Gujarat High Court
Hitendrabhai Bhikhabhai Karad & 2 vs State Of Gujarat & 3 on 16 January, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/5349/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5349 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the judgment ?
NO
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
NO
thereunder ?
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HITENDRABHAI BHIKHABHAI KARAD & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR ASHOK N PARMAR, ADVOCATE
for the Petitioner(s) No. 1 - 3
MR. HARIVADAN MISHRA, ADVOCATE for the Petitioner(s) No. 1 - 3
MR UTKARSH SHARMA, AGP - ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : /01/2018
CAV JUDGMENT
1 By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 27th June 2014 passed by the Collector, Surat, by which the order passed by the Mamlatdar, Palsana dated 27th February 2007 pursuant to an Page 1 of 26 HC-NIC Page 1 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT inquiry under Section 37(2) of the Land Revenue Code as well as the order dated 7th May 2010 passed by the Deputy Collector in appeal came to be quashed and set aside.
2 The facts giving rise to this application may be summarised as under:
2.1 The predecessorintitle of the petitioners namely Khadiya Kaliya -
father of Chhanabhai Khandubhai Umariya and others were holding agricultural land bearing original revenue survey No.216 admeasuring 2 Acres and 32 Gunthas situated at the village: Chalthan, Taluka: Palsana, District: Surat. The land was being cultivated by the predecessor as a village servant. On abolition of the Bombay Service Inam (Service to community) Act, 1951, the land came to be resumed by the Government vide order of the Deputy Collector and an entry in that regard came to be mutated in the village form No.6 being the entry No.194 dated 1st February 1959. The said land in accordance with the provisions of the Act, was regranted to the grantee i.e. the village servant namely Khandubhai Kaliya. An entry to that effect was mutated in the village form No.6 being an entry No.299 dated 22nd July 1961. Out of the said land, the successor of Khandu Kaliya namely Chhanabhai Khandubhai Umariya sold half of the portion to one Vankali Kalyanbhai by a registered sale deed and the balance half to the extent of 5261 sq. mtrs. was sold to the petitioners herein by a registered sale deed No.992 dated 15th May 2007.
2.2 The case of the petitioners herein is that despite the fact that the land was in cultivation and possession of the original landlord and was regranted after being resumed to the original grantee, the name of P.W.D. was wrongly entered in the 7/12 extract from 1957 onwards.
Page 2 of 26HC-NIC Page 2 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT 2.3 The seller namely Chhanabhai Khandubhai Umariya and others filed an application to the Mamlatdar to delete the name of the P.W.D. from the village form No.12 on 12th July 2004.
2.4 The Mamlatdar initiated proceedings under Section 37(2) of the Land Revenue Code. After a detailed inquiry and consideration of the revenue record and after affording an opportunity of hearing to the respondent No.4, the Mamlatdar came to the conclusion that the name of P.W.D. had been wrongly entered into the revenue record and the petitioners were the lawful owners of the land in question.
2.5 The respondent No.4 challenged the order passed by the Mamlatdar before the Deputy Collector by filing an appeal. The petitioners raised a preliminary objection before the Deputy Collector as regards the maintainability of the appeal. However, the Deputy Collector proceeded to hear the appeal on merits and vide order dated 7th May 2010 affirmed the order of the Mamlatdar and dismissed the appeal.
2.6 The respondent No.4, thereafter, filed a revision application on 5th August 2010 before the Collector. The Collector, almost after a period of two years, issued notice dated 25th May 2012 and fixed the hearing of the revision application. Before the Collector, it was submitted that the order passed by the Mamlatdar under Section 37(2) of the Land Revenue Code, in substance, could be said to have been passed by the Collector, and therefore, neither the Deputy Collector nor the Collector as the higher revenue officer could have looked into the order passed by the Mamlatdar.
2.7 The Collector allowed the revision application filed by the Page 3 of 26 HC-NIC Page 3 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT respondent No.4 herein, and thereby quashed the orders passed by the Mamlatdar as well as the Deputy Collector respectively.
2.8 The petitioners, being dissatisfied with the order passed by the Collector, filed a revision application before the Gujarat Revenue Tribunal under the provisions of the Bombay Revenue Tribunal Act, 1957. A Bench of the Gujarat Revenue Tribunal, vide order dated 15th August 2014, directed the parties to maintain status quo. While the matter was pending before the Tribunal, the Government issued a Notification in the month of March 2016, by which the powers of appeals and revision, in case of the original order under Section 37(2) of the Land Revenue Code, came to be delegated to the Special Secretary, Revenue (Appeals). In such circumstances, the Tribunal forwarded the files to the Special Secretary.
