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Bhagwanji Bawanji Patel v. State Of Gujarat And Another
Factual and Procedural Background
The appeal arises from the dismissal on 4-9-1968 of Special Civil Application No. 578 of 1967. The land at issue is Plot No. 178 (comprising several subplots) near Rai-chowk, Upleta, Rajkot District, originally reserved for town planning but allotted for cultivation by grant dated 26 July 1939 to Bawanji Rada (the appellant's father) and two others. The appellant claims the entire plot after the co-grantees purportedly relinquished their shares.
After the merger of Condal into Saurashtra and later into Bombay, occupancy rights were claimed under a Saurashtra Government Resolution dated 1 March 1950. In 1959 the Collector directed the appellant to vacate the land (order No. LND-2-2578 dated 30-7-1959). The appellant appealed to the Commissioner, who on 10-10-1959 (LND Appeal 4 of 1959-60) set aside the Collector's order and held the appellant had occupancy rights.
In October 1959 a third party, Mr. Jayarambhai Anandbhai Patel, applied to the Revenue Minister alleging the Commissioner's order was not in accordance with law. After the State of Gujarat formed, the Agriculture and Lands Department wrote to Mr. Patel on 23-8-1960 stating the Government "does not see and find any reason to interfere with the Order of dt. 10-10-1959". That letter was communicated to the appellant.
Later, in 1965 the Government issued notifications under Section 4 and Section 6 of the Land Acquisition Act for part of the plot and acquisition proceedings progressed. On 14-4-1967 the Government (Special Secretary, Revenue Department) issued notice "E"x. "I" proposing to exercise revisional powers under Section 211 of the Land Revenue Code to set aside the Commissioner's order of 10-10-1959 and the letter dated 23-8-1960, and calling the appellant to show cause.
The appellant filed Special Civil Appeal No. 578 of 1967 seeking prohibition against the Government's revision proceeding and mandamus directing the Land Acquisition Officer to make an award. The High Court (Vakil, J.) dismissed that petition on 4-9-1968, holding the 23-8-1960 letter was not a decision under Section 211 and Government retained revisional jurisdiction. The present Letters Patent Appeal challenges that dismissal.
Legal Issues Presented
- Whether the Government's letter dated 23-8-1960 amounted to a decision made in the exercise of revisional powers under Section 211 of the Land Revenue Code (thereby exhausting the Government's revisional power in relation to the Commissioner's order)?
- If the 23-8-1960 letter did constitute an exercise of Section 211 powers, whether the Government could validly issue the 14-4-1967 notice invoking Section 211 to revisit the same order (i.e., can the State review/revise its own prior decision under Section 211)?
- Even if the Government retained revisional power, whether issuing a notice under Section 211 more than seven years after the Commissioner's order (and several years after the 23-8-1960 letter) was an exercise of that power within a "reasonable time"?
- Whether the Government was estopped from exercising revisional power because it had earlier affirmed the Commissioner's order and had communicated that affirmation to the appellant and the third party?
Arguments of the Parties
Appellant's Arguments
- The letter dated 23-8-1960 should be treated as a decision by the Government under Section 211 of the Land Revenue Code; once the Government has so decided it cannot revive or review that decision under Section 211 (no provision allows the State to review its own prior decision under Section 211).
- The Government is estopped from revising the matter because it had previously recognized the appellant's claim and communicated that recognition; the Government had also acted (e.g., acquisition proceedings followed) relying on the status.
- In the alternative, even if the Government could exercise revisional powers again, doing so after about seven years is not within a reasonable time and is therefore impermissible (invoking precedents that revisional powers must be exercised within reasonable time, with three months suggested as reasonable in comparable contexts).
Respondent (State Government)'s Arguments
- The Government contended the Commissioner's order of 10-10-1959 was invalid because it relied on an incorrect application of the Saurashtra Resolution and that the Government has power to revise, set aside or modify such orders under Section 211 of the Land Revenue Code.
