Gujarat High Court
Ghanchi Mohammad Husain Akbarbhai vs State Of Gujarat on 18 April, 2019
Equivalent citations: AIRONLINE 2019 GUJ 41
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/10759/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10759 of 2011
With
CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 10759 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see 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 No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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GHANCHI MOHAMMAD HUSAIN AKBARBHAI
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR. S.I. NANAVATI, LD. SR. COUNSEL WITH MS ANUJA S
NANAVATI(5229) for the Petitioner(s) No. 1
MR. MIHIR JOSHI, LD. SR. COUNSEL(6631) for the Respondent(s) No. 2
MR. KAMAL TRIVEDI, ADVOCATE GENERAL for the Respondent(s) No.
1,3,4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/04/2019
CAV JUDGMENT
Page 1 of 43
C/SCA/10759/2011 CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
"(A) Be pleased to admit this petition;
(B) Be pleased to issue writ or certiorari or any other writ, order of direction, declaring the purported exercise of the Sue-Motu revisional powers u/s.211 vide notice dated 19.01.1988 to have vitiated from the very inception on account of attendant circumstances and consequent order passed by the Collector, Surendranagar in Revision Case No.4/1997-1998 and further order dated 24.06.2011 passed by the Revenue Tribunal in Revision Application No.T.E.N/A.A./26/1998 be quashed and set aside in view of peculiar facts of the present case.
(BB) Be pleased to issue a writ of certiorari or any other appropriate writ, order or direction to quash and set aside the Order dated 16.05.1998 passed by Respondent No.3 Collector, Surendranagar granting the land in question in favour of Respondent No.2 and further Order dated 29.05.1998 passed by SSRD, Revenue Department, State of Gujarat confirming the order dated 16.05.1998 which are at Annexure-"AA" (Colly)., (C ) Be pleased to quash and set aside the impugned orders passed by the Collector, Surendranagar in Revision Case No.4/1997-1998 and further order dated 24.06.2011 passed by the Revenue Tribunal in Revision Application No.T.E.N./A.A./26/1998.
(D) Be further pleased to call for the record and proceedings of the Hakka Chokshi Case No.03/1996-1999 from the Dy. Collector, Dhrangadhra as well as the entire record of the Revision Case No.04/1997-1998 from the office of Collector, Surendranagar for the purpose of examining the propriety of purported exercise of Sue-
Motu revisional powers, in the larger interest of justice.
(E) Pending admission and final hearing be pleased to stay the operation, exercise and implementation of the order passed by the Collector, Surendranagar in Revision Page 2 of 43 C/SCA/10759/2011 CAV JUDGMENT Case No.4/1997-1998 and further order dated 24.06.2011 passed by the Revenue Tribunal to Revision Application No.T.E.N./A.A./26/1998, till the final decision of this petition.
(F) Be pleased to pass any other and further order which may be deemed fit in view peculiar facts of the present case."
2. The case of the writ applicant, in his own words, as pleaded in his writ application, is as under:
4.1 That the petitioner's forefather Bhaiji Gaga, was granted .land at the Sim of Village Halvad. Admeasuring 43 Vighas by the Old Princely State of Dhangadhra in the year 1906 vide Lekh No. 141, which was executed in favour of Bhaiji Gaga on 11/07/1906 and said parcel of land was entered in the Account No. 113 of Bhaiji Gaga.
4.2 That One Koli Jasa Hari was given land by the then Princely State of Dhrangadhra vide Lekh No. 136 and thereby a parcel of land admeasuring 16 Vighas was granted vide Lekh Document Dated 11-06-1923 and it is very relevant to point out that the State has been trying to canvass that "It is quite possible that on non-
fulfillment of conditions, the State may have taken back the land given to forefather of petitioner vide Lekh No. 141".
4.3 That the said portion in the inverted comas has been taken from para 10 of the Affidavit in reply Dated 12th March, 2010 filed by Deputy, Shri Y.P. Joshi in Special Civil Application No. 19/2009 preferred by the petitioner.
It is also further sought to be suggested that due to such alleged breach of condition, the same land may have been taken back and re-granted to Koli Jasa Hari vide Lekh No. 136, which is executed on 11-06-1923. It is really shocking that such an assumption is the only thing that Government has but to the contrary, the said Lekh No. 136 does not give out any such facts nor the said party has ever made any claim with regard to the land in question and the Government has also further stated that since the forefather of the petitioner went to Pakistan, the Original Lekh of 1906 was revoked and land was re-
Page 3 of 43 C/SCA/10759/2011 CAV JUDGMENTgranted vide Lekh No. 136 in the year 1923 but such a version is palpably a sheer concoction as Pakistan was not in existence in the year 1923 at all and this aspect was properly taken into consideration in the first order passed by the Revenue Tribunal. It is clearly indicated therein that such a version is not only based on factual mistake but such a treatment made without due application of mind and in superficial.
4.4 That it is further relevant to point out that there is also another matter wherein also the Hakk Chokshi Suit was filed by the petitioner with regard to Survey No. 2651 with regard to land and the said parcel of land also has been given by the Princely State of Dhrangadhra vide above referred Lekh No. 141 executed on 11-07-1906 and it is curious that in the said matter, there is no case for revocation of the same Lekh No. 141 not the alleged re-grant in favour of Loli Jasha Hari has been put up and, therefore, it is respectfully submitted that the Respondent State is clearly stopped to raise such an afterthought and frivolous defense which has no basis in pleadings before the first court as no written statement or reply has been filed by the Government before the Deputy Collector. Therefore, as a matter of fact, in absence of an defense, there is no scope for raising and allowing any plea to be raised just because it is convenient to the Government and the Government had clearly failed to lead any rebuttal evidence and the Deputy Collector having given cogent reasons, Collector was not justified in re-appreciation of evidence and has seriously committed jurisdictional error by substituting his view only at the dictates of his higher-ups.
That the so-called plea of alleged revocation and re-grant is even otherwise hit by section 93 of the Evidence Act which prohibits any kind of oral evidence de hors the written document. That perusal of the Lekh document in the name of Jasa Hari clearly falsifies such a plea. 4.5 That after the death of Hasanbhai Bhaiji, her widow Aminaben executed will in favour of Mohammad Hussain Haji Akbar as his Legatee vide will Dated 28-04-1986.
4.6 That after the death of Ganchi Bhaiji Gaga, the land in his account stood in the account of Hasan Bhaiji and in the Hakka-Patrak Entry No. 141 was mutated on 15-08- 1953. Late Hasanbhaiji had three sons, namely, Adam Page 4 of 43 C/SCA/10759/2011 CAV JUDGMENT Hasan, Yusuf Hasan and Akbar Hasan.
4.7 That after the death of Ghanchi Hasan Bhaiji, a Varasai Entry No. 1198 was mutated on 15-01-1964 and by virtue of this Entry, the names of Adam Hasan, Akbar Hasan and Yusuf Hasan were entered and Adam Hasan and Akbar Hasan had released their rights and the land in question has come to the individual share of Akbar Hasan and the petitioner being the son of Akbar Hasan, has the ownership and possession of the land in question.
4.8 It is relevant to pinpoint out that the parcel of land granted to Late Bhaiji Gaga had no Survey Number as .the Lekh was executed in the year 1906 and land was specified by the four boundaries and the description given in the Lekh. It is relevant to point out the Survey Numbers came to be given later on when survey was introduced and the measurement took place and as the land is located in the immediate proximity of lake it is known as "Talav-Na-Puran-Vali' and when the measurement took place, through measurement of land (Survey No. 1809] was carried out and said parcel of land was entered in the name of petitioner's forefather but the other parcel of land [Survey No. 1810] could not be measured on account of accumulated water.
4.9 That vide application dated 08-02-1993, Mohammad Husain Akbarbhai has applied for the conversion of agricultural [admeasuring Acre 4-35 Gunthas out of Survey No. 1809] into non-agricultural use and said application had been allowed by the D.D.O., Surendranagar, vide Order Dated 20-05-1993.
