N. K. VAKIL, J. ( 1 ) THIS writ petition is directed against the order passed by the Commissioner Rajkot Division purporting to be under his revisional powers under section 211 of the Land Revenue Code where by he set aside the order passed by the Collector Rajkot District which granted the permission to the petitioner to use 2 acres and 10 gunthas:- of his land out of survey No. 417 for non-agricultural use. The petitioner was a resident of the State of Rajkot as it then existed and at an auction sale effected by the State he had acquired the agricultural land bearing survey No. 417 which in all measured about 12 acres and 12 gunthas. He had so purchased this land on the 22nd of September 1938. The petitioner therefore claimed to be owner and occupant of the said land. In the year 1944 the then State of Rajkot by its order dated 11-7-1944 acquired according to the petitioner 3 acres of land out of the said survey number for Ramkrishna Mission. Deducting this area the petitioner was left with 9 acres and 12 gunthas of the land in his survey No. 417. At a later stage when Government acquired certain lands he in company with 21 other persons whose land were so acquired had applied to the Government to allow certain parts of their lands to be used for non-agricultural purposes and accordingly the petitioner applied for permission to use for non agricultural use 4 acres and 39 gunthas out of his remaining land 9 acres and 12 gunthas. This permission was granted by the then State of Saurashtra by a notification No. REV. 2/4/a-1/267 dated 21st May 1955 the State of Rajkot having merged in the new State. This was a common Notification by the State Government as regards the lands of the 22 claimants. The State of Saurashtra then acquired 2 acres and 3 gunthas of land for Bhaktinagar Station Yard. According to the petitioner therefore he was left with 2 acres and 10 gunthas of agricultural land out of the whole survey No. 417 of 12 acres and 12 gunthas. He continued to pay assessment to Government for these 2 acres and 10 gunthas as agricultural land. According to the petitioner therefore he was left with 2 acres and 10 gunthas of agricultural land out of the whole survey No. 417 of 12 acres and 12 gunthas. He continued to pay assessment to Government for these 2 acres and 10 gunthas as agricultural land. On the 20th of October 1958 the petitioner applied to the Collector of Rajkot for permission to convert the remaining land admeasuring 2 acres and 10 gunthas to non-agricultural use under section 65 of the Land Revenue Code. For the sake of convenience I shall be referring to the Bombay Land Revenue Code as the Code. This petition however was rejected by the Collector without assigning any reasons. The petitioner then approached in appeal to the then Divisional Commissioner of Rajkot who remanded the matter to the Collector for passing appropriate orders on making inquiry. On remand the then Collector of Rajkot after holding an inquiry decided in favour of the petitioner and granted the permission to the petitioner to use the land for non-agricultural use by his order dated 2 July 1960. Pursuant to this decision taken by the Collector a Sanad was issued by him to the petitioner on 27-7-1960 which included the terms according to the petitioner of the agreement between the Government and the petitioner on which he was allowed to make use of it for non-agricultural purposes. The Sanad was granted for a period of 30 years and it also fixed certain higher assessment. It may be noted that this Sanad was issued in Form M as prescribed by the Code and it was executed by the Collector on behalf of the Governor of the State and the petitioner. . . . . . . . . It appears that when the Collector was inquiring into this matter and as the lands were situated within the municipal area of the Rajkot Borough Municipality the Collector had sent a sketch prepared under his orders by the District Inspector of Land Records to the Municipality for their comments and objections if any. The Municipality thereupon wrote a letter to the Collector and raised certain contentions. I shall have occasion later to refer to them. The Collector however decided the matter in favour of the petitioner as stated above and issued the Sanad. The Municipality thereupon wrote a letter to the Collector and raised certain contentions. I shall have occasion later to refer to them. The Collector however decided the matter in favour of the petitioner as stated above and issued the Sanad. It appears that the Municipality being dissatisfied with the order passed by the Collector and the Sanad granted to the petitioner approached the Commissioner under his revisional powers and raised several contentions against the order passed by the Collector. . . . . . . . . . . The Commissioner after hearing both the sides and also at the request of the Municipality visiting the site passed an order setting aside the order passed by the Collector granting the Sanad to the petitioner. He further held that on considering and weighing the evidence before him the land does not belong to Shri Raghav Natha that is the petitioner. Being aggrieved by this