(1) The petitioner was given survey Nos. 167 and 163 which were formerly unoccupied Government waste lands for cultivation as a tenant from the year 1943 on an annual tenancy. He then applied for a 'sanad' as an occupant. Rule 37, Bombay Land Revenue Code Rules provides that any unoccupied survey number not assigned for any special purpose, may, at the Collector's discretion, be granted for agricultural purposes to such person as the Collector deems fit, either upon payment of a price fixed by the Collector, or without charge, or may be put up to public auction and sold subject to his confirmation to the highest bidder, and Sub-clause (4) provides that when the land is granted on impartible tenure, an agreement in Form F(1), and, when it is also granted on inalienable tenure, an agreement in Form I(1), shall ordinarily be taken from the person intending to become the occupant. In this case the land was granted on impartible tenure to the petitioner and an agreement in Form F(1) was signed by the petitioner and this agreement was accepted on behalf of the Government by the District Deputy Collector. Therefore, there was a complete and concluded contract between the Government and the petitioner which made the petitioner an occupant within the meaning of the Land Revenue Code, and the rights of the occupant are governed by section 68 of the Land Revenue Code. Section 68 provides that
'an occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited, or if the period is unlimited, or a survey settlement has been extended to the land, in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same, according to the provisions of this Act, or of any rules made under this Act, or of any other law, for the time being in force, and on the fulfilment of any other terms or conditions lawfully annexed to his tenure.'
It is not disputed by the State that the petitioner has paid land revenue as required by the terms of the 'sanad' and that he has carried out the terms of the 'sanad'.
(2) Now, it appears that one Govindrao Pataloji Thite applied to the Mamlatdar that the lease of these lands should be given to him instead of the petitioner. Having heard of this the petitioner wrote a letter on 18-11-1951, to the Revenue Secretary, Revenue Department, stating that he had been given the 'sanad' and no action should be taken without deciding the merits as to the application of Thite after a full and impartial inquiry. Somehow the Secretary to the Government of Bombay, Revenue Department, looked upon this letter as an a_pplication for a grant of a lease and the petitioner was informed on 19-1-1952, that his request 'for the grant of survey Nos. 167 and 168 could not be granted as he was already in possession of land sufficient for the maintenance of his family, and on 15-2-1952, the Mamlatdar issued a notice upon the petitioner to hand over to him possession of these survey Nos. 167 and 168, and it is this order which is being challenged by the petitioner, and the contention of the petitioner is that he is being deprived of his property otherwise than by due process of law.
(3) Now, in their affidavits the case made cut by the State of Bombay is that the petitioner obtained the 'sanad' on false representations and the false representations were, first, that he had spent a sum of Rs. 15,000 in making improvements upon the lands and according to the State of Bombay it was found that this was a gross Overstatement. The second misrepresentation on which the State relies is that it was represented to the Government that the petitioner did not own any large area of agricultural land whereas in fact according to the State he owned 63 acres of agricultural land and he also cultivated 70 acres of land as a tenant of some other landlord, and the case of the State of Bombay is that this agreement would never have been entered into but for the misrepresentations made by the petitioner and the case of the State of Bombay further is that Government have revised the order made by the Deputy Collector under section 211, Land Revenue Code.
On this two questions arise. One is whether Government had power to set aside or cancel an agreement entered into between the Government and a subject. The powers of the Government under section 211 are revisional and they are undoubtedly very wide powers. Power is given under this section to the State Government and any revenue officer to call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the 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 proceeding of such officer. Therefore, to the extent that an order is passed by any revenue officer, that order can be revised by his superior and the order can be set aside. But the question is whether when an order has resulted in a solemn agreement being entered into between the Government and the subject it is open to the State Government under section 211 to set aside or cancel that agreement. If nothing more had been done than the passing of an order by the Deputy Collector that an agreement should be entered into between the State Government and the petitioner, undoubtedly such an order could have been revised under section 211. But when pursuant to the order an agreement has been entered into and certain rights have been created in favour of the petitioner, the question is whether by its revisional powers the Government can set aside an agreement entered into under the circumstances which we have referred to.
(4) The Government Pleader has drawn our attention to a judgment of a divisional bench reported in --'Government of Bombay v. Ah-medabad Sarangpur Mills Co., Ltd.' : AIR1944Bom244 . All that was held by Sir John Beaumont, C.J., and Rajadhyaksha J. in that case was that the Commissioner cannot under section 211 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. That was the only question that that bench was considering, and the Government Pleader wants us to infer from that decision that if the agreement had been entered into by the Collector, not as an agent of the Secretary of State but as a subordinate officer of the Commissioner, then that agreement could have been set aside by the Commissioner under section 211, and the Government Pleader argues that in this case the agreement entered into by the Deputy Collector was not as agent for the Secretary of State or the Union of India, but as a subordinate officer of the Collector or the Commissioner.
