GULAM HUSEN JIVABHAI v. STATE — 1970 DIGILAW 25 (GUJ)

N. G. SHELAT, J. ( 1 ) THE facts giving rise to this Letters Patent Appeal broadly stated are that in an inquiry held by the City Survey Officer in respect of the claim made by this appellant-original plaintiff over the suit open site (called as Vada land) bearing Chalta No. 102 situated in the town of Dholka in the District of Ahmedabad an order dated 20th July 1951 was passed under sec. 37 of the Land Revenue Code declaring the land having vested in the Government and the plaintiff having no claim of ownership thereon. Against that order the plaintiff-appellant preferred an appeal to the Prant Officer who by his order dated 9th December 1953 upheld the order passed by the City Survey Officer and dismissed the appeal. Against that order also an appeal to the Collector Ahmedabad was filed and by an order dated 8th January 1964 it came to be dismissed. Against that order a Revision Application No. BRT. 137/54 came to be filed before the Bombay Revenue Tribunal and by an order dated 10th April 1956 that application came to be dismissed. ( 2 ) THAT led the plaintiff to file Civil Suit No. 1324 of 1956 against the then State of Bombay in respect of the same property in the Court of the Civil Judge (S. D.) at Ahmedabad. Therein he prayed for a declaration that the suit property was of his ownership and possession and that the orders passed by the City Survey Officer on 20th July 1951 by the Prant Officer on 9th December 1953 by the Collector on 8th January 1954 and by the Bombay Revenue Tribunal on 10th April 1956 were ultra vires and illegal and for an injunction restraining the defendant-State from causing any obstruction to the plaintiff in the enjoyment of the said property. The defendant-State resisted the suit inter alia contending that the plaintiff was not the owner of the suit property and that it belonged to the Government and that the orders passed against him and referred to in the plaint were neither ultra vires nor void. It also contended that the plaintiffs suit was barred by limitation under sec. 37 (3) of the Land Revenue Code as also under Art. 14 of the Indian Limitation Act. It also contended that the plaintiffs suit was barred by limitation under sec. 37 (3) of the Land Revenue Code as also under Art. 14 of the Indian Limitation Act. ( 3 ) THE trial Court raised the necessary issues arising out of the pleadings of the parties and while it found that the suit property belonged to the plaintiff the orders passed by the revenue officers were neither ultra vires nor illegal and were binding on the plaintiff. It further held that suit was barred both under sec. 37 of the Code as also under Art. 14 of the Indian Limitation Act. In the result the trial Court dismissed the plaintiffs suit directing the parties to bear their own costs. Feeling dissatisfied with that order the plaintiff preferred Civil Appeal No. 110 of 1958 in the Court of the District Judge at Ahmedabad. It was heard by the Assistant Judge at Ahmedabad who agreed with the findings recorded by the trial Court and in the result dismissed the appeal with costs. Against that judgment are decree passed on 14th October 1959 by Mr. D. G. Tatke Assistant Judge Ahmedabad the plaintiff filed Second Appeal No. 1211 of 1960 in this Court. Our learned brother Raju J. who heard it found that the order was in no way ultra vires or illegal and that the suit should have been filed within the period of limitation provided under sec. 37 of the Code. Not having done so it was time barred and in the result he dismissed the appeal making no order as to costs. On a request made by the learned advocate for the plaintiff - appellant leave to appeal under clause 15 of the Letters Patent was granted by him. It is that way that this Letters Patent Appeal has come up before the Division Bench of this Court. ( 4 ) TWO contentions were raised by Mr. B. K. Amin the learned advocate for the appellant before us. The first is that the orders passed by the Revenue Officers were ultra vires in the sense that the Revenue Officers had no authority to make any inquiry and decide about the claim of ownership in respect of the suit property under sec. 37 of the Land Revenue Code. That being so the suit could not be governed by subsec. (3) of sec. 37 of the Land Revenue Code. That being so the suit could not be governed by subsec. (3) of sec. 37 of the Code as the orders passed by the appellate authority can well be ignored and that it should therefore be taken as in time as it would be governed by Article 120 of the Indian Limitation Act which provides for six years period for filing the suit. His alternate contention was that the final appellate authority contemplated under subsec. (3) of section 37 of the Code can be taken to be the Bombay Revenue Tribunal under the provisions of the Bombay Revenue Tribunals Act and that the period