3 In such circumstances referred to above, the petitioners are here before this Court with this application under Section 227 of the Constitution of India questioning the legality and validity of the order passed by the Collector.
● SUBMISSIONS ON BEHALF OF THE PETITIONERS:
4 Mr. Kavina, the learned senior counsel appearing for the
petitioners vehemently submitted that the impugned order passed by the Collector is without jurisdiction. It is submitted that if any order is passed in a proceeding under Subsection (2) of Section 37 of the Land Revenue Code, the appeal would lie to the Gujarat Revenue Tribunal established under Section 3 of the Bombay Revenue Tribunal Act. Such appeal would lie under Section 9 of the Bombay Revenue Tribunal Act. No appeal or any revision would lie before any officer or authority other Page 4 of 26 HC-NIC Page 4 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT than the Tribunal.
5 The learned senior counsel submitted that under Section 37(2) of the Code, the Collector is invested with the jurisdiction to decide the dispute of the nature mentioned in the said Subsection. The said Sub section itself says that an officer other than the Collector (Survey Officer) may, after a formal inquiry, pass an order deciding the claim. By consistent and universal practice, the Collector's power to so decide is delegated variously to the Mamlatdar, or the Assistant or Deputy Collector. Such delegation is permissible under Sections 10, 11 and 12 of the Code which provide that the Collector or the State Government by general or special orders may delegate such powers upon the three above named subordinate revenue officers.
6 Relying upon a Division Bench decision of this Court in the case of Dallumiya Lalmiya Malek vs. State of Gujarat [2012 GLR 668], it was submitted that in the event an inquiry Subsection (2) of Section 37 of the Code has been conducted by the Mamlatdar such order is passed by the Mamlatdar as a delegate of the Collector. As such, neither the Collector nor the Assistant nor Deputy Collectors are competent to hear an appeal against the said order. Further, that the said order is not susceptible to variation in a proceeding commenced suo motu by the Collector. The said judgment further goes on to lay down as an imperative that no challenge against the said order would lie before other subordinate officers or to the Collector himself. It further goes on to provide that such an appeal against such an order would only lie to the Revenue Tribunal under Section 9 of the Bombay Revenue Tribunal Act.
7 Relying on one another decision rendered by a Division Bench of Page 5 of 26 HC-NIC Page 5 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT this Court to which I was a party in the case of Hussainbhai Joyebbhai Bharmal vs. Collector [Letters Patent Appeal No.660 of 2011 decided on 9th September 2011], it was submitted that once an order is passed under Section 37(2), for all purposes, the order is to be treated to be an order passed by the Collector, and cannot be said to be an order passed by the Assistant Collector or Deputy Collector, subordinate to the Collector. In such circumstances, the learned senior counsel submitted that the impugned order being patently bad and without jurisdiction, the same be quashed.
● SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
8 Mr. Utkarsh Sharma, the learned Assistant Government Pleader
vehemently submitted that no error, not to speak of any error of law could be said to have been committed by the Collector in passing the impugned order. The principal argument of the learned A.G.P., while defending the order passed by the Collector, is based on Section 12 of the Land Revenue Code, more particularly, the amended part of Section 12, which provides that 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 Section 12 shall be subjected to the provisions of Chapter XIII. The learned A.G.P. submitted that Chapter XIII of the Land Revenue Code provides for the appeals and revision. Section 203 provides for an appeal to lie from any order passed by a revenue officer to his superior and Section 211 provides for the power of the State Government and of certain revenue officers to call for and examine the records and proceedings of the subordinate officers, and to pass orders thereupon. In such circumstances, according to the learned A.G.P., as the order passed by the Mamlatdar is subject to the provisions of Chapter XIII, the appeal before the Deputy Collector and revision, thereafter, before the Collector was maintainable.
Page 6 of 26HC-NIC Page 6 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT 9 The learned A.G.P. submitted that the reliance placed on a Division Bench decision of this Court in the case of Dallumiya (supra) is of no consequence because the amendment came into effect in Section 12 after the decision of Dallumiya. He further submitted that the reliance placed on the decision in the case of Hussainbhai (supra) is also of no consequence, as in the said case, the Division Bench had no occasion to consider the effect of the amendment in Section 12 of the Land Revenue Code. The learned A.G.P. further submitted that the contention as regards Subsection (4) of Section 9 of the Bombay Revenue Tribunal Act is also thoroughly misconceived.
10 In such circumstances referred to above, the learned A.G.P. prays that there being merit in this application, the same be rejected.
