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Muman Habib Nasir Khanji Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR307
AppellantMuman Habib Nasir Khanji
RespondentState of Gujarat and ors.
Cases ReferredHari Shanker and Ors. v. Rao Girdharilal Chowdhury
Excerpt:
- - 17. this section firstly provides for an appeal against the order of a revenue officer-whether passed under the bombay land revenue code or under any other law for the time being in force 'to that officer's immediate superior'.secondly, such an appeal lies against original as well as appellate decision. therefore, the scheme of section 203, when enacted, clearly contemplated a series of four appeals one after another. but once the government is satisfied either that the order is illegal or improper or the proceeding irregular, then government is given the power either to modify, annul or reverse either the proceeding or the order and to pass any such order as it deems proper. it is true that this would make the tenure of any occupant under the land revenue code most insecure.....s.h. sheth, j.1. this letters patent appeal is directed against the order of summary dismissal made by our learned brother j.m. sheth j. on 16th april 1969, in special civil application no. 658 of 1969. the facts of the case, briefly stated are as follows:2. the petitioner is the owner of a village site land situate in village bhagal (jagona), palanpur taluka, banaskantha district. it was sold to the petitioner at an auction by an aghat sale. adjoining this piece of land, there are two other plots of land one of which admeasures 46' x 23' and another admeasures 36' x 20 1/2'.3. on 28th august, 1962, the petitioner made an application to the mamlatdar of palanpur requesting him to sell to him these two adjoining plots of land in order to enable him to put up a building construction on.....
Judgment:

S.H. Sheth, J.

1. This Letters Patent Appeal is directed against the order of summary dismissal made by our learned brother J.M. Sheth J. on 16th April 1969, in Special Civil Application No. 658 of 1969. The facts of the case, briefly stated are as follows:

2. The petitioner is the owner of a village site land situate in village Bhagal (Jagona), Palanpur Taluka, Banaskantha District. It was sold to the petitioner at an auction by an Aghat sale. Adjoining this piece of land, there are two other plots of land one of which admeasures 46' x 23' and another admeasures 36' x 20 1/2'.

3. On 28th August, 1962, the petitioner made an application to the Mamlatdar of Palanpur requesting him to sell to him these two adjoining plots of land in order to enable him to put up a building construction on them. The Mamlatdar of Palanpur reported the matter to the Prant Officer at Palanpur. On 5th October, 1962, the Prant Officer made an order whereby he directed that the said two adjoining plots of land be sold by auction. On 10th December 1962, in pursuance of the order made by the Prant Officer, Palanpur, a public auction was held for selling these two plots of land and it appears that these two plots of lands were purchased by the appellant at this public auction.

4. On 23rd March, 1963, the appellant's bid for purchasing them was sanctioned by the Mamlatdar of Palanpur by his order made in that behalf. Thereafter, the appellant paid the price of these two plots of land. On 26th April, 1964, he executed a deed of kabuliyat in respect of these two plots of land. By the said kabuliyat he agreed to pay non-agricultural cess in respect of these two plots of land at the rate of 2 pies per one square yard and to complete the building construction thereon within two years from the date of his taking their possession. The said deed of kabuliyat also showed plan of these two plots.

5. More than two years thereafter, on 7th July, 1966, the Collector of Banaskantha issued notice to the appellant to show cause why the said auction sale should not be cancelled, why the order of the Mamlatdar of Palanpur, sanctioning the appellant's bid, should not be cancelled, and why the Kabuliyat which the appellant had executed in respect of these two plots of land should not be cancelled. The Collector of Banaskantha admittedly issued this notice under Section 211 of the Bombay Land Revenue Code, This notice further stated that the lands which were sold to the appellant were part of a public street and that, therefore, their sale was illegal and improper.

6. The appellant gave a reply to this notice in which he raised several contentions. Firstly, he contended that no public street passes through these plots of land. Secondly, he contended that this notice was issued by the Collector of Banaskantha on the application of some of the residents of the village who wrongly alleged that the building construction on these plots of land would be an obstruction to the State Transport buses passing from there. Thirdly, he contended that he had executed a kabuliyat in respect of these plots of land in 1964 and that the State Transport Corporation had started operating its buses in the neighbourhood of these plots of land only in 1965. He, therefore, finally contended that when these plots of land were sold to him there was no bus route or public street passing through them. The Collector of Banaskantha held an inquiry into the matter and, by his order dated 3rd October 1966 discharged the notice and found that the auction sale of these plots was legal, proper and in order.

7. Thereafter the respondents Nos. 2 to 5 filed an appeal before the State Government against this order of the Collector of Banaskantha. The State Government heard the appeal and, by its order dated 18th November, 1967, allowed the appeal, set aside the public auction of these lands, cancelled the Prant Officer's order to sell the lands by public auction and also cancelled the order made by the Mamlatdar of Palanpur sanctioning the appellant's bid for purchasing these plots of land.

8. Against this order of the State Government, made on 18th November, 1967, the appellant filed in this High Court Special Civil Application No. 133 of 1968 which was heard by our learned brother Sarela J. By his judgment and order dated 28th June 1968, Sarela J. dismissed that petition and upheld the appellate order of the State Government.

9. Against this judgment of Sarela J., the appellant filed Letters Patent Appeal No. 19 of 1968. That appeal was heard by a Division Bench of this High Court which allowed it on 9th December, 1968. The Division Bench arrived at a finding that die appellate order of the State Govern ment was passed in contravention of the principles of natural justice, and therefore, it quashed that appellate order and directed the State Govern ment to hear the appeal afresh according to law and in light of the observations made by it in that judgment.

