rights held by an inamdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the general or special orders of the State Government, to dispose of them as he deems fit, subject always to the rights of way and other rights of the public or of individuals legally subsisting."
5.3 Besides, Section 6 of the Devasthan Act provides for occupancy rights in respect of Devasthan land, which is since relevant, is extracted hereunder:
"6. In the case of a Devasthan land, the person deemed to be the occupant primarily liable to the State Government for payment of land revenue in respect of such land in accordance with the provisions of the Code and the rules made thereunder shall,-
(a) where such land is in possession of the inamdar and had
Page 15 of 27
C/SCA/4249/1995 JUDGMENT
been cultivated on behalf of the inamdar immediately before the appointed day, the inamdar,
(b) where such land is in the possession of an authorised holder or an inferior holder, such authorised hold or inferior holder, as the case may be, and
(c) where such land is in possession of a person other than the inamdar, authorised holder, unauthorised holder or inferior holder, the inamdar."
5.4 Thus, under the aforesaid provision of Section 8, all public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, beds of creeks below high water mark, and beds or rivers, streams and nallas, lakes, wells, tanks, canals and water courses, and all standing and flowing water, and all lands (excluding lands used for building or other non-agricultural puposes) in respect of which no person is deemed to be an occupant under this Act, subject to the further provisions made in the said section, shall vest in the State government. If the case on hand is considered, the petitioner, the trust, has got permanent grant under Sanad No. 113/1864 of the subject land situated in Inam village: Koteshwar and the land in question continued to be of the ownership of the trust and the petitioner is the occupant of the same. Accordingly, in the opinion of this Court, when specific provision is made under the Devasthan Act, inquiry under Section 37(2) of the Code cannot be made, more Page 16 of 27 C/SCA/4249/1995 JUDGMENT particularly, when neither any private person not the State Government has ever claimed the right, title or interest therein. 5.5 At this juncture, reference is required to be made to Section 4 of the Devasthan Act. Section 4 is reproduced hereunder:
"4.(I) If any question arises-
(a) whether any village, portion of a village or land, is held under a Devasthan inam, or
(b) whether any Devasthan inam consists of -
(i) merely a total or partial exemption from payment of land revenue, or
(ii) a grant of soil, with or without exemption from payment of land revenue, or
(iii) assignment of land revenue of a village, portion of village or land or a share in such land revenue, or
(c) whether any person is an inamdar, authorised holder, unauthorised holder or inferior holder, the State Government shall after giving an opportunity to the parties to be heard and holding a formal inquiry decide the question:
Provided that the State Government may authorise any officer (hereinafter in this section referred to as "the authorised officer") to decide in the like manner questions arising under clause (a), (b) or (c)."
(2) xxx
Page 17 of 27
C/SCA/4249/1995 JUDGMENT
(3) xxx
(4) xxx
(5) xxx
5.6 From bare perusal of the aforesaid section it transpires that in case of any question arises, as described in the said section, with respect to Devasthan Inams, it is provided that the State Government shall after giving an opportunity to the parties to be heard and holding a formal inquiry, decide the question. In the instant case, the inquiry, as contemplated under the above provision, is not done at all.
5.7 Besides, under the provisions of the Trust Act, more particularly, under Section 19, while registration of a Trust, certain inquiries are required to be done, which, as per the case of the petitioner, had been done and only thereafter, the trust is registered. Section 19 is reproduced hereunder:
"19. Inquiry for Registration:
On the receipt of an application under section 18, or upon an application made by any person having interest in a public trust or on his own motion, the Deputy or Assistant Charity Commissioner shall make an inquiry in the prescribed manner for the purpose of ascertaining-
[a] [(i) whether a trust exists and whether such trust is a public Page 18 of 27 C/SCA/4249/1995 JUDGMENT trust,]
(ii) whether any property is the property of such trust,
(iii) whether the whole or any substantial portion of the subject-matter of the trust is situate within his jurisdiction,
(iv) the names and addresses of the trustee and manager of such trust,
(v) the mode of succession to the office of the trustee of such trust,
(vi) the origin, nature and object of such trust,
(vii) the amount of gross average annual income and expenditure of such trust, and
(viii) any other particulars as may be prescribed under sub-
section (5) of section 18."
5.8 It is nobody's case that the trust is not in existence; it is also not in dispute that the inquiries, as described in Section 19, referred to herein above, are not done; it is also not the case of either party that the trust is not registered. In inquiry under Section 19 of the Trust Act, the land in question stated to have been held to be the property of the Trust and entries also stated to have been made accordingly under the provisions of the Trust Act, which are final and conclusive. In this regard, Sections 79 and 80 of the Trust Act are also relevant and hence, relevant extract is made hereunder:
Page 19 of 27
C/SCA/4249/1995 JUDGMENT "79. Decision of property as Public trust property:
(1) Any question, [a] [whether or not a trust exists and such trust is a public trust] or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner on the Charity Commissioner's appeal as provided by this Act.