- The Government denied it was estopped from exercising revisional powers under Section 211. It asserted that the 23-8-1960 letter was not a decision in the exercise of Section 211 revisional powers but only an intimation that the Government did not see reason to interfere.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Percy Wood v. Mrs. Samuel, AIR 1943 Nag 333 | The High Court (or revisional authority) can act suo motu if irregularity is brought to its notice; third parties can bring irregularities to notice enabling the authority to act. | The Court relied on this authority to support that revisional power can be exercised suo motu or on being moved by any person drawing attention to alleged irregularity; it reinforced that the source of information (who brought the matter) does not limit the Government's ability to call for records and exercise revision. |
| Tulsi Ram v. State of Uttar Pradesh, AIR 1963 SC 666 | An official communication addressed to a third party creates a presumption that the official act communicated (e.g., sanction) was regularly performed; such a communication satisfies evidentiary requirements (here framed by reference to Section 196-A Cr.P.C. in that case). | The Court referred to this decision to support the proposition that an official communication (here the 23-8-1960 letter) gives rise to a presumption that the Government performed the relevant internal act (i.e., examined records and arrived at a decision), and thus the letter could be treated as the Government's decision arrived at by exercising revisional power. |
| State of Gujarat v. Patel Raghav Natha, AIR 1969 SC 1297 | Revisional powers under Section 211 must be exercised within a reasonable time; the length of reasonable time depends on facts of the case and nature of order being revised. | The Court applied this principle to hold that revisional power cannot be exercised after an unreasonable delay; it used this decision in support of the conclusion that waiting about seven years to challenge the Commissioner's order was not reasonable in the circumstances. |
| State of Bombay v. Chhaganlal Gangaram Lavar, 56 Bom LR 1084 (AIR 1955 Bom 1) (Full Bench) | The Full Bench observed it was extraordinary no period of limitation is prescribed for revisional powers under Section 211, and suggested legislative or executive self-limitation to avoid disturbing long-established tenures. | The Court cited these observations to underscore the problem of indefinite exercise of revisional power and to contextualize why a "reasonable time" limitation should be read into the exercise of Section 211 powers despite the absence of express statutory time limit. |
| Reported Supreme Court authority referenced as AIR 1969 SC 1267 (as cited in the opinion) | The opinion refers to a Supreme Court consideration where a three-month period was considered reasonable in the particular circumstances (linked with statutory context under Section 65 of "the Code"). | The Court used the reasoning in that reference as supporting authority for the view that, in analogous circumstances, three months may be an appropriate benchmark for reasonable time; applied by analogy to conclude that a seven-year delay was unreasonable here. |
Court's Reasoning and Analysis
The Court's analysis proceeded in two principal strands: (1) whether the 23-8-1960 letter constituted an exercise of the Government's revisional powers under Section 211 of the Land Revenue Code; and (2) if not, whether the 14-4-1967 notice invoking Section 211 was, in any event, an exercise of revisional power within a reasonable time.
On the first strand the Court examined the content and context of the 23-8-1960 letter (admitted in affidavit as being sent in response to Mr. Jayarambhai Patel's representation). The letter explicitly stated that the Government "does not see and find any reason to interfere with the Order of dt. 10-10-1959 passed in LND Appeal No. 4 of 1959-60 by the Commissioner Rajkot Division in this connection." The Special Secretary's affidavit described that letter as "containing a decision of the Government whereby the commissioner's order of 10-10-1959 is confirmed."
Interpreting Section 211 (which authorizes the State Government to call for and examine records and, if it appears that a decision should be modified, annulled or reversed, to pass such order as it deems fit), the Court observed that the first limb of the provision empowers the State to call for and examine records and the third limb empowers it to pass orders modifying, annulling or reversing, or otherwise dispose of the matter as fit. If the Government, after examination, passes no order to modify/annul/reverse, that inaction is effectively an affirmation of the original order. The Court held that the 23-8-1960 letter represented such a considered position and thus amounted to the Government exercising its revisional jurisdiction under Section 211 by affirming the Commissioner's decision.
The Court rejected the State's contention that the note to a third party was merely an informal communication and not a decision. It relied on the Special Secretary's affidavit, the formal wording and subject-matter specificity of the communication, and the fact that the State was itself a party to the original appeal to conclude the letter must have been a product of examination of the record and therefore an exercise of Section 211 powers.
