DA!'vfJI.BHAl BUIBHAI VASA VA v.

RANCHHODBHAI ZINABHAI AND ORS.

FEBRUARY Y, 2(,'00

(S. SAGHIR AHMAD AND S.N. PHlJKA~, JJ.]

Code of Civil Procedure, 1908.

Section 54--Decree-Paltitivn--Paymenf of revenue to Government.

Code of Civil Procedure, 1908.

Section JQO- -Second Appeaf-Sr4bstantial question of law.

Bombay Land Revenue Code, 1879 : Section~· 203 and 21 I.

Collector--Order passed by-Powers of Deputy Secretary to consider propriety of such an order.

Partition suit-Decree passed in-Part of property in decree assessed to E land revenue-Partition of proper!.ies under Section 54 C.P.C.-co/lector's

order challenged before Deputy Secretary -Deputy Secretary remanded the matter to Co/lecto,......(,"'hal/enge to order of Deputy Secretary-Ground chat he had no jurisdiction to consider the propriety of order passed by Coilecto,-Suit decreed and appeal against decree dismissed-Second Appeal-Dis~ F missal on the ground that it did not involve substantial question of

law-Hence, appeal before Supreme Court-Held: important and substantial question of law was involved in the case-Order of High Court set aside-Case rema'Jded to High Court-Second Appeal :, hall be treated as admitted-Appeal should be disposed on merits after notice to parties.

G Paygonda Survgonda Patil & Ors. v. Jingonda Surgonda Pati/ & Ors.

Affi (1968) Bombay 198; Ramac/Uilldra Shamarao Kulkami v. Prahlad Krishnaji Kulkarni & Ors., AIR (1964) Mysore 31 and Sree Rajah Matripragada Venkataraghava Roo Bahadur, Zamindar Garu & Ors. v. Sri Rajesh Mantripragad Venkata Hanumantha Rao Bahadur, Zamindar Garu H (deceased) & Ors., AIR (1945) Madras 336, referred to.

D.B. VASA VA v. RANCHHODBHAI Zl~ABHAI (S.S.AHMAD, J.j 739

~ CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1707 of A 1995.

From the Judgment and Order dated 17.8.84 of the Gujarat High Court in S.A. No. 190 of 1984.

A.K. Ganguli, Harish J. Zaveri, J atin Zaveri and Ms. Kavita Gulati B for the Appellant.

Ms. Hemantika Wahi, Ms. Sumita Hazirika and Abhijat P. Mcdh for Respondents.

The following Order of the Court was delivered by :

S. SAGHIR AHMAD, J. Suit for partition filed by the respondents in respect of Plot No. 64/1/A and other properties was decreed by the trial court in 1%9 which decree was uphe!d by the fust appellate court and also

by the High Court. Since one of the properties in respect of which partition D decree was passed was assessed to land revenue payable to the State Govt., the trial court referred the matter to Collector under Section 54 of the • Code of Civil Procedure for partition. The Collector partitioned the properties by his order dated 1.6.1976. The order of the Collector was challenged by the appellant befon: the Deputy Secretary under Section 211 E of the Bombay Land Rewnuc Cod~:, 1879. This Revision was allowed on 2.7.1977 and the Deputy Secretary remanded the matter to the Collector.

The order of the Depllty Secretary was challenged hy the respondents in Regular Civil Suit No. 71 of 1978 on the ground that the Deputy Secretary had no jurisdiction to consider the propriety of the order passed by the Collector under Section 54 of the Code of Civil Procedure. The suit was

decred on 22.12.1981. The appeal prderred by the appellant against this decree was dismissed by the District Judge on 20.8.1983. The second appeal thereafter filed by the appellant was summarily dismissed by the High Court on 17.8.1984 on the ground that the appeal did not involve any substantial question of law. The matter is now before us.

Learned counsel for the appellant contended that the Collector was a Revenue Officer and therefore he was amenable to the jurisdiction of the State Government under the provisions of the Bombay Land Revenue

Cod~ 1879. He plared reliance upon Sections 203 and 211, which are

reproduced below : H

740 SUPRf-.MF. C'C J U RT REPORTS

1200011 S.C.R.

' 203. ln th~ absence of any cxprcss provision of this Act, or of any

law for th~ time being in force u the contrary, an app~:al shall lie from any decision or ordr passed by a revnue ofticer under this Act or any other law for the tim-. bdog in force, to that officer's immediate surior, whether such dcc..ision or order may itself have been passed on appeal from a subordinat~ officer's decision or order or not.

211. The Statt: Govrnment and any revcm.le officer, not inferior in rank to an Assistant or Dt:puty Collector or a Supl.!rintcndcnt of Surwy, in their respective dt:partments, may call fur and cxamint: th~ record of any inquiry l>r thc proccedings of any subordinate re\lcnu~ offi~; er, for the purpoe of satisfying itself or himsc:.lf, as the C.ts~ may be, as to th~ legality or proprity of any

dcision or order passed, and as to the rebrularity of the proceedings of such officer.

The following officers may in the same manner call for and examine

the proceedings of any officer suborclinate to them in any matter in which neither a formal nor a summary inquiry has been hdd,

namely, • • • a Mamlatdar, a Mahalkari and Assistant Superintendent of Survey and an As:.istant Settlement Officer.

If in any case, it shall appLar to the Stale ( iovanmcnt or to such Offic\::r aforesaid that any dtc.:ision or 11rdr or proccding~ so called for should bt modified, annulled or rcvcrstd, it or he may pass !>och order thereon as \t or h~ dcms fit.

Providt:d 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."

