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2016 DIGILAW 1137 (GUJ)

Maganbhai Karsanbhai Patel v. State of Gujarat

2016-06-20

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 28.04.2000 passed by the Gujarat Revenue Tribunal (hereinafter referred to as "the Tribunal" for short) in Appeal No. TEN/A.A. 48 of 1998 confirming the order dated 23.05.1985 passed by Collector, Vadodara. 2. The following facts emerge from the record of the petition:- 2.1. That the father of the petitioner viz. Deceased Maganbhai Karsanbhai Patel purchased the land in question bearing Revenue Survey No. 13, admeasuring 3 Acres and 25 Gunthas, situated at village Manjalpur, Taluka and District Vadodara, by registered Sale-Deed being Sr. No. 1473 dated 15.07.1958 from its original owner viz. Shivajirao Apajirao More and father of the petitioner remained in possession of the land in question and thereafter, the petitioner is in possession of the same. 2.2 Record further indicates that even though no one raised any dispute about the title of the land in question and even though no claim was made by anybody, City Survey Officer, Vadodara initiated inquiry under Section 37(2) of the Bombay Land Revenue Code (hereinafter referred to as "the Code" for short). As averred in the petition, the petitioner replied to the same and also produced necessary documentary evidence before the City Survey Officer. It is also averred that, in fact, the petitioner was also examined by the City Survey Officer. The said inquiry culminated into the order dated 28.04.1978, whereby the City Survey Officer held that the land bearing Sheet No. 30, Chalta No. 590 belongs to the petitioner's father deceased Maganbhai Karsanbhai Patel and similarly, property bearing Chalta No. 537 belongs to the Government land. 2.3 Record further indicates that being aggrieved by the said order, the petitioner preferred an appeal before the Deputy Collector, who vide order dated 25.02.1980 was pleased to quash and set aside the order dated 28.04.1978 passed by the City Survey Officer and remanded the proceedings back to City Survey Officer for its rehearing after giving opportunity to the parties concerned. 2.4 Pursuant to the order passed by the Deputy Collector, the City Survey Officer heard the petitioner and vide order dated 15.10.1981 was pleased to hold that both the properties namely Sheet No. 30, Chalta No. 590 as well as Chalta No. 537 belong to the father of the petitioner-deceased Maganbhai Karsanbhai Patel. 2.4 Pursuant to the order passed by the Deputy Collector, the City Survey Officer heard the petitioner and vide order dated 15.10.1981 was pleased to hold that both the properties namely Sheet No. 30, Chalta No. 590 as well as Chalta No. 537 belong to the father of the petitioner-deceased Maganbhai Karsanbhai Patel. 2.5 The Collector, Vadodara in purported exercise of power under Section 211 of the Code issued a show-cause notice dated 11.10.1982 asking the petitioner to show cause as to why the order passed by the City Survey Officer dated 15.10.1981 be not quashed and set aside and ultimately, vide order dated 11.10.1983, the Collector quashed the said order and again remanded the proceedings to the City Survey Officer. The City Survey Officer after due inquiry again vide order dated 27.01.1984 held that the properties in question are of the ownership of the father of the petitioner. 2.6 Again the said order dated 27.01.1984 was taken into suo motu revision under Section 211 of the Code and vide order dated 23.05.1985, the Collector quashed and set aside the order dated 27.01.1984 and held that both the properties belong to the State Government. 2.7 Being aggrieved by the said order passed by the Collector, the petitioner preferred a writ petition being Special Civil Application No. 1490 of 1986 before this Hon'ble Court, which came to be disposed of on the ground that the petitioner has an alternative remedy under Section 9 of the Bombay Revenue Tribunal Act (hereinafter referred to as "the Act" for short) vide order dated 21.08.1998. 2.8 Pursuant to the said order, the petitioner preferred an appeal before the Tribunal, which came to be registered as Appeal No. TEN/A.A-89 of 1998, wherein the petitioner raised various contentions and the Tribunal remanded the matter back to the Collector vide order dated 20.04.2000. Being aggrieved by the same, the present petition is filed. 3. This Court (Coram: Hon'ble Mr. Justice A.L. Dave as His Lordship the then) was pleased to admit the matter and ad-interim relief was granted in favour of the petitioner vide order dated 07.08.2000 and the interim relief has continued. 4. Heard Mr. Jitendra M. Patel, learned counsel for the petitioner and Mr. Shirish Gohil, learned Assistant Government Pleader for the respondent authorities. 