● SUBMISSIONS OF THE PETITIONERS IN REJOINDER:
11 Mr. Kavina, the learned senior counsel appearing for the
applicants submitted that the powers of subordinate revenue officers i.e. the Assistant and Deputy Collectors and the Mamlatdar are respectively provided for in Sections 10 and 12 of the Code. At the time when Dallumiya (supra) was decided, the last clause of Section 12 was not there. According to the learned senior counsel, the argument that the insertion of the last clause of Section 12 has made all the difference is without any merit. Section 10 of the Code always contained the provision whereby even the exercise of all powers of the Collector by the Assistant or Deputy Collector was made subject to Chapter XIII of the Code. To put it in other words, according to the learned senior counsel, the subordination of the Assistant or Deputy Collector to in this case, the supervisory jurisdiction of the Collector under Section 211 of the Code Page 7 of 26 HC-NIC Page 7 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT was always there. The insertion of third clause of Section 12 of the Code could be termed as merely a clarificatory amendment, and made no new provision since the Mamlatdar's subordination to Chapter XIII of the Code was till then implicitly clear. Hence, it is submitted that the amendment makes no difference.
12 In the last, the learned senior counsel submitted that as provided in Subsection (4) of Section 9 of the Bombay Revenue Tribunal Act, no person other than the Tribunal shall have the jurisdiction to entertain and decide appeals and revise orders of any person, officer of authority when the said order or decision is subject to appeal or revision before the Tribunal. As per Schedule I Entry 1 of the said Act, an order under Subsection (2) of Section 37 of the Code is enlisted as one against which an appeal would lie to the Tribunal. It was submitted that the exercise of appellate jurisdiction by the Collector was clearly without jurisdiction considering the bar of Section 9(4) of the Act.
● ANALYSIS:
13 Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls for my consideration is whether the order passed by the Mamlatdar under Section 37(2) of the Land Revenue Code should be construed as an order passed by the Collector, and if that be so, then whether an appeal would lie before the Deputy Collector under Chapter XIII of the Code.
14 Before adverting to the rival submissions canvassed on either side, I must look into view provisions of the Code as well as the resolution passed by the State Government as regards the inquiry under Section 37(2) of the Code.
Page 8 of 26HC-NIC Page 8 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT 15 In the aforesaid context, let me first look into the resolution dated 18th October 1976 issued by the Government of Gujarat in its Revenue Department. The resolution reads as under:
"Delegation of powers under Section 37(2) of Bombay Land Revenue Code, 1879. In respect of Nagar Panchayat areas and District/ Taluka head quarters. Reconsideration of Task Force Committee of Revenue Deptt.
Government of Gujarat, Revenue Department, Resolution No. JMT - 1076 - 104365 - L, Sachivalaya, Gandhinagar, Dated the 18th October 1976.
Read: Government Resolution, R & A.D., LEN106446564L, dated 1st February, 1965.
RESOLUTION: In pursuance of the orders contained in the Government Resolution quoted above, Government is pleased to direct that Collectors should delegate powers under Section 37(2) of the Land Revenue Code to the Mamlatdars and to the Mahalkaries appointed under Section 13 of the Land Revenue Code, by name as well as by virtue of office and to the Prant Officers in the following manner: 1 Mamlatdars and All villages within their jurisdiction Mahalkaries excluding village /villager falling within Nagar Panchayat and Municipal areas and Taluka and District Headquarters / towns.
2 Pranch Officers Village/villages falling within Nagar Panchayat and Municipal areas and Page 9 of 26 HC-NIC Page 9 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT Taluka and District Headquarters/ towns.
This issue on this Department file of even number.
By order and in the name of the Governor of Gujarat.
N. GOPALWAMI Deputy Secretary to the Government of Gujarat, Revenue Department."
16 Thus, it is manifest on plain reading of the resolution referred to above that the Collectors were directed by the State Government to delegate their powers under Section 37(2) of the Land Revenue Code to the Mamlatdars. Section 9 of the Code reads as under:
"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 subordinate 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."
17 Section 10 of the Code reads as under:
"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 thereof.
Any Assistant or Deputy Collector thus placed in charge shall, subject to the provisions of Chapter XIII perform all the duties and exercises 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:Page 10 of 26
HC-NIC Page 10 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT 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."
18 Section 12 of the Code reads as under:
"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 the 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.]"