10. Thereafter, the State Government heard the appeal again. It appears from the judgment of the State Government that the appellant raised several contentions before it. Firstly, the appellant contended that the present respondents Nos. 2 to 5 had no right to file the appeal. Secondly he contended that further inquiries were made by the Collector behind his back and that he was prejudicially affected by them. Thirdly he contended that he was given no opportunity to lead evidence to show that there was no public street or road passing through the site of these two plots in question. He also contended that the question whether there was a public street or not at the site of these two plots in question has to be decided by the Collector under Section 37(2) of the Bombay Land Revenue Code after holding an inquiry. He also submitted to the State Government that he had filed the suit in the Civil Court for a declaration that there was no public street or road passing through the two plots in question and, therefore, he prayed for staying the hearing of the appeal by the State Government until the Civil Court decided his suit. He finally contended that the sale by public auction was legal and proper and that there were no reasons for the State Government to interfere with that sale.

11. After hearing the parties, the State Government allowed the appeal and rejected the appellant's contentions. The State Government, in addition, accepted a further contention raised on behalf of respondents 2 to 5, that the sale, held by the Mamlatdar of Palanpur was not legal and proper. The State Government, therefore, set aside the order of the Collector of Banaskantha and cancelled the sale of the two plots in question in favour of the appellant.

12. This order of the State Government was followed up by a notice from the Taluka Development Officer to the appellant requiring him to demolish the construction which he had put upon them and to hand over possession of the two plots in question to the Government. That notice gave the appellant only three days' time to comply with the requisitions contained therein.

13. In the first instance, the appellant filed in this High Court, a Special Civil Application challenging the validity of the notice of the Taluka Development Officer and it appears that the High Court issued notice to the officer concerned before admitting that Special Civil Applica tion. At the hearing of that notice, the Taluka Development Officer agreed not to take against the appellant any action in the matter for a period of one month and sevan days expiring on 19th April 1969. Meanwhile, the appellant filed Special Civil Application No. 658 of 1969 against the fresh appellate order of the State Government which it made after remand. This Special Civil Application came up for preliminary hearing before our learned brother J.M. Sheth J. on 16th April 1969 who summarily rejected it. In this Special Civil Application, the appellant made two prayers. Firstly, he prayed for quashing and setting aside the State Government's appellate order made on 17th February, 1969 and also for quashing and setting aside the notice issued to him by the Taluka Development Officer on 10th March, 1969. Against this order of Mr. Justice J.M. Sheth the present Letters Patent Appeal has been filed.

14. Mr. Patel who appears for the appellant raises the following points:

(1) The appeal to the State Government against the order of the Collector made under Section 211 of the Bombay Land Revenue Code, is not competent under the Code and, in any case, the Respondents Nos. 2 to 5 had no right to file the appeal before State Government.

(2) The State Government cannot rely upon the evidence collected behind the back of the appellant by the Aval Karkun arid adopted by the Collector in his report. Therefore, the present order suffers the same vice from which the earlier order of the State Government suffered inasmuch as the use of such material against the appellant contravenes the principles of natural justice.

(3) The question whether there was a public street or road passing through the two plots of land in question can only be decided by the Collector under Section 37(2) of the Bombay Land Revenue Code.

(4) No new evidence can be taken into account by the State Government in appeal or in a revision application.

(5) Sale by public auction can only be set aside according to the procedure laid down in Section 178 of the Bombay Land Revenue Code.

15. In support of his first contention, Mr. Patel invites our attention to Section 211 of the Bombay Land Revenue Code and argues that, after more than two years, the Collector had issued to the appellant notice under Section 211 of the Bombay Land Revenue Code. He further argues that no appeal lies against an order of the Collector made in exercise of his powers under Section 211 of the Bombay Land Revenue Code. In reply, Mr. Shelat who appears for the State Government invites our attention to Section 203 of the Bombay Land Revenue Code and contends that, under Section 203 of the Bombay Land Revenue Code, an appeal lies to the State Government against any order of a Revenue officer whether such order is an original order or an appellate order. Therefore, according to him, an appeal lies to the State Government under Section 203 of the Bombay Land Revenue Code against an order made by the Collector under Section 211 of the said Code. In view of these two rival contentions, raised by the parties before us, it becomes necessary for us to examine the scheme of appeals and revision contained in Chapter XIII of the Bombay Land Revenue Code.

16. Chapter XIII of the Bombay Land Revenue Code provides for appeals and revisions. Section 203 provides for appeals against certain types of orders mentioned therein. Section 204 also provides for appeals in cases mentioned therein. Section 209 deals with powers of the appellate authority. Section 211 deals with-what we may call-revisional jurisdiction. We shall presently see that Section 211 is the residuary section and embraces a very wide scope and ambit. It is not necessary, for the purposes of this petition, to refer in detail to other sections contained in Chapter XIII of the Bombay Land Revenue Code. Suffice it to say that Section 205 deals with the period of limitation, Section 206 deals with the condone tion of delay caused in filing appeals, Section 207 provides for a remedy where the last day of the period of limitation falls on Sunday or a holiday, Section 208 deals with the form of appeal and its accompaniments, Section 210 confers upon the appellate authority the power to suspend the execution of orders of subordinate officers and Section 212 provides for finality of certain decisions. Therefore, Sections 203, 204, 209 and 211 of the Code are material sections for the purpose of this petition.