4.10 That the land bearing Survey No. 1809 is in the name of the petitioner and the petitioner's title to said land. for which, there is no dispute, is also based on the Lekh No. 141 Dated 11-07-1906 and land admeasuring Acre 3-30 Guntha bearing Survey No. 1810 is also part of 'Talav-Na-Puran-Vali', for which, the petitioner instituted the Hakk-Chokshi Suit before the Deputy Collector. Dhrangadhra based on the very same Lekh No. 141. which came to the registered as Suit No. 3/ 1996-1997 and it is from the said suit, the present proceeding is arising.
4.11 That after the trial of the said Hakk~Chokshi matter, Page 5 of 43 C/SCA/10759/2011 CAV JUDGMENT the Deputy Collector finally decided it vide his order dated 30-12-1997 by elaborate consideration of the rival cases. That while considering the evidence of Talati, the Deputy Collector, has very aptly referred to many admissions and has considered the documents of Lekh No. 141 Dated 11-071906 and the Extract of Account of Ghanchi Bhaiji Gaga and has given the finding of fact that considering the evidence of the claimant/plaintiff and the four-boundaries mentioned in the Lekh No. 141, the ownership of the land established by the plaintiff and on the other hand the defendant State has not produced any evidence to prove its ownership qua the Survey No. 1810. That such finding of fact being based on cogent evidence could not have been upturned into suo-motu revision on un-warranted re-appreciation of evidence that too based on conjectures and surmises not supported by any document much less in absence of such plea before the first court.
4.12 That it is relevant to point out that while proceeding of Hakka Choskhi Case No. 03/1997 was going on, the .respondent No. 2 had applied of for being given the same land for establishing Arts College and in pursuance of such demand the Order Dated 01-01-1998 was passed by the Collector, Surendranagar which was furtherance of a Fax-message Dated 29-12-1997 and by the said Order Dated 01-01-1998, it was conveyed to the Secretary of Respondent No. 2 that the price for the land, as stipulated in the said letter, is required to be deposited and it was further pointed out that since the dispute under Sec. 37(2) of the Bombay Land Revenue Code with regard to the Survey No. 1810 filed by the petitioner is not finally decided, therefore, subject to the final outcome of the said suit, the order of sale in favour of Arts College will be passed and the final decision of the pending matter will be binding to it and or condition to act accordingly, the demand has been accepted in principle.
4.12(A) Petitioners state that. surprisingly though the proceedings in respect of subject land was pending before the Authority, Order dated 16.05.1998 was passed by Respondent No.2 Collector granting the land in question pursuant to the Order passed by the Government Revenue Department dated 29.12.97 upon certain terms and conditions stated therein.
Page 6 of 43 C/SCA/10759/2011 CAV JUDGMENTThe Petitioner preferred the Revision Application under Section 211 of Bombay Land Revenue Code challenging the aforesaid Order dated 16.05.1998 before the Secretary (Appeals), Government of Gujarat (SSRD).
The Petitioner states that Ld. SSRD vide its Order dated 29.5.1998 without assigning any reason, save and except, relying upon the order passed by Revenue Department on 29.12.1997, rejected the Revision Application of the Petitioner.
4.13 That considering the order passed by the Deputy Collector, it apparently gives cogent reasons for holding the land in question to be of private ownership of the petitioner. That suddenly a letter dated 15-01-1998, by the Secretary to C.M., questions the order of Deputy Collector, Dhrangadhra by stating that there are Standing Orders of the Government that at the time of making decision of N.A. inquiry under Sec. 37(2) of the Bombay Land Revenue Code. the concerned officer has to seek the prior approval of the Government. By the said letter, the Collector was obtained or not and the Collector was requested to stay the said order.
4.14 That petitioner was shocked to read the contents of the said letter and more particularly the below quoted passage.
"It appears that the order passed by the Deputy Collector has been issued with malafide intention and after obtaining alleged ratification".
4.15 That the petitioner has reasons to believe that behind the back of the petitioner, the Respondent No.2 has resorted to some political influence at the highest level and the office of Chief Minister has, for the reasons best known to them, has made such a wild allegations against the Deputy Collector without any basis at all. Neither there is any direction to the Collector. to hold departmental inquiry for the alleged allegation of 'mala- fide intention' and 'alleged' gratification'. Such omission, is very vital and gives a strong reason to believe to the petitioner that only with a view to turn-down the order in favour of the petitioner and to favour the respondent No. 2, such an via-media has been resorted.
Page 7 of 43 C/SCA/10759/2011 CAV JUDGMENT4.16 In this context. it is relevant to point out that in the another matter of similar nature where the dispute is about private ownership of the land. but where the Respondent No. 2 is not the party. and where the Mamlatdar had passed the order against the present petitioner has not been found fault with by the office of C.M. This explains why in the matter where the respondent No. 2 is allotted land by Government. aggressive follow-up action had taken place for the revocation of Deputy Collector order that too in such a way, that neither the said Deputy Collector nor the affected party, the preset petitioner, had anything to say in the matter and though it is made to appear that the order of Deputy Collector is set aside on merits, but in fact. it is just a result of political dictates of highest level.
4.17 That the content of the said letter does not reveal any .basis for making allegation of "mala-fide intention"and 'obtaining alleged gratification' by the Deputy Collector.
4.18 That the petitioner has reasons to believe that only with a view to see that any how the order of Deputy Collector is set aside, unwholesome means has been resorted to by the or on behalf of the respondent No. 2. It is also relevant to draw the attention of the Honourable Court to the foot-note of the said letter which indicates the special urgency with which the matter was being pushed by the office of the CM.
4.19 That no sooner the said letter was received by the Collector, Surendranagar, the notice was issued by it for taking the order of Deputy Collector in exercise of suo motu powers under Sec. 211 of the Bombay Land Revenue Code. The timing and the dates of the above referred letter dated 15-01-1998 and the show-cause notice for exercise of suo-motu power Dated 19-01-1998, speaks in volume as to the objectivity or otherwise of the so-called suo-motu powers.
4.20 The petitioner states and submits that from the very inception, the initiation of suo-motu revision proceeding, there is total lack of objective satisfaction and attendant circumstances and correspondence that has taken place and referred herein, goes to show that Page 8 of 43 C/SCA/10759/2011 CAV JUDGMENT the litigation of revisional proceeding was not in furtherance of objective satisfaction of Collector, but it was merely and solely on account of the pressure exerted by the political higher-ups and therefore. such exercise of powers in the garb of suo-motu revision is vitiated from the very beginning.
4.21 it is further relevant to point out that it is a matter of judicial notice that in normal circumstances, whenever power of suo-motu revision is exercised by Collector, it takes some as the decisions of inferior office are periodically examined by the Collector, whereas in the instant case, the order of Dy. Collector, which was dated 30-12-1997. comes under scanner of Collector too fast, just in 20 days. More importantly within just 4 days from the date of order of Secretary, C. M. 4.22 That it is very clear that powers u/s 211 of the Bombay Land Revenue Code are quasi judicial nature and not merely administrative and therefore, the political 'interference at the instance of a party who has adversary rights, is something far from legal. Petitioner has reason to believe that even the purported findings in the order of Collector, are merely an eye-wash whereas the real cause is the political dictates and hence, in substance, the opportunity of being heard has turned out to be illusory and order of Collector, not being on merits of the case is arbitrary and violative of rules of natural justice and fair display.
4.23 That by way of further correspondence, another letter dated 17-01-1998 came to be issued by the Revenue Department and the same also refers to the decision of allotment of land to D. V. Raval College and the Dy. Collector's order whereby the private ownership of Ghanchi Mohamad Hussain Akbarbhai has been accepted. Finally. in the last para it is conveyed to do the needful in the matter and not to give effect to the .order of Dy. Collector.
4.24 That vide another letter dated 23-01-1998, the Collector, Surendranagar was asked to arrange and prove the copies of the record asked for by the applicant.