It is contended that since it is specifically provided under Section 203 that any order passed by a Revenue Offiet:r under this Act {or any other law for the time being force) would be appealable to that officer's imm~· diate superior, the order passed b)' the Collector could be legally chal lenged under the Cod~ to the superior officer. Under Section 211, the H revisional jurisdiction of the State Government could also be invoked.

....

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lW. VASA VA v. RANCHHODBHAl ZlNABHAl [S.S. AHMAD, J.J . 741

In ordr to substantiate his contention, learned counsd placed A

nliance upon the:: decision of tht! Bombay High Court iu Paygonda Survgonda Patil & Or~·. v. Jingonda Surgunda Patil & Ors. AIR (1986) Bombay 198,. in which it was, inter alia, laid down as under :

''(11) We arc, however unable to acct:pt the first part of the B learned Oovcrnment pleader's argument, viz. th~ CoUector not a revcnu~ officer when he is engaged in any official work other than 'lht: businc.:ss of the land revenue or of th<.: surveys, assessment, accounts or records conm:ctcd therewith". In our view, the word "employed" in the definition of revenue ofticer in section 3(1) of the Land Revenu~ Code has reference to the purpose of employ- C mcnt of the officer concernd or the normal work for which he is employed, and does not refer to the particular work which he may have to do at a particular time in the course of his official duties. lt appears to us that this is the natural meaning of the word "employed" in th~ context in which it occurs. The Collector is a 0

n:venue officer, because he is appointed under the provisions of the Bombay Land Revenut: Code and bt:caust: th~ purpost: of his employment and th~ normal work for which he is employed is to look aftl!r the rvenue administration of district. Dcisions and orders passed by him an:, thrdor~, appealablt: under S.203 even when thl..iy are not passt:d io th~ course of n:wnue administration. E There arc !'Orne cogent rcason:s for accepting thi:- intcrprr.::tation of thG lrm ·revenue offict:r" ddined in S .. 3(1) and ClCCurring m S.203 of the Bombay land Rewnue Code.

(12) In the first place, it can be shown that in S.203 itself the F legislature has used the term ''Revnu~ Ofticcr" in the st:nse mentioned abov<::. Several provisions of the Land Revenue Code confer powers and imps~ duties upon the Coll~:ctor in the performance of which he is not engaged "in or about the business of the land revenue or of the surveys, assessment accounts or records conm:cted therewith." According to tht: view urgt:d by tht: learned G Government pleader, the Collector is not a revenue officer when

h~ acts under those provisions. Any decision or order made b)' the

Collctor under those provisions should, therdore, not be subjt:ct to any appeal under S. 203. That is, howewr, not the case. For instance, sub-section (2) of S.37 of the Bombay Land Revenue H

SUPREME COt:RT REPORTS [2ro0ll S.C.R.

Code says that where any property or any right in or over any property, is claimoo by or on behalf of the G, overnment or by any person as against the Government, it shaU be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been givt:n, to pass an order deciding the claim. Now the property involved in the Collector's decision under S37(2) need not be a revenue paying land, and even when it is a r~;; venuc paying land the inquiry into the claim conneded then:with cannot be said to be a business of the land revenue or of the surveys, assessment, accounts or records connected therewith. Yet a decision of the Collector under S. 37(2) is appealable and this is recognized by the Legislature itself.''

It was further observed :

' (13) Secondly, the interpretation which the learned Government pkader seeks to impose on the term 'Revenue Officer' in section 3(1) and section 203 would render nugatory that part of section 203 which allows an appeal to be filed from any decision or order of the Collector passed under any law other than the Bombay Land Revenue Code. The Bombay Land Revenue Code is a complete Code providing for all matters regarding land rew nue and work connected therewith. It is not easy to find another Act which confers on the Collt:ctor such powers and impose.c; upon him such duties as would employ him "in or about the busincs& of the land T~;; venuc or of the ~>urvcys, assessment, accounts, or r.:cords c0nnected therewith." No instance of such an act was brought to our notice."

It was further held :

he fact that the duty to effect a partition of revenue paying lands is cast by section 54 on the Collector or any gazetted subordinate of the Collector deputed by him does not exclude the right of superior revenue authorities to examine and correct any decision or order of the Collector in the exercise of their appellate and revisional powers. Section 54 contains no provision and certainly no express provision, which runs counter to the appellate powers conferred by section 203 of the Bombay Land Revenue Code.

~ ·

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D.B. V ASAVA v. RANCHHODBHAI ZINABHAI [S.S. AHMAD, J.j 743

We are accordingly of the view that the Commissioner erred A in law in holding that he had no jurisdiction to entertain an appeal or a revisional application against any order of a Collt:ctor passed in proceedings relating to the execution of a decree for partition of revenue paying lands passt:d by a Civil Court."

The Bombay High Court dissented with the view taken by the Mysorc B High Court in Ramachandra Sham(l]'ao Kulkarni v. Prahlad Krishnaji Kulkarni & Ors. AIR (1964) Mysore 31, in which tht: provisiom of Bombay Land Revenue Code were considered. The view expressed by the Bombay High Court is in consonance with the view of the Madras High Court in Sree Rajah Mantripragad Venkataraghava Rao Bahadur, Zarnindw Garo & C

o~·. v. Sri Rajesh Mantripragad Venkata Hanumantha Rao Bahadur, Zamindw Garu (deceased) & Ors., AIR (1945) Madras 336.

It is thus apparent that there was an important and substantial question of law, which was involved in thi,.; case, which required a decision from the High Court. Since the second appeal filed by the appellant was D summarily dismissed on the ground that no substantial question of Jaw was

involved, we allow this appeal set aside the order passed by the Gujarat High Court and rt:mand the case back to the High Court so that the second appeal which shall be treated as ''admitted" may be disposed of on merits, after notice to the parties. No order as to costs.

T.N.A.

Appeal allowed.