State of Gujarat Vs. Patel Raghav
Natha & Ors  INSC 118 (21 April 1969)
21/04/1969 SIKRI, S.M.
CITATION: 1969 AIR 1297 1970 SCR (1) 335 1969
SCC (2) 187
F 1970 SC1302 (6) R 1971 SC 862 (10) R 1983
Bombay Land Revenue Code, 1879, ss. 65 and
211-Collector's order granting permission to convert agricultural land to
non-agricultural use as building site-Commissioner setting aside order a year
later-Validity-Commissioner's power to go into question of title-Duty to give
reasons for decision.
The respondent, who was an occupant of
agricultural land applied to the Collector, under s. 65 of the Bombay Land
Revenue Code, 1879, for permission to convert the land to non-agricultural use.
The Collector gave the permission in July 1960 on condition that the land shall
be used exclusively for constructing residential houses. The Municipal
Committee, which had objected to the grant of permission before the Collector,
moved the Commissioner for exercising his powers under s. 211 of the Code. The
Commissioner, in October, 1961, passed an order in which, after reciting the
objections of the Municipality and the arguments of counsel he boldly stated
his conclusion that the land did not belong to the respondent and set aside the
Collector's order without giving any reasons. The Commissioner's order was
quashed by the High Court on the ground that the Commissioner had no authority
to pass the order under s. 211 of the Code.
In appeal to this Court, HELD : The
Commissioner's order was rightly quashed.
(a) Under s. 65 of the Code, if the Collector
does not inform an applicant of his decision on the application, within a
period of 3 months, the permission applied for shall be deemed to have been
granted Though no such period is prescribed by s. 211, reading the two sections
together it must be held that the Commissioner also must exercise his
revisional powers within a reasonable time of the Collector's order. What is
reasonable would depend on the facts of the case. In the case when the
permission is for building purposes, the Commissioner should exercise his power
within a few months of the Collector's order, because, after the grant of the
permission the occupant is likely to spend money on building operations within
a few months of the date of permission. Since the order of the Commissioner in
the present case was passed more than a year after the Collector's order, the
order should be set aside. [343 E-H] (b) The order should also be quashed on
the ground that the Commissioner had not given any reasons for his conclusions.
[343 H] (c) The Commissioner also erred in
going into the question of title, because, when there was a serious dispute
regarding title, he should have referred the parties to a competent court and
not decide it himself. [344 D]
CIVIL APPELLATE JURISDICTION: Civil Appeals
No. 723 of 1966.
Appeal by special leave from the judgment
-and order dated July 25, 26, 1964. of the Gujarat High Court in Special Civil
Application No. 31 of 1962.
336 R. H. Dhebar, Urmila Kapoor and S. P.
Nayar, for the appellant.
Purshottam Trikamdas and I. N. Shroff, for
respondent No. 1.
N. S. Bindra and K. L. Hathi, for respondent
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against.
the judgment of the High Court of Gujarat
(Vakil, J.) allowing the application filed by Patel Raghav Natha, respondent
before us and hereinafter referred to as the petitioner, and quashing the order
dated October 12, 1961, passed by the Commissioner, Rajkot Division. The
Commissioner by this order had set aside the order of the Collector, dated July
2, 1960, granting permission to the petitioner to use some land in Survey No.
417 for nonagricultural purposes.
In order to appreciate the contentions raised
before us it is necessary to set out a few facts. The petitioner was a resident
of the State of Rajkot and at an auction effected by the State, he acquired on
or about September 22, 1938, agricultural land bearing survey No. 417 which in
all measured about 12 acres and 12 ganthas. After some acquisitions by the
State out of this survey number he was left with 2 acres and 10 ganthas of
agricultural land. On October 20, 1958, the petitioner applied to the Collector
for permission to convert this land to non-agricultural use, under s. 65 of the
Bombay Land Revenue Code, 1879, hereinafter referred to as the Code. This
petition was first rejected by the Collector, but the Divisional Commissioner
remanded the matter to the Collector. On remand, the then Collector of Rajkot,
after holding an enquiry, granted permission to the petitioner to use the land
for non-agricultural use by his order dated July 2, 1960. Pursuant to this
order a sanad was issued by the Collector to the petitioner on July 27, 1960.