4.25 That the above-referred letters, goes to indicate the day to day and over-whelming and urgent response in a Page 9 of 43 C/SCA/10759/2011 CAV JUDGMENT matter which is not in an administrative domain but purely a statutory subject u/s 37(2). The government clearly appears to support the demand of land by the Respondent No. 2 by successfully over reaching the process of law and therefore, the whole decision making process is rendered illusory and a mere legal formality 'clearly impinging the fundamental right u/s 14 of the Constitution of India and the twin-principles of equality before law and equal protection of law, is rendered to a mockery by the political interference requiring the intervention by this Honourable Court.
4.26 That after the issuance of the show-cause notice dated 19-01-1998, for exercise of suo-motu power, the Revision Case No. 4/ 1997-98 came to be finally decided vide order dated 16-05-1998 whereby the Dy. Collector's order dated 10-12-1997. is set aside.
4.27 That the petitioner had preferred the appeal on 21- 05-1998 against the Collector's order which came to be decided, at the first instance, vide order dated 11-07- 1998 and the writ petition challenging the said order came to be disposed of vide order dated 28-10-2010 with the direction to re-hear the matter after giving an opportunity of hearing to the petitioners and therefore, the appeal came to be remitted back for the re-hearing on merits.
4.28 That it is relevant to point out that a writ petition has been preferred by this petitioner in 1998 being Special Civil Application No. 1760/ 1998 wherein the order dated 16-05-1998 whereby the disputed land is ordered to be granted to the respondent No. 2 herein wherein this Honorable Court has granted the interim relief vide order 10-08-1999 and parties are directed to maintain the status-quo as to possession and it would be worthwhile to hear and decide the said matter along with the present matter as in both the petitions the issues are related to same parcel of land.
4.29 That the petitioner had applied for the information with regard to the land granted vide Lekh No. 141 dated 11-07-1906 and pursuant to said application, the Mamlatdar, Halvad had provided the necessary information vide order/letter dated 06-12-2006.
4.30 That the petitioner had filed the written Page 10 of 43 C/SCA/10759/2011 CAV JUDGMENT submissions before the Revenue Tribunal wherein all the issues and contentions have been specifically raised by in spite of that due to lack of proper consideration, the matter was remanded for re-hearing.
4.31. The Collector as well as Tribunal have failed to consider that even the Talati has admitted in his cross- examination that how the land bearing Survey No.1810 has been entered in the name of govt. is not known to him. Even the Talati has also stated that an Entry No. 929 which includes all the parcels of land which are govt-land does not include Survey No. 1810."
3. Thus, it appears from the pleadings and the materials on record that there was a dispute between the writ applicant and the State Government as regards the right, title and interest over the disputed land. The dispute, ultimately, was adjudicated by the Deputy Collector, Dhrangadhra in accordance with the provisions of section 37(2) of the Bombay Land Revenue Code. The Deputy Collector declared the writ applicant to be the lawful owner of the land in question. The order passed by the Deputy Collector, in exercise of his powers under section 37(2) of the Bombay Land Revenue Code, was taken up in suo motu review by the Collector, Surendranagar. The Collector, Surendranagar quashed and set aside the order passed by the Deputy Collector.
4. Being dissatisfied with the order passed by the Collector, the writ applicant challenged the legality and validity of the same before the Gujarat Revenue Tribunal. The challenge to the order of the Collector, ultimately, failed before the Revenue Tribunal.
5. In such circumstances, referred to above, the writ applicant has come up with this writ application before this Page 11 of 43 C/SCA/10759/2011 CAV JUDGMENT Court.
6. It also appears from the materials on record that the land in question, ultimately, came to be allotted by the State Government in favour of the respondent No.2. The respondent No.2 is an association and is running Arts & Commerce College at Halvad, District: Surendranagar. On one hand, the writ applicant claims to be the lawful owner of the land in question, whereas on the other, the respondent No.2 claims that the land has been allotted by the State Government in their favour and the same has been developed by them. It is the case of the respondent No.2 that there is a College constructed on the said land and hundreds of students are studying in the said college. The stance of the State Government is that the Collector was justified in taking the order passed by the Deputy Collector in suo motu review and the Revenue Tribunal also committed no error in rejecting the revision application filed by the writ applicant against the order passed by the Collector.
7. When this petition was taken up for hearing, one principal contention was raised by the learned senior counsel appearing for the writ applicant as regards the jurisdiction of the Collector to take the order passed by the Deputy Collector in suo motu review in exercise of his power under section 211 of the Bombay Land Revenue Code. The learned senior counsel argued that when the Deputy Collector adjudicated the claim under section 37(2) of the Code, it exercised the powers of the Collector and, in such circumstances, the Collector could not have taken such order in suo motu review. According to the learned senior counsel, the issue goes to the root of the matter Page 12 of 43 C/SCA/10759/2011 CAV JUDGMENT because the Collector had no jurisdiction to look into the order passed by the Deputy Collector. In support of such contention, strong reliance was placed on a Division Bench decision of this Court, to which, I was a party in the case of Hussainbhai Joyebbhai Bharmal vs. Collector, Letters Patent Appeal No.660 of 2011 in Special Civil Application No.4758 of 2010, decided on 09.09.2011.
8. On this principal issue, there was lot of debate and, ultimately, it was made clear by me before all the learned counsel appearing for the parties that I would decide the principal issue first.
9. On behalf of the writ applicant, the following submissions in writing have been tendered.
"(1) Under Section 37(2) of the Bombay Land Revenue Code, 1879, the Collector is invested with the jurisdiction to decide the dispute of the nature mentioned in the said sub-section.
Section 10 of the Code contemplates that the Collector may place any of the Assistant or Deputy Collectors in charge of the Revenue Administration of one or more of the talukas. In para (2) of the said Section, power is given to such in charge Deputy Collector to perform all the duties and powers conferred upon to the Collector by this Act. However, unless the Collector delegates the power under Section 37(2) of the Code, the Deputy Collector cannot carry out inquiry and pass any order deciding the claim submitted by a person. Therefore, it is an implied delegation of power.
(2) As Assistant Collector and Deputy Collector placed in charge of taluka are also discharging the executive functions/ Revenue Administration, the restriction and/or supervisory power is given to the Collector in paragraph 3 and 4 of Section 10 of the Code. But under guise of the Page 13 of 43 C/SCA/10759/2011 CAV JUDGMENT said supervisory jurisdiction, the Collector cannot exercise an appellate jurisdiction and/or revisional jurisdiction of an order passed under Section 37(2) of the Code, which is in fact passed by the Collector himself.
(3) The power of the Collector under Section 37(2) of the Code is in nature of deciding the rights of the parties wherein one of them is the Government and therefore any appeal against the order passed under Section 37(2) of the Code shall be, in hierarchy, before an independent authority i.e. the Tribunal under Section 204 of the Code r/w Section 9 of the Gujarat Land Revenue Tribunal Act and cannot before the Collector being the higher Officer then the Deputy Collector as contended by other side. Therefore the Collector cannot exercise any appellate or revisional power under the Code.
(4) The contention of the other side is that reading to the provisions of Sections 9, 10 vis-a-vis Section 12 of the Code, there is no delegation provided in Sections 9 and 10 especially, inasmuch as the Collector has power to restrict the delegation as provided in para 3 of Section
10. Therefore, the Assistant or Deputy Collector being a subordinate officer to the Collector, his decision is subject to revision/appeal under Section 203 and/or Section 211 of the Code by the Collector. The aforesaid very contention has been canvassed and considered by this Hon'ble Court in unreported Judgement dated 16.06.2009 in the case of Virjibhai Jivanbhai and Others Vs. State of Gujarat and Others in Special Civil Application 12230 of 2002. However, the said contention so canvassed has been rejected by this Hon'ble Court in Para 19 in the case of Hussainbhai's case (Division Bench Judgement) in Letters Patent Appeal No. 660 of 2011 in Special Civil Application No.4758 of 2010. In the said Judgement, the Hon'ble Court in Para 27 has categorically considered and has held that it is not a good case in the eye of law. Hence, the issue is no longer res integra.