order passed by the Commissioner the owner of the land has approached this Court under its jurisdiction under Article 227 of the Constitution. ( 2 ) THIS order of the Commissioner is challenged before me by the petitioner on the following grounds:- (1) The Commissioner or the State Government had no authority under section 211 of the Code to revise the order of the Collector so as to affect the agreement or Sanad granted to him. (2) The Commissioners order is not a speaking order as no reasons are given by him for setting aside the Collectors order and therefore it should be quashed. (3) The question of title to the land was not in controversy at all before the Collector and therefore it was not open to the Commissioner to permit the Municipality to agitate that question and the Commissioner had no jurisdiction to decide that question. (4) In case the above points are not accepted the order of the Commssioner is bad even on merits as the Commissioner had erred in law in allowing the questions to be agitated before him which were not agitated before the Collector and which involved considerations which were completely foreign to those which were actually before the Collector. ( 3 ) NOW, I shall come to the consideration of the contentions raised by the petitioner in the order set out by me hereinabove. The contention as regards the jurisdiction has been raised by the petitioner in this way. ( 3 ) NOW, I shall come to the consideration of the contentions raised by the petitioner in the order set out by me hereinabove. The contention as regards the jurisdiction has been raised by the petitioner in this way. He had applied by an application under section 65 of the Land Revenue Code in respect of 2 acres and 10 gunthas of land which according to him was out of his surevey No. 417 and which was still in his occupation for permission to use it for non-agricultural use. The Collector made an inquiry under section 65 and came to a decision that the petitioners application should be allowed. Thereafter the Collector proceeded further and granted a Sanad in Form M as prescribed by the Code. According to the petitioner this Sanad constitutes an agreement or a contract between the Government and the petitioner in respect of this land. It may be mentioned that the Sanad is signed by the Collector on behalf of the Governor and the petitioner. The petitioners submission is that though section 211 of the Land Revenue Code vests very wide powers in the Government or any officer appointed to exercise such powers by the Government still in the exercise of that power neither the Government nor the officer appointed by the Government has any jurisdiction whatever to set at naught the contract or to pass any order which might adversely affect the contract as a whole or any of its terms. The Government or on behalf of the Government the Commissioner had no jurisdiction to revise the decision under section 211 and in any case it could not nullify or touch in any way the agreement or the terms of the Sanad. According to the petitioner the Sanad was given in Form M by the Collector as prescribed by the Code and this Sanad embodies the agreement and even if it is assumed that the decision of the Collector to give the permission is revisable under section 211 of the Code the decision having culminated into an agreement the agreement cannot in any case be revised or affected by any order under section 211. Mr. G. N. Desai the learned advocate for the petitioner relied for this submission of his on four decisions of the Bombay High Court. They are The Government of Bombay v. Mathurdas Laljibhai Gandhi 44 Bom. Mr. G. N. Desai the learned advocate for the petitioner relied for this submission of his on four decisions of the Bombay High Court. They are The Government of Bombay v. Mathurdas Laljibhai Gandhi 44 Bom. L. R. 405 Sambhaji Baloji v. The Mamlatdar of Baramati 55 Bom. L. R. 281 Govt. of Bombay v. Ahmedabad Sarangpur Mills Co. A. I. R. 1944 Bombay 244 and State of Bombay v. Chhaganlal Gangaram 56 Bom. L. R. page 1084. This question about the scope of section 211 of the Code had been a vexed question for a number of years to the Bombay High Court and reported and unreported decisions seemed to conflict with each other. When the matter came before a Bench of the Bombay High Court in 1954 it was found necessary to have this question resolved once for all in a definite way and therefore this question was referred to the Full Bench of the Bombay High Court. The Full Bench considered all possible decisions on the subject given by the Bombay High Court from time to time and gave a very illuminating and decisive judgment which is reported in State of Bombay v. Chhaganlal Gangaram Lavar 56 Bombay Law Reporter 1084 relied upon by the petitioners advocate. For the purpose of deciding the question on hand also we will have to heavily draw upon the conclusions reached and the observations made by the three learned Judges who formed the Full Bench. But before I actually go to consider the observations and the conclusions reached in that Full Bench decision it will be expedient to deal with the other three decisions