19 Section 18 of the Code reads as under:
"18. Survey Officers; their duties and powers: For the purposes of [Chapters VIII, VIIIA, IX,IXA and X] [***] the State Government may appoint such officers as may from time to time appear necessary. Such officers shall be designated ["Settlement Commissioners"], "Commissioner of Survey", "Superintendent of Survey", "Survey Settlement Officers", ["Settlement Officers"] and "Assistant", or otherwise as may seem requisite, and shall be subordinated the one to the other in such order as the State Government may direct.
Subject to the orders of the State Government the officers so appointed are vested with the cognizance of all matters connected with survey and settlement, and shall exercise all such powers and perform all such duties as may be prescribed by this or any other law for the time being in force."
20 Section 37 of the Code reads as under:
Page 11 of 26HC-NIC Page 11 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT "37. All public roads, etc., and all lands which are not the property of others, belong to the Government. (1) All public roads, lanes and paths, the bridges, ditches, dikes, and fences, on or beside, the same, the bed of the sea and of harbours and creeks below high watermark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and watercourse, and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of the Government, and it shall be lawful for the Collector subject to the orders of the State Government, to dispose of them in such manner as he may deem fit, or as may be authorized by general rules sanctioned by the Government concerned, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.
Explanation. In this section "highwatermark" means the highest point reached by ordinary springtides at any season of the year.
(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."
21 In Dallumiya (supra) the material question, which arose before this Court, was as regards the true appellate forum in cases where the inquiry is held not by the Collector, but his delegate, a Mamlatdar. The Division Bench, while holding that although the inquiry is held by the Mamlatdar to whom the powers of the Collectors, are delegated under Section 12, yet the order would still remain the order of the Collector and the Collector cannot sit in appeal against his own order, observed as under:
"4. The material question which arises in the present cases is as to the true appellate forum in cases where the inquiry is held not by the Collector but by his delegate, a Mamlatdar. Sec. 12 of the Code provides that the Page 12 of 26 HC-NIC Page 12 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT Mamlatdar shall have such duties and powers as maybe expressly imposed or conferred by the Act or by any 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 the State Government. So far as the present inquiry is concerned which immediately preceded the suit in both the cases, the inquiry under sec. 37(2) of the Code was held originally by the Mamlatdar. Even though the relevant notification of. 1948 which is referred to by Mr. Gupte in his commentary was not produced before us because Mr. Nanavati said that he could not trace the same, the fact remains, if we were to invoke the presumption of legality, of the proceedings, that the Mamlatdar could hold this inquiry under sec. 37(2) only as a delegate of the Collector under sec. 12 of the Code. When the Mamlatdar passed the order as a delegate of the Collector, it is settled legal position that he exercised the same powers as the Collector himself and his order would be not that of any subordinate officer but that of the Collector himself, because any other view would mean that the statutory inquiry which was to be held under sec. 37(2) by the Collector would be held by a subordinate officer like Mamlatdar in plain violation of the terms of the statute. In Roop Chand v. State of Punjab, A.I.R. 1963 S.C. 1503 page 1506 their Lordships followed the observations of Wills J. in Hooth v. Clarke, (1890) 25 O.B.D. 319, that the word "delegate means little more than an agent. An agent ofcourse exercise no powers of his own but only the powers of his principal. Therefore, Their Lordships held that the powers of the Government were delegated under the relevant , provision to an officer, or the order of the officer must be treated as an order of the Government itself Because if it were not so, and it were to be held that the order had been made by the officer himself and was not an order of the Government then that would be order made by the person on whom the Act did not confer any power to make it which would lead to an impossible situation. In view of the aforesaid settled legal position, in such inquiry under sec. 37(2), even though the inquiry is held by the Mamlatdar to whom the powers of the Collector in this connection are delegated under sec. 12, the order would still remain the order of the Collector. Therefore, the appeal against such order under sec. 204 could never the either to the Prant Officer or to the Collector himself. The Collector could never it in appeal against his own order. Therefore, if the appellate forum is to be determined in accordance with sec. 204, the appeal would not lie even to the State Government. The whole provision of sec. 204 is however subject to the relevant provision made in the Bombay Revenue Tribunal Act, 1957, under which an appeal would lie from the Collectors order before the Revenue Tribunal under sec. 9(1) read with the first entry in the first schedule. It is this appeal which is contemplated as a remedy which must be exhausted within the meaning of sec. 11 of the Bombay Revenue Jurisdiction Act, 1876, in cases where that provision applies. We are proceeding in this case on the assumption that the said provision applies as the order of the Collector is the order of the Revenue Officer within the meaning of that Act.Page 13 of 26
HC-NIC Page 13 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT
5. Sec. 37(3) has provided the bar of limitation in the case of a suit which must be instituted in a civil Court, while sec. 11 of the Revenue Jurisdiction Act created another bar of exhausting all the remedies of appeal which are possible to be filed within the period of limitation. Except these two bars there is no third bar created by any of the relevant provisions as to the nature of the suit which can be filed. The bar of limitation which is provided in sec. 37(3) unlike Article 14 of the Old Limitation Act, 1908, is in wider terms and is applicable not only where the suit is filed to set aside the order passed in the formal inquiry under sec. 37(2) but even where the suit is filed for claiming inconsistent relief with such order. The limitation period which it provides is one year from the date of the order under sec. 37(2) or if the appeals had been made within the limitation period then from the date of the final appellate order by the authority determined in accordance with sec. 204.