Section 203 reads as under:

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 net.

17. This section firstly provides for an appeal against the order of a revenue officer-whether passed under the Bombay Land Revenue Code or under any other law for the time being in force 'to that officer's immediate superior'. Secondly, such an appeal lies against original as well as appellate decision. The question which arises for our consideration is: what is the meaning of the phrase 'to that officer's immediate superior'? It is true that the words 'immediate superior officer' have not been used in Section 203, but only the words 'immediate superior' have been used. Looking to the context in which they have been used, the words 'immediate superior' connote 'immediate superior officer'. Since the word 'officer' has already been used immediately before the words 'immediate superior' it has not been repeated after those words. Mr. Shelat contends that the phrase 'immediate superior' means 'immediate superior authority'. He, therefore, further proceeds to contend that if the words 'immediate superior' are construed so as to mean 'immediate superior authority', Section 203 will permit an appeal from the decision of the Collector even under Section 211 of the Code to the State Government. We are unable to accept this contention of Mr. Shelat for several reasons. Firstly, it appears to us that reading Section 203 as a whole and reading the words 'immediate superior' in the context in which they have been used, it is very clear that they have been used to connote and mean 'immediate superior officer'. Since the words 'immediate superior' are immediately preceded by the word 'officer', as stated above, the Legislature has thought fit not to repeat it after them. If it was the intention of the Legislature that 'immediate superior' must mean 'immediate superior authority', nothing would have been easier for it then to use the words 'immediate superior authority' instead of only using the words 'immediate superior'. A word can be left to be understood in the context of the language if it occurs in the earlier part of a sentence. An altogether new word which has not occurred anywhere earlier in a sentence ordinarily will not be left to be understood in the context. It, therefore, appears to us that the word 'officer' has been left to be understood after the phrase 'immediate superior'. In this view of the matter, it appears to us that Section 203 contemplates an appellate hierarchy of revenue officers from the lowest to the highest. Now the State Government is not and cannot be a 'superior officer'. Under the Constitution of India and also under the earlier Constitution Acts, it has been an ultimate executive authority in respect of the matters assigned to it. Therefore, the State Government is not an 'immediate officer'within the meaning of Section 203. To say so is to violate the English language and to do injustice to the meaning and connotation of the word 'officer'. The hierarchy of appeals, contemplated by Section 203, is so large that in a conceivable case, there can be as many as four appeals. Where the original order is passed by the Aval Karkun, an appeal against his decision will lie to the Mamlatdar. Against an appellate decision of the Mamlatdar, a further appeal will lie to the Prant Officer or the Deputy Collector. Against such a second appellate decision of the Prant Officer or Deputy Collector, a third appeal will lie to the Collector, Against the third appellate decision of the Collector, a fourth appeal could lie in the past to the Commissioner. The Office of the Commissioner has now been abolished and, therefore, such a contingency of a fourth appeal to him does not arise now. The office of the Commissioner, however, had been in existence for nearly 7 to 8 decades after the Bombay Land Revenue Code was enacted. Therefore, the scheme of Section 203, when enacted, clearly contemplated a series of four appeals one after another.

18. While placing this construction on Section 203, we are fortified in our view by the provisions contained in Section 204 of the Bombay Land Revenue Code. Section 204 made an express provision for an appeal to the State Government from the decision of the Commissioner under certain circumstances. By Gujarat Act IV of 1964, the office of the Commissioner has been abolished and a consequent amendment has been made to Section 204. The fact, however, remains that, until 1964, Section 204 contained an express provision for an appeal from the decision of the Commissioner to the State Government. Of course, that provision was subject to the exception that no appeal would lie to the State Government if the Commissioner had recorded an order or decision 'on appeal from a decision or order which itself was recorded in appeal by an officer subordinate to him. 'In other words, the exception barred a further appeal to the State Government against the second appellate decision of the Commissioner. Even now Section 204, as it stands, provides for an appeal from the original or the first appellate decision of the Survey Commissioner to the State Government. An officer who is employed for the purpose of surveys is also a 'revenue officer'. The phrase 'revenue officer' is defined by Section 3(1) of the Bombay Land Revenue Code as under:

'revenue officer' means every officer of any rank whatsoever appointed under any of the provisions of this Act, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith and for the purposes of Sections 25 and 26 includes village-officer appointed or officiating under any of the provisions of the Bombay Hereditary Offices Act or the Mamlatdars Act, 1887.