The Division Bench of this Hon'ble High Court was dealing with an identical situation where proceedings under Section 37(2) were conducted by Deputy Collector as delegate of the Collector and thereby inter-alia the Division Bench was concerned with the power of the Collector to exercise suo motu jurisdiction in revising the Order passed by his own delegate. Relevant Paras 18 to Page 14 of 43 C/SCA/10759/2011 CAV JUDGMENT
30. (5) The enquiry/order is carried out by a subordinate officer viz. Assistant or a Deputy Collector performing all the duties and exercise all the powers conferred upon the Collector by this Act whether placed in charge or not but exercising powers under Section 37 (2) of the Code. Therefore, it is the order passed by the Collector himself and, therefore, the Collector cannot revise his own order and cannot sit over the decision of his own.
(6) As provided in sub-section (4) of Section 9 of the Bombay Revenue Tribunal Act, no person other than the Tribunal shall have a jurisdiction to entertain and decide Appeals and revise orders of any person, officers of authority when the said order or a decision is subject to appeal or revision before the Tribunal. As per Schedule I Entry 1 of the said Act, an order under sub-section (2) of Section 37 of the Code is enlisted as one against which an appeal would lie to the Tribunal. Therefore, in the present case, the Collector cannot exercise the revisional jurisdiction otherwise it would be in violation and without jurisdiction due to bar of Section 9(4) of the Tribunal Act.
(7) The term "in charge of a post" is determined by the full Bench of Hon'ble High Court of Madras in the case of A. Savariar Vs. The Secretary, Tamilnadu Public Service Commission, Chennai reported in 2008 (4) CTC 753 and in Paras 3, 4, 5 and 8, the Hon'ble Court has categorically held that an officer is posted as in charge of a post, he discharges the functions of the said post as an officer of that post. Hence, the in charge Deputy Collector once exercising the power of the Collector under Section 37(2) as conferred upon Collector under the Code, means that the Order is passed by the Collector and, therefore, it would not be within the ambit of the revisional or appellate jurisdiction by the Collector to exercise suo moto revisional jurisdiction.
(8) The decision reported in 1992 (Suppl. Vol.) SCC 720 in the case of Yogendra Prasad Vs. Additional Registrar, Cooperative Societies, Bihar 85 Others relied upon by the other side is not applicable to the present facts of the case as in that case, Section 6 in Chapter II contemplates the appointment of a person to be the Registrar of the Cooperative Societies as well as an Additional Registrar Page 15 of 43 C/SCA/10759/2011 CAV JUDGMENT and also appointed persons can assist such Registrar. Such assistants are entitled by statutory operation to exercise the powers of the Registrar under the Act conferred by the State Government. But, it is also provided under Section 56 giving the authority to the Registrar to revise the order on his own or any order passed by a person exercising the power of a Registrar. Hence, the power is conferred upon the Registrar to revise the order passed by person exercising the powers of a Registrar. "
10. On behalf of the respondent No.2 also, submissions have been tendered in writing. The submissions are as under:
"When the Mamlatdar or the Deputy Collector or the Assistant Collector conducted inquiries under section 37(2) of the Code, which provides that where 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, it shall be lawful for the Collector or a survey officer, after formal inquiry of which duo notice has been given, to pass an order deciding the claim. The Hon'ble Division Bench and. the learned Single Judge have held that when an order under section 37(2) of the Code is passed by the Deputy Collector or the Mamlatdar, the Collector cannot exercise the appellate or revisional power, as such order is deemed to have been passed by the Collector himself as the Deputy Collector and/or the Mamlatdar are exercising delegated powers.
5. On plain reading of provisions of sections 8, 8A, 9, 10 and 12 of the Code, it emerges that;
a. The Deputy Collector or the Assistant Collector are exercising their powers who are subordinate to Collector under section 19 when they are placed in charge of the revenue administration of a taluka subject to general orders of the State Government by the Collector. Such powers of the Assistant Collector and the Deputy Collector are subject to provisions of Chapter XIII and therefore, the Collector has power to sit in appeal and revision, but scrutinized the order of the Deputy Collector or the Assistant Collector, who have passed order while performing of the duties and exercised powers conferred Page 16 of 43 C/SCA/10759/2011 CAV JUDGMENT upon and imposed by the Code or any other law for the time being in force so far as regards taluka and talukas in his charge.
b. The proviso as well as the contingency of the Assistant or Deputy Collector, who are not placed in charge of taluka, the Collector is empowered to assign them, specified and particular duties and powers as he may from time to time see fit and therefore, such assignment is also subject to provisions of Chapter XIII (appeal andthe revision) of the Code.
6. With regard to the Mamlatdar exercising powers under section 12, which are imposed upon or delegated to him. by the Collector under the general or special orders of the State Government, which may also include the powers of inquiry under section 37(2) of the Code, the same are also subject to the provisions of Chapter XIII, as per proviso to section 12, which has been inserted by the Legislation by the Gujarat Act No.1 of 1987.
7. In view of the above section of the Act, it is respectfully submitted that the same is not taken into consideration by the Hon'ble Division Bench and therefore, the said judgment can be said to be per incurium as it is given in ignorance of the terms of the statute.
8. The decision of the Hon'ble Division Bench is a decision of sub silentio as the particular point of law involved in the decision is not perceived and logically, the Hon'ble Division Bench should not have decided, as the aforesaid section of the Code was not argued or considered by the Hon'ble Court in detail and therefore, the decision of the Hon'ble Division Bench is said to be passed sub silentio.
9. Reliance is placed in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur reported in (1989) 1 SCC 101. Reliance is also placed on the decision of the Hon'ble Supreme Court in case of Yogendra Prasad Vs Addl. Registrar, Cooperative Society , Bihar, reported in 1992 SCC Supp (l) 720, wherein the Hon'ble Apex Court has held that under the provisions of section 56 of the Bihar and Orissa Cooperative Societies Act, 1935, when the Registrar has exercised revisional powers when his Page 17 of 43 C/SCA/10759/2011 CAV JUDGMENT Assistant or Deputy Registrar was exercising powers of the Registrar; The Hon'ble Apex Court held that the Registrar is the final supervisory authority over the subordinate officers exercising the powers or performing the duties under the Act. Similarly, under the provisions of the Gujarat Land Revenue Code, 1879, the Collector is the final supervisory authority over the subordinate officers exercising the powers or performing the duties of the Collector under the Act. Therefore, mere intention and order passed by the Deputy Collector does not divert the jurisdiction or powers of the Collector as the Collector for appellate revisional jurisdiction.
10. Reliance is placed on the decision of the Hon'ble Supreme Court reported in the case of State of U.P. and Ors. Vs. Synthetics and Chemicals Ltd. and Ors. (1991) 4 SCC 139, wherein under Para 4 and 5 of the said. Judgment. the Hon'ble Supreme Court has explained the principle of per incurium". Para. 4 and 5 is reproduced herein under:
4. Incuria literally means 'carelessness'.In practice per in curium appears to mean per ignoratium.' English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority'. 1944 1KB 718 Young v. Bristol Aeroplane Ltd.. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey 1961 (2) SCR 558 this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury Laws of England incorporating one of the exceptions when the decision of an Appellate Court is not binding.
5. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-
silentio. A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not Page 18 of 43 C/SCA/10759/2011 CAV JUDGMENT perceived by the Court or present to its mind' (Salmond 12th Edition). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. 1941 1KB 675, the Court did not feel bound by earlier decision as it: was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur: AIR 1989 SC 38. The Bench held that, ' precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents."