6. Mr. Mehta however, vehemently argued that if the title to the suit land is found to be in the plaintiffs then the land being not Government land, the Collectors order would be an ultra vires order under sec. 37(2) as he would have no jurisdiction to hold such an inquiry. For this proposition Mr. Mehta vehemently relied on the decision in Malkajeppa v. Secretary of State, 14 Bom. L. R. 332. That was a case under the old sec. 37 of the Code before the present 1912 amendment which introduced sec. 37(2) giving power to the Collector to hold this statutory inquiry, for resolving this dispute, as to whether the property was private property or Government property by a formal inquiry. Under the old sec. 37(1) the Collector had the power to dispose of the land. In that context the Division Bench had only held at page 335 that if the Collector purported to deal with the land which was prima facie the property of an individual who had been in peaceful occupation thereof and not of the Government and when he passed order with reference thereto, he was not dealing with that land in his official capacity but was acting ultra vires the statute. If the order was ultra vires in that sense, the provision of limitation envisaged in Article 14 of the Old Limitation Act, 1908, could not apply. That decision could have no application after the amendment in sec. 37(2) to a case where an inquiry is made under sec. 37(2)and there is no question of disposal of the land on the assumption that it was Government land. The Legislature has now provided for a competent statutory authority in whom it had confidence viz. The Collector for deciding this dispute by a formal inquiry. The Legislature also provided that a civil suit can be filed against the decision of this competent authority provided it was filed within the limitation period enacted in sec. 37(3) of the Code and after exhausting all the appeals which were possible to be filed within the limitation as envisaged in sec. 11 of the Revenue Jurisdiction Act, 1876. If there was no such bar, the civil Court could entertain such a suit to set aside the order in the forma) inquiry under sec. 37(2) and even could grant any Page 14 of 26 HC-NIC Page 14 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT inconsistent relief. Therefore, after this specific provision is made under sec. 37(2) empowering the Collector to hold this statutory inquiry the order passed at the inquiry by this competent officer could never be said to be ultra vires order. Of course, the inquiry being of a formal character, the order has only a limited finality and is subject to the result of a competent suit in a civil Court. If the civil Court ultimately comes to the conclusion that this was a private property of an individual and not Government property, the civil Court could make a declaration of the individuals property right by setting aside the order of the statutory officer or by giving inconsistent relief with this order. Therefore, the authority in this case does not lack initial jurisdiction and the order could not be said to be null and void. The order in such case would be merely an illegal order, when ultimately the civil Court decided title of a suit and comes to inconsistent finding as to the title being of the individual and not of the State. But until that stage is reached of decision by a competent civil Court, the order could never be said to be an ultra vires order which is completely nonest as contended by Mr. Mehta so that no limitation can run against that order and against which no appeal need be filed for exhausting remedies of appeals as required under sec. 11 of the Bombay Revenue Jurisdiction Act. Until a civil Court in a competent suit makes inconsistent declaration and gives relief, the order would be a competent order which attracts both the bar of limitation as well as of exhaustion of alternative remedy of appeal as envisaged by sec. 11 of the Revenue Jurisdiction Act.