In view of this definition, the decisions of the officers connected with survey will be appealable under Section 203 to their superior officers. If, therefore, the phrase 'immediate superior' is to be construed so as to mean 'immediate superior authority' so as to include State Government within its compass, the express provision contained in Section 204 providing for an appeal from the original or the first appellate decision of the Survey Commissioner to the State Government shall become redundant. Mr. Shelat, however, contends that Section 204 is ancilliary and incidental to Section 203 and is in the nature of a proviso thereto. According to Mr. Shelat, the object of Section 204 is only to carve out an exception by which an appeal to the State Government from the second appellate decision of the Commissioner or the Survey Commissioner will be barred. We are unable to agree to this construction canvassed by Mr. Shelat for the simple reason that, if such was the intention of the Legislature, nothing would have been easier for it than to add a small proviso to Section 203 incorporating therein the exception which is contained in Section 204. In such a case, the repetition of the principal portion of Section 204 which deals with appeals from the orders of the Commissioner and Survey Commissioner to the State Government could have been done away with. To accept such a construction of Section 204 will render the principal portion of Section 204 superfluous. No legislation can be so construed, as far as possible, as to render any part thereof superfluous. This construction reasonably fits into the scheme of Section 204 as it now stands as also into the scheme of Section 204 as it stood prior to its amendment in 1964 if we have to find out the original legislative intention. We are, therefore, of the opinion that Section 204 is independent of Section 203. Therefore, since Section 204 made an express provision for appeal from the order or decision of the Commissioner or Survey Commissioner to the State Government prior to its amendment and now only from the order or decision of the Survey Commissioner, it furnishes an additional reason why Section 203 cannot be read so as to provide for an appeal to the State Government. In this view of the matter, we are of the opinion that under Section 203 of the Bombay Land Revenue Code no appeal lies to the State Government from the decision of a revenue officer. It is needless to say that, with the abolition of the office of the Commissioner, the hierarchy of the appellate officers, contemplated by Section 200, ends with the Collector. Prior to 1964, it ended with the Commissioner. In this view of the matter, we are unable to accept the contention of Mr. Shelat that an appeal lies to the State Government under Section 203 from a decision recorded by the Collector under Section 211 of the Bombay Land Revenue Code.

19. Mr. Shelat however further contends that Section 204 had atleast contemplated one appeal to the State Government from the decision of the Commissioner subject to the exceptions contained therein. He, therefore, argues that, with the abolition of the office of the Commissioner by Gujarat Act XV of 1964, Sections 203 and 204 should be so read as to retain the right of appeal to the State Government from the decision of the Collector. It is true that, with the abolition of the office of the Commissioner, Section 204 has been amended deleting the provision relating to the appeals from certain decisions of the Commissioner to the State Government. The construction which we are placing upon Section 203, read in light of the amended Section 204, will bar any appeal whatsoever to the State Government. This situation, however, cannot be helped because what has been deleted from Section 204 cannot be read as having been automatically transferred to Section 203 without any corresponding amendment to that section. It was open to the State Legislature, while amending Section 204 and deleting therefrom the provision relating to the appeal from the order or decision of the Commissioner to the State Government, to make a corresponding amendment to Section 203 and to provide for an appeal to the State Government from the decision of the Collector, who, in the present set-up of the hierarchy of revenue officers, is the final revenue officer under the State Government. The State Legislature can even now act in the matter. We, however, cannot read into the amendment to Section 204 something which puts greater contents into Section 203 which remains unamended. The next reason why we are unable to read Section 203 as Mr. Shelat wants us to read is that the Legislature will not make two provisions in two different sections in order to provide for the same situation. If we accept Mr. Shelat's construction, we shall have to hold that both Section 203 and 204 provided for appeal to the State Government. We are unable to do so. A close look at Section 209 further fortifies us in placing upon Section 203 the construction which we are placing. However, for the purpose of this case, we shall more conveniently revert to Section 209 after we have examined the scheme of Section 211.

20. Let us now examine the contention of Mr. Patel. He argues that no appeal lies to the State Government from the decision of the Collector under Section 211. On reading Section 211, it appears to us to be a residuary section in the sense that an officer, empowered by that section, on his own motion or otherwise can correct or set aside an erroneous decision of the subordinate officer under the circumstances mentioned therein if it has not otherwise come to his notice. It also confers the ultimate revisional power on the State Government. It reads as under:

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 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 proceedings of such officer.

The following officers 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.

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 lit.

21. The scheme of Section 211 is that the revisional powers are not only exercisable by the State Government but also by certain other revenue officers. There is nothing in the section to suggest that if these revisional powers are exercised by a revenue officer who has jurisdiction to do so, they cannot be further exercised by a superior revenue officer or by the State Government. We are unable to read Section 211 as meaning that the powers conferred by that section upon the State Government and upon certain revenue officers are exhausted as soon as they are once exercised by a revenue officer. A fair reading of Section 211 suggests that, if the revisional powers are exercised by a revenue officer, having jurisdiction to do so, further revisional powers can be exercised by a superior officer or by the State Government. In this case, the Collector admittedly exercised, more than two years after the sale was confirmed by the Prant Officer, his revisional powers under Section 211 though he did not interfere with the Prant Officer's order. In our opinion it is open to the State Government under Section 211 to exercise further revisional powers either suo motu or otherwise and to examine the order or decision of the Collector to find out whether it is legal and proper or whether proceedings relating to the sale are regular. Therefore, though Mr. Patel is technically correct in his contention that no appeal to the State Government lies from the decision of the Collector under Section 211, it is not as if the State Government is completely devoid of any jurisdiction in the matter under Section 211. Therefore, though the State Government and the parties might have treated the present proceedings before the State Government as an appeal and though an appeal to the State Government from the decision of the Collector under Section 211 might not be competent, the proceedings were competent in the form of a revisional application under Section 211. We are, therefore, unable to agree with Mr. Patel that, since no appeal lies to the State Government from a decision of the Collector under Section 211, the present proceedings before the State Government were totally incompetent. Since, in another shape and form, the present proceedings before the State Government were competent, we are unable to accept the further contention of Mr. Patel that we should strike them down.