11. Reliance is also placed on the decision of the Hon'ble Supreme Court reported in case of Maharaja Chintamani Saran Nath Deo Vs. State of Bihar, (1999) 8 SCC 16, wherein the Hon'ble Supreme Court was pleased to hold that though the order is without jurisdiction, but when quashing such order was result in reviving the legal order, then the Court would not interfere in quashing such order, whereby an illegal order is revised. The Hon'ble Apex Court was pleased to hold that in the facts of the case, the order of the learned Member of Board of 'Revenue directing the action to be taken for refund of the excess compensation was valid and proper though he had no jurisdiction to pass the order. It was further held that in the event if it is set aside, it would amount to reviving an invalid order of payment of excess compensation to the appellant. Similarly, in the facts of the present case, if the order passed by the Collector is set aside on the ground of jurisdiction, it would amount to reviving an illegal order passed by the Deputy Collector under section 37(2) of the Code. It may be held that the order passed by the Collector exercising suo motu revisional powers under section 211 of the Code quashing and setting aside the order passed by the Deputy Collector under section 37(2) of the Code is not required to be set aside on the ground of jurisdiction, as the Collector is having jurisdiction under Chapter XIII of the Code, as section 10 provided that the Deputy Collector has to perform all the duties and exercise all the powers conferred upon a Collector by the Code or any other law for the time being in force so far as regards taluka and talukas in his charge subject to provisions of Chapter XIII of the Code.
Page 19 of 43 C/SCA/10759/2011 CAV JUDGMENT12. Reliance is also placed on the decision of the Hon'ble Supreme Court in the case of Arnit Das vs. State of Bihar (2000) 5 488, wherein in para. 20, the Hon'ble Supreme Court enunciated that a decision not expressed by reason or not proceeding on an issue of conscious consideration cannot be deemed to be law declared to have binding effect as contemplated under Article 141 of the Constitution. Para.20 of the said judgment is reproduced herein under;
"20 A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined."
13. Reliance is also placed on the decision of the Hon'ble Supreme Court in the case of Purbanchal Cables and Conductors Pvt. Ltd. and Ors. Vs. Assam State Electricity Board and Ors. 2012 7 SCC 462, wherein theHon'ble Apex Court in Para(s) No.44 to 54, under the heading of "binding precedent and sub-silentio", discussed the Law regarding the principle sub-silentio and when can a Judgment cannot be said to have a binding effect."
11. Thus, the sum and substance of the submissions canvassed on behalf of the respondent No.2 is that the Division Bench decision of this Court in the case of Hussainbhai (supra) does not lay down the correct proposition of law and requires reconsideration.
12. Considering the complex nature of issue involved in this matter, the learned Advocate General, Shri Kamal Trivedi was requested to assist this Court. Mr. Trivedi very graciously assisted this Court on all the relevant aspects of the matter.
Page 20 of 43 C/SCA/10759/2011 CAV JUDGMENTEven, according to Mr. Trivedi, the Division Bench decision of this Court in the case of Hussainbhai (supra) does not lay down the correct proposition of law. Mr. Trivedi also pointed out that the Division Bench decision of this Court in the case of Hussainbhai (supra) could be indirectly said to have been affirmed by the Supreme Court because the SLP preferred by the State Government was rejected. However, Mr. Trivedi pointed out that the SLP was dismissed without any grant of leave and, therefore, the doctrine of merger would not apply. In such circumstances, according to Mr. Trivedi, this Court can very well look into the issue afresh. Mr. Trivedi, the learned Advocate General suggested that this Court should refer the matter to the Hon'ble the Chief Justice for the purpose of constituting a Special Bench to decide this issue.
13. I have heard Mr. S.I. Nanavati, the learned senior counsel appearing for the writ applicant, Mr. Mihir Joshi, the learned senior counsel appearing for the respondent No.2 and Mr. Kamal Trivedi, the learned Advocate General appearing for the State Government.
14. If the dictum of law as laid down by this Court in the case of Hussainbhai (supra) is to be applied, then there should not be any difficulty in quashing both the orders impugned in the writ application. However, before I elaborate further, I must give a fair idea as regards the view taken by this Court in Hussainbhai (supra). In Hussainbhai (supra), the very same issue was raised, i.e, whether the Collector has jurisdiction to entertain a revision application under section 211 of the Land Revenue Code against an order passed under section 37(2) of the Code. The question framed by the Division Bench, Page 21 of 43 C/SCA/10759/2011 CAV JUDGMENT ultimately, came to be answered as under:
"11. Under Sec.37 of the Bombay Land Revenue Code, 1879, all public roads etc. and all lands which are not property of others, belong to the government. Under sub-sec.[2] of Sec.37, where 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, the Collector or a survey officer, after formal inquiry and after giving a notice can pass order deciding the claim. The said Sec. 37[2] reads as under:
"37(2). Where 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, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim."
12.Sec.9 of the Code empowers the State Government to appoint Assistant Collector and Deputy Collector for each district. The said Sec.9 reads as follows:
"9. Assistant and Deputy Collector:-The State Government may appoint to each district so many Assistant Collectors, and so many Deputy Collectors as it may deem expedient; the Assistants shall be called "First", "Second" "Supernumerary" etc. as may be expressed in the order of their appointment.
To be sub-ordinate to the Collector.- All such Assistant and Deputy Collectors and all other officers employed in the land revenue administration of the district shall be subordinate to the Collector."
Their duties and powers have been stipulated under Sec.10 of the Code which are as follows:
"10. Their duties and powers:- Subject to the general orders of the State Government, a Collector may place any of his assistants or deputies in Page 22 of 43 C/SCA/10759/2011 CAV JUDGMENT charge of the revenue administration of one or more of the talukas in his district, or may himself retain charge thereof.
Any Assistant or Deputy Collector thus placed in charge shall, subject to the provisions of Chapter XIII, perform all the duties and exercise all the powers conferred upon a Collector by this Act or any other law at the time being in force, so far as regards the taluka or talukas in his charge;
Provided that the Collector, may whenever he may deem fit, direct any such Assistant or Deputy not to perform certain duties or exercise certain powers, and may reserve the same to himself or assign them to any other Assistant or, Deputy subordinate to him.
To such Assistant or Deputy Collector as it may not be possible or expedient to place in charge of talukas, the Collector shall, under the general orders of the State Government, assign such particular duties and powers as he may from time to time see fit."
13.In case of temporary vacancy of the Collector, his Assistant of highest rank present in the district succeeds temporarily his office under Sec.11, which reads as under:
"11. Collector of the district in case of temporary vacancy:- If the Collector is disabled from performing his duties or for any reason vacates his office or leaves his district, or dies, his Assistant of highest rank present in the district shall, unless other provision has been made by the State Government, succeed temporarily to his office, and shall be held to be the Collector under this Act until the Collector resumes charges of his district or until the State Government, appoints a successor to the former Collector and such successor takes charge of his appointment.
An officer whose principal office is different from that of an Assistant Collector, and who is an Assistant Collector for special purposes only, shall Page 23 of 43 C/SCA/10759/2011 CAV JUDGMENT not be deemed to be an Assistant for the purposes of this section."
14.Duties and powers of Mamlatdar are prescribed under Sec.12.
15.Chapter-XIII relates to "appeals and revision". Under Sec.203, an appeal lies from any order passed by a revenue officer to his superior. The said Sec. 203 reads as under:
"203. Appeal to lie from any order passed by a revenue officer to his superior:- In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not."
16.State Government and certain revenue officers have power to call for and examine the record and proceedings of subordinate officers by way of a revision under Sec.211 of the Code. The said Sec. 211 of the Code reads as under:
"211. Power of State Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers:-The State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
The following officer may in the same manner call for an examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held, Page 24 of 43 C/SCA/10759/2011 CAV JUDGMENT namely, a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.
And to pass orders thereon, - If in any case, it shall appear to the State Government, or to such officer aforesaid, that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereupon as it or he deems fit.
Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit."
Referring to sub-sec.[1] of Sec. 10 of the Code, learned Government Pleader contended that the Collector may place any of his assistants or deputies in charge of the revenue administration of one or more talukas in his district and under such provision, if any Deputy Collector is made Incharge Collector, he may pass an order under Sec.37[2], but such order will be subject to the provisions of Chapter-XIII. Therefore, according to him, if an order is passed by a Deputy Collector under Sec.37[2] of the Code, the Collector being the higher authority, has jurisdiction to decide the appeal, if any, filed against such order under Sec.203 or may suo motu take up the matter in revision under Sec.211 of the Code.