which have also been considered by the Full Bench. [after discussing the aforsaid decisions His Lordship further stated: ] ( 4 ) THAT brings me to the consideration of the Full Bench decision in 56 Bom. L. R. 1084. The facts of that case may be shortly referred to in order to understand the ratio of the decision. The Government of Bombay (defendant) in pursuance of their compaign to grow more food granted certain lands which were lying fallow in the village of Mukaraba in the Ahmedabad District to one Chhaganlal (plaintiff) free of assessment on a lease of three years from year 1940 to 1943. The Government of Bombay (defendant) in pursuance of their compaign to grow more food granted certain lands which were lying fallow in the village of Mukaraba in the Ahmedabad District to one Chhaganlal (plaintiff) free of assessment on a lease of three years from year 1940 to 1943. Thereafter the plaintiff applied to the District Deputy Collector of Viramgam to grant him a permanent lease under the old tenure and on June 15 1943 the District Deputy Collector passed an order under section 62 of the Bombay Land Revenue Code 1879 making a grant of the lease on the old impartible tenure on the term inter alia of raising foodgrains till the completion of the war. Accordingly on July 21 1943 the Mamlatdar gave a written permission to the plaintiff to occupy the lands and on the 21st of August 1943 the plaintiff executed a Kabulayat in accordance with Rule 37 of the Bombay Land Revenue Rules and Form F (1) under the Bombay Land Revenue Code. On 1st April 1947 however the Collector of Ahmedabad set aside the order passed by the District Deputy Collector on 15th June 1943. On appeal by the plaintiff the Government set aside the order of the Collector and decided to grant the lands to the plaintiff under the new tenure instead of the old tenure. The plaintiff therefore filed a suit against the Government for a declaration that the lands were in possession of the plaintiff by virtue of the contract dated 21st August 1943 made between him and the defendant and that the order dated 8th July 1948 was void against the plaintiff and for an injunction restraining the defendant from making any variation in the rights of the plaintiff in the suit lands. The trial Judge decreed the suit on the ground that the order dated 8th July 1948 passed by the Government was illegal ultra-vires and void. In appeal the said order was confirmed. The Government therefore approached the High Court in second appeal. The trial Judge decreed the suit on the ground that the order dated 8th July 1948 passed by the Government was illegal ultra-vires and void. In appeal the said order was confirmed. The Government therefore approached the High Court in second appeal. Justice Gajendragadkar as he then was and Justice Vyas before whom the appeal came up for hearing were of the opinion as observed hereinabove that there were apparently conflicting decisions as regards the scope of jurisdiction of the Government under section 211 and it was therefore expedient that the matter should be settled once for all by a Full Bench and as the report discloses the whole history of the problem and the various decisions reported or unreported are mentioned in the referring order which the Full Bench ultimately scrutinised. It may be mentioned here that the Full Bench scrutinised and took into consideration the scheme of the Act also before coming to the final decision and their considered decision is after examining all the decided cases including those which I have referred to above that when as a result of a decision under section 65 or any other provision of law there is an agreement entered into between the Government and a subject then the Government has no jurisdiction under section 211 to revise that decision so as to affect the agreement or to revise any part of that agreement. It was also decided that a Kabulayat passed by an occupant in Form F (1) is not an agreement and it is only a formality performed at the end of an inquiry and that it is a part of the proceeding and therefore it had no separate entity or existence apart from that proceeding nor has any greater sanctity than the proceeding itself. Therefore under the powers vested in Government under section 211 of the Code the Government had the right and jurisdiction to revise the terms of Kabulayat as well as to cancel it in fit cases. Therefore the decision as it stands without entering into the discussion at this stage regarding other contentions that were raised before me it is definite now that if there is merely a Kabulayat it will fall within the revisional powers of the Government vested under section 211 of the Code. Therefore the decision as it stands without entering into the discussion at this stage regarding other contentions that were raised before me it is definite now that if there is merely a Kabulayat it will fall within the revisional powers of the Government vested under section 211 of the Code. But if a given document is an agreement between the Government and a subject it is beyond the ken of the powers vested under section 211 of the Code. It is also laid down by