On the second strand (temporal reasonableness), the Court addressed the alternate contention that even if the 23-8-1960 letter was not a decision under Section 211, any subsequent exercise of Section 211 in April 1967 was inordinate and unreasonable. The Court accepted the principle, supported by Supreme Court authority, that although Section 211 contains no express limitation period, the power must be exercised within a reasonable time, with the length of that reasonable period determined by the facts and the nature of the order. The Court referred to authorities treating three months as a reasonable benchmark in analogous circumstances.
Applying these principles to the facts: the Government was a party to the appeal that produced the Commissioner's order and thus could be taken to have notice of the order. When Mr. Jayarambhai Patel brought the matter to the Government's attention in October 1959, the Government responded by letter on 23-8-1960 affirming the Commissioner's order. Because the Government had thus examined the matter and affirmed the Commissioner's decision, the Court concluded the Government thereby exhausted its revisional power under Section 211 in relation to that decision. Alternatively, even if the Government retained some revisional power, waiting until 14-4-1967 (about seven years later) to issue notice was beyond a reasonable time in the circumstances and would be an impermissible hanging threat to the appellant's tenure.
The Court accordingly found that the 14-4-1967 notice was invalid: either it was an attempt to review a decision already taken under Section 211 (which the Government could not then re-open under the Code) or it was an inordinate exercise of revisional power after an unreasonable delay.
The Court expressly did not decide in detail the separate argument on estoppel; it observed that in its view that question need not be gone into given the conclusions on exhaustion and delay.
Holding and Implications
Holding:
APPEAL ALLOWED; THE 14-4-1967 NOTICE IS DECLARED INVALID AND UNENFORCEABLE.
Immediate consequences and specific orders:
- A writ of prohibition is issued restraining the State Government (respondent No.1) from continuing the revision proceedings bearing No. LND Rev. 55 of 1967 scheduled before the Special Secretary, Revenue Department.
- The notice "E"x. "I" dated 14-4-1967 is declared invalid because the State Government had exceeded its powers and jurisdiction in purporting to exercise Section 211 in the manner done.
- The land acquisition proceedings, which are pending, are to continue and will take their own course in accordance with law (the Court did not direct specific disposition on acquisition but left those proceedings to continue).
- The State Government (respondent No.1) is ordered to pay the costs of this appeal and of the petition to the appellant; there is no order as to costs in respect of other respondents.
Broader legal implications articulated by the Court (as applied in this case):
- The Government's formal or officiated communication that reflects a consideration of the record and an expressed decision not to interfere can amount to an exercise of revisional powers under Section 211; once so exercised in relation to a particular order, the Government cannot re-exercise Section 211 to revisit that decision in absence of some other statutory power permitting review.
- Even where Section 211 contains no express limitation period, revisional powers must be exercised within a reasonable time; a delay of several years (about seven years in this case) is unreasonable in the circumstances and invalidates a belated exercise of Section 211.
The Court did not address whether its conclusions establish a new binding precedent beyond the application to these facts; rather, it applied existing authorities to hold that the Government had either exhausted Section 211 by the 23-8-1960 decision or, alternatively, that the 1967 attempt to exercise revisional power was beyond reasonable time.
1. This Letters Patent Appeal is directed against an order passed on 4-9-1968 in Special Civil Appln. No. 578 of 1967, whereby it came to be dismissed with costs. The facts leading to that application may be broadly stated.