5. Justice A.L. Dave as His Lordship the then) was pleased to admit the matter and ad-interim relief was granted in favour of the petitioner vide order dated 07.08.2000 and the interim relief has continued. 4. Heard Mr. Jitendra M. Patel, learned counsel for the petitioner and Mr. Shirish Gohil, learned Assistant Government Pleader for the respondent authorities. 5. Learned counsel for the petitioner has raised the following contentions:- (i) That the Collector has no jurisdiction under Section 211 of the Code to take the order under Section 37(2) of the Code in suo motu revision, more particularly, when an appeal against the order of authority under Section 37(2)of the Code has been provided to the Tribunal under the provisions of Section 9of the Act. (ii) The Collector has no revisional jurisdiction under Section 211 of the Code and therefore, very exercise of the power by the Collector under Section 211 of the Code was without jurisdiction and on that ground, the impugned order deserve to be quashed and set aside. (iii) The Tribunal has also committed an error in law and facts by quashing the order passed by the Collector and remanding it back to the Collector for its adjudication. (iv) The powers exercised by the City Survey Officer under Section 37(2) of the Code are powers of the Collector i.e. by delegation of power and therefore, it is to be construed that the City Survey Officer has exercised the power of the Collector (delegated by the Collector under Section 37(2) of the Code) and therefore, the Collector himself cannot review or revise his own order under any provision of the Act or the Rules. (v) There is no provision in the Code, which confers power to revise the order under Section 37(2) of the Code. 6. Relying upon the judgment of the Division Bench of this Court in Letters Patent Appeal No. 660 of 2011, it was contended by learned counsel for the petitioner that as decided by the Division Bench of this Court, the Collector has no revisional jurisdiction under Section 211 of the Code against any order passed by the authority under Section 37(2) of the Code. It was further submitted that the Division Bench of this Court has clearly observed that the authority under Section 37(2) of the Code acting as delegate of the Collector, to exercise the power of the Collector himself and therefore, the order passed by delegated authority is the order passed by the Collector himself, which cannot be revised by the Collector as done in the present case. 7. Relying upon the unreported judgment of this Court rendered in Special Civil Application No. 3902 of 1981 and allied matters. It was further submitted that this Court has clearly held that the Collector cannot exercise revisional jurisdiction under Section 211 of the Code against an order under Section 37(2) of the Code. 8. Learned counsel for the petitioner has also drawn attention of this Court to the fact that similar question has been decided in Special Civil Application No. 657 of 1967 on 13.08.1970, wherein also this Court has held that while deciding the dispute under Section 37(2) of the Code, the authority exercised its delegated power of the Collector and in fact, consequently, the order passed under Section 61 of the Code was declared to be nullity. 9. It was further submitted that as per Section 9 of the Act and the Schedule–I thereto, an appeal under Section 37(2) of the Code would lie before the Tribunal and therefore, very exercise of revisional power by the Collector was without jurisdiction and therefore, the Tribunal has also committed an error in law and fact by remanding the proceedings back to the Collector. 10. On the aforesaid grounds, it was contended by learned counsel for the petitioner that the impugned orders passed by the Tribunal as well as the Collector deserve to be quashed and set aside and the order passed by the City Survey Officer in favour of the petitioner deserves to be confirmed. 11. Per contra, learned AGP has supported the impugned orders and has contended that the Tribunal has only remanded the matter to the Collector for its rehearing under Section 37(2) of the Code. 11. Per contra, learned AGP has supported the impugned orders and has contended that the Tribunal has only remanded the matter to the Collector for its rehearing under Section 37(2) of the Code. It is contended that the order passed by the authority under Section 37(2) of the Code can be taken into revision under Section 211 of the Code and therefore, the jurisdiction exercised by the Collector is legal and proper and no interference is called for by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. It is contended that the Tribunal has also not committed any error. Hence, it was submitted that the petition is misconceived and deserves to be dismissed with cost. No other and further submissions are made by learned counsel for the parties. 