(2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court [b] [on application] or of the High Court in [c] [***] appeal be final and conclusive.
xxx"
80. Bar of jurisdiction:
Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, [a] [and in respect of] which the decision or order of such officer or authority has been made final and conclusive.
5.9 In the case on hand, as stated, the Charity Commissioner has decided such question and the property is held to be of the trust property and accordingly, in view of bar under Section 80, referred as above, no Civil Court appears to have jurisdiction by virtue of the said provision and the Collector and the Survey Officers, being Civil Court under the provisions of Section 37(2), such bar appears to have come in way.
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C/SCA/4249/1995 JUDGMENT 5.10 Moreover, it would also be beneficial to refer to the legal proposition as set out in the decision rendered by the Division Bench of this Court in Letters Patent Appeal No. 660 of 2011 in Special Civil Application No. 4758 of 2010, which is confirmed by the Hon'ble Apex Court vide order dated 03.07.2017 passed in SLP No. 5806 of 2012, as the same also touches the issue involved in the petition. For ready perusal, the relevant observations made in the order passed by the Division Bench are extracted hereunder:
"20. We have heard the learned counsel for the parties and perused the relevant provisions of the orders passed by different Courts.
21. Under Sec.37[2] of the Code, Collector or his survey officer can pass an order after formal inquiry and due notice to the parties with regard to any property or any right in or over any properties is claimed by or on behalf of the government or by any person as against the government. Under the said provision as it is the Collector or survey officer who can only pass such order, the order on the revision application under Sec.211 can be passed by the State Government or any revenue officer, who is higher in rank than the Collector.
Amongst the revenue officers, Collector being the highest officer, normally, the State Government can take up revision application under Sec.211 of the Code.
22. There is distinction between Sec.203 [appeal] against an order of a revenue officer to his superior and Sec.211 under which power can be exercised by State Government or certain revenue officers.Page 21 of 27
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23. Under Sec.203, an appeal shall lie from any order passed by any revenue officer to his superior. If the revenue officer is of the rank of Assistant Collector, then, an appeal would lie before the next superior officer. Similarly, if the order has been passed by the revenue officer of the rank of the Deputy Collector, then, appeal would lie before the next superior officer like Collector. If such order has been passed by the Collector, then superior officer may be any Secretary of the Department.
24. On the contrary, such power has not been delegated to the superior officer of the rank of Secretary of the department under Sec.211. Revisional power has been delegated on the State Government and on revenue officers which does not include Secretary of the department. Therefore, no comparison can be drawn between Secs. 203 and 211 of the Bombay Land Revenue Code, 1879.
25. Under Sec.9, Assistant Collector and Deputy Collector are to be subordinate to the Collector. Under Sec. 10, any Assistant or Deputy Collector can be placed in charge of the Collector. When such person is placed as Incharge Collector, he is empowered to pass order under Sec.37[2] only in the capacity of Collector, and not in the capacity of Assistant Collector or Deputy Collector. Therefore, we hold that once an order is passed under Sec.37[2], for all purposes, the order is to be treated to be an order passed by the Collector and cannot be stated to be an order passed by Assistant Collector or Deputy Collector officer subordinate to the Collector.
26. Under Sec.11 of the Code, Assistant to the Collector of the highest rank present in the district succeeds temporarily the office of the Collector and shall be held to be a Collector. In such case, if the highest officer is of the rank of Assistant Collector or Deputy Collector, under Sec.11, on creation of temporary vacancy, such officer succeeds temporarily to the office of the Collector and shall be held to be a Collector. In that capacity also, if any order is passed under Sec.37[2] by such officer who succeeds the office of the Collector, will be deemed to be an order passed by the Collector for all purposes Page 22 of 27 C/SCA/4249/1995 JUDGMENT and cannot be treated to be an order passed by the officer subordinate to the Collector.
27. In the case of Patel Khodidas Gangaram Ramchand v. S.K. Chaudhari, reported in 1972 GLR 1029, the aforesaid facts had not been noticed by the learned Single Judge nor discussed in proper perspective. Learned Single Judge, while discussing in the unreported decision dated 16th June, 2009 in the case of "Virjibhai Jivrajbhai" in Special Civil Application No. 12230 of 2002 also failed to notice the aforesaid provisions and failed to interpret the power under Sec.211 against the order of Collector. Therefore, we hold that the decision rendered by the learned Single Judge in the case of Patel Khodidas Gangaram Ramchand v. S.K. Chaudhari [supra] [1972 GLR 1029] and in the case of Virjibhai Jivrajbhai v. State of Gujarat [Special Civil Application No. 12230 of 2002], do not hold good in the eye of law.