2. A plot of land bearing No. 178 which consists of plots bearing S. Nos. 14/5, 15/3, 16/1, 16/2, 16/3 and 19/1 is situated near Rai-chowk in the town of Upleta in the District of Rajkot. The entire land admeasures about 17 bighas, 3 gunthas which is equivalent to about 38,800 square yards. This land along with land No. 169 were reserved by the then State of Condal for being included in the town planning scheme for Upleta. Since that did not materialise, the State of Condal allotted the plot of land No. 178 for the purpose of cultivation to one Bawanji Rada, the father of the petitioner, appellant along with two others Bhana Duda and Savji Duda on payment of revenue assessment under a document of grant dated 26th July 1939. As the case of the petitioner went, Bhana Duda and Savji Duda had relinquished their right in the said land and the petitioner claims the entire land himself. He had, however, joined them as respondents Nos. 3 and 4 in the case. With the merger of the State of Condal in 1948, the State of Saurashtra came into being and by a resolution dated 1st March 1950, it granted occupancy rights to various holders of land including reserved or Khalsa land and that why the petitioner claimed to have become the occupant of the land in question. In 1956 the Saurashtra State merged with the then State of Bombay. On 30th July 1959, on a report received from the Mamlatdar Upleta, the Collector of the District Rajkot passed an order directing the petitioner-appellant to hand over possession of the land by holding that he had no occupancy right in the land. Feeling dissatisfied with that order No. LND-2-2578 dated 30th July 1959, the petitioner-appellant preferred an appeal to the Commissioner of Rajkot Division at Rajkot. By an order dated 10th October 1959 passed in LND. Appeal 4 of 1959-60 by the Commissioner, the order of the Collector came to be set aside. The commissioner held that the petitioner-appellant had acquired the occupancy rights over the said land under the ex-Saurashtra Government Resolution No. RD-II-4(A) (I)/6151 dated 1st March 1950 and that way he was not liable to be evicted from the land.
3. Then one Mr. Jayarambhai Anandbhai Patel of the village Lolki submitted an application dated 21st October 1959 to the then Revenue Minister of the State of Bombay stating that the aforesaid order passed by the Commissioner, Rajkot Division, Rajkot in respect of the said land was not in accordance with law. That application is not on record. However, after the State of Gujarat came to be formed with effect from 1-5-60, that matter came down to this State of Gujarat. Mr. Jayarambhai was then informed by the Agriculture and Lands Department of the Government of Gujarat under its letter "E"x. ""E"" No. LMN-5359-3064-G dated 23rd August 1960 that the Government does not see and find any reason to interfere with the order dated 10-10-1959 passed in LND/Appeal 4 of 1959-60 by the Commissioner, Rajklot Division, Rajkot in this connection. It was signed by the Secretary, Land and Agricultural Department, Gujarat Government. This letter, according to the petitioner-appellant, contains a decision of the Government in exercise of its powers under Section 211 of the Land Revenue Code, and once that is done, it cannot be revived by the Government as is sought to be done in this case. Then on 27th August 1965 the Government of Gujarat published a notification under Section 4 of the Land Acquisition Act whereby out of this plot of land 1334 square yards of land are required for public purpose such as for constructing a Court Building. The Government has thereafter also published notification under Section 6 of the Act. The Land Acquisition Officer then issued a notice under Section 9 of the Act to the petitioner-appellant and in pursuance thereof he had submitted his claim of compensation for that land in response thereto on 25th October 1965. Since then the matter was pending, the petitioner and respondents Nos. 3 and 4 received a notice "E"x. "I" dated 14-4-1967 inter alia stating that "the orders passed by the Commissioner, Rajkot Division, Rajkot in LND Appeal 4 of 1959-60 on 10-10-1959 were not valid and that the letter dated 23-8-1960 a copy whereof was given to the petitioner by the Government, whereby the Commissioner's order was confirmed was also not valid". In that notice it is further stated that the Government proposes to exercise its powers vested in it under Section 211 of the Land Revenue Code for setting aside the order dated 10-10-1959 as also the letter dated 23-8-1960 and that he should, therefore, appear to show cause why it should not be so done.
