Pedre Januario Carles and another v. Union of India and others
1983-11-24
G.D.KAMAT, S.P.BHARUCHA
body1983
DigiLaw.ai
JUDGMENT - Bharucha J.-The petitioners own some 12,000 square metres of land bearing Survey No. 110 (part) situated at Morimbim-O-Pequeno In Merces village near the New Panaji Bus Stand, Panaji. Prior to December 1978 this was agricultural land. On 12th December 1978 the petitioners applied for “ its conversion to non-agricultural purposes under section 32 of the Goa, Daman and Diu Land Revenue Code, 1968. They desired to utilise the land partly for the purposes of putting up a hotel and partly for putting up a residential building. On 17th March 1979 the Additional Collector of Goa permitted the conversion of 4,000 square metres of the land for the purposes of putting up a hotel. He rejected the application for the remaining land and he rejected the purpose of a residential building. The Additional Collector's order noted that the Chief Town Planner under the Goa, Daman and Diu Town and Country Planning Act, 1974, had not recommended the conversion for a residential purpose as the land was situated in an area which was not proposed to be brought under development in the Merces Zoning Plan. The Additional Collector noted that the Zoning Plan was not prepared in accordance with the Town and Country Planning Act; it was only a proposal that had yet to be considered by the Regional Planning Authority. As such, he held that the objection of the Chief Town Planner was not sustainable under section 32(2)(c) of the Land Revenue Code. 2. Pursuant to the Assistant Collector's order a Sanad under section 31(1) of the Land Revenue Code was granted to the petitioners on 11th April 1979. On 15th October 1979 the petitioners obtained permission from the Village Panchayat of Merces for the construction of the hotel. The construction began in November 1979 and was financed by a loan obtained from the Maharashtra State Finance Corporation. It is the petitioners' case that they have already spent a sum of Rs. 60,000 upon the construction. 3. On 29th April 1980 the Under-Secretary (Revenue) of the Govern ment of Goa, Daman and Diu wrote to the petitioners stating that the order of the Additional Collector was proposed to be revised in exercise of the provisions of section 192 of the Land Revenue Code and asked the petitioners to appear before the Revenue Secretary on 15th May 1980.
On 29th April 1980 the Under-Secretary (Revenue) of the Govern ment of Goa, Daman and Diu wrote to the petitioners stating that the order of the Additional Collector was proposed to be revised in exercise of the provisions of section 192 of the Land Revenue Code and asked the petitioners to appear before the Revenue Secretary on 15th May 1980. The communica tion gave no indication why the order of the Additional Collector was pro posed to be revised. The hearing took place on 15th May 1980. 4. On 12th February 1981 the Revenue Secretary ordered that “the area allowed for conversion fails within Planning Area of Panaji and the Town and Country Planning Department desires to keep the. present area 'Green' as made in the Merces Zoning Plan. Therefore, in the interest of the environment of the Panaji that the order of the Collector be revised and the use of the land shall be kept as proposed in the Zoning Plan”. The order noted that the advocate appearing on behalf of the petitioners had taken objections to the proposed revision, the first of which we are not here concerned with. The advocate had contended that the revision was time-barred and that the petitioners had not been informed, of the grounds for the proposed revision. In regard to the objection as to time, the Revenue Secretary noted that “as the records have been called for within a year the case is not time-barred”. The records were called for in October 1979, he stated. The Revenue Secretary failed to appreciate that the next objection was that the petitioners had not been intimated in advance of the reasons why the Additional Collector's order was proposed to be revised so as to be able to counter them. The Revenue Secretary stated the reasons for revision. in his order thus :- “The area has been included within the Panaji Planning under the provisions of sub-section (i) and (ii) of section 18 of the Goa, Daman and Diu Town and Country Planning Act, 1974. Even though no Regional Plan or Developmental Plan was prepared, there was a Zoning Plan for this area in which Survey No. 110 in Village has been shown as Green Area. In such eventuality section 55 of the Town and Country Planning Act, 1974, provides for interim provisions pending preparations of Developmental Plan.” 5.