the Full Bench decision that none of the decisions reviewed by it were in conflict with each other and none was overruled except of course as regards 55 Bom. L. R. 281. Their Lordships had to make it clear that the observations which were made and the conclusions that were reached in the said case in respect of a Kabulayat were not correct and that they had decided it on the basis that it was an agreement. This discussion however does not conclude the question that is agitated before me and I shall have to return to this ruling again when I deal with the points specifically raised by either side before me. ( 5 ) INSPITE of the fact that this Full Bench decision has reviewed the ratio of a number of decisions and put at rest the above points certain questions have arisen in the present case which were not directly in issue there but in my view certain of the observations made therein will apply to the questions at issue in this case also. Now the first contention that has been raised here on behalf of the Government and the Municipality is that this Sanad relied upon by the petitioner could not be held to be an agreement and therefore the Full Bench decision which held that an agreement falls beyond the purview of section 211 cannot apply to this case. ( 6 ) THAT brings me to the most important controversy that arises in this case. This is based on the fact that the agreement or the Sanad on which the petitioner relies contains in the preamble thereof as well as in the terms thereof the following important clauses. ( 6 ) THAT brings me to the most important controversy that arises in this case. This is based on the fact that the agreement or the Sanad on which the petitioner relies contains in the preamble thereof as well as in the terms thereof the following important clauses. Before the conditions are put down the following passage appears:-"now this is to certify that permission to use for building purposes the said plot is hereby granted subject to the provisions of the said Code. and on the following conditions namely:"and in the conditions themselves condition No. 6 reads as follows:-"code provisions applicable-Save as herein provided the grant shall be subject to the provisions of this Code;" ( 7 ) RELYING on these two passages the learned Assistant Government Pleader and Mr. D. D. Vyas for the Municipality have strongly urged before me that a different consideration altogether arises when this contract itself contains these specific clauses. It was urged in the first place that the condition No. 6 means that the agent the Collector declares that though he is entering into this agreement it will be subject to the powers of revision to be exercised by his superiors under the Code. I do not find any force in this submission. The agent of the Government the Collector here has entered into an agreement on behalf of the Govt. with the petitioner and in the very body of that agreement condition No. 6 and the passage referred to above appear. Therefore it is a part and parcel of that very agreement entered into by the Government through its agent with the petitioner. This contention can only have some force if the agent were to enter into a separate collateral agreement on his own behalf with the petitioner and introduce such a condition therein while entering into an agreement on behalf on the Government. Then it would be an agreement by the agent in his personal capacity with the subject and would be de hors the main agreement entered into by the Government through him with the subject. But that is not the case here. Then it would be an agreement by the agent in his personal capacity with the subject and would be de hors the main agreement entered into by the Government through him with the subject. But that is not the case here. Therefore to my mind it is not possible to construe this agreement and particularly the condition and abovementioned passage as a special agreement entered into by the Collector in his capacity as the Collector saving the rights of his superiors to revise his act not only of the decision to give the Sanad but also the very act of the giving of the Sanad. ( 8 ) HOWEVER that is not all. On behalf of the Municipality and the Government it was further urged that this condition included in the contract itself brings the whole of the agreement under the shadow of all the provisions of the Land Revenue Code including section 211. In other words it was vehemently urged that here is a contract which assuming to have been made on behalf of the Government by the Collector in which it is stated that this grant will be subject to all the provisions of the C de and according to the learned Assistant Government Pleader that can only mean that the operation of section 211 in respect of this agreement is saved by this clause. He submitted that none of the authorities which have been discussed hereinabove or those which were discussed by the Full Bench case has dealt with this particular aspect of the case. He further pointed out that as a matter of fact certain observations made by the learned Judges in the Full Bench case go to support his submission before this