4. Before the date fixed for his appearance before the Special Secretary, Revenue Department, in response to the said notice, the appellant filed Special Civil Appeal No. 578 of 1967 in the High Court of Gujarat at Ahmedabad. In this petition he sought for a writ of prohibition against the State Government - respondent No. 1 forbidding it to continue the revision proceeding bearing No. LND Rev. 55 of 1967 scheduled for hearing before its Special Secretary in the Revenue Department and also for a writ of mandamus to be issued to the Land Acquisition Officer, respondent No. 2 to make an award in respect of the land in the Plot No. 178 at Upleta and to pass such other orders as deemed proper in the circumstances of the case. According to the petitioner, the Government had no longer any power or jurisdiction to re-revise or review its own order once that is done, and that too after such a lapse of time, and secondly, it was estopped from so doing since his claim over the land was duly recognised and acted upon by acquiring the same under the provisions of the Land Acquisition Act. This application was resisted by the respondent No. 1 the State Government inter alia contending that the order passed by the Commissioner was invalid, it being based on wrongly applying the Resolution of the Saurashtra State, and that it has every power to revise it and set aside and /or modify the same under Section 211 of the Land Revenue Code. The Government was in no way estopped from exercising to powers vested in it under Section 211 of the Land Revenue Code.
5. After considering the effect of the material on record and the arguments advanced, the learned Judge found that the letter dated 23-8-1960 cannot be treated as a decision in the exercise of powers of revision under Section 211 of the Land Revenue Code, and that the Government has, therefore, jurisdiction to exercise those powers and that it was not estopped from revision the decision of the Commissioner in the matter. In the result, he dismissed the petition with costs. Feeling dissatisfied with that order passed on 4th September, 1968, the petitioner has filed this Letters Patent Appeal before the Division Bench of this Court.
6. Now it is common ground that in pursuance of a report from the Mamlatdar Upleta, the Collector of Rajkot passed an order No. LND - 2-2578 whereby the petitioner - appellant was directed to vacate the plot in question. An appeal against that order was preferred by the petitioner before the Commissioner of Rajkot Division, Rajkot. In that appeal Government of Bombay was a party-respondent. It was heard by the Commissioner who by an order dated 10-10-1959 ordered that the petitioner had the occupancy rights in respect of the land in question and that he was not liable to be evicted from the said land. He therefore, set aside the order of the Collector. As to the correctness or otherwise of the order passed by the Commissioner, we have nothing to do in the matter. The fact essential to point out at this stage is that the Government was a party to this appeal and was, therefore, obviously bound by this decision, unless it came to be revised in the exercise of its powers under Section 211 of the Land Revenue Code, hereinafter to be referred to as
"the Code".
7. We have already referred to an application made by one Shri Jayarambhai Patel of Kolki. That application was made on 1st October 1969 to the then Revenue Minister of the State of Bombay, and as stated in the affidavit of the Special Secretary to the Government of Gujarat, Revenue Department, it showed that the aforesaid order passed by the Commissioner, Rajkot Division, Rajkot in respect of the land in question was not in accordance with law. In other words, his allegation was that the order passed by the Commissioner on 10-10-1959 required to be set aside and the order of the Collector be restored as it were. With the State of Gujarat coming into existence on 1-5-1960, the matter came to be considered by the Agricultural and Lands Department. By a letter dated 23rd August 1960 produced at "E"x.
"E". he was informed as under: -
"Serial No. L.N.D. 5359-3064 Government.
Department of Land and Agriculture Secretariat, Ahmedabad. 15.
Dated 23rd August 1960.
Shri Jayarambhai Anandbhai Patel, Kolki.
Taluka Dhoraji District Rajkot.
sub-Plot No. 178 of Town Upleta.
Sir, In continuation of Government letter No.0/173079-B-1 dated 16-10-1959 it is hereby stated that Government does not see and find any reason to interfere with the Order of dt. 10-10-1959 passed in LND Appeal No. 4 of 1959-60 by the Commissioner Rajkot Division in this connection.
Yours faithfully.
Sd/-
Secretary, Land & Agricultural Department.
Gujarat Government".
8. It further appears from the same affidavit that the true copy of that letter was given to the petitioner by the Government. In other words, the petitioner also had come to know of its decision. The case of the Government as disclosed in that affidavit is that after the notifications were issued under Ss. 4 and 6 of the Land Acquisition Act in respect of certain portions of this land, the matter came up for consideration with the Revenue Department of the Government, and on considering the effect of the terms of the grant of the said land to the petitioner and two others, it thought that the order passed by the Commissioner was invalid. It also thought that "that contents of the letter "E"x. ""E"" dated 23-8-1960 whereby the order of the Commissioner stood confirmed were also invalid", and that it was necessary to exercise its powers of revision under Section 211 of the Land Revenue Code. It was that way that on 14-4-67 it issued notice "E"x. "I" against the petitioner to show cause why those orders should not be set aside in exercise of its powers of revision under Section 211 of the Land Revenue Code.