Even though no Regional Plan or Developmental Plan was prepared, there was a Zoning Plan for this area in which Survey No. 110 in Village has been shown as Green Area. In such eventuality section 55 of the Town and Country Planning Act, 1974, provides for interim provisions pending preparations of Developmental Plan.” 5. This petition impugns the order in revision passed by the Revenue Secretary. It also seeks a mandamus against the respondents from interfer ing in any manner with the construction upon the land. There is an affidavit-in-reply filed by the 6th respondent, the Planning authority, which submits that no relief should be given as against it for the reason that the construction was started without obtaining its permission. This is a ques tion which is not argued before us and we shall not issue the mandamus that is sought. . 6. There is no affidavit-in-reply on behalf of the other respondents. 7. It was submitted by Mr. Usgaonkar, learned advocate for the peti tioners, that the revision was beyond time. Section 192, along with its second proviso, reads thus :- “Revision-The Government or any revenue officer above the rank of a Mamlatdar or such officer as Government may specify in this behalf or Inspector of Surveys and Land Records may, at any time, either on his own motion or on the application of any party, call for the records of any inquiry or proceedings before any revenue or survey officer subordinate to him for the purpose of satisfying itself or himself, as the case may be, as to the legality or the propriety of any decision or order passed by such revenue or survey officer or as to the regularity of the proceedings of such officer and may pass such order in reference thereto as deemed fit or necessary Provided also that no such record shall be called for after the expiry of one year from the date of the order sought to be revised or before the expiry of the appeal period or during the pendency of an appeal against such order.” 8. Mr. Usgaonkar urged that the second proviso could not be read as the Revenue Secretary had read it.
Mr. Usgaonkar urged that the second proviso could not be read as the Revenue Secretary had read it. It was not enough to call for the records within the period of one year from the date of the order sought to be revised and to pass the order of revision at any time thereafter. The order of revision itself had to be passed within that year. 9. The factual position, then, is this: the Additional Collector passed the order permitting the change of user on 17th March 1979; the records were called for in October 1979; the petitioners were given notice of the ' proposed revision on 29th April 1980; a hearing was given on 15th May 1980; and the order in revision was passed on 12th February 1981. 10. The Bombay Land Revenue Code, as an example, does not provide a limitation in time for orders of revision and the Courts have suggested that such a time limit should be statutorily introduced. It Appeared that with in this Union Territory heed has been paid to the suggestion and a time limit introduced. The second proviso can reasonably be read only as introducing a time limit for the passing of an order of revision and not for the ministerial act of calling for the records. Calling for the records, exa mining the legality or propriety of the order proposed to be revised, and passing the order in the revision proceedings are one composite act of revision which must be, done within the period of one year from the passing of the order sought to be revised. This composite act is, in our view, covered by the second proviso. 11. The judgment of the Supreme Court in (State of Gujarat v. Patel Raghav Natha and others)1, is apposite here. It concerned the power of revision under the Bombay Land Revenue Code which, as we have indicated, provided no time limit. The Supreme Court observed that it was plain that the power of revision had to be exercised in reasonable time and the length of the reasonable time had to be determined by the facts of the case and the nature of the order which was being revised. Section 65 of the Land Revenue Code itself indicated the length of the reasonable time within which the Commissioner could revise under section 211.
Section 65 of the Land Revenue Code itself indicated the length of the reasonable time within which the Commissioner could revise under section 211. Under section 65, if the Collector did not inform the applicant of his decision on the application within a period of three months, the permission applied for would be deemed to have been granted. The section showed that the period of three months was considered ample for the Collector to make up his mind and beyond that the legislature thought that the matter was so urgent that permission had to be deemed to have been granted. Reading sections 211 and 65 together, it seemed to the Court that the Commissioner had to exercise revi-sional powers within a few months of the order of the Collector. This was a reasonable time because after the grant of the permission Tor building purposes, the occupant was likely to spend money on starting building operations at least within a few months of the date of the order. 12. We may note that here section 32 provides that if the Collector fails to inform the applicant of his decision within ninety days from the date of acknowledgement of the application or from the date of receipt of the application, if the application is not acknowledged, then the permission applied for shall be deemed to have been granted. Even if we be wrong in our construction of the second proviso of section 192, the order of the Revenue Secretary must be set aside upon the reasoning of the Supreme Court in the said judgment having regard to the factual position set out above. 13. There is another reason why the order in revision cannot be sustained. The revisional authority is invested with no more power than that which is invested in the officer passing the order proposed to be revised. Under section 32(2)(c) the Collector is entitled to refuse “the permission applied for if the altered use “is contrary to a scheme for the planned development of a village, town or city in force under any law for the time being in force”. It is an admitted position that the Zoning Plan upon which the Chief Town Planner and thereafter the Revenue Secretary laid emphasis is not a scheme for planned development in force under any law for the time being in force.
It is an admitted position that the Zoning Plan upon which the Chief Town Planner and thereafter the Revenue Secretary laid emphasis is not a scheme for planned development in force under any law for the time being in force. Section 55 of the Town and Country Planning Act cannot add to the powers conferred by section 32(2)(c) of the Land Revenue Code. Only those powers are relevant. Therefore, the Additional Collector was right in disregarding the Zoning Plan and the Revenue Secretary was in error in revising the Additional Collector's order upon its basis. 14. The order of the Revenue Secretary dated the 12th February 1981 is quashed and set aside. Rule accordingly. No order as to costs. Order quashed. -----