John Beaumont, Kt., C.J.
1. These are two appeals by the Government of the Province of Bombay against orders made by the First Class Subordinate Judge of Ahmedabad.
2. Appeal No. 188 of 1940 is the only one in which there is any substance, and that arises in this manner. On June 26, 1917, a sanad was granted by the Collector of Ahmedabad purporting to act on behalf of the Secretary of State for India, by which liberty was granted to the plaintiff to construct buildings in Survey Nos. 29, 30 and 31 on the conditions stated in the sanad, and the annual assessment was to be Rs. 510 for fifty years from August 1, 1915, and there was a clause enabling the assessment to be revised within certain limits. In 1921, the plaintiff wanted to make certain modifications in his buildings, and a fresh sanad was granted on July 27, 1922. That sanad was not granted in the form of an agreement like the agreement of 1917, but it was executed by the Collector of Ahmedabad on behalf of the Secretary of State for India in Council and by the plaintiff. It was, therefore, in fact an agreement, though not expressed to be inter partes. The effect of that agreement was to alter the assessment to Rs. 515, the period was to be fifty years from August 1, 1921, and there were various provisions as to the buildings which might be erected. It was provided in the Schedule dealing with the building conditions : ' The previous agreement is cancelled.' In 1935 the Collector of Ahmedabad thought that there had been serious breaches of the conditions of the sanad of July, 1922, and on September 16, 1935, he made an order cancelling the sanad, and largely increasing the assessment. From that order an appeal was taken to the Commissioner, Northern Division. By the time the appeal came to be heard it had been discovered that the Collector's order had been based on a mistake of fact. It had been supposed by the Collector that the plaintiff had built upon a much wider area than it was entitled to build upon, and that was1 the basis of his order, but it was subsequently discovered that that contention was not well founded, and accordingly the Commissioner set aside the Collector's order in appeal, but He then proceeded to pass a further order in revision under Section 211 of the Bombay Land Revenue Code. By that order he cancelled the Collector's order of January 4, 1922, and ordered that with effect from 1921-22 the non-agricultural assessment should be levied at the full standard rate of Rs. 200 per acre for a period guaranteed for fifty years, and that a fresh sanad in form M should be executed with effect from that year. This suit was filed by the plaintiff for a declaration that the order of the Commissioner of November 24, 1936, so far as it cancelled the Collector's order of January 4, 1922, is ultra vires.
3. Now, the Collector's order of January 4, 1922, which the Commissioner purported to cancel, is a memorandum made by the Collector of Ahmedabad,. and served upon the; plaintiff informing it that the plans it had submitted were sanctioned and stating what assessment the plaintiff was to pay. No doubt, that order was the foundation on which the agreement of July 27, 1922, was founded. But the Commissioner did not purport to set aside that agreement; he merely set aside the order of the Collector on which the agreement was founded, which he could, no doubt, do under Section 211 of the Bombay Land Revenue Code. Under that section he can in revision call for the papers in order to satisfy himself as to the legality or propriety of any decision or order passed by, and as to the regularity of the proceedings of, a subordinate revenue officer. But there is nothing in that section to suggest that the Commissioner can cancel an agreement made by the Collector, not as a subordinate officer of the Commissioner, but as agent for the Secretary of State, and entered into by the Collector in that capacity with third parties. Merely setting aside the Collector's order of January 4, 1922, would not affect the agreement founded upon that order.
4.In the lower Court the trial Judge considered that the Commissioner's order did cancel the, agreement of July 27, 1922. The learned Judge does not seem to have noticed that the order does not purport to cancel that agreement; it only cancels the Collector's order of January 4, 1922. But the learned Judge held that, although the agreement of July 27, 1922, was cancelled, it must be treated as having been cancelled as being ultra vires the Collector, and, therefore, a nullity ; and he held that if that agreement was a nullity, the provision in it that the earlier agreement of 1917 should be cancelled was also anullity. He, therefore, held that the earlier agreement was operative. I prefer to base my decision on the view that the Commissioner did not set aside, or purport to set aside, the agreement of July 27, 1922 ; nor do I think that he had power to set it aside.
5. A similar point was decided by a division bench of this Court in Government of the Province of Bombay v. Hormusji Manekji.1 All those three learned Judges seem to have taken the view that the Commissioner acting under Section 211 could not modify an agreement entered into by the Collector as agent for the Secretary of State. That view has also been adopted by Mr. Justice Divatia in Government of Bombay v. Mathuradas Laljibhai.2 In my opinion, the view is the right view. The Commissioner here had no power to modify the agreement of July 27, 1922. That being so, that agreement stands, and necessarily as long as it stands, the agreement of June 26, 1917, is) cancelled.
6. The appeal of Government (No. 188 of 1940), therefore, fails.
7. The other appeal (No. 319 of 1941) is not pressed. It was presumably filed on technical grounds. What the learned Judge did in that case was to direct Government to repay to the plaintiff sums paid by the plaintiff under protest on the Collector's order of September 16, 1935, which was admittedly founded on a mistake of fact, and which the Commissioner set aside. There is, therefore, no doubt, that the plaintiff was entitled to recover that amount.
8. Both the appeals will be dismissed with costs.
9. We modify the order of the lower Court which held in Appeal No. 188 of 1940 the agreement of June 26, 1917, revived, and make a declaration that the agreement of July 27, 1922, was not validly cancelled by the Commissioner, and is still subsisting. The order regarding the payment of Rs. 4,900 odd stands.
10. I agree.