Court. He argued that because of this condition the petitioner agreed that all the provisions of the Code shall be applicable to his contract and it cannot be said therefore that under section 211 the Government had no right to revise this agreement. It is indeed an important point. It is also true that inspite of the fact that a number of prickly points were dealt with by the Full Bench decision and the other decisions this question of the effect of a condition of this nature having been included in the agreement has not been dealt with in any of these decisions. . . . . . . . Mr. . . . . . . . Mr. Sompura on behalf of the Government apart from the submission mentioned above tried to rely upon certain observations made by the learned Judges in the Full Bench case which I shall now refer to. He first drew my attention to the observations made by the learned Chief Justice in his judgment. The observations are as follows:-"it is therefore not proper to divorce the Kabulayat from the rest of the proceedings and to attach to it a solemnity which the statute never intended it to have. It is pertinent to note that in the Kabulayat itself the plaintiff has agreed that the land has been granted to him in perpetuity subject to the provisions of the Land Revenue Code and there is no reason to suggest that the provisions of the Land Revenue Code would not include the provisions of section 211. Therefore. in effect and in substance by executing this Kabulayat the plaintiff agrees that he is liable to be disturbed in his tenure if the order of the District Deputy Collector was to be reversed or modified by Government under section 211. 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. " ( 9 ) NOW if theses observations of the learned Chief Justice are read divorced from the other important conclusions that the learned Chief Justice had arrived at and the special facts of the case under which these observations have been made prima facie it may look as if they support the contention on behalf of the Government before me. It is very important indeed to note that after examining all questions of law and fact the learned Chief Justice came to the conclusion that a Kabulayat has no separate existence from the proceedings in which the decision was taken to give the occupancy rights and that the actual execution of the Kabulayat was a mere formality. The Kabulayat was not the title but it was the decision itself which was the title of the occupant. The Kabulayat was not the title but it was the decision itself which was the title of the occupant. Under these circumstances His Lordship came to the conclusion that if there is one such term also added to the Kabulayat itself there was no case for the occupant at all to say that section 211 cannot have any application to his case and it is therefore very pertinent to see the following part of the observations which would clearly indicate how the mind was working:-"therefore in effect and in substance by executing this Kabulayat the plaintiff agrees that he is liable to be disturbed in his tenure if the order of the District Deputy Collector was to be reversed or modified by Government under section 211. " ( 10 ) SECTION 211 contemplates an order or a decision of the subordinate officer being revised by the Government. Their Lordships in the Full Bench decision came to the conclusion that the Kabulayat is a part of the decision itself. Therefore there was no difficulty for them to come to the conclusion that when that term was actually included in the Kabulayat itself being a part of the whole proceeding it could never lie in the mouth of the occupant to say that section 211 cannot apply because revising the Kabulayat or the terms thereof was only revising the decision itself. Under those circumstances these remarks or observations I feel can have no application to a case where the document containing these terms is not a part of the decision or order. The agreement exists and continues to exist whatever may happen to the decision of the Collector from which it emanates. There is no doubt at all that it has a separate existence from that decision and that requires entirely a different angle for the examination of a case of that nature. As I have pointed out the principle which has been laid down by the long array of decisions is that agreement is no part of a decision or order passed by the Collector. Therefore the important question that arises is can section 211 apply to the agreement because of the inclusion of this term ? Can the inclusion of this term mean that it gives an extended authority to the Government to revise the terms of the agreement? Therefore the important question that arises is can section 211 apply to the agreement because of the inclusion of this term ? Can the inclusion of this term mean that it gives an extended authority to the Government to revise the terms of the agreement? I am afraid that with no stretch of logic or argument this can be done. Once it is held that sec. 211 does not include the authority to revise an agreement between the parties no amount of conditions included in that agreement can give such jurisdiction to