9. The contention of Mr. Padia, the learned Advocate for the appellant is that the Government can exercise its power under Section 211 only once, and once any such powers are exercised by the State Government either suo motu or at the instance of some one else under any provision of law which entitles it to revise the same, its powers stand exhausted. In other words, according to him, it cannot revise the order passed by it, or, rather, it cannot review its own order once passed in absence of any specific provision whereby such powers are given to it in law. Now, it is common ground and over which no dispute is raised by Mr. Chhaya, the learned Assistant Government Pleader for the State, that there is no provision in the Land Revenue Code, whereby the State Government can review its own order already passed in exercise of its powers under Section 211 of the Land Revenue Code, and, therefore, if the contents of the letter dated 23-8-1960 can be taken as a decision so communicated in the matter, the remedy of the State Government under Section 211 would not survive. It may, if permissible in law, have recourse to a remedy by filing a suit in a civil court. But it cannot review its own order. No such powers are shown to have been in the State Government under the provisions of the Land Revenue Code.
10. The first question then is whether, as found by Vakil, J., this letter cannot be treated as a decision in the exercise of its powers under Section 211 of "the Code", and that it was merely and intimation to a third party saying that it does not see any reason to interfere with the order passed by the Commissioner. That cannot, therefore, come in they way of the Government in exercising its powers under Section 211 of "the Code". The other argument advanced by Mr. Chhaya is that unless the order is modified, annulled or reversed as contemplated under Section 211 of "the Code", it cannot be said to have exercised its powers even if it meant to affirm the order of the Commissioner. Taking the latter argument of Mr. Chhaya first, it is difficult to say so, for the simple reason that the exercise of powers arises when the Government wants to go into the same for the purpose of passing any such orders, and not only when it can be said to exercise, if it reverses any such decision or modifies the same. However, we would set out Section 211 of "the Code". It runs 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 propriety 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 to them in any matter in which neither a formal nor a summary inquiry has been held, namely, a Mamlatdar, a Mahalkari as 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".
On a plain perusal of this provision, the first part thereof entitles the State Government............to exercise its powers by calling for and examining the record. While examining the same, if it is satisfied that any illegality or impropriety is committed by the subordinate Officer, as provided in third part, it can pass any order modifying, annulling or reversing the order. It can also pass such order thereon, as it deems fit. Not passing any order contemplated therein, would obviously mean affirming the order and that way not considering it to be a fit case for interference in revision under Section 211 of "the Code". In fact, the affidavit of the Special Secretary, Revenue Department, clearly describes the letter
"as containing a decision of the Government whereby the commissioner's order of 10-10-1959 is confirmed". There is, therefore, no substance in such a contention that, as it has not set aside the order, it cannot be said to have exercised powers under Section 211 of the Land Revenue Code.
11. Now it is true that Mr. Jayarambhai was not a party to the appeal and is not shown how he was particularly interested in this matter. But that makes no difference as the revisional powers can be exercised suo motu by calling for record and examine the same and then passing such orders as deemed fit. It can also exercise powers on being moved by anyone drawing its attention to any illegality or impropriety committed by the appellate authority in respect of any such property. All that is essential is that it has come to its notice - and not by whom, and if on being so informed or of its own, it considers necessary to exercise such revisional powers, it can do so. Mr. Padia invited a reference to a decision in the case of Percy Wood v. Mrs. Samuel, AIR 1943 Nag 333. While considering the powers of revision, though no doubt under Section 115 of the Civil P.C., the High Court held that the High Court can act suo motu if any irregularity is brought to its notice and if important and general principle is involved. At the same time it is also said that any person can bring to its notice any such irregularity so as to enable the High Court to act in the matter. In the case before us, as we pointed out above, in the first place, the Government was a party-respondent in the appeal filed by this petitioner before the Commissioner of Rajkot Division, Rajkot, and if, therefore, the State Government was dissatisfied with that decision, as provided under Section 211 of "the Code", it could have revised that order. It did not do so. It was said, it can do that at any time as no period of limitation is provided. We shall deal with that aspect of the matter a little later. It is enough to say that it was not beyond its knowledge that it could not easily revise the same by exercise of its powers under Section 211 of "the Code".
