N.K.VAKIL - (1.) This writ petition is directed against the order passed by the Commissioner Rajkot Division purporting to be under his revisional powers under section 211 of the Land Revenue Code where by he set aside the order passed by the Collector Rajkot District which granted the permission to the petitioner to use 2 acres and 10 gunthas:- of his land out of survey No. 417 for non-agricultural use. The petitioner was a resident of the State of Rajkot as it then existed and at an auction sale effected by the State he had acquired the agricultural land bearing survey No. 417 which in all measured about 12 acres and 12 gunthas. He had so purchased this land on the 22nd of September 1938. The petitioner therefore claimed to be owner and occupant of the said land. In the year 1944 the then State of Rajkot by its order dated 11-7-1944 acquired according to the petitioner 3 acres of land out of the said survey number for Ramkrishna Mission. Deducting this area the petitioner was left with 9 acres and 12 gunthas of the land in his survey No. 417. At a later stage when Government acquired certain lands he in company with 21 other persons whose land were so acquired had applied to the Government to allow certain parts of their lands to be used for non-agricultural purposes and accordingly the petitioner applied for permission to use for non agricultural use 4 acres and 39 gunthas out of his remaining land 9 acres and 12 gunthas. This permission was granted by the then State of Saurashtra by a notification No. REV. 2/4/A-1/267 dated 21st May 1955 the State of Rajkot having merged in the new State. This was a common Notification by the State Government as regards the lands of the 22 claimants. The State of Saurashtra then acquired 2 acres and 3 gunthas of land for Bhaktinagar Station Yard. According to the petitioner therefore he was left with 2 acres and 10 gunthas of agricultural land out of the whole survey No. 417 of 12 acres and 12 gunthas. He continued to pay assessment to Government for these 2 acres and 10 gunthas as agricultural land. On the 20th of October 1958 the petitioner applied to the Collector of Rajkot for permission to convert the remaining land admeasuring 2 acres and 10 gunthas to non-agricultural use under section 65 of the Land Revenue Code. For the sake of convenience I shall be referring to the Bombay Land Revenue Code as the Code. This petition however was rejected by the Collector without assigning any reasons. The petitioner then approached in appeal to the then Divisional Commissioner of Rajkot who remanded the matter to the Collector for passing appropriate orders on making inquiry. On remand the then Collector of Rajkot after holding an inquiry decided in favour of the petitioner and granted the permission to the petitioner to use the land for non-agricultural use by his order dated 2 July 1960. Pursuant to this decision taken by the Collector a Sanad was issued by him to the petitioner on 27-7-1960 which included the terms according to the petitioner of the agreement between the Government and the petitioner on which he was allowed to make use of it for non-agricultural purposes. The Sanad was granted for a period of 30 years and it also fixed certain higher assessment. It may be noted that this Sanad was issued in Form M as prescribed by the Code and it was executed by the Collector on behalf of the Governor of the State and the petitioner.........It appears that when the Collector was inquiring into this matter and as the lands were situated within the municipal area of the Rajkot Borough Municipality the Collector had sent a sketch prepared under his orders by the District Inspector of Land Records to the Municipality for their comments and objections if any. The Municipality thereupon wrote a letter to the Collector and raised certain contentions. I shall have occasion later to refer to them. The Collector however decided the matter in favour of the petitioner as stated above and issued the Sanad. It appears that the Municipality being dissatisfied with the order passed by the Collector and the Sanad granted to the petitioner approached the Commissioner under his revisional powers and raised several contentions against the order passed by the Collector...........The Commissioner after hearing both the sides and also at the request of the Municipality visiting the site passed an order setting aside the order passed by the Collector granting the Sanad to the petitioner. He further held that on considering and weighing the evidence before him the land does not belong to Shri Raghav Natha that is the petitioner. Being aggrieved by this order passed by the Commissioner the owner of the land has approached this Court under its jurisdiction under Article 227 of the Constitution.
(2.) This order of the Commissioner is challenged before me by the petitioner on the following grounds:- (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 Commissioners order is not a speaking order as no reasons are given by him for setting aside the Collectors 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 Commissioner had no jurisdiction to decide that question. (4) In case the above points are not accepted the order of the Commssioner is bad even on merits as the Commissioner had erred in law in allowing the questions 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.
(3.) Now, I shall come to the consideration of the contentions raised by the petitioner in the order set out by me hereinabove. The contention as regards the jurisdiction has been raised by the petitioner in this way. He had applied by an application under section 65 of the Land Revenue Code in respect of 2 acres and 10 gunthas of land which according to him was out of his surevey No. 417 and which was still in his occupation for permission to use it for non-agricultural use. The Collector made an inquiry under section 65 and came to a decision that the petitioners application should be allowed. Thereafter the Collector proceeded further and granted a Sanad in Form M as prescribed by the Code. According to the petitioner this Sanad constitutes an agreement or a contract between the Government and the petitioner in respect of this land. It may be mentioned that the Sanad is signed by the Collector on behalf of the Governor and the petitioner. The petitioners submission is that though section 211 of the Land Revenue Code vests very wide powers in the Government or any officer appointed to exercise such powers by the Government still in the exercise of that power neither the Government nor the officer appointed by the Government has any jurisdiction whatever to set at naught the contract or to pass any order which might adversely affect the contract as a whole or any of its terms. The Government or on behalf of the Government the Commissioner had no jurisdiction to revise the decision under section 211 and in any case it could not nullify or touch in any way the agreement or the terms of the Sanad. According to the petitioner the Sanad was given in Form M by the Collector as prescribed by the Code and this Sanad embodies the agreement and even if it is assumed that the decision of the Collector to give the permission is revisable under section 211 of the Code the decision having culminated into an agreement the agreement cannot in any case be revised or affected by any order under section 211. Mr. G. N. Desai the learned advocate for the petitioner relied for this submission of his on four decisions of the Bombay High Court. They are The Government of Bombay v. Mathurdas Laljibhai Gandhi 44 Bom. L. R. 405 Sambhaji Baloji v. The Mamlatdar of Baramati 55 Bom. L. R. 281 Govt. of Bombay v. Ahmedabad Sarangpur Mills Co. A.I.R. 1944 Bombay 244 and State of Bombay v. Chhaganlal Gangaram 56 Bom. L. R. page 1084. This question about the scope of section 211 of the Code had been a vexed question for a number of years to the Bombay High Court and reported and unreported decisions seemed to conflict with each other. When the matter came before a Bench of the Bombay High Court in 1954 it was found necessary to have this question resolved once for all in a definite way and therefore this question was referred to the Full Bench of the Bombay High Court. The Full Bench considered all possible decisions on the subject given by the Bombay High Court from time to time and gave a very illuminating and decisive judgment which is reported in State of Bombay v. Chhaganlal Gangaram Lavar 56 Bombay Law Reporter 1084 relied upon by the petitioners advocate. For the purpose of deciding the question on hand also we will have to heavily draw upon the conclusions reached and the observations made by the three learned Judges who formed the Full Bench. But before I actually go to consider the observations and the conclusions reached in that Full Bench decision it will be expedient to deal with the other three decisions which have also been considered by the Full Bench. [After discussing the aforsaid decisions His Lordship further stated: ];