22. This takes us to the question of the scope and ambit of Section 211 and the extent of power which the State Government can exercise under it. As we have observed earlier, Section 211 is a residuary section. It does not expressly provide for any period of limitation and the absence of such a provision therein gives us a clue to discover its ambit. Ordinarily, these powers can be exercised at any time-may be after twenty years, fifty years, years or hundred years. Section 211 came up for consideration before the Full Bench of the High Court of Bombay in the case of State of Bombay v. Chhaganlal Gangaram Lavar reported in 56 Bom. L.R. 1054. Dealing with the amplitude of the powers, conferred upon the State Government and certain revenue officers mentioned therein, Chief Justice Chagla observed at page 1093 of the report as under:

The powers are obviously wide and ample and one cannot but help being impressed by the extent of the power conferred by the Legislature upon the Government and the higher authorities under the section. It is not as if there is no limitation upon the power of the State. The ambit of its power is to be found in the first paragraph of Section 211 itself. It is not any and every order that Government can revise or modify. It is only those orders which according to Government are illegal or improper, because the power to revise only arises provided the Government wishes to satisfy itself as to the legality or propriety of a decision or the regularity of a proceeding of a subordinate officer. But once the Government is satisfied either that the order is illegal or improper or the proceeding irregular, then Government is given the power either to modify, annul or reverse either the proceeding or the order and to pass any such order as it deems proper.

Chief Justice Chagla, at page 1095 of the report further observed on the absence of any provision relating to the period of limitation as under:

It is true that this would make the tenure of any occupant under the Land Revenue Code most insecure because it is rather extraordinary that there is no period of limitation prescribed for the exercise of the revisional powers of Government under Section 211. Therefore, the result may well be that after several years the Government may interfere with a title or with titles and disturb the security of a tenure created a long time back. It is a matter for consideration whether the Legislature should not at least impose a time-limit upon the exercise of revisional powers under Section 211, because if an improper or illegal order is made by a subordinate revenue officer, surely Government would have notice of it within a reasonable time. It is also a matter for consideration for the Government whether apart from any legislative provision they should not impose upon themselves some limitation of time in the exercise of their powers under Section 211.

This section also came up for consideration before their Lordships of the Judicial Committee of the Privy Council in the case of Secretary of State v. Anant Nulkar 36 Bom. L.R. 242. At p. 245 of the report, Their Lordships dealing with the amplitude of powers conferred by Section 211, observed as under:

The amplitude of the powers conferred on the Commissioner by that section is striking.

Though the exercise of these powers has not been subjected by the Legislature to any period of limitation, they can be exercised, as Chief Justice Chagla put it, for the purpose of satisfying oneself as to the legality or propriety of any decision or order of a subordinate officer or as to the regularity of any proceedings before him. Commenting upon the word 'propriety', used in Section 211 Mr. Justice Shah, concurring with the judgment of Full Bench in the case of State of Bombay v. Chhaganlal (supra), observed as under:

It is true that the powers under Section 211 of the Bombay Land Revenue Code are of the widest amplitude. As their Lordships of the Privy Council pointed out in Anant Nulkar's case they are of 'striking' amplitude. It is open to the State Government in exercise of these powers to call for the record of any order or proceeding for the purpose of satisfying itself not only as to the legality of the order or decision but even on the rather nebulous ground of propriety: and in exercise of the revisional jurisdiction the State Government can pass orders modifying, annulling or reversing the order passed by the subordinate officer and may pass such orders thereon as it deems fit.

(emphasis ours).

23. In view of this Full Bench decision of the Bombay High Court, it is clear that the ambit of Section 211 is very wide inasmuch as a decision can be called in question by the State Government or by a superior officer on the ground of propriety which has a very wide connotation.

24. We cannot leave this subject without referring to a recent unreported decision of the Supreme Court, having a material bearing on the question. In the case of State of Gujarat v. Patel Raghav Natha and Ors. Civil Appeal No. 723 of 1966 decided on 21st April, 1969 X G.L.R. 992 the Supreme Court was dealing with Section 211 of the Bombay Land Revenue Code. After reviewing the case law on the question of the wide amplitude of powers, contained in Section 211, Their Lordships have observed as under:

The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the Legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is a reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations atleast within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e. more than a year after the order and it seems to us that this order was passed too late.

In the case of State of Bombay v. Chhaganlal Gangaram Lavar (supra), the Full Bench of the Bombay High Court did not think fit to lay down the rule that the revisional power under Section 211 of the Bombay Land Revenue Code must be exercised within a reasonable time but left to the Legislature to take appropriate steps for imposing time limit upon the exercise of powers under Section 211. In 36 Bom. L.R. 242, Their Lordships of the Privy Council rested content with observing that the 'amplitude of the powers conferred on the Commissioner by the section is striking'. The Supreme Court, however, has gone a step further and held that the powers under Section 211 must be exercised within a reasonable period of time. In view of this decision, the likelihood of the serious mischief being caused by the exercise of revisional power under Section 211 at any point of time will greatly disappear.

