GULAM HUSEIN JIVABHAI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
GULAM HUSEIN JIVABHAI
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(1.) This second appeal is by the original plaintiff who filed a suit to set aside an order of the Prant Officer Dholka holding that the suit land belonged to the Government. It is admitted that the suit was filed one year after the order and the date of the appeal. But it is contended that a revision application was filed and that the suit was filed within one year from the date of the decision of the revision application. Section 37(3) of the Land Revenue Code reads as under:-
Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed under sub-sec. (1) or sub-sec. (2) or if one or more appeals have been made against such order within the period of limitation then from the date of any order passed by the final appellate authority as determined according to sec. 204 shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order provided that in the case of an order under sub-sec. (2) the plaintiff has had the notice of such order. It does not talk of any revision application. In fact the Land Revenue Code does not contemplate an application in revision although sec. 211 of the Land Revenue Code contemplates the exercise of what may be called revisional jurisdiction by the Collector or by the Government. They can call for the papers whether there is an application or not. There is no provision for an application in revision in the Land Revenue Code. There is no limitation for what is usually called an application in revision in the Land Revenue Code. The application requesting the Government to exercise their powers under sec 211 of the Land Revenue Code may be given at any time and if limitation for a suit under sec. 37 of the Land Revenue Code is to start from the date of an order passed by the Government under sec. 211 of the said Code then the suit can be filed at any time and there would be no limitation for the suit. The provision of limitation for such suits would be meaningless. The contention of the learned counsel for the appellant is therefore rejected.
(2.) But relying on Malrajeppa v. Secretary of State for India I. L. R. 36 Bombay 325 the learned counsel for the appellant contends that the order in question was an ultra vires order. It is difficult to understand the reasoning in I. L. R. 36 Bom. 325. Merely because a person is in peaceful possession for some time it cannot be said that the Collector cannot make an inquiry under sec. 37 of the Land Revenue Code if the property is claimed by the Government. If any property is claimed by the Government or by any private person then it is the duty of the Collector to make an inquiry under sec. 37 of the said Code and simply because at the time when the claim was made by the Government certain person was alleged to be in peaceful possession of the property does not affect the duty of the Collector to make an inquiry under sec. 37 of the Code and it cannot be said that the inquiry made by the Collector under sec. 37 of the Land Revenue Code is ultra vires and that it is not a proper exercise of his powers. The questions as to who was in possession and the nature and duration of such possession will only be clear from the inquiry. It is the duty of the Collector to make an inquiry once a claim is made by the Government or by any private person. The inquiry made by the Collector under the statute cannot therefore be said to be ultra vires the statute. With great respect it is difficult to agree with the reasoning of the learned Judges in I.L.R. 36 Bombay 325 In the instant case the learned appellate Judge has observed in his judgment as follows:-
Now in this case both the appellant and the State Government were claiming the suit property as theirs. It is therefore clear that the Government was claiming the property. It was therefore the duty under the law of the Prant Officer to make an inquiry and it cannot be said that what is done is ultra vires. This contention of the learned counsel for the appellant is therefore rejected.
(3.) No other contention is urged. The second appeal is therefore dismissed. No orders as to costs.;
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