7. Mr. Mehta had referred to the decision of the learned single Judge Raju J. in State v. Parshottam, V Guj.L.R. 738, at page 740. No doubt the learned single Judge has observed that a suit for declaration that the plaintiff is the owner of the suit property is not a suit to which sec. 11 of the Bombay Revenue Jurisdiction Act applies on the ground that if the plaintiff is entitled to such a declaration, the order passed by the revenue officer would be a nullity. If the order is a nullity, it is not necessary for the plaintiff to file a suit to have the order set aside. With great respect to the learned Judge, the decision proceeds on an assumption that the Collector lacks jurisdiction to hold an inquiry under sec. 37(2). This assumption is hardly warranted when we look to the plain terms of sec. 37(2) which empowers the Collector as competent authority to decide this dispute. Of course, the decision of the Collector has limited finality subject to the decision of the competent civil Court, provided the civil suit is filed within the period of limitation enacted in sec. 37(3) and after exhausting the appellate remedy as envisaged in sec. 11 of the Revenue Jurisdiction Act. To treat such a competent order as nullity which does not attract the bar of limitation or the bar of exhaustation of alternative remedy of appeal would be to make these provisions redundant. It is obvious that the civil Courts jurisdiction is expressly taken away only to that extent. Therefore, there is no substance in the contention of Mr. Mehta that the Page 15 of 26 HC-NIC Page 15 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT order can be considered as a nullity, because on that assumption every suit would get out of the bar enacted in sec. 37(3) of the Act and sec. 11 of the Revenue Jurisdiction Act and sec. 11 of the Revenue Jurisdiction Act.
8. In the present case, we must keep in mind that the effect of this delegation of the statutory authoritys function to the Mamlatdar on the appellate forum had not been considered in any decision. Therefore, even the authorities were under a complete misconception of law and an appeal had been entertained from the Mamlatdars order by the Prant Officer. In the Secretary of State for India v. Husenabu, 33 Bom.L.R. 361, the Division Bench consisting of Patkar and Broomfield JJ. While considering the bar of sec. 11 of the Revenue Jurisdiction Act has in terms invoked the principle that if a party had been misled to file an appeal to the Collector because of the words of the statutory notice believing that it was optional to file an appeal and in case the party desired to file an appeal it would be sufficient if an appeal is filed to the Collector, the bar could not be invoked in such circumstances. The present case would surely come within this particular principle because the law was completely misunderstood by all concerned. Even in L.P.A 6 of 1967 if the Mamlatdars order was to be treated as the order of the Collector, the appeal would lie only to the Revenue Tribunal. The plaintiffs were clearly misled because of the terms of the notice issued to them under sec. 37(4) read with the relevant form. They had pursued the remedy of filing an appeal before the Prant Officer. From the Prant Officers order, no appeal could lie to the Revenue Tribunal. As we have already discussed, the Collector could not entertain an appeal against such a elegates order. Therefore, this order is one where there was no provision of any appeal which should have been exhausted looking to the facts of the present case. Mr. Nanavati had vehemently argued in this connection that if the Mamlatdars order is treated as the order of the Collector, merely because the plaintiffs went to a wrong forum viz. The Prant Officer, they could not get out of the bar created by sec. 11 of the Revenue Jurisdiction Act. Once we find that the plaintiffs had been clearly misled and this is a case where the Revenue Tribunal could not entertain the appeal against the Prant Officers order, it is obvious that the bar under sec. 11 could not apply to the facts of the case. Sec. 11 of the Revenue Jurisdiction Act in terms enacts that the remedy of appeals provided under the law in force has to be exhausted so far as it is possible to do so within the period of limitation provided. It is true that the extended period of limitation is provided in sec. 37(3) for filing an appeal before the Revenue Tribunal. That would be the position as now the law is settled by this Court that the appeal from such Mamlatdars order would lie only to the Revenue Tribunal as if it were an order of the Collector himself. After this law is known to all the parties concerned, a question might arise whether this remedy of appeal before the Revenue Tribunal is exhausted or not. But so far as this law was misunderstood as it had happened in this case the party having been misled would not be hit by the Page 16 of 26 HC-NIC Page 16 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT aforesaid bar of sec. 11 as it was not possible in the circumstances of the case to exhaust that remedy of appeal to the Revenue Tribunal as nobody had any knowledge of the true legal position that the Mamlatdars order should be treated as the Collectors order. Therefore, on that short ground is must be held that the appeal of the plaintiffs in L.P.A. No. 6/67 was wrongly dismissed by the learned Single Judge."
22 In yet one another Division Bench decision of this Court in the case of Aher Veja Jina vs. Deva Govind [Special Civil Application No.303 1970 decided on 4th September 1974], it was held as under:
"When the Mamlatdar holding the statutory inquiry under Sec. 37(2) as a delegate of the Collector under Sec. 12, passed the order, it is settled legal position that he exercised the same powers as the Collector. Therefore, appeal against such an order under Sec. 204 could never lie either to the Prant Officer or to the Collector. The order of the Revenue Tribunal in Revision against such order of Collector is also nullity and without jurisdiction."