Now, we do not read this judgment as a direct decision for the contention put forward by the Government Pleader. On the other hand, there is a direct decision on this point in --'Government of Bombay v. Mathurdas Laljibhai', AIR 1942 Bom 256. It is true that it is a judgment of a single Judge. Divatia J. but Divatia J. follows a judgment of a Division Bench which is an unreported case decided by N. J. Wadia and Sen JJ. In --'Government of the Province of Bombay v. Hormusii Manekji', LPA No. 40 of 1938. D/-28-8-1940 (Bom) (C), & what the Division Bench & Divatia J. held was that section 211 does not apply to documents embodying terms and conditions agreed to between the Government and the occupants. The learned Judge further held that it was not competent to Government to modify the terms of a 'sanad' if it embodied certain terms and conditions agreed to between the Government and the occupant.
(5) The Government Pleader has relied on two decisions of the Privy Council. One is in --'Province of Bombay v. Hormusji Manekji', AIR 1947 PC 200. In that case two agreements were entered into between the Government and the respondent before the Privy Council and the effect of the agreement was that the respondent was allowed to use the land for non-agricultural purposes on certain terms including a stipulated annual assessment at a concession rate. The respondent erected certain structures and the case of the Government was that this was in contravention of the agreements, and the Collector ordered him to pay a penalty and also enhanced assessment. An appeal to the Commissioner was rejected and then there was an appeal to the Governor in Council who passed an order directing that the non-agricultural assessment at the full standard rate should be levied on the entire holding of the respondent. The respondent then filed a suit alleging that the order of the Governor in Council was 'ultra vires' and for a declaration that the Government of Bombay was not entitled to recover any assessment in excess of the amounts payable by him under the agreements.
The Privy Council held that there had been material unauthorised alterations made by the respondent by demolition, reconstruction and extension of the land leased to him and therefore one of the agreements had become useless and unenforceable, and they held that the order of the Governor in Council did no more than recognise the true position ol the agreements in law and was not 'ultra vires' the Governor in Council acting under 8. 211 Bombay Land Revenue Code, and they further held that the respondent being unable to rely on the agreements, the whole basis of the suit had gone. Now, what is relied upon by the Government Pleader is the observation of the Privy Council that the Governor in Council could have acted under section 211 and treated the agreements as broken or cancelled.
We do not look upon this decision also as a direct decision on the point that we are considering. The Privy Council has not held that it is open to the Government under section 211 to cancel or forfeit a 'sanad' given by the Government to the petitioner or to cancel an agreement entered into between the Government and the petitioner recognizing his rights as an occupant on certain terms and conditions. The real decision of the Privy Council is that the agreements had become unworkable by reason of the action of the respondent himself, and all that the Government did was to recognise the true position as a result of what had happened and it was only impliedly that the Government treated the agreements as broken or cancelled. Therefore, we do not read that decision as overruling the judgment of Divatia J., to which reference has been made.
(6) The other decision of the Privy Council relied upon by the Government Pleader is an earlier decision in -- 'Secretary of State v. Anant Krishnaji', . There the Government lands were granted by the Collector to the respondent free of occupancy price and free from assessment. The Commissioner, acting under section 211, made an order directing that the proper occupancy price should be recovered from the respondent, and on his failure to pay the same, the lands were forfeited to Government, and the Privy Council held that the order of the Commissioner was valid under section 211 as the grantee failed to implement the Commissioner's order. In that ease the forfeiture resulted by reason of the fact that the respondent failed to pay the occupancy price fixed by the Commissioner. In the present case the Government are not seeking to forfeit the 'sanad' on the ground that the petitioner has failed to carry out any term of the 'sanad' or any term as altered by the order of the Collector or the Commissioner. What the Government are purporting to do is to can-eel the 'sanad' on the ground that the 'sanad' was got by the petitioner by misrepresentations.
It seems to us that in a case like this, where Government want to set aside or avoid a contract entered into on the ground of misrepresentation, the proper procedure to follow is not to take action under section 211 but to file a suit for avoiding the contract, so that the question whether the contract was entered into by misrepresentation or not should be judicially determined. Apart from that, in our opinion, assuming that it was open to Government to take action under section 211, the action has been taken in gross violation of the rules of natural justice. The Government have made their own inquiry and have come to their own conclusion that the petitioner was guilty of misrepresentation; no notice was given to the petitioner to show cause: he has never been heard with regard to the allegations made against him, and on an 'ex parte' decision come to by the Government the petitioner is sought to be deprived of the land which he has obtained under the sanad. As pointed out by Mr. Bengeri, although the misrepresentations are supposed to have been, made to the Prant Officer who entered into the agreement, we have no affidavit before us of the Prant Officer setting out the representations which induced him to enter into the agreement with the petitioner. Taking all these circumstances into consideration, it is difficult to uphold the order passed by the Government. In our opinion, if the petitioner is deprived of his land, it would be contrary to due process of law.
(7) We, therefore, quash the order passed by the Mamlatdar on 15-2-1952, on the order of the Revenue Secretary dated 19/21-1-1952. The State to pay costs of the petition.
(8) Order quashed.