of Limitation provided therein for filing the suit in the Civil Court would commence from the date of the order passed by the Tribunal and if that is so the suit was in time. He therefore urged that he should be declared the owner of the owner of the suit property as found by the trial Court and the finding of which came to be affirmed by the appellate Court and that the necessary injunction may be issued against the defendant-State as prayed for by him in the suit. ( 5 ) IN order to appreciate the contentions made out by Mr. Amin the learned counsel for the appellant it would be essential to set out the relevant provisions contained in the Code. Sub-sec. (1) of sec. 37 of the Code is in two parts. The first relates to the vesting of the property in the Government and the second authorises the Collector subject to the order of the Commissioner to dispose of any such property in such manner as he may deem fit. The first part thereof in so far as it is relevant reads thus:-ALL public roads lanes. . . . . . . . . . . . . . and all lands wherever situated which are not the property of individuals or of aggregates of persons legally capable of holding property and except in so far as any rights of such persons may be established in or over the same and except as may be otherwise provided any law for the time being in force are hereby declared to be with all rights in or over the same or appertaining thereto the property of the Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . Then comes sub-sec. 2 which says that 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 survey officer after formal inquiry of which due notice has been given to pass an order deciding the claim. Then comes sub-sec. (3) which runs as under :-ANY suit instituted in any Civil Court after the expiration of one year from the date of any order passed under sub-sec. (1) or sub-sec. (2) or if one or more appeals have been made against such order within the period of limitation then from the date of any order passed by the final appellate authority as determined according to sec. 204 shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order provided that in the case of an order under sub-sec. (2) the plaintiff has had due notice of such order. The other two provisions essential to refer are those contained in Chapter XIII which deals with appeals and revision. The provisions relating to appeals are contained in secs. 203 and 204 of the Code and they run thus:-203 In the absence of any express provision of this Act or of any law for 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 that officers immediate superior whether such decision or order may itself have been passed on appeal from a subordinate officers decision or order or not. 204 Subject to the provision of the Bombay Revenue Tribunal Act 1939 an appeal shall lie to the State Government from any decision or order passed by a Survey Commissioner except in the case of any decision or order passed by such officer on appeal from a decision or order itself recorded in appeal by any officer subordinate to him. THEN secs. 205 to 208 relate to the period within which appeals must be brought etc. and sec. THEN secs. 205 to 208 relate to the period within which appeals must be brought etc. and sec. 209 deals with the powers of appellate authority. Then comes sec. 21 I whereby the State Government and some other revenue officers have been given powers to call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer and to pass orders thereon. ( 6 ) WE might now turn to the first point raised by Mr. Amin. According to him the word property in sub-sec. (2) of sec. 37 does not mean any property because it can even include movable property and that the property contemplated thereunder is one which is referred to in sub-sec. (1) of sec. 37. So far there may not arise any difficulty as there arises no question of any claim over movable property or the like in the present case and what is covered under sub-sec. (I) appears clearly the immovable property including lands etc. His contention then is that the land in dispute was obviously belonging to the plaintiff and it was an open land over which no one had even prima facie ownership. There was therefore no question of any inquiry to be made regarding the claim of ownership and if that is so he went further to suggest that the inquiry done by the Survey Officer was unauthorized and bad in law and the subsequent orders passed in appeal against any such order of the Survey officer would consequently be invalid. He also sought support from a decision in the case of Malkajappa bin Madiyalappa Bulla v. The Secretary of State for India in Council reported in I. L. R. 36 Bombay 325 where it was held that when a Collector passes an order under the provisions of sec. 37 of the Land Revenue Code with reference to land which is prima facie the property of an individual who