12. Upon perusal of the impugned orders and upon considering the submissions made by learned counsel for the parties, it would be appropriate to refer to Section 37(2) of the Code, which provides as under:- "37(2). Where any property or any right in or over any properties 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." 13. It is an admitted position that the City Survey Officer has exercised power under Section 37(2) of the Code as delegate of the Collector. Even the Division Bench of this Court in the case of Hussainbhai Joyebbhai Bharmal (supra), has considered the question of jurisdiction of the Collector, who entertained the revision application under Section 211 of the Code against an order passed under Section 37(2) of the Code, which is exactly the question raised in this petition. The Division Bench of this Court in the above cited decision after referring to the relevant provisions of the Code, has observed thus:- "20. We have heard the learned counsel for the parties and perused the relevant provisions of the orders passed by different Courts. 21. The Division Bench of this Court in the above cited decision after referring to the relevant provisions of the Code, has observed thus:- "20. We have heard the learned counsel for the parties and perused the relevant provisions of the orders passed by different Courts. 21. Under Sec. 37[2] of the Code, Collector or his survey officer can pass an order after formal inquiry and due notice to the parties with regard to any property or any right in or over any properties is claimed by or on behalf of the government or by any person as against the government. Under the said provision as it is the Collector or survey officer who can only pass such order, the order on the revision application under Sec. 211 can be passed by the State Government or any revenue officer, who is higher in rank than the Collector. Amongst the revenue officers, Collector being the highest officer, normally, the State Government can take up revision application under Sec. 211 of the Code. 22. There is distinction between Sec. 203 [appeal] against an order of a revenue officer to his superior and Sec. 211 under which power can be exercised by State Government or certain revenue officers. 23. Under Sec. 203, an appeal shall lie from any order passed by any revenue officer to his superior. If the revenue officer is of the rank of Assistant Collector, then, an appeal would lie before the next superior officer. Similarly, if the order has been passed by the revenue officer of the rank of the Deputy Collector, then, appeal would lie before the next superior officer like Collector. If such order has been passed by the Collector, then superior officer may be any Secretary of the Department. 24. On the contrary, such power has not been delegated to the superior officer of the rank of Secretary of the department under Sec. 211. Revisional power has been delegated on the State Government and on revenue officers which does not include Secretary of the department. Therefore, no comparison can be drawn between Secs. 203 and 211 of the Bombay Land Revenue Code, 1879. 25. Under Sec. 9, Assistant Collector and Deputy Collector are to be subordinate to the Collector. Under Sec. 10, any Assistant or Deputy Collector can be placed in charge of the Collector. Therefore, no comparison can be drawn between Secs. 203 and 211 of the Bombay Land Revenue Code, 1879. 25. Under Sec. 9, Assistant Collector and Deputy Collector are to be subordinate to the Collector. Under Sec. 10, any Assistant or Deputy Collector can be placed in charge of the Collector. When such person is placed as In-charge Collector, he is empowered to pass order under Sec. 37[2] only in the capacity of Collector, and not in the capacity of Assistant Collector or Deputy Collector. Therefore, we hold that once an order is passed under Sec. 37[2], for all purposes, the order is to be treated to be an order passed by the Collector and cannot be stated to be an order passed by Assistant Collector or Deputy Collector officer subordinate to the Collector. 26. Under Sec. 11 of the Code, Assistant to the Collector of the highest rank present in the district succeeds temporarily the office of the Collector and shall be held to be a Collector. In such case, if the highest officer is of the rank of Assistant Collector or Deputy Collector, under Sec. 11, on creation of temporary vacancy, such officer succeeds temporarily to the office of the Collector and shall be held to be a Collector. In that capacity also, if any order is passed under Sec. 37[2] by such officer who succeeds the office of the Collector, will be deemed to be an order passed by the Collector for all purposes and cannot be treated to be an order passed by the officer subordinate to the Collector. 