the Government. I am supported there by the observations of Mr. Justice Shah in that Full Bench case and I would rather quote his observations bodily hereinbelow:-"it is necessary at this stage to point out that there is a clear distinction between a case in which pursuant to an order passed by a revenue officer land has been granted under a formal contract executed with the necessary formalities by an authority competent to enter into a contract on behalf of the State and a case in which there is no such contract and a grant of land is only evidenced by an order of the revenue officer and the execution of a kabulayat. In the former case the relation between the State and the grantee is governed by the contract and not by the Land Revenue Code and even if the order under which the grant was made is vacated the contract between the State and the grantee is not thereby affected and the State cannot unilaterally alter or avoid the contract relying upon the reversal of the order. Such a contract binds the State until it is set aside by proper proceedings on grounds on which a contract may justifiably be avoided. The effect on order setting aside an order by a subordinate revenue officer may be considered from another angle. Section 203 enables an appeal to be entertained only against the decision or order passed by a revenue officer. Similarly the revisional jurisdiction under section 211 can be exercised only against an order or decision or in respect of the proceeding of a revenue officer. But a contract entered into on behalf of the State by an agent of the State is not an order decision or a proceeding of a revenue officer within the meaning of those sections. . . . . But a contract entered into on behalf of the State by an agent of the State is not an order decision or a proceeding of a revenue officer within the meaning of those sections. . . . . That class of cases in which a formal con tract binding upon the State is entered into on behalf of the State is therefore entirely distinct from the class of cases in which there is no contract formally executed and the right of the grantee depends for its validity upon the order of a revenue officer. " ( 11 ) THEN later on His Lordships has further observed as follows:-"it may also be pointed out that in the kabulayat executed by the plaintiff it is expressly stated that the land has been granted to him in perpetuity from the first day of the month of August 1943 subject to the provisions of the Bombay Land Revenue Code of 1879. The grant having been made under the provisions of the Bombay Land Revenue Code which include the provisions of secs. 203 and 211 of the Code and the grant under the kabulayat having been expressly accepted subject to the Code the order granting the land is liable to be vacated or modified in the manner permitted by the Code. " ( 12 ) NOW therefore again the above remarks have been made by His Lord ship relying upon the fact that in that case there was a Kabulayat only which is a part of the order granting the land itself and therefore it being an order or a decision necessarily becomes liable to be revised under the purview of sec. 211. Therefore to my mind the term included in this agreement can only mean that over and above the conditions which were specifically mentioned in the agreement other conditions contained in any of the provisions of the Code which can apply to such a grant shall also apply. In my view therefore sec. 211 could not apply to the agreement even if it is tried to be so made applicable by this particular condition. If in law there is no jurisdiction under sec. 211 to revise an agreement no amount of terms included in a document between the parties can vest in the authority that jurisdiction. In my view therefore sec. 211 could not apply to the agreement even if it is tried to be so made applicable by this particular condition. If in law there is no jurisdiction under sec. 211 to revise an agreement no amount of terms included in a document between the parties can vest in the authority that jurisdiction. Under these circumstances I find it difficult to accept the submissions made on behalf of the Municipality whereby they have urged that the inclusion of this condition would entitle the Government to revise the agreement itself under its powers under sec. 211. As a result of this train of discussions and reasoning it must be held that the Commissioners order is without authority and that there was no jurisdiction vested in him to pass an order which goes to nullify the agreement. In my view the Sanad or the agreement passed in this case as a result of the Collectors order still stands and is binding on both the sides till it is set aside in due course of law. As I have already observed and as was observed in the various decisions discussed above the right procedure for the Government is to go in a civil suit to set aside that agreement. Till then it stands good and binding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a result of all these discussions the order passed by the Commissioner is set aside and the petition is allowed with costs. Rule made absolute. Petition allowed. .