has been in peaceful possession thereof and not of the Government he is not dealing with that land in his official capacity but is acting ultra vires. In those circumstances the Court held that article 14 of the Second Schedule of the Indian Limitation Act which only applies to orders passed by a Government officer in his official capacity does not apply to orders which are ultra vires of the officer passing them. This argument of Mr. In those circumstances the Court held that article 14 of the Second Schedule of the Indian Limitation Act which only applies to orders passed by a Government officer in his official capacity does not apply to orders which are ultra vires of the officer passing them. This argument of Mr. Amin ignores the reading of certain words in sub-sec. (1) of sec. 37 and takes no note whatever of sub-secs. (2) and (3) to sec. 37 which came to be introduced by Bombay Act II of 1919 presumably just after the decision of the Division Bench of the Bombay High Court was given in the case referred to above. That decision was given on 18th November 1911. ( 7 ) AS we said above the first part of sub-sec. (1) of sec. 37 declares the properties referred to therein as the property of the Government. In those properties the Legislature has included all lands wherever situated which are not the property of individuals or of aggregates of persons legally capable of holding property. In other words if there exists any land which is not the property of any such person it may belong to the Government subject to the two further conditions contemplated therein i. e. except in so far as any rights of such persons may be established in or over the same and except as may be otherwise provided in any law for the time being in force. In other words if any person were to establish his right over such property or any land if it had vested in any such person would not vest in Government. If we then go to sub-sec. (2) which came to be introduced as we said above in 1912 an inquiry can be made where any property or any right in or over any property is claimed by any person as against the Government or that it is claimed by the Government as against any person and the Collector or a survey officer has been authorised to make an inquiry and after giving due notice to any such person pass an order deciding the claim after holding a proper inquiry. In the present case there arose some dispute with regard to the claim of ownership over the property in question and it was that way that the Survey Officer had made an inquiry and found the property to be not one of the ownership of the plaintiff but that it was of the State Government. It is only when someone claims a right over any such property that an inquiry can be made and any such inquiry contemplated under sub-sec. (2) of sec. 37 of the Code would obviously contemplate a formal inquiry into the claim to property which would require the authority contemplated therein to decide the same. The mere fact that the plaintiff thought that it was an open land attached to his own property or that it was being used by him would not necessarily mean that it was of his ownership as against the Government. That was a wada land and it may as well be that he may have encroached upon some part of the land belonging to the Government. Whatever that be the fact remains that there were rival claims in respect of this property-one by the plaintiff himself and the other by the State Government. That necessitated some formal inquiry as contemplated in the Code to be made in respect of which after giving notice to the plaintiff the decision was given that it did not belong to the plaintiff and that it was of the State Government. Any such inquiry held by the competent officer under sub-sec. (2) of sec. 37 was therefore perfectly valid and the decision given by him cannot by any stretch of imagination be called invalid Bombay decision relied upon by Mr. Amin would not have therefore any application for the obvious reason that at the time when that case was decided sub-sec. (2) of sec. 37 of the Code did not exist and sec. 37 did not contemplate any such inquiry in respect of any such property. The Legislature has however chosen to amend sec. 37 by adding sub-secs. (2) and (3) by Bombay Act II of 1912 and consequently the decision relied upon by Mr. Amin can hardly help him. That decision is no good law after subsec. (2) and (3) were added in 1912 to sec. 37 of the Code. ( 8 ) THE next contention of Mr. 37 by adding sub-secs. (2) and (3) by Bombay Act II of 1912 and consequently the decision relied upon by Mr. Amin can hardly help him. That decision is no good law after subsec. (2) and (3) were added in 1912 to sec. 37 of the Code. ( 8 ) THE next contention of Mr. Amin was that the appellate authority contemplated under sub sec. (3) of sec. 37 of the Code was one as contemplated under sec. 204 of the Code was