25. Though the Supreme Court has not qualified the exercise of this power under Section 211, the appellant faces a difficulty in this case which will prevent him from taking advantage of that decision. At no stage of the present proceedings, he raised the contention that the Collector was not moved within a reasonable time by the respondents No. 2 to 5 and that, therefore, the present proceedings were hit by the lapse of unreasonable period of time. Having realised this difficulty, the appellant has made Civil Application No. 1619 of 1969 for amendment of his memorandum of appeal by inserting ground (o) therein. The respondents Nos. 2 to 5 have raised a strong objection to this application for amendment and have filed an affidavit in reply. The proposed amendment is, in our opinion, full of facts and has, therefore, run into an undue length. When the attention of Mr. Daru, who appeared for the appellant at this stage, was drawn to this aspect of the proposed amendment, he stated at the Bar that all the facts, stated in the proposed amendment have been taken from the record of the case. If they are on the record of the case, it is superfluous to plead them in the Memorandum of Appeal. If they are not on record, they cannot be pleaded in a Letters Patent Appeal on the ground that new facts cannot be canvassed in such an appeal for the first time. Having realised this difficulty, Mr. Daru has restricted his proposed amendment only to the following words in the shape of ground (o) to be inserted in the memorandum of Letters Patent Appeal.

(o) The Collector had no power to entertain the revision application after the lapse of reasonable time.

Mr. Bhatt, appearing for respondents No. 2 to 5, opposes the proposed amendment and contends that the appellant had ample opportunity to raise this ground herebefore in this High Court as well as before the State Government and that this new ground raises new questions of fact. In support of his submission, he relies upon a decision of this Court in the case of Kadi Municipality v. New ChhotaM Mills Co. Ltd. Kadi reported in : AIR1965Guj293 wherein a Division Bench of this Court states in the following terms the circumstances under which this question arose and their decision thereon.

But before we consider this question we must refer to one extreme contention advanced by Mr. S.N. Patel, learned advocate appearing on behalf of the Municipality; which if successful, would enable him to by-pass this question and to eliminate most of the difficulties which beset his other arguments. The contention was that the Tharav had no binding effect ab initio and there was, therefore, no question of its continuing in force after the merger of the Baroda State. Now to this contention a preliminary objection was raised by Mr. B.G. Thakore, learned advocate appearing on behalf of the Company. He submitted that this contention could not be allowed to be raised in these Letters Patent Appeals since it had not been taken before the learned Judge who heard the Second Appeals and for the matter of that it had not been taken even before the learned Assistant Judge or the learned trial Judge. He pointed out the limits of our jurisdiction hearing a Letters Patent Appeal and relied upon three decisions of the High Court of Bombay, namely, Shripad v. Shivram 36 Bom. L.R. 1952, Satappa v. Mohmad Saheb 38 Bom. L.R. 221 and Rameshbhai Govind v. Raghunath 53 Bom. L.R. 863. It is clear from these decisions that a new point which has not been urged before the Judge hearing a Second Appeal cannot be allowed to be urged for the first time at the hearing of a Letters Patent Appeal. Now it cannot be disputed that this point which is sought to be raised by Mr. S.N. Patel was not urged before the learned Judge at the time of hearing of the Second Appeals nor was it taken before the learned Assistant Judge or the learned trial Judge. We cannot, therefore, permit this point to be raised for the first time at the hearing of these Letters Patent Appeals before us. But apart from this objection founded on the fact that these are Letters Patent Appeals, there is another cogent reason why we cannot permit the Municipality to raise this point. This point which is now ought to be raised is in complete contradiction of the basis on which the case has been argued in all the three Courts. The case has throughout proceeded on the basis that the Tharav was a valid and binding Tharav upto the date of merger and the only argument was that it ceased to be in force on merger. It was never the case of the Municipality so far that the Tharav did not have any binding effect at all right from the commencement. The Municipality cannot, therefore, be allowed to take up a stand altogether inconsistent with the stand taken up by it upto this date.

The ratio of this decision does not apply to this case for several reasons, The Division Bench, which decided that case, was hearing Letters Patent Appeals arising from Second Appeals. The scope of a Second Appeal is expressly restricted by the language of Section 100 of the Code of Civil Procedure and in a Letters Patent Appeal, therefore, an appellant cannot traverse beyond the limited contentions raised by him in the Second Appeal. A Letters Patent Appeal from the decision of the High Court in a Second Appeal does not lie as a matter of course and as of right. It lies only if the judge who decides the Second Appeal certifies the case fit for appeal under Clause 15 of the Letters Patent. He grants the certificate on the strength of what he has decided in the Second Appeal and it has, therefore relevance to the contentions which can be raised in a Letters Patent Appeal. Next, in Kadi Municipalitiy 's case (supra), the Division Bench was also considering whether a contradictory plea should be allowed to be raised for the first time in the Letters Patent Appeal which is not the case here. Lastly, a new interpretation of Section 211 has been made available by the Supreme Court for the first time since 1879 when the Bombay Land Revenue Code was enacted. It gains unusual significance when viewed in light of the fact that the Supreme Court has engrafted a qualification to Section 211 which the Judicial Committee of the Privy Council and the Full Bench of the High Court thought fit not to do. The law as settled in 36 Bombay Law Reporter by the Judicial Committee and in 56 Bombay Law Reporter by the Full Bench of the Bombay High Court has now undergone a metamorphosis. The point, now raised by Mr. Daru, on the strength of the judgment of the Supreme Court-referred to above-goes to the root and is intended to protect the property rights of the citizens. We, therefore, allow the amendment only to the extent quoted in the early beginning of this paragraph in the shape of ground (0) and reject the rest of it. Since we are remanding this case to the State Government, it shall consider the facts and circumstances of this case and decide whether the application which the respondents No. 2 to 5 made to the Collector after two years of the sale of land in question to the appellant was made within reasonable time.