It appears that the sanad was amended on November 3, 1960 and December 1, 1960.
The sanad was in form MI and a number of conditions were appended to the sanad.
Condition 6 of the main sanad provided that "save as herein provided, the
grant shall be subject to the provisions of the said code." The special
conditions originally included a condition that the land shall be used
exclusively for constructing residential houses (condition 5) but this
condition was altered in November 1960.
It appears that the Municipal Committee of
Rajkot had objected to the grant of permission before the Collector when a
sketch of the land was sent to the Municipality. The objections as they appear
from the order of the Collector granting the sanad were directed against the
accuracy of the sketch, showing the 337 northern and tile western comers of the
Ramkrishna Ashram, and regarding the boundaries and situation of the roads in
survey Nos. 417 and 418. The Collector had overruled these objections.
The Municipal Committee approached the
Commissioner to exercise powers under s. 211 of the Code. The Commissioner
noted the objections of the Municipality and after reciting the objections and
the arguments of the learned counsel for the petitioner and after inspecting
the site, observed :
"From this inspection the contentions of
the Municipality as to the existence of the various roads as well as the nature
of the Kharaba land has been proved beyond doubt.
In light of the above arguments as well as
the site inspection and the papers of the case, I set aside the order of the
Collector granting N.A. Permission. I consider, on weighing all evidence cited
above, that the land does not belong to Shri Raghav Natha." It is this
order which has been quashed by the High Court.
The following grounds were urged before the
learned Judge (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 Commissioner's order is not a
speaking order as no reasons are given by him for setting aside the Collector's
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
Commission had no jurisdiction to decide that question.
(4) In case the above points are not
accepted, the order of the Commissioner is bad even on merits as the
Commissioner had erred in law in allowing the question 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.
While dealing with ground No. 1 the learned
Judge held that the Commissioner had no jurisdiction to pass an order which
would nullify the sanad, and that the sanad was binding on both the parties
till it was set aside in due course of law.
On the second 338 ground he held that there
was some force in the submission.
But he observed :
"But at the same time if I had to decide
this case on this contention raised, I may not have interfered only on this
ground, with the decision of the Commissioner".
On the third ground he found that it was true
that the question of title was agitated by the Municipal Committee for the
first time before the Commissioner, though it was primarily for the petitioner
to show that he was an occupant within the meaning of s. 65 of the Code. But
then the learned Judge decided not to enter into the merits of the case as he
had come to the clear conclusion that the Commissioner had no authority to pass
the order that he did under s. 211 of the Code.
The learned counsel for the State of Gujarat,
Mr. Dhebar, challenges the decision of the High Court that the Commissioner had
no jurisdiction to pass the order dated October 12, 1961. The relevant
provisions of the Code and the Land Revenue Rules, 1921, hereinafter referred to
as the Rules, are as follows "The Bombay Land Revenue Code, 1879
48. (1) The land revenue leviable on any land
under the provisions of this Act shall be assessed, or shall be deemed to have
been assessed, as the case may be, with reference to the use of the land(a) for
the purpose of agriculture, (b) for the purpose of building, and (c) for a
purpose other than agriculture or building.
(2) Where land assessed for use for any
purpose is used for any other purpose, the assessment fixed under the provisions
of this Act upon such land shall, notwithstanding that the term for which such
assessment may have been fixed has not expired, be liable to be altered and
fixed at a different rate by such authority and subject to such rules as the
State Government may prescribe in this behalf.
(3) Where land held free of assessment on
condition of being used for any purpose is used at any time for any other
purpose, it shall be liable to assessment.
(4) The Collector or a survey officer may,
subject to any rules made in this behalf under section 214, prohibit the use
for certain purposes of any unalienated 339 land liable to the payment of land
revenue, and may summarily evict any holder who uses or attempts to use the
same for any such prohibited purpose.
65. An occupant of land assessed or held for
the purpose of agriculture is entitled by himself, his servants, tenants,
agents, or other legal representatives, to erect farm-buildings, construct
wells or tanks, or make any other improvements thereon for the better cultivation
of the land, or its more convenient use for the purpose aforesaid.
But, if any occupant wishes to use his
holding or any part thereof for any other purpose the Collector's permission
shall in the first place be applied for by the occupant.
