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 section P Nayar for the appellant
Purshottam Trikamdas and I N Shroff for respondent No 1
N section Bindra and K L Hathi for respondent No 3
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 non agricultural 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 section 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 ob jected 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 section 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 NA 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 section 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 section 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
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 with in 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
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 direct
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 liaable to the penalties aforesaid shall be responsible to the said occupant in damages
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 1921 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 M 1 
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 Bom bay 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 or less
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 Assessment 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 section 65 of the Code and it is under section 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 supCI69 8 342 application
The Collector having given permission under section 65 he can prescribe conditions under section 67 of the Code
Under section 482 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 87b 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 MI
Relying on Shri Mithoo Shahani vs Union of India1 the learned counsel contends that there is a distinction between an order granting permission under section 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 section 211 of the Code the order granting permission under section 65 is revisable under section 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 other grounds
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 officer
The following officers may in the same manner call for and examine the proceedings of any officer subordinate 1  1 The Government of the Province of Bombay vs Hormusji Manekji 1940 Letters Patent Appeal No 40 of 1938 decided on August 8 1940
2 The Government of Bombay vs Mathurdas Laljibhai Gandhi 44 BLR 405
3 The State of Bombay vs Chhaganlal Gangaram Lavar 56 BLR 1084
4 Government of Bombay vs Ahmedabad sarangpur mills Co AIR 5 Secretary of State vs Anant Nulkar 36 BLR 242 PC 6 Province of Bombay vs Hormusji Manekji 50 BLR 524 PC
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 Officer
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 section 65 at any time
It is true that there is no period of limitation prescribed under section 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 section 65 itself indicates the length of the reasonable time within which the Commissioner must act under section 21 1
Under section 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 sections 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 ie more than a year after the order and it seems to us that this order was passed too late
We are also of the opinion that the order of the Commis sioner 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 occupant
In the result the appeal is dismissed with costs
VPS Appeal dismissed


Summary:
The respondent who was an occupant of agricultural land applied to the Collector under section 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 section 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 Com missioner s order was quashed by the High Court on the ground that the Commissioner had no authority to pass the order under section 211 of the Code
In appeal to this Court HELD  The Commissioner s order was rightly quashed
a Under section 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 section 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