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2002 DIGILAW 807 (GUJ)

COLLECTOR v. BAVABHAI KARSHANBHAI PATEL

2002-10-17

P.B.MAJMUDAR

body2002
P. B. MAJMUDAR, J. ( 1 ) THE order passed by the Principal Secretary, Revenue Department (Appeals), State of Gujarat, Ahmedabad, is challenged by the Collector, Rajkot, Deputy Collector, Rajkot, and Mamlatdar, Rajkot, by filing this Special Civil Application. It is surprising as to how the order passed by the Principal Secretary of the State can be challenged by the subordinate Officers, like the Collector, Deputy Collector and Mamlatdar. The Principal Secretary has exercised the powers under the provisions of the Land Revenue Code while entertaining revision application and, virtually, it is the power of the State Government, which is exercised by the Principal Secretary by passing the impugned order. The impugned order is passed in the name of the Governor of Gujarat and, therefore, in my view, such an order cannot be challenged by subordinate revenue officers, like the Collector, the Deputy Collector, or the Mamlatdar, as the case may be. Even on the basis of propriety, it was not open for the Collector to challenge the order of his superior by way of filing this petition. In future, the revenue authority may take proper care in instituting such proceedings, wherein the order passed by a superior Officer is sought to be challenged by the subordinate officer by filing proceedings. The Collector, the Deputy Collector or the Mamlatdar, as the case may be, is bound by the decision taken by the superior officer, exercising appellate power. In the instant case, the Principal Secretary has passed the impugned order exercising the powers of the State Government and the decision impugned, therefore, can be said to be the decision of the State Government itself and, therefore, rightly it is also mentioned in the order that the decision is taken in the name of the Governor of Gujarat. Still, the Collector, the Deputy Collector and the Mamlatdar have the audacity to challenge the said order by filing this petition. The petition, therefore, is not maintainable and cannot be entertained at the instance of the present petitioners. ( 2 ) AT this stage, reference is required to be made to Section 211 of the Bombay Land Revenue Code, 1879, which provides as under :-". . . . . . . . . 211. The petition, therefore, is not maintainable and cannot be entertained at the instance of the present petitioners. ( 2 ) AT this stage, reference is required to be made to Section 211 of the Bombay Land Revenue Code, 1879, which provides as under :-". . . . . . . . . 211. Power of State Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers.-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 officer 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. And to pass orders thereupon--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 fit. . . . . . . . . . . " ( 3 ) THE Principal Secretary, in the instant case, has exercised the powers under Section 211 of the Act and, accordingly, he has exercised the powers of the State Government itself. In my view, therefore, it is highly improper on the part of the Collector, the Deputy Collector or the Mamlatdar to challenge the decision of the Principal Secretary by filing this Special Civil Application. In my view, therefore, it is highly improper on the part of the Collector, the Deputy Collector or the Mamlatdar to challenge the decision of the Principal Secretary by filing this Special Civil Application. It is hoped that appropriate care will be taken in future before taking decision for challenging such order and filing such petition by subordinate revenue officer, challenging the order of the superior officer. Considering the Scheme of the Act, in my view, no such Special Civil Application at the instance of the present petitioners can be entertained in law and apart from that, even on the basis of propriety, it is not open for the Subordinate Officer to challenge the order of the superior officer by filing the petition to challenge the said decision unless specifically authorised by the State Government in that behalf. The petition, therefore, deserves to be dismissed on this preliminary ground. ( 4 ) SO far as the merit of the issue is concerned, the Mamlatdar initiated proceedings for removing the encroachment of the respondent by initiating proceedings under Section 61 of the Bombay Land Revenue Code. The order was passed on 27. 3. 1997. The said order was challenged by the respondent before the Deputy Collector, Rajkot by way of Appeal No. 15 of 1997. The said appeal was dismissed on 15. 12. 1997 and revision preferred against the said order was also confirmed by the Collector, Rajkot. Ultimately, the respondent preferred revision application before the Principal Secretary, State of Gujarat, being Revision Application No. 12 of 1999. The said revision Application was heard by the Principal Secretary, State of Gujarat, and by the impugned order dated 28. 2. 2000, the revision was allowed, by setting aside the impugned orders passed by the Mamlatdar, Deputy Collector and Collector, respectively, and the matter was sent back to the Collector, Rajkot for regularising the possession of the petitioner by imposing appropriate charges for converting the land into non-agricultural use. The Secretary came to the conclusion that the land in question no longer remains in agricultural zone and Town Planning scheme is made applicable. The Secretary also found that the respondent was in possession of the land since long and that he has become owner even by way of adverse possession. The Secretary came to the conclusion that the land in question no longer remains in agricultural zone and Town Planning scheme is made applicable. The Secretary also found that the respondent was in possession of the land since long and that he has become owner even by way of adverse possession. Under these circumstances, it is observed in the order that the possession of the respondent is required to be regularised as per the Rules. It is found that since long, the land is put to non-agricultural use by making construction over the suit land. Under the circumstances, the matter was remanded to the Collector for fixing the price towards non-agricultural use. The Secretary, therefore, has considered the question about long possession of the respondent and, according to Mr. Dave, it has been found by the Revenue Authority that the respondent is in possession since 1958 and the construction is carried out over the suit land since long. Considering the aforesaid aspect of the matter, the Secretary has remanded the matter to the Collector, with necessary observation in the remand order. ( 5 ) CONSIDERING the reasoning of the Secretary in the impugned order, in my view, the same is not required to be interfered with by this Court in a petition filed by the petitioners, which is in the nature of Article 227 of the Constitution of India. Even apart from the aforesaid aspect, the order of the Secretary, which can be said to be an order of the State Government itself, cannot be challenged at the instance of the Collector, the Deputy Collector or the Mamlatdar, as the case may be, and as observed by me earlier, at the instance of the present petitioners, who are subordinate revenue officers, this petition cannot be entertained. ( 6 ) IN view of what is stated above, I do not find any substance in this petition. It is, however, clarified that in case the respondent fails to pay the amount, which may be, ultimately, fixed by the Collector, in view of the direction of the Principal Secretary, it will be open for the revenue authorities to take appropriate proceedings for resuming the said land in accordance with law. ( 7 ) SUBJECT to the above observations, the petition is dismissed. Rule is discharged, with no order as to costs. .