17. He placed reliance on the decision of the learned Single Judge, in the case of Patel Khodidas Gangaram Ramchand v. S.K. Chaudhari, reported in 1972 [0] GLH 1029. In the said case, the petitioner contended that the Deputy Collector or Assistant Collector, while exercising power under Sec.37[2] exercised such power as Collector, hence, the appeal would not lie to the Collector. The learned Single Judge held that when Sec.37[2] of the Code speaks of the powers of the Collector and about the order passed by the Collector to dispose of the land referred to in Page 25 of 43 C/SCA/10759/2011 CAV JUDGMENT Sec.37[1] wherever a Deputy Collector or an Assistant Collector has been placed in charge of a taluka the words "Deputy Collector" must be taken by Sec.10 paragraph 2 to be substituted for the word "Collector". This is not a question of a delegation of the functioning of the Collector but a substitute as provided by the statute functioning under Sec. 37[2]. The very section which provides for substitution of the Collector by Deputy Collector or Assistant Collector also by parenthetical clause provides that the orders of the Deputy Collector or Assistant Collector are subject to appeal or revision of the immediate superior of the Deputy Collector or Assistant Collector and by virtue of Sec. 9 second paragraph, it is clear that the immediate superior of the Deputy Collector is the Collector and none else.
18. Learned Government Pleader also referred to Bombay High Court decision in the case of Vishnu Dadu Lokhande v. Umabai, reported in 1955 LVII, Bombay Law Reporter, 816. In the said case, the Division Bench held that mere appointment by the State Government under Sec.9 of an Assistant Collector or a Deputy Collector, does not confer upon an Assistant or Deputy Collector the powers of the Collector. It is only when an Assistant or Deputy Collector is put in charge of the revenue administration of a taluka that he is authorized to exercise powers of the Collector and to perform the duties of the Collector in regard to the taluka in his charge. An order passed by a Deputy Collector or by an Assistant Collector under any law for the time being in force is in the absence of any express provision of the Code or of any other law appealable or revisable in the manner provided by Chapter XIII. Therefore, the Court held that the immediate superior of a Mamlatdar is not the Collector, but the Assistant or Deputy Collector in charge of the taluka where the Mamlatdar is functioning. Section 203 of the Bombay Land Revenue Code which provides for appeals against the decisions of revenue officers provides that, in the absence of any express provision of this Act or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under the Code or any other law for the time being in Page 26 of 43 C/SCA/10759/2011 CAV JUDGMENT force, to that officer's immediate superior.
19. Reliance was also placed on the unreported decision of the learned Single Judge dated 16th June, 2009, passed in Special Civil Application No. 12230 of 2002 in the case of Virjibhai Jivrajbhai and 2 others v State of Gujarat & others, wherein, the learned Single Judge held that it is incorrect to say that the Deputy Collector was exercising the powers of the Collector under Sec.37 or Secs.62 and 63 of the Land Revenue Code. He was exercising his own powers as inferior officer, whose decisions were liable to be subjected to appeal under Section 203 of the Land Revenue Code.
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.
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 Page 27 of 43 C/SCA/10759/2011 CAV JUDGMENT 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 and cannot be treated to be an order passed by the officer subordinate to the Collector.
27. In the case of Patel Khodidas Gangaram Page 28 of 43 C/SCA/10759/2011 CAV JUDGMENT 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 provisions of appeal and revision. This does not mean that the Collector can sit in appeal over an order passed by the Collector Page 29 of 43 C/SCA/10759/2011 CAV JUDGMENT 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.
31. In the present case, as we find that the order of revision has been passed under Sec.211 by the Collector, Rajkot, we hold that the impugned order is illegal and in any case, the matter having already settled under Sec.37[2] on remand, the respondents are bound to comply with the directions issued by the Incharge Collector under Sec.37[2] of the Code. Respondents are accordingly directed to act on the basis of such order passed under Sec.37[2] of the Code and pass necessary order.
32. The appeal is allowed. The order passed by the learned Single Judge is set aside. There shall be no order as to costs."
15. Thus, the Division Bench of this Court took the view that an order passed under section 37(2) of the Code, for all purposes, will be deemed to be an order passed by the Collector, and no appeal will lie nor any revision application will lie against such order before an officer of an equivalent rank, i.e, the Collector. The Division Bench held that the order passed under section 37(2) of the Code cannot be treated to be an order passed by the Asst. Collector or the Deputy Collector nor can the Collector entertain an appeal or revision on the ground that it was actually passed by the Asst. Collector Page 30 of 43 C/SCA/10759/2011 CAV JUDGMENT or the Deputy Collector.
16. The sum and substance, or rather the ratio in Hussainbhai (supra) is that the power exercised by the Deputy Collector under section 37(2) of the Code are delegated powers of the Collector and, in such circumstances, it could be said that the order passed by the Deputy Collector under section 37(2) of the Code is as good as an order passed by the Collector. The entire emphasis in the Division Bench decision in the case of Hussainbhai (supra) is on delegation of powers.
17. Before adverting to the rival submissions canvassed on either side, I must, once again, look into few provisions of the Code.
18. Section 8 reads as under:
"Sec.8:-Collector of the district:- The [the (state) Government] shall appoint in each district as officer who shall be the Collector and who may exercise, throughout his district, all the powers and discharge all the duties conferred and imposed on a Collector or an Assistant or Deputy Collector by this Act, or any other law for the time being in force and in all matters not specially provided for by law shall act according to the instructions of [the (state) Government]."
19. Section 8-A reads thus:
"Sec.8-A:- Additional Collectors:- (1) The State Government may appoint in each district so many Additional Collectors as it may deem fit. The Additional Collector shall exercise such powers and discharge such duties as are exercised or discharged by the Collector in the district or a part of district under this Act or any other law for the time being in force as the State Government may direct."Page 31 of 43 C/SCA/10759/2011 CAV JUDGMENT
20. Section 9 reads thus:
"Sec.9:-Assistant and Deputy Collector:-The [the (state) Government] may appoint to each district so many Assistant Collectors, and so many Deputy Collectors as it may deem expedient, the Assistants shall be called "First", "Second", "Supernumerary" etc. as may be expressed in the order of their appointment.
To be sub-ordinate to the Collector:- All such Assistant and Deputy Collectors and all other officers employed in the land revenue administration of the district shall be subordinate to the Collector.
21. Section 10 reads as under:
"Sec.10:- Their duties and powers:- Subject to the general orders of [the (state) Government], a Collector may place any of his assistants or deputies in charge of the revenue administration of one or more of the talukas in his district, or may himself retain charge therof.
Any Assistant or Deputy Collector thus placed in charge shall, subject to the provisions of Chapter XIII ,perform all the duties and exercise all the powers conferred upon a Collector by this Act or any other law at the time being in force, so far as regards the taluka or talukas in his charge.
Provided that the Collector , may whenever he may deem fit, direct any such Assistant or Deputy not to perform certain duties or exercise certain powers, and may reserve the same to himself or assign them to any other Assistant or, Deputy subordinate to him.
To such Assistant or Deputy Collector as it may not be possible or expedient to place in charge of talukas, the Collector shall, under the general order of [the (state) Government] , assign such particular duties and powers as he may from time to time see fit."
22. Section 11 reads thus:
"11. Collector of the district in case of temporary vacancy. - If the Collector is disabled from performing his duties or for any reason vacates his office or leaves Page 32 of 43 C/SCA/10759/2011 CAV JUDGMENT his district, on dies, his Assistant of highest rank present in the district shall, unless other provision has been made by [the [State] Government], succeed temporarily to his office, and shall be held to be the Collector [***] under this Act until the Collector resumes charge of his district or until the [ [State] Government], appoints a successor to the former Collector and such successor takes charge of his appointment.