one as contemplated under sec. 204 of the Code and that would be the Bombay Revenue Tribunal. The period of limitation in that event would run from the date when the Revenue Tribunal passed an order in the Revision Application No. BRT. 137/54 and the suit would then be in time it being within one year from the date of that decision. We have already set out sub-sec. (3) of sec. 37 as also secs. 203 and 204 of the Code here above. On a plain reading of subsec. (3) it appears abundantly clear that the period of one year provided for instituting a suit in any Civil Court would be from the date of any order passed under sub-sec. (2) of sec. 37 of the Code and since that was so passed by the Survey officer under sub-sec. (2) of sec. 37 we have to see whether any appeals permissible in law against any such order within the period of limitation were made in which case the period of one year would rub from the date of any order passed by the final appellate authority. Now it is clear and over which there is no dispute that the suit would be barred as filed beyond one year after the plaintiffs second appeals decision was given by the Collector-he being the appellate authority. On the other hand if the appellate authority is taken as a revisional authority such as the Bombay Revenue Tribunal the suit would be in time-it being filed within one year from its order. The question then is whether the Bombay Revenue Tribunal is the final appellate authority and had exercised its powers as such so as to entitle the plaintiff to have starting point of limitation from its order. It is not enough that the Bombay Revenue Tribunal has such powers-both appellate and revision. The question then is whether the Bombay Revenue Tribunal is the final appellate authority and had exercised its powers as such so as to entitle the plaintiff to have starting point of limitation from its order. It is not enough that the Bombay Revenue Tribunal has such powers-both appellate and revision. What is; essential is whether an appeal lay to it and that it decided the appeal as a final appellate authority. Now sec. 203 of the Code provides for appeals from any such orders passed by the revenue officers under sec. 37 of the Code and as provided therein an appeal lies from any decision or order passed by a revenue officer under this Act to that officers immediate superior whether such decision or order may itself have been passed on appeal from a subordinate officers decision or order or not. The plaintiff availed of this right of appeal and preferred the first appeal against the order of the Survey Officer before the Assistant Collector who was his immediate superior and then a second one before the Collector against the decision of the Assistant Collector. Going further at the relevant time there was no Commissioners post and therefore there was no question of going in appeal to the Commissioner under sec. 2040 of the Code. Consequently there was no question of any appeal to the State Government which power had vested in the Bombay Revenue Tribunal under the provisions of that Act. Now sub-sec. (3) refers to only appeals which may be one or more permissible under the provisions of the Code. Again the expression used in the same sub-section from the date of any order passed by the final appellate authority strengthens the conclusion that what sub-sec. (3) contemplates in the appeals provided under the provisions of the Code and that again the decision of the appellate authorities including no doubt the final appellate authority. It is. he appellate authority deciding the matter as such that counts and not any authority howsoever high it may be. In fact Chapter XIII relates to both appeals and revision. (3) contemplates in the appeals provided under the provisions of the Code and that again the decision of the appellate authorities including no doubt the final appellate authority. It is. he appellate authority deciding the matter as such that counts and not any authority howsoever high it may be. In fact Chapter XIII relates to both appeals and revision. The distinction between the appeals and the revision contemplated under Chapter XIII was obvious before the Legislature and if at all it intended to cover or give wide meaning to the words `final appellate authority as meaning the final authority which has powers to deal with such matters whether in appeal or revision it would have used the expression. the final authority and not the final appellate authority. The appellate authority has even powers to take additional evidence if it considers necessary as contemplated under sec. 209 of the Code. That may not be even available to any authority which has powers to examine the record and pass orders in exercise of revisional jurisdiction. The scope of interference between an appellate authority and the authority having powers to exercise revisional jurisdiction is also