The Collector, on receipt of such
application, (a) shall send to the applicant a written acknowledgment of its
receipt, and (b) may, after due inquiry, either grant or refuse the permission
applied for :
Provided that, where the Collector fails to
inform the applicant of his decision on the application within a period of
three months, the permission applied for shall be deemed to have been granted;
such period shall, if the Collector sends a written acknowledgment within seven
days from the date of receipt of the application, be reckoned from the date of
the acknowledgment, but in any other case it shall be reckoned from the date of
receipt of the application.
Unless the Collector shall in particular
instances otherwise direct, no such application shall be recognized except it
be made by the occupant.
When any such land is thus permitted to be
used for any purpose unconnected with agriculture it shall be lawful for the
Collector, subject to the general order of the State Government, to require the
payment of a fine in addition to any new assessment which may be leviable under
the provisions of section 48.
66. If any such land be so used without the
permission of the Collector being first obtained, or before the expiry of the
period prescribed by section 65, the occupant and any tenant, or other person
holding under or through him, shall be liable to be summarily evicted by the
Collector from the land so used and from the entire 340 field or survey number
of which it may form a part, and the occupant shall also be liable to pay, in
addition to the new assessment which may be leviable under the provisions of
section 48 for the period during which the said land has been so used, such
fine as the Collector may, subject to the general orders of the Provincial Government,
Any tenant of any occupant or any other
person holding under or through an occupant, who shall without the occupant's
consent use any such land for any such purpose, and thereby render the said
occupant liable to the penalties aforesaid, shall be responsible to the said
occupant in damages.
67. Nothing in the last two preceding
sections shall prevent the granting of the permission aforesaid on such terms
or conditions as may be prescribed by the Collector, subject to any rules -Made
in this behalf by the Provincial Government." "Land Revenue Rules,
87. (a) Revision of non-agricultural
assessment(b) When land is used for non-agricultural purposes is assessed under
the provisions of rules 81 to 85, a sanad shall be granted in the Form M if the
land is used for building purposes, in Form NI if the land is used temporarily
for N-A purposes other than building in Form N in all other cases.
Provided that if the land to be used for
building purposes is situated within the limits of a municipal corporation
constituted under the Bombay Municipal Corporation Act or the Bombay Provincial
Municipal Corporation Act, 1949 the Sanad shall be granted in Form
The relevant extracts from the agreement
(sanad) are given below :
Whereas application has been made to the
Collector (hereinafter referred to as 'the Collector' which expression shall
include any officer whom the Collector shall appoint to exercise and perform
his powers and duties under this grant) under section 65 of the Bombay Land
Revenue Code 1879 (hereinafter referred to as 'the said Code' which expression
shall where the context so admits include the rules and orders thereunder) by
inhabitant of Madhya Saurashtra being the registered occupant of survey No. 417
in the village of 341 in the Taluka (hereinafter referred to as 'the applicant'
which expression shall where the context so admits include his heirs,
executors, administrators and assigns) for permission to use for building
purposes the plot of land (hereinafter referred to as the 'said plot'),
described in the first schedule hereto and indicated by the letters......
on the site plan annexed hereto, forming part
of survey No. 417 and measuring acres 2 gunthas 17, be the same a little more
When used under rule 51 for land already
occupied for agricultural purposes within certain surveyed cities the period
for which the assessment is leviable will be ordered to coincide with the
expiry of 99 years' period running in that city.
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 :(1)
(6) Code provisions applicable ':-Save except
as herein provided, the grant shall be subject to the provisions of this code
In witness whereof the Collector of has set his hand and the seal of his office
on behalf of the Governor of Bombay, and the applicant has also here-unto set
his hand, this day the of 19 .
Signature of Applicant Signature and
designations of witnesses Signature of Collector Signature and designations of
witnesses We declare that who has signed this notice is, to our personal
knowledge, the person he represents himself to be, and that he has affixed his
signature hereunto in our presence." It will be noticed that application
is made under s. 65 of the Code and it is under s. 65 that the Collector either
grants or refuses the permission applied for. It will be further noticed that
if the Collector fails to inform the applicant of his decision on the
application within a period of three months the permission applied for shall be
deemed to have been granted, but if the Collector sends a written
acknowledgment within seven days from the date of receipt of the application
then the three months period is reckoned from the date of acknowledgment, and
in other cases this period is reckoned from the date of receipt of the
supCI/69-8 342 application. The Collector having given permission under s. 65
he can prescribe conditions under s. 67 of the Code.