An officer whose principal office is different from that of an Assistant Collector, and who is an Assistant Collector for special purposes only, shall not be deemed to be an Assistant for the purposes of this section."
23. Section 12 reads thus:
Sec.12:- The Mamlatdar, his appointment. - The chief officer entrusted with the local revenue administration of a taluka shall be called a Mamlatdar. He shall be appointed by the [ [State] Government].
His duties and powers. - His duties and powers shall be such as may be expressly imposed or conferred upon him by this Act or by any other law for the time being in force, or as may be imposed upon, or delegated to him by the Collector under the general or special orders of [[State] Government] [***] [A decision or order of a Mamlatdar in performance of the duties and exercise of the powers, imposed or conferred upon him or delegated to him, under this section, shall be subject to the provisions of Chapter XIII.
24. Section 203 reads as under:
"Sec.203. Appeal to lie from any order passed by a revenue officer to his superior. - In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not.
25. Section 211 reads as under:
Page 33 of 43 C/SCA/10759/2011 CAV JUDGMENT"Sec.211. Power of [State] Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers. - The [[State] Government] and any revenue officer, not inferior in rank to [an Assistant or Deputy Collector] or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for purpose of satisfying [itself or himself, as the case may be,] as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. The following officer may in the same manner call for and examine the proceedings of any officer subordinate 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. And to pass orders thereupon. - If in any case, it shall appear to the [ [State] Government], or to such officer aforesaid, that any 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. [ Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit.]"
26. Mr. Joshi, the learned senior counsel appearing for the respondent No.2 pointed out two very pertinent features relevant for the purpose of deciding the present issue. The first thing Mr. Joshi pointed out was that in Hussainbhai (supra), the Deputy Collector was, in fact, "incharge" Collector. This word "incharge" should not be construed as the Collector putting his assistants or deputies in charge of the revenue administration of one or more Talukas in his district. The endevour on the part of Mr. Joshi was to draw a fine distinction between an "incharge" deputy collector and the Deputy Collector being put in charge by the Collector of the Revenue Page 34 of 43 C/SCA/10759/2011 CAV JUDGMENT Administration.
27. I must, at this stage, state that in this regard, Mr. Nanavati has placed reliance on one Full Bench decision of the Madras High Court in the case of A. Savariar vs. The Secretary, Tamil Nadu Public Service Commission, Chennai, reported in 2008(4) CTC 753, wherein the term in- charge has been interpreted. I may quote the relevant observations:
"5. Though not the term in-charge is defined in any of the Rules applicable in relation to the Government Offices, as per the above said judgment, when an officer is posted as in-charge of a post, he discharge the functions of the said post as an Officer of that post. Consequently, he can exercise the statutory powers of the said post. That apart when a vacancy is filled by way of an in-charge, unless the statutory functions of the said post is exercised by an officer who is posted as in-charge, the functions of the said post will become a stand still which will have a consequence in administration.
6. When an officer is posted as in-charge, the question that arises is whether the powers and functions of the said post is exercised by the competent authority. Learned counsel has relied on the judgment reported in Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg, 1977 (2) SCC 457 wherein the issue is, the respondent therein was working as a conductor in the Road Transport Department of the erstwhile State of Hyderabad prior to the coming into force of the States Reorganisation Act, 1956. Consequence upon coming into force of the said Act, the respondents were allotted to the new State of Mysore but their employment as conductors was continued in the Depots which became parts of the Mysore Government Road Transport Department. As a result of the disciplinary proceedings taken against them for certain cash and ticket irregularities alleged to have been committed by them, they were dismissed from service by the Divisional Controller of the Mysore Government Road Transport Page 35 of 43 C/SCA/10759/2011 CAV JUDGMENT Department in December 1960 and the orders of dismissal were affirmed by the General Manager. However, the suits were filed for declaration that the aforesaid orders of dismissal passed by the Divisional Controller was illegal. The point therein is their appointment being made by the Superintendent of the Road Transport Department of the erstwhile State of Hyderabad, who was the Head of the Department, their dismissal from service could only be by the General Manager of the Department. Consequently, their dismissal by the Divisional Controller who was not the Head of the Department but a subordinate of his, is in violation of the right guaranteed to them under Article 311(1) of the Constitution. In the said judgment, the Honourable Apex Court has held as follows:
"It has to be read in conjunction with, construed and understood as having the same meaning as the expression 'appropriate authority' contemplated by sub- section (1) of that Section which in turn according to Article 311(1) of the Constitution means the appointing authority or an authority equivalent to or coordinate in rank with the appointing authority."
At page No. 464 of the said judgment it is held that the word 'subordinate' in Article 311(1) must be properly construed to mean subordination in rank and not subordination of function; otherwise, the protection referred to in Article 311 would be illusory. At Page No. 465 of the said judgment, it is held as follows:
"The authority equivalent to or coordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to the appellants' own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'competent authority' in terms of sub-section (2) of Section 116 of the States Reorganisation Act, 1956. The fact that there is no post of Superintendent of the Traffic in the Mysore Government Road Transport Department in the state of Mysore is of no consequence. Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee Page 36 of 43 C/SCA/10759/2011 CAV JUDGMENT enshrined in Article 311 of the Constitution read with Section 115(7) of the States Reorganisation Act, 1956."
7. Under such circumstances, unless contrary intention is expressed by the Government either by way of a statutory provision or by way of an executive instruction, a Government servant who holds the post as in-charge has got power/to discharge the statutory functions and responsibilities of the said post.
8. Besides since already this issue has been covered by the judgment of the Honourable Apex Court reported in Gopalji Kanna v. Allahabad Bank, 1996 AIR SC 1729 as referred above, we are of the opinion, the view of the Division reported in C. Baskaran v. The District Collector, Trichy, 1997 Writ L.R 33 rendered in W.A No. 1054 of 1983 is not a correct law. Consequently, we hold that an officer-in-charge of a post has got power to discharge the powers and statutory functions of the said post.
9. Consequently, as far as the point of reference is concerned, we hold that the Officer who is holding the post in-charge has got power to discharge the powers and statutory functions of the said post. Registry is directed to place the papers of the Writ Appeal before the appropriate Bench for disposal."
28. Prima facie, I am impressed by the submission of Mr. Joshi that "incharge" goes with the post while "in-charge" goes with the administration of one or more Talukas. What requires to be reexamined so far as the Division Bench decision of this Court in Hussainbhai (supra) is concerned, is whether there is any provision of any delegation of the Collector's powers in favour of the Deputy Collector?. The Division Bench of this Court in Hussainbhai (supra) proceeds on the footing that the powers of the Collector being delegated to the Deputy Collector, such powers exercised by the Deputy Collector, in substance, are those of the Collector himself. I could lay my hands on one decision of this Court in the case of President, Ramdevpir Sampardayik Vs. The President Avdhut Page 37 of 43 C/SCA/10759/2011 CAV JUDGMENT Sampardayik, Special Civil Application No.1023 of 1974, decided on 23rd January, 1978. I find that there is no reference of this decision in the Division Bench decision of this Court in the case of Hussainbhai (supra). In the said case, the issue was whether the Collector had the authority to sit in appeal over the decision of the Deputy Collector, who was exercising the Collector's powers as his delegate. A learned Single Judge of this Court held as under:
"The first contention put forward by the petitioner was that the Collector had no authority to sit in appeal over the decision of the Deputy Collector, who was exercising the Collector's powers as his delegate. At first blush this argument appears to be quite attractive, but if we turn to Sec. 10 of the Land Revenue Code, in paragraphs 2 thereof, we find a specific mention that a Deputy Collector and Assistant Collector exercise all the powers of the Collector in that particular division, but it is always 'subject to the provisions of Chapter 13 of Land Revenue Code deals with appeals and revisions. Unlike Sec. 12, which deals with the Mamlatdar's powers consisting of two parts, namely the statutory powers of the Mamlatdar under the Land Revenue Code and the Powers of the Mamlatdar as a delegate of the Collector, there is no provision of any delegation of the Collector's powers in favour of the Deputy Collector. Therefore, it is incorrect to say that the Deputy Collector was exercising the powers of the Collector under Sec. 37 or Secs. 62 and 63 of the Land Revenue Code. He was exercising his own powers as an inferior officer, who decisions were liable to be subjected to appeal under Sec. 203 of the Land Revenue Code. The legal challenge, therefore, to the order on this Court does not survive."