different The appellate authority would be justified in considering the matter by going into the appreciation of evidence etc. as against the exercise of powers in revision contemplated under sec. 211 which can only consider the question as to legality or propriety of the order passed and as to the regularity of the proceedings of such officer. It appears therefore clear that what is contemplated is the filing of an appeal against any such order provided in law before the appellate authority and the limitation in that event begins to run from the date of any order passed by the final appellate authority thereby meaning the last appellate authority which decides the matter. ( 9 ) IT was urged by Mr. Amin that sec. 204 is referred to in subsec. (3) of sec. 37 of the Code and according to him since the post of Commissioner is abolished the powers of appeal which were in the Commissioner can be taken to have been given over to the Revenue Tribunal under the Bombay Revenue Tribunal Act. 1939. If we refer to sec. Amin that sec. 204 is referred to in subsec. (3) of sec. 37 of the Code and according to him since the post of Commissioner is abolished the powers of appeal which were in the Commissioner can be taken to have been given over to the Revenue Tribunal under the Bombay Revenue Tribunal Act. 1939. If we refer to sec. 204 again all that it contemplates is that an appeal can be filed from a decision or order passed by a Commissioner or Survey Commissioner whether that decision or order was in appeal or otherwise. The Commissioners post was abolished and no powers are exercised by the Survey Commissioner so that an appeal may lie to the State Government. It is therefore clear that there arises. no question of an appeal lying to the State Government so as to invoke the jurisdiction of the Revenue Tribunal by virtue of sec. 4 of the Bombay Revenue Tribunal Act 1939 read with serial No. 7 of the Schedule annexed thereto as this sec. 204 has to be read subject to the provisions of the Bombay Revenue Tribunal Act 1939 In other words as there is no appeal provided against any such order of the Collector to the State Government under sec. 204 of the Code the Tribunal could not exercise any such appellate jurisdiction by entertaining appeal against any such decision. Sec. 4 (1) of the Bombay Revenue Tribunal Act 19397 provides for the powers and functions of the Tribunal. As stated therein it shall exercise jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the State Government immediately before the first day of April 1937 under any law for the time being in force. Then sub-sec. (2) thereof runs thus:-IN particular and without prejudice to the generality of the foregoing provision the Tribunal shall have jurisdiction to entertain appeals and revise decisions (a) in all revenue cases arising under the provisions of the enactments specified in the Schedule in which such jurisdiction was vested in the State Government immediately before the first day of April 1937 and (b) in all cases specified in sec. 9. Turning then to the Schedule annexed thereto at serial No. 7 the Act referred to is the Bombay Land Revenue Code 1879 (Bom. V of 1879 ). 9. Turning then to the Schedule annexed thereto at serial No. 7 the Act referred to is the Bombay Land Revenue Code 1879 (Bom. V of 1879 ). The jurisdiction given to the Tribunal is in respect of appeals and revision in revenue cases under secs. 204 and 211 of the Code as set out in column 9 of the Schedule. We have already pointed out that no appeal was competent against the order of the Collector in the present case before the State Government under sec. 204 of the Code and consequently the Revenue Tribunal could not exercise any such jurisdiction to entertain and hear the appeal. The Revenue Tribunal had entertained an application made by this appellate as a revisional application against the order of the Collector Ahmedabad and the powers exercised by it were under sec. 211 of the Land Revenue Code read with sec. 4 of the Bombay Revenue Tribunal Act. The Revenue Tribunal did not exercise any powers of an appellate authority in hearing that matter as an appeal so as to call it a decision by the final appellate authority. It is a decision given by the Tribunal while exercising jurisdiction in revision and that was only under sec. 211 of the Code. The order passed by the Revenue Tribunal cannot therefore help the appellant in extending the period of limitation in saying that the period of one year contemplated in sub-sec. (3) of sec. 37 of the Code should run from the date of its order which was passed on 10th April 1956 so as to hold the suit in time. The Courts below were therefore right in holding the suit barred by limitation under sec. 37 (3) of the Code. ( 10 ) IN the result therefore the appeal fails and is liable to be dismissed ( 11 ) THE appeal is dismissed with costs. Appeal dismissed .