Under s. 48(2) where the land assessed for
use, say for agricultural purposes, is used for industrial purposes, the
assessment is liable to be altered and fixed at a different rate by such
authority and subject to such rules as the State Government may prescribe in
this behalf. The rates for non-agricultural assessment are fixed under rr. 81,
82, 82A, 82AA, 84 and 85 of the Rules. Rule 87(b) provides that where land is
assessed under the provisions of rr. 81 to 85, a sanad shall be granted. Under
the proviso to r. 87 (b) it is obligatory for the sanad to be granted in form
Relying on Shri Mithoo Shahani v. Union of
India(1) the learned counsel contends -that there is a distinction between an
order granting permission under s. 65 and the agreement contained in the sanad
which is issued under, r. 87 (b). He urges that even if the sanad may not be
revisable under s. 211 of the Code, the order granting permission under s. 65
is revisable under s. 21 1, and if this order is revised the sanad falls along
with the order.
We need not give our views on this alleged
distinction for two reasons; first, that this point was not debated before the
High Court in this case or in earlier cases**, and -secondly, because we have
come to the conclusion that the order of the Commissioner must be quashed on
Section 211 reads thus "211. 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 property of any
decision or order passed, and as to the regularity of the proceedings of such
The following officers may in the same manner
call for and examine the proceedings of any officer subordinate (1)  7
S.C.R. 103 (1) The Government of the Province of Bombay v. Hormusji
Manekji--(1940) Letters Patent Appeal No. 40 of 1938, decided on August 8,
(2) The Government of Bombay v. Mathurdas
Laljibhai Gandhi-44 B.L.R. 405.
(3) The State of Bombay v. Chhaganlal
Gangaram Lavar-56 B.L.R. 1084.
(4) Government of Bombay v. Ahmedabad
sarangpur mills Co.-A.I.R. 1944 Bom. 244.
(5) Secretary of State v. Anant Nulkar-36
B.L.R. 242 (P.C.) (6) Province of Bombay v. Hormusji Manekji50 B.L.R. 524
343 to them in any matter in which neither a
formal nor a summary inquiry has been held, namely,.... a Mam-latdar, a
Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement
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." The
question arises whether the Commissioner can revise an order made under s. 65
at any time. It is true that there is no period of limitation prescribed under
s. 211, but it seems to us plain that this power must be exercised in
reasonable time and the length of the reasonable time must be determined by the
facts of the case and the nature of the order which is being revised.
It seems to us that s. 65 itself indicates
the length of the reasonable time within which the Commissioner must act under,
s. 21 1. Under s. 65 of the Code if the Collector does not inform the applicant
of his decision on the application within a period of three months the
permission applied for shall be deemed to have been granted. This section shows
that a period of three months is considered ample for the Collector to make up
his mind and beyond that the legislature thinks that the matter is so urgent
that permission shall be deemed to have been granted. Reading ss. 211 and 65
together it seems to us that the Commissioner must exercise his revisional
powers within a few months of the order of the Collector. This is reasonable
time because after the grant of the permission for building purposes the
occupant is likely to spend money on starting building operations at least
within a few months from the date of the permission. In this case the
Commissioner set aside the order of the 'Collector on October 12, 1961, i.e.
more than a year after the order, and it seems to us that this order was passed
We are also of the opinion that the order of
the Commissioner should be quashed on the ground that he did not give any
reasons for his conclusions. We have already extracted the passage above which
shows that after reciting the various contentions he badly stated his
conclusions without disclosing 344 his reasons. In a matter of this kind the
Commissioner should indicate his reasons, however, briefly, so that an aggrieved
party may carry the matter further if so advised.
We are also of the opinion that the
Commissioner should not have gone into the question of title. It seems to us
that when the title of an occupant is disputed by any party before the
Collector or the Commissioner and the dispute is serious the appropriate course
for the Collector or the Commissioner would be to refer the parties to a
competent court and not to decide the question of title himself against the
In the result the appeal is dismissed with