27. In the case of Patel Khodidas Gangaram Ramchand v. S.K. Chaudhari, reported in 1972 GLR 1029 , the aforesaid facts had not been noticed by the learned Single Judge nor discussed in proper perspective. Learned Single Judge, while discussing in the unreported decision dated 16th June, 2009 in the case of "Virjibhai Jivrajbhai" in Special Civil Application No. 12230 of 2002 also failed to notice the aforesaid provisions and failed to interpret the power under Sec. 211 against the order of Collector. Therefore, we hold that the decision rendered by the learned Single Judge in the case of Patel Khodidas Gangaram Ramchand v. S.K. Chaudhari [supra] and in the case of Virjibhai Jivrajbhai v. State of Gujarat [Special Civil Application No. 12230 of 2002], do not hold good in the eye of law. 28. Therefore, we hold that the decision rendered by the learned Single Judge in the case of Patel Khodidas Gangaram Ramchand v. S.K. Chaudhari [supra] and in the case of Virjibhai Jivrajbhai v. State of Gujarat [Special Civil Application No. 12230 of 2002], do not hold good in the eye of law. 28. So far as the Division Bench decision of the Bombay High Court in the case of Vishnu Dadu Lokhande v. Umabai, reported in 1955 Vol. LVII 816 is concerned, therein, the Court has discussed Sec. 9 and noticed that only when Assistant or Deputy Collector is put in charge of revenue administration of a taluka, he is authorized to exercise powers of the Collector to perform the duties. On rest of the provision including provision of Sec. 211, the Court is silent. Therefore, we hold that the decision of the Bombay High Court in the case of Vishnu Dadu Lokhande v. Umabai, reported in 1955 Vol. LVII, 816, is per in curium and not applicable in the present case. 29. Learned counsel for the respondent stressed on language of the provision that exercise of power by the Assistant or Deputy Collector is made subject to the provision of Chapter XIII of the Bombay Land Revenue Code. We may only observe that all such orders including the orders passed by the Collector are subject to the provisions of Chapter XIII, which relates to "appeals and revision". Therefore, if any orders are passed by any officer of the rank of Assistant Collector, Deputy Collector or Collector, the same are subject to the provisions of appeal and revision. This does not mean that the Collector can sit in appeal over an order passed by the Collector or Collector can exercise revisional power over an order passed by the Collector. 30. As we have held that an order passed under Sec. 37[2] of the Code for all purposes will be deemed to be an order passed by the Collector, at the cost of repetition, we hold that no appeal will lie nor any revision application will lie against such order before an officer of equivalent rank i.e. Collector. 30. As we have held that an order passed under Sec. 37[2] of the Code for all purposes will be deemed to be an order passed by the Collector, at the cost of repetition, we hold that no appeal will lie nor any revision application will lie against such order before an officer of equivalent rank i.e. Collector. The order passed under Sec. 37[2] cannot be treated to be an order passed by the Assistant Collector or Deputy Collector nor can Collector entertain an appeal or revision on the ground that it was actually passed by the Assistant Collector or Deputy Collector." 14. The contention raised by learned counsel for the petitioner deserves to be accepted in view of the ratio laid down by the Division Bench of this Court. 15. In light of the aforesaid judgment of the Division Bench of this Court in the case of Hussainbhai Joyebbhai Bharmal (supra), it is rightly contended by learned counsel for the petitioner that the impugned orders are erroneous. 16. Similarly, learned Single Judge of this Court in Special Civil Application No. 3902 of 1981 has also considered the similar contention and has observed thus: "Two questions were urged before me by Mr. J.M. Patel, the learned advocate for the petitioners. He firstly submitted that the order passed by the Collector in exercise of revisional jurisdiction was a nullity inasmuch as the Collector could not revise his own order since the order passed by the Mamlatdar, Idar was in his capacity as the delegate of the Collector. There is considerable force in this submissions made by Mr. Patel. Under Section 37(2) of the Code, where a dispute arises as regards the ownership of any parcel of land between an individual and the State, the same has to be resolved by the Collector or Survey Officer after a formal inquiry. When