23 It appears that to dilute the effect of the dictum as laid down in Dallumiya (supra) as well as Aher Veja Jina (supra), the State Government thought fit to add by Gujarat 2 of 1987 in Section 12 of the Code the following:
"A decision or order of a Mamlatdar in performance of the duties and exercises 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 However, it appears that the amendment was effected without understanding the principles of law as regards delegation of powers and its effect.
25 In the case Hussainbhai (supra) to which I was a party, the very Page 17 of 26 HC-NIC Page 17 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT same question whether the Collector has the 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 fell for consideration.
26 Let me clarify something important at this stage so far as Hussainbhai (supra) is concerned. In the case of Hussainbhai (supra), it is the Deputy Collector, who passed an order under Section 37(2) of the Code, and the said order was taken in suo motu revision by the Collector in exercise of his powers under Section 211 of the Code. The important aspect of Hussainbhai's case (supra) is the fact that the Deputy Collector at the time when he passed the order was incharge Collector. Considering the same, the Division Bench, after an exhaustive review of case law and the provisions of the Code, observed as under:
"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 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.Page 18 of 26
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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 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 Page 19 of 26 HC-NIC Page 19 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT 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 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."
27 It appears that the Division Bench decision of this Court referred to above was carried before the Supreme Court by the State Government. However, the challenge to the same failed. The Special Leave Petition(C) No.5806 of 2012 came to be dismissed by the Supreme Court vide order dated 3rd July 2017.
Page 20 of 26HC-NIC Page 20 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT 28 To my understanding, Section 12 of the Code deals with the Mamlatdar's powers consisting of two parts i.e. statutory powers of the Mamlatdar under the Land Revenue Code and the powers of the Mamlatdar as a delegate of the Collector. It is important to take note of the fact that there is no provision of any delegation of the Collector's powers in favour of the deputy Collector. If an authority under the Code exercises his own powers as an inferior officer, the decisions are liable to be subjected to appeal under Section 203 of the Land Revenue Code.
29 In the aforesaid context, let me refer to and rely upon one decision of this Court in the case of the President, Ramdevpir Sampardayik vs. The President Avdhut Sampardayik [Special Civil Application No.1023 of 1974 decided on 23rd January 1978]. 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."Page 21 of 26
HC-NIC Page 21 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT 30 Thus, the order of the delegate is to be treated, for all intents and purposes, as an order of the principle itself. The Supreme Court in the case of Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd and others [(2007) 8 SCC 705] observed in para 90 as under:
"There cannot be any doubt whatsoever that even a delegatee exercises its power relying on or on the basis of its power conferred upon it by the delegator, its act would be deemed to be that of the principal."
31 The Supreme Court in State of Orissa vs. Commissioner of Land Records and Settlement [(1998) 7 SCC 162] held:
"25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand v. State of Punjab [AIR 1963 SC 1503]. In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an "officer", an order passed by such an officer was an order passed by the State Government itself and "not an order passed by any officer under this Act" within Section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under Section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under Section 42 to call for the records of the case which was disposed of by an officer acting as its delegate."
32 Considering the settled position of law, in my view, the last part of Section 12 of the Code referred to above does not save the situation for the State. The last part of Section 12 of the Code which says that a Page 22 of 26 HC-NIC Page 22 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT decision or order of a Mamlatdar in performance of duties and exercise of the powers, imposed or conferred upon him or delegated to him under Section 12 is subject to the provisions of Chapter XIII is in general. Therefore, if any orders are passed by the Mamlatdar, in exercise of the powers, imposed or conferred upon him by the Code itself, the same are subject to the provisions of appeals and revision. This does not mean that the Collector can sit in appeal over an order passed by the Mamlatdar, more particularly, when the very same power has been delegated by the Collector to the Mamlatdar.
33 Let me make myself clear on one more aspect. As stated above, Section 12 of the Code is in two parts. It talks about duties and exercise of the powers, imposed or conferred upon the Mamlatdar or delegated to him. There is no power conferred upon the Mamlatdar in the Code so far as Section 37 of the Code is concerned. However, the same has been delegated to him. Once there is a delegation, the Mamlatdar exercises the same powers as the Collector.
34 I must now look into the issue keeping in mind Section 9 of the Bombay Revenue Tribunal Act, more particularly, Subsection (4) of Section 9 of the Act. Section 9 of the Act, 1957 reads as under:
"9. Jurisdiction of Tribunal. (1) Subject to the provisions of this section, the Tribunal shall have jurisdiction to entertain and decide appeals from and revise decisions and orders of officers, not below the rank of a Collector or Deputy Commissioner, in respect of cases arising under the provisions of the enactments specified in the First Schedule.