26. Mr. Patel's next submission is that in any case an appeal by respondents No. 2 to 5 was not competant because they had no right to file an appeal to the State Government. In view of our finding that the State Government has only revisional jurisdiction in the matter under Section 211, this question need not detain us any longer. The question whether respondents Nos. 2 to 5 had any right of appeal or not against the decision of the Collector loses its significance and value in view of the fact that under Section 211 of the Bombay Land Revenue Code the State Government can exercise revisional powers suo motu. Therefore, the function and role of respondents Nos. 2 to 5 ended with their bringing this matter to the notice of the State Government. Thereafter, it was within the discretion of the State Government to take further steps in the matter or not to take any. The State Government may exercise its powers under Section 211 either on its own motion or otherwise or may not exercise them at all. In this view of the matter the question whether respondents Nos. 2 to 5 had a right to file an appeal or not does not arise. We, therefore, reject the second part of Mr. Patel's contention that the proceedings before the State Government were incompetent because the respondents Nos. 2 to 5 had no right to file an appeal against the decision of the Collector. In view of this finding of ours it is not necessary for us to deal with Mr. Shelat's counter contention that respondents Nos. 2 to 5 are 'persons interested' or 'persons aggrieved'. So also it is not necessary for us to refer to the case of Punjabhai v. Jayantilal reported in 6 G.L.R. 849 which deals with the question as to who is 'a person interested' or 'a person aggrieved'.

27. We shall now take up Mr. Patel's second and fourth contentions together. The second contention raised by Mr. Patel is that in the proceedings before it the State Government had no jurisdiction to rely upon the evidence which the State Government had gathered through the Aval Karkun on the strength of which the Collector had made his report to it. Mr. Patel had also contended that when the respondents Nos. 2 to 5 moved the State Government they produced certain additional evidence which is referred to itemwise in the notice which the State Government issued to the petitioner for the hearing of the case. They are as follows:

(1) Certified copy of the Order of the District Development Officer, Palanpur in Appeal No. 23/66 dated 7-4-67 setting aside resolution, No. 4 dated 12-7-66 of Gram Panchayats, Bhagal (Jagana), Taluka Palanpur.

(2)-(3) Certified copy of the application dated 7-2-62 made by the appellant No. 1 for certified copies and the original reply given thereto.

(4) Certified copy of the agenda dated 3-9-62 of the Gram Panchayats, Bhagal (Jagana).

(5) Original affidavit dated 23-6-67 filed in the proceedings in connection with the false signature of Shri Alimad Jiva at the time of the auction of the land in question.

In this connection it is necessary to have a close look at Section 209 which also lends further support to the construction which we are placing upon Section 203:

Section 209 reads as under:

The appellate authority may for reasons to be recorded in writing either annul, reverse, modify, or confirm the decision or order of the subordinate officer appealed against, or he may direct the subordinate officer to make such further investigation or to take such additional evidence as he may think necessary, or he may himself take such additional evidence:

Provided that it shall not be necessary for the appellate authority to record reasons in writing--

(a) when an appeal is dismissed summarily, or

(b) when the decision or order appealed from is itself a decision or order recorded in appeal, or

(c) when an appeal is made to the State Government under Section 204.

Nothing turns upon the proviso to Section 209 so far as this case is concerned. Section 209 firstly confers upon the appellate authority the power to annul, reverse, modify, or confirm the decision or order of the subordinate officer against which the appeal is filed. Secondly, the appellate authority can also direct the subordinate officer to make such further investigation or to take such additional evidence as he may think it necessary or he may himself take such additional evidence. Now the appellate authority in this case will not include a revisional authority. We have already held that the State Government, under Chapter XIII of the Bombay Land Revenue Code, has, so far as facts of this case are concerned, only revisional powers under Section 211. The distinction between the appellate power and revisional power is well settled. In the case of Hari Shanker and Ors. v. Rao Girdharilal Chowdhury reported in A.I.R. (1963) Supreme Court 693, the Supreme Court points out this distinction in the following terms:

The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law.

In view of this well settled distinction between the appellate power and the revisional power it cannot be said that Section 209 which refers to the appellate authority also includes the revisional authority. The scheme of Section 209 becomes clear when it is read in light of what is contained in Section 211. Whereas Section 209 confers upon the appellate authority the power of annuling, reversing, modifying and confirming the decision or order of the subordinate officer and whereas it also empowers the appellate authority to direct the subordinate officer to make further investigation into the matter and or to take additional evidence itself, Section 211 empowers the revisional authority only to modify, annul, or reverse a decision or order of a subordinate officer or proceedings instituted before him. Section 211, therefore, does not confer upon the revisional authority the power to take additional evidence and is silent on the question. In view of this scheme of Sections 209 and 211 and applying the cannon of construction expression unius est exclusio alterius we are of the opinion that when an express provision has been made for the appellate authority to take additional evidence and when no similar provision has been made for the revisional authority to do so, the Legislature deliberately excluded the power of the revisional authority to take additional evidence. In this case, the State Government, as held by us, was exercising revisional jurisdiction under Section 211 of the Bombay Land Revenue Code. Therefore, it had no jurisdiction to receive any additional evidence in the matter. Within the meaning of Section 211 of the Bombay Land Revenue Code, it should have confined itself to the record and proceedings of the case when it examined the legality or the propriety of the decision of Collector or of the Prant Officer or examined the regularity of the proceedings either before the Collector or before the Prant Officer. Even otherwise, Section 211 lays down a very sound principle by excluding the power of the revisional authority to take additional evidence. The revisional authority which examines the legality or propriety of a decision or order of a subordinate officer or regularity of any proceeding before him cannot take additional evidence and uphold the legality and propriety of a decision or order or the regularity of any proceeding nor can it come to a conclusion otherwise on the basis of such additional evidence because the State Government is the final authority under the Bombay Land Revenue Code and there is no appellate or any other check under this Code against its findings which may be based upon such additional evidence and which shall, therefore, be to a certain extent original and final in character. If such powers are conferred upon the final authority under this Code and are exercised by it, they have the potentiality of opening floodgates of mischief capable of disturbing the settled property rights of the citizens.