28. So far as the Division Bench decision of the Bombay High Court in the case of Vishnu Dadu Lokhande v. Umabai, reported in 1955 Vol. LVII, 816 is concerned, therein, the Court has discussed Sec. 9 and noticed that only when Assistant or Deputy Collector is put in charge of revenue administration of a taluka, he is authorized to exercise powers of the Collector to perform the duties. On rest of the provision including provision of Sec.211, the Court is silent. Therefore, we hold that the decision of the Bombay High Court in the case of Vishnu Dadu Lokhande v. Umabai, reported in 1955 Vol. LVII, 816, is per in curium and not applicable in the present case.
29. Learned counsel for the respondent stressed on language of the provision that exercise of power by the Assistant or Deputy Collector is made subject to the provision of Chapter XIII of the Bombay Land Revenue Code. We may only observe that all such orders including the orders passed by the Collector are subject to the provisions of Chapter XIII, which relates to "appeals and revision".Therefore, if any orders are passed by any officer of the rank of Assistant Collector, Deputy Collector or Collector, the same are subject to the Page 23 of 27 C/SCA/4249/1995 JUDGMENT provisions of appeal and revision. This does not mean that the Collector can sit in appeal over an order passed by the Collector or Collector can exercise revisional power over an order passed by the Collector.
30. As we have held that an order passed under Sec.37[2] of the Code for all purposes will be deemed to be an order passed by the Collector, at the cost of repetition, we hold that no appeal will lie nor any revision application will lie against such order before an officer of equivalent rank I.e. Collector. The order passed under Sec.37[2] cannot be treated to be an order passed by the Assistant Collector or Deputy Collector nor can Collector entertain an appeal or revision on the ground that it was actually passed by the Assistant Collector or Deputy Collector."
5.11 At the cost of repetition, it is observed that the Mamlatdar passes an order dated 15.11.1976 holding the land belonging to the State Government. The said order was set aside by GRT by order dated 01.03.1982 and the matter was remanded to the Mamlatdar concerned. The Mamlatdar decided the matter under Section 37(2) of the Code i.e. vested powers of Collector, and by order dated 01.09.1988, he again holds the land in question to be of the Government. Against the said order, appeal came to be preferred by the petitioner, and by order dated 24.10.1991, the Prant Officer, Gandhinagar decides the same in favour of the petitioner holding the land to be of the property of the Trust. However, the Collector, Gandhinagar takes said order in revision under Section 211 of the Code and by order dated 06.04.1992, sets aside the aforesaid order Page 24 of 27 C/SCA/4249/1995 JUDGMENT dated 24.10.1991 and confirms the order dated 01.09.1988 of the Mamlatdar. Against the said order, appeal was filed before the GRT, which came to be dismissed and review there-against was also dismissed. A perusal of aforesaid decision vis-a-vis the aforesaid chronology of facts, reveals that order dated 06.04.1992, passed by the Collector, Gandhinagar in revision under Section 211 of the Code, is illegal and not tenable as being against the settled legal position. 5.12 Further, the learned advocate for the petitioner has relied upon a decision in the case of Evergreen Apartment Co-operative Housing Society Ltd. (supra) and submitted that while exercising the powers under one enactment, is not empowered to exercise the powers under the other. In the said decision, in para 12, the Hon'ble Apex Court has observed that, "...So the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment Page 25 of 27 C/SCA/4249/1995 JUDGMENT while proceeding under another enactment". Thus, it is settled position of law that an authority exercising the powers under one enactment cannot exercise such powers under another enactment. 5.13 The learned Assistant Government Pleader has contended that the petitioner has not come with the clean hand and the petition ought to have been dismissed on the said ground only. The said submission is of no avail to the petitioner for the reason that the petitioner has clearly stated in the petition and submitted that it has arrived at an agreement between Manoramya Resorts. Besides, for any suppression or misstatement in the said agreement, either party has remedy available under the law.
6. In view of the aforesaid discussion and observations, in the considered opinion of the Court, present petition deserves to be allowed and is accordingly allowed. The impugned orders dated 06.05.1995 passed by the GRT in Review Application No. TEN.C.A. 54/93 and the order dated 27.08.1993 passed by the GRT in Appeal No. TEN.A.A. 22/92 are hereby set aside. Accordingly, Mutation Entry No. 19.12.1969 made in the revenue record of village Koteshwar is also set aside and the respondents are restrained Page 26 of 27 C/SCA/4249/1995 JUDGMENT permanently from treating the land bearing survey Nos. 13, 151 and 152 of Village: Koteshwar as having vested in Government under the provisions of Devasthan Act and from taking or disturbing the possessions thereof from the petitioner. Rule is made absolute accordingly. No order as to costs.
[ P. P. Bhatt, J. ] hiren Further order:
After pronouncement of this judgment and order, the learned Assistant Government Pleader for the respondent - State requested to stay the operation and implementation of the same for a period of four months, to which, the learned advocate for the petitioner heavily opposed, however, in the facts and circumstances of the case, the said request is declined.
[ P. P. Bhatt, J. ] hiren Page 27 of 27