1. This petition is filed under Article 227 of the Constitution. Herein it is prayed that this Court may be pleased to set aside the order of the Mysore Revenue Appellate Tribunal, Belganm Bench in R. A. B. 142 of 1962 on its file as well as the order made by the Divisional Commissioner, Belgaum in RB/ IND/A. P-313 dated 14-3-1962 on his file and restore the order of the Deputy Commissioner, Belgaum in No. RB/IND/A. P. 22/59 dated 30-9-1961. It is contended on behalf of the petitioners that the order of the Revenue Appellate Tribunal suffers from errors of law apparent on the face of the record.
2. The following are the material facts: Survey No. 106 of Chilmur village in Ramdurg Taluk measuring 1 acre and 27 guntas was a Government unoccupied land. The petitioner who owns land adjoining this land applied to the Mamlaldar on 16-12-1955 to sell that land to him for an occupancy price to be fixed. His application was considered by the Mamlatdar and thereafter by the Assistant Commissioner. The Assistant Commissioner passed orders on 18-8-1958 granting the land in question to the petitioner on payment of an occupancy price of Rs. 50/- but the grant in question was made subject to certain conditions. Immediately thereafter the lands granted were handed over to the possession of the petitioner. Sometime in 1961, respondents 1 and 2 appeal-ad to the Deputy Commissioner against the grant in question. The Deputy Commissioner dismissed that appeal on 30-9-1961. Aggrieved by the order of the Deputy Commissioner the respondents went up in appeal to the Divisional Commissioner, Belgaum. The Divisional Commissioner set aside the grant in question holding that the grant was made in contravention of the directions given by the Government in paragraph 4(C)(b)(ii) of the Bombay Government Resolution No. LND 3953-V-B, dated 20-8-1954 and hence invalid. It remanded the case back to the Deputy Commissioner for disposal of the land in question in accordance with the said resolution. The petitioner's revision to the Revenue Appellate Tribunal was unsuccessful. Hence this writ petition.
3. he only contention urged by Sri Mali-math, the learned counsel for the petitioner is that both the Revenue Appellate Tribunal as well as the Divisional Commissioner erred in opining that the resolution of the Bombay Government referred to earlier has any legal force; they should have come to the conclusion that the resolution in question conveys nothing more than administrative instructions and the instructions contained therein cannot be operative particularly, when they are opposed to Section 62 of the Bombay Land Revenue Code and Rule 37 of the Rules framed under that Code.
4. We requested Mr. Murlidhara Rao, the learned Government Pleader to inform us as to the source of the power of the Government to pass the resolution in question. He frankly conceded that the resolution in question cannot be considered as anything more than administrative instructions. Even according to him, the said resolution has no legal force. Therefore quite clearly that resolution cannot in any manner supersede or modify the provisions contained in Section 62 of the Bombay Land Revenue Code or those contained in Rule 37 of the Rules framed thereunder. Section 81 of the Bombay Land Revenue Code says:
'62. It shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under Section 60. The price (if any) paid for such land shall include the price of the Government right to all trees not specially reserved under the provisions of Section 40, and shall be recoverable as an arrear of land revenue.' This section vests discretion in the Collector, subject to such rules as may from time to time be made by the State Government, to either sell the unalienated land for a fixed price or to sell the same by public auction. The statute has conferred this discretion on the Collector. Therefore, the Government by means of administrative instructions is not competent to place any limitation on that discretion.
5. Now let us consider the rule bearing on the subject. The relevant Rule is Rule 37(1). It reads :
'(1) 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 beEut up to public auction and sola subject to is confirmation to the highest bidder.' Even under this rule, discretion is given to the Collector to either sell the land for a fixed price or to sell the same by public auction. In the instant case, as seen earlier, the 'Collector' which expression includes the Assistant Commissioner, has chosen to sell the land in question to the petitioner for a fixed price. The action of the Collector is in accordance with Section 62 of the Bombay Land Revenue Code and Rule 37 of the Rules framed thereunder.
6. The material portion of the Bombay Government resolution to which reference has been made earlier is found in Clause (4) of that resolution. It reads :
'4. Lands elsewhere than in Scheduled Areas :
As regards available lands in areas other than the Scheduled Areas, they should be disposed of in accordance with the following orders :
(A) Lands should be classified into the following three categories :--
(i) Land for which on account of its poorness or inaccessibility or obviously costly clearance or improvement, etc., there is no known demand.
(ii) Land which is waste because of its small size or backward shape or situation or is less in extent than the standard area fixed under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
(iii) Land suitable tor and in demand for cultivation.
(B) Schemes should be prepared for improving lands falling in category (i) and submitted to Government in the Agriculture and Forests Department or to tile Secretary, Khar Lands Development Board, for sanction so thatthe lands could, after being improved by Government, be classified under category (iii) and then disposed of in accordance with the orders applicable to lands of that category.
(C) Land falling in category (ii) should be disposed of in accordance with Section 117-B, Land Revenue Code, if that section applies to it. In other cases also it will be best to dispose of it to occupants of adjoining land or lands. When it forms part of a survey number or is a small survey number which could more conveniently be amalgamated with the adjoining survey numbers, it should be disposed of in the following manner :--
(b) When the adjoining laud is, owned by more man one person:--
(ii) If the adjoining lands are owned by more than one person belonging to the non backward classes, the survey number should be auctioned amongst the owners of the adjoining lands .....'
In the instant case, it is admitted that both theEtitioner as well as respondents 1 and 2 own lands adjoining survey No. 106 and they being to the non backward classes. Therefore if the resolution in question is binding, then there can be no doubt that the orders impugned are valid orders. But for the reasons already mentioned, the resolution in question cannot in any manner distract from the power of the collector conferred on him by Section 62 of the Bombay Land Revenue Code and Rule 37 of the Rules framed thereunder. Hence the orders impugned suffer from errors of law apparent on the face of the record.
7. This petition is accordingly allowedand the orders impugned, namely, that of theMysore Revenue Appellate Tribunal, BelgaurnBench in RAB 142/1962 dated 6-8-1962 andthat of the Divisional Commissioner, Belganmin No. RB/LND/A. P. 313 dated 14-3-1962are hereby quashed and the order of the DeputyCommissioner, Belgaum in RA/IND/AP-22-59dated 30-9-1961 is restored. In the circumstances of this case we make no order as tocosts.
8. Petition allowed.