28. This reasoning of ours also lends support to our finding on the first point that, against the decision of Collector under Section 211, no appeal lies to the State Government under Section 203. Under Section 211, the Collector exercises, as he did in this case, the revisional powers and, by virtue of the express provisions contained in Section 211, he confines himself to record and proceedings of the case and examine the legality and propriety of the decision or order of the Prant Officer only on the basis of such record and proceedings. It is needless to add that he examines the regularity of proceedings before the Prant Officer also on the basis of record and proceedings of the case. He then arrives at the decision by which he either upholds the decision of the Prant Officer or modifies it or reverses it. Under these circumstances, the Legislature must not have contemplated an appeal to the State Government under Section 203 from a decision of the Collector under Section 211 because an appeal to the State Government under Section 203 from the revisional order of the Collector under Section 211 shall mean that the State Government shall exercise wider powers than the Collector. Normally, the principle which operates in our system of law is that a higher or superior authority, while performing judicial or quasi judicial function in exercise of its superior jurisdiction is required to confine itself to such powers as can be exercised by the subordinate authority in exercise of its original or inferior jurisdiction. We are, therefore, of the opinion that since the State Government in reality was exercising revisional jurisdiction in this case as contemplated by Section 211, it had no jurisdiction to receive any additional evidence and inasmuch as it received the additional evidence it acted without jurisdiction and committed an error apparent on the face of the record. The order of the State Government is, therefore, vitiated in law and cannot be sustained. In this view of the matter, it is not necessary for us to deal with two sets of conflicting arguments advanced by the appellant on one hand and by the State Government on other hand. We simply record them by stating that it was Mr. Patel's contention that the appellant was not given an opportunity to meet or rebut the additional evidence which the State Government took in this matter and it was the contention of Mr. Shelat on the other hand that the appellant had ample opportunity to meet and rebut this additional evidence but that he had chosen not to do so.

29. The third contention raised by Mr. Patel is that the present litigation gives rise to the question whether there was a public street or road passing through the land sold to the appellant and that such a question can only be decided by the Collector under Section 37(2) of the Bombay Land Revenue Code. We find no substance in this contention of Mr. Patel. Section 37(2) of the Bombay Land Revenue Code reads as under:

37(2). Where any property or any right in or over any property 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.

A bare reading of this section makes it clear that it contemplates a Us between a private party on one hand and the Government on the other hand in respect of an immovable property. In the present case, there is no I is between the State Government and the appellant. The only question which is involved in this case is whether the Prant Officer was justified in selling to the appellant the land in question which admittedly belonged to the State Government. So far as the title of the State Government to the land in question prior to its sale to the appellant is concerned, it is not in dispute. Apart from the legality and justifiability of the sale which respondents Nos. 2 to 5 have questioned in the present proceedings the title of the appellant to the land in question is also not called in question. Therefore, the Us contemplated by Section 37(2) between a private party on one hand and the Government on the other hand in respect of an immovable property does not exist is this case. Therefore, Section 37(2) of the Bombay Land Revenue Code has no application to the present case and the contention raised by Mr. Patel in that behalf must fail.

30. The last contention of Mr. Patel is that sale by public auction can only be set aside according to the procedure laid down by Section 178 of the Bombay Land Revenue Code. This point was not taken by the appellant at any stage of the proceedings right from their commencement before the Collector until this Letters Patent Appeal was filed. We, therefore, cannot allow Mr. Patel to raise this contention for the first time in this Letters Patent Appeal. It is, therefore, disallowed.

31. In view of our decision we shall have to send back to the State Government this matter.

32. In light of the conclusion which we have arrived at, we allow this Letters Patent Appeal, set aside the order of summary rejection recorded on 16th April 1969 by our learned brother J.M. Sheth J. in Special Civil Application No. 658 of 1969, allow that Special Civil Application and issue a writ of certiorari quashing and setting aside the order of the Government of Gujarat recorded in S.S.R.D.A.L.N. 0. 305/66 on 17th February 1969 and direct that this case shall go back to the State Government for rehearing it according to law and in light of our observe tions contained in this judgment. We further direct the State Government to treat this case as a revision application under Section 211 of the Bombay Land Revenue Code and to exclude all additional evidence which may have been placed by it or by respondents No. 2 to 5 on record of the case before it and to decide the case only on the basis of the original record and proceedings. We also direct the State Government to consider on the basis of the evidence on record whether the application, made to the Collector by respondents Nos. 2 to 5 under Section 211 more than two years after these lands in question were sold to the appellant, was made within reasonable time as held by the Supreme Court The respondents shall pay to the appellant the costs of this Letters Patent Appeal.


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