29. I am of the view that the issue needs to be re-examined by a Larger Bench keeping in mind the following aspects as argued by Shri Kamal Trivedi, the learned Advocate General.
(I) As per section 9 of the Gujarat Land Revenue Code, 1879 ("the Code" for short), all the officers employed in the land Page 38 of 43 C/SCA/10759/2011 CAV JUDGMENT revenue administration of the District like the Assistant Collectors and the Deputy Collector are statutorily made subordinate to the Collector. If that be so, and when they discharge the function of the Collector, whether they could be said to continue to be the subordinates to the Collector? If they continue to be the subordinates to the Collector, then what would be the position so far as section 37(2) of the Code is concerned.
(ii) As having been placed "in-charge" or as having been "assigned" by the Collector under section 10 of the Code, whether the Assistant Collector or the Deputy Collector exercise their own powers as subordinate officers. Prima facie, the concept of "delegation" is conspicuously absent in section 10 of the Code. The Assistant Collector or the Deputy Collector cannot be stated to be delegates of the Collector, but are, in fact, the substitutes for the Collector and do not cease to be the subordinate officers to the Collector. If that be so, then whether their orders are subject to appeals/revisions before the Collector.
(iii) The word "delegation" as used in section 12 of the Code, prima facie, appears to be wider in scope than the words "in- charge" and "assigned" as used in section 10 of the Code.
(iv) However, under section 12 of the Code, the scope of delegation remains conditional/limited in view of it being subject to the provisions of Chapter XIII of the Code; relating to Appeal and Revision; meaning thereby the orders of Mamlatdar are always subject to appeals/revisions before the Deputy Collector or the Assistant Collector in charge of the talukas Page 39 of 43 C/SCA/10759/2011 CAV JUDGMENT where the Mamlatdar is functioning and who is immediate superior of a Mamlatdar.
(v) It appears, prima facie, that the phrase "subject to the provisions of Chapter-XIII" occurring in sections 10 and 12 of the Code, have been used by the State Legislature with a purpose, i.e., to check and prevent misuse of exercise of power.
(vi) In contradistinction with sections 10 and 12 of the Code, section 11 thereof deals with "Incharge Collector", meaning thereby section 11 provides for the eventualities where the officer concerned becomes the 'incharge Collector' and functions as a full-fledged Collector. So is the position in regard to section 8-A relating to the Additional Collector who is not subordinate to the Collector.
(vii) Prima facie, it appears that in view of the above, the orders passed by the Assistant Collector or Deputy Collector under section 10 of the Code will be appealable to the Collector under the provisions of Chapter XIII of the Code, whereas the order passed by the Mamlatdar under section 12 of the Code will also be appealable as per the provisions of Chapter-XIII of the Code and not to the Revenue Tribunal inasmuch as in view of section 9 of the Gujarat Revenue Tribunal Act, 1957, only orders passed by the officers not below the rank of the Collector would be before the said Tribunal.
30. At this stage, let me refer to the Collector Manual, Chapter 18. The relevant part is reproduced hereinbelow:-
Page 40 of 43 C/SCA/10759/2011 CAV JUDGMENT"5. As per amendment made in Section 12 of L. R. Act, order made by Mamlatdar or order is subject to chapter‐ 13 of L.R. Code, appeal can be filed to Deputy Collector against such decisions or orders made in inquiry under Section 37(2) of L. R. Act.
6. At the end of inquiry under Section 37(2) of L. R. Act if Mamlatdar takes decision against interest of Government, he should immediately send the case papers & copy of order to Prant Officer. Prant Officer will review the matter in detail looking to right/interest of Government, make recommendation to take it revision under Section 211 of L. R. Act and if he agrees with decision of Mamlatdar, he should send the case papers to district Collector within 7 days from the date of receipt of case showing reasons. If Collector feels it proper to take the case in revision, he shall undertake systematic proceedings, make formal order. But if agrees with decision of Mamlatdar, Prant Officer, he should show the reasons and return the case.
7. When Assistant or Deputy Collector not in charge of taluka has decided claim against Government under Section 37(2) of L. R. Act, he should immediately send the case papers and copy of his order to the Collector who will go through the case papers and decide whether dispute should be filed before Revenue Tribunal or not within 7 days of date of receipt. If he fills it properly to file it before Revenue Tribunal (R.T.), he should immediately send the case papers to Government Pleader for filing it before R. T. and if Collector does not feel it so, he should submit the papers to Government within 7 days.
8. When Assistant or Deputy Collector in charge of taluka has decided the case against Government, the Revenue Tribunal has no powers to decide the dispute against their decision. In such cases, the proceedings should be undertaken as shown in chapter‐ 13 of L. R. Code. If the decision of Deputy/Assistant Collector is against Government under Section 37(2) of L. R. Act, he should immediately send the case papers and copy of his decision to Collector, who will, if feels it proper to take the case in revision, undertake systematic proceedings Page 41 of 43 C/SCA/10759/2011 CAV JUDGMENT and shall pass the orders. But if he agrees with the order of Prant Officer, he shall submit the papers to Government within 7 days of its receipt showing reasons for it.
9. If survey mamlatdar has decided case under Section 37(2) of L. R. Act against Government, since Revenue Tribunal has no powers to hear such dispute or take it in revision, proceedings as shown under chapter‐13 of Land Revenue Code should be taken. Survey Mamlatdar may be under control of Collector or Settlement Commissioner and Director of Land Records.
A. If survey Mamlatdar has decided case under Section 37(2) of L. R. Act against Government and he may be in equal cadre of Mamlatdars, the proceedings as shown in para‐6 of this Circular should be done and if he is Officer of higher category, the proceedings as shown in para‐8 of this Circular should be done.
B. If the survey Mamlatdar has decided the case under Section 37(2) of L. R. Act against Government, he should immediately send the case papers with copy of decision to Settlement Commissioner and Director of Land Records who if felt it proper to take the case in revision, shall carry out systematic proceedings and pass orders in the matter. But when he does not agree with decision of survey Mamlatdar, he will submit the papers to Government within 7 days of its receipt.
10. In cases in which Revenue Tribunal has no powers to take the dispute in revision, Government in Revenue Department has powers to take it in revision.
11. At the end of inquiry under Section 37(2) of L. R. Act or appeal is filed against such decision of subordinate officers or case is taken in revision and if Collector or Settlement Commissioner and Director of Land Records himself has given decision against Government, he will decide whether it should be revised or set aside or file appeal before Revenue Tribunal, High Court or any other proper court and submit the papers including copy of decision to Government within 7 days.
12. If suit against order made in inquiry under Section 37(2) in Civil Court after one year, Civil Court will set Page 42 of 43 C/SCA/10759/2011 CAV JUDGMENT aside the suit. In case of suit having filed within time limit, period for filing appeal shall be 1 year. Authorised Officer should intimate the decision under Section 37(2) in proper manner, failing which Civil Court will admit the suit and in that case, Government will be put to loss. Therefore, proper vigilance should be kept to see that no default would remain during inquiry made under Section 37(2) keeping in view the law/rules/resolutions."
31. I am convinced that the issue needs to be reexamined, keeping in mind the aforesaid discussion. As there is a Division Bench decision of this Court, sitting as a Single Judge, I cannot say that let the issue be referred to and decided by a Full Bench. In such circumstances, the Registry is directed to place this order before the Hon'ble the Acting Chief Justice for the purpose of constituting an appropriate Bench to look into the issue.
(J. B. PARDIWALA, J) Vahid Page 43 of 43