such a dispute arose concerning the present three petitioners, the Mamlatdar, Idar, as the delegate or the Collector in exercise of power conferred by Section 37(2) of the Code decided the dispute in favour of the present petitioners. The Mamlatdar, was therefore, exercising the powers of the Collector, under Section 37(2) of the Code. When such a dispute arose concerning the present three petitioners, the Mamlatdar, Idar, as the delegate or the Collector in exercise of power conferred by Section 37(2) of the Code decided the dispute in favour of the present petitioners. The Mamlatdar, was therefore, exercising the powers of the Collector, under Section 37(2) of the Code. Section 211 of the code which confers revisional jurisdiction laid down that the State Government and any revenue officer, not below in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in the respective Department may call for and examine the record of any inquiry or the proceedings or 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. Therefore, on a plain reading of this section only a superior officer of the rank mentioned in the Section is conferred the power to all for and examine the record of any inquiry or proceedings of any subordinate revenue officer although a Mamlatdar may be subordinate to the Collector, when the Mamlatdar exercises the powers of the Collector, he cannot be said to be subordinate to the Collector, and the Collector cannot in exercise of revisional jurisdiction under Section 211 of the Code revise the decision of his delegate. A similar question came up for decision in Special Civil Application No. 657 of 1967 decided by J.B. Mehta, J. on 13th August, 1970. The learned Judge observed that the Mamlatdar while deciding the dispute under Section 37(2) of the Code exercises powers of Collector as delegate of the Collector under Section 12 and hence, the Collector could not revise the order of the Mamlatdar by purporting to fact under Section 211 of the Code. A letters Patent Appeal No. 198 of 1970 filed against the said decision of J.B. Mehta, J. was dismissed by a Divisional Bench consisting of the then learned Chief Justice and B.J. Divan, J. on 13th September, 1971. There can, therefore, be no doubt that the decision of the Collector taken sometime in 1966 to revise the order of the Mamlatdar was a nullity and can in law be ignored. There can, therefore, be no doubt that the decision of the Collector taken sometime in 1966 to revise the order of the Mamlatdar was a nullity and can in law be ignored. In other words, the decision of the Mamlatdar made in exercise of power under Section 37(2) of the Code dated 16th September, 1960 in the first two petitions and 26th October, 1959 in the last petition still holds the field. The subsequent proceedings taken on the basis of the revised order passed by the Mamlatdar after the matter was remanded to him by the Collector in exercise of revisional jurisdiction under Section 211 of the Code can also be ignored. It was therefore, not open to the authorities to take proceedings under Section61 of the Code on the basis of the revised order passed by the Mamlatdar since it arose out of the Collector's order under Section 211 of the Code which was ab initio void and a nullity." 17. In the facts and circumstances of the case, very exercise of the power by the Collector under Section 211 of the Code is without jurisdiction and therefore, the Tribunal has committed an error in law by remanding the proceedings again back to the Collector. Following the ratio laid down by Division Bench of this Court in Letters Patent Appeal No. 660 of 2011, the Collector does not possess any jurisdiction to entertain the revision under Section 211 of the Code against an order passed by the authority under Section 37(2) of the Code and as provided under Section 9 of the Act read with Schedule-I, it would lie to the Tribunal against an order passed under Section 37(2) of the Act. The decision taken by the Division Bench of this Court in Letters Patent Appeal No. 660 of 2011 would squarely apply to the present case. 18. Even considering the provisions of Section 9 of the Act read with Schedule-I attached thereto, the suo motu initiation of proceedings under Section 211 of the Code by the Collector was without jurisdiction as an appeal against the order under Section 37(2) of the would lie before the Gujarat Revenue Tribunal as per Schedule-I and on that count also, the impugned orders deserves to be quashed and set aside. For the foregoing, the petition is allowed and the impugned order dated 28.04.2000 passed by the Tribunal as well as the order dated 23.05.1985 passed by Collector, Vadodara, deserve to be quashed and set aside. Rule is made absolute accordingly. No costs.