(2) Save as expressly provided in any enactment for the time being in force, the State Government may, by notification in the Official Gazette, direct that the Tribunal shall also have jurisdiction to entertain and decide appeals from, and receive decisions and orders of, such persons, officers and authorities in such other cases as the State Government may determine; and for that purpose the State Government may, by Page 23 of 26 HC-NIC Page 23 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT notification in the Official Gazette, add to, amend or omit, any of the entries in the First Schedule, and thereupon the Tribunal shall have jurisdiction in such matter and the jurisdiction of any other persons, officer or authority therein shall cease.
(3) The State Government may, at any time, in like manner, cancel such notification or omit any entry from the First Schedule and resume to itself such jurisdiction: Provided that nothing herein shall prevent the State Government after such resumption of jurisdiction from conferring any such jurisdiction on any other person, officer or authority.
(4) Notwithstanding anything contained in any other law for the time being in force, when the Tribunal has jurisdiction to entertain and decide appeals from and revise decisions and orders of any person, officer or authority in any matter aforesaid, no other person, officer or authority shall have jurisdiction to entertain and decide appeals from and revise decisions or orders of such person, officer or authority in that matter.
35 The FIRST SCHEDULE to Section 9 of the Act, 1957 reads as under:
FIRST SCHEDULE (See Section 9) Name of enactment Appellate or revisioinal jurisdiction against orders or decisions in cases arising under the following provisions 1 2 1 The Bombay Land Revenue Code, Section 37 subsection (2).
1879 (Bombay V of 1879). Section 39A.
Section 43.
Section 46.
Section 47.
Section 51.
Section 61.
Section 79A, except clause (b)
thereof.
2 The Bombay Land Revenue Code, Section 37, subsection (2) 1879 (Bombay V of 1879), as Section 39A.
extended to the Kutch area of the Section 43.
State of Bombay. Section 46.
Section 47.
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Section 51.
Section 61.
Section 79A, except clause (b)
thereof.
3 The Bombay Land Revenue Code, Section 37, Subsection (2),
1879 (Bombay V of 1879), as Section 39A.
adapted and applied to the Section 43.
Saurastra area of the State of Section 46.
Bombay. Section 47.
Section 51.
Section 61.
Section 79A, except clause (b)
thereof.
9 The Indian Forest Act, 1927 Section 11.
Section 12.
(XVI of 1927)
Section 15.
Section 16.
10 The Indian Forest Act, 1927 Section 11.
(XVI of 1927), as adapted and Section 12.
applied to the Saurashtra area or Section 15.
Section 16.
the State of Bombay.
36 Thus, on plain reading of the provisions of Section 9 along with
the First Schedule, it is clear that the Tribunal exercises appellate power over the orders passed under Section 37(2) of the Bombay Land Revenue Code. As stated above, the important aspect is Subclause (4), which makes it very clear starting with a nonobstante clause that notwithstanding anything contained in any other law for the time being in force, when the Tribunal has the jurisdiction to entertain and decide appeals from and revise decisions and orders of, any person, officer or authority no other person shall have the jurisdiction to entertain and decide the appeals from and revise the decisions or orders of such person, officer or authority in that matter. This provision should put an end to the entire controversy. Thus, it is only the Tribunal, which has the power to decide any appeal as regards the legality and validity of the Page 25 of 26 HC-NIC Page 25 of 26 Created On Tue Jan 16 23:09:53 IST 2018 C/SCA/5349/2017 CAV JUDGMENT order passed by any authority under Section 37(2) of the Code. If the Tribunal has the power to hear the appeal against the order passed by the authority under Section 37(2) of the Code, then, the appeal before the Deputy Collector and thereafter, a revision before the Collector would not be maintainable. In such circumstances, the last part of Section 12 of the Code would not save the situation.
37 In my view, no further discussion is required in the matter.
38 In the result, this application succeeds and is hereby allowed. The impugned order dated 27th June 2014 passed by the Collector, Surat is hereby quashed. The order, although in favour of the petitioners so far as the same passed by the Deputy Collector is concerned, could also be said to be without jurisdiction, and the same is hereby quashed. The order passed by the Mamlatdar is hereby restored.
39 The Registry shall forward one copy of this judgment to the Principal Secretary of the Revenue Department, Gandhinagar, so that an appropriate circular can be issued for the guidance of the revenue officers.
(J.B.PARDIWALA, J.) chandresh Page 26 of 26 HC-NIC Page 26 of 26 Created On Tue Jan 16 23:09:53 IST 2018