12. On the other hand, not only it did not choose to exercise its powers then, but it did not set aside that order by exercising its powers under S. 211 even when the matter was pointedly brought to its notice by Mr. Patel of Kolki. That application was obviously in respect of the land in question and for asking the Government to set aside the order of the Commissioner passed in that connection in favour of the petitioner, it being not in accordance with law. That application was dated 1st October 1959 and it was on 23rd August 1960 that he came to be informed by letter "E"x. ""E"" that the Government does not see and find any reason to interfere with the order dated 10-10-1959 passed in LND. Appeal 4 of 1959-60 by the Commissioner of Rajkot Division in this connection. At the top it refers to the plot No. 178 of the town of Upleta and the letter has been under the signature of the Secretary, Land and Agricultural Department, Gujarat Government. The effect of this letter is that the Government does not see and find any reason to interfere with any such order passed by the Commissioner, and as stated in the affidavit of the Special Secretary, it affirmed the order of the Commissioner. In fact in the affidavit of the Special Secretary, Revenue Department, it has been stated that "the said letter dated 23rd August 1960 contained the decision of the Government and that in the view of the Government is not valid". In other words, on a plain perusal of this letter "E"x. ""E"" read with the affidavit filed by Shri Pradyumansinhji, the Special Secretary to the Government of Gujarat, Revenue Department, it becomes abundantly clear that though it was an intimation addressed to Shri Jayarambhai Patel, it was an intimation of the decision of the Government in connection with the land in question and that again in respect of an order passed on 10-10-1959 by the Commissioner, Rajkot Division, Rajkot, in favour of this very petitioner. It is thus the decision of the Government taken in that respect, at the instance of Mr. Patel, and as it was done at his instance that he was intimated about it. In fact, it is no-where challenged in the affidavit filed on behalf of the Government by the Special Secretary, Revenue Department, that no decision was arrived at. On the other hand, as we have pointed out hereabove, it is said to contain a decision whereby the order of the Commissioner is affirmed and thus not interfered with. That has been lost sight of and absence of reference to exercise powers of revision under Section 211 of the Land Revenue Code cannot alter the position as we are not shown any other power vested in the Government under any provision of law to revise and interfere with the decision passed by the Commissioner of Rajkot Division in LND Appeal 4 of 1959-60 except under Section 211 of "the Code". If on exercise of powers, it wanted to interfere, the petitioner would have been called upon. Not so called again cannot affect the decision, as it can look into the same, and since the decision was not such as required to be revised. or set aside, it decided by saying that it sees and finds no reason to interfere with any such decision or order of the authority such as the Commissioner in the present case. It cannot have so said without seeing the papers and considering the same, more particularly when the decision was against the Government itself. The order passed by the Government must have been with it and it was not required to be called for as it was admitted by the Government in the affidavit referred to above, that it was a decision contained in the letter, and that it had affirmed the Commissioner's order. With due respect to the learned Judge, we are satisfied that the letter contained a decision which was arrived at only under Section 211 of the Land Revenue Code, and since it found no reason to interfere with the order of the Commissioner in appeal to which the State was itself a party, it affirmed the same. It had thus exercised its powers under Section 211 and in absence of any other provision giving any power to review that decision, it had exceeded its powers in issuing notice under Section 211 of "the Code".
13. Incidentally we may refer to a decision cited by Mr. Padia in the case of Tulsi Ram v. State of Uttar Pradesh, AIR 1963 SC 666, where the effect of the letter from the Under Secretary to the State Government in its Home Department addressed to the District Magistrate informing that the Governor has been pleased to grant sanction for prosecution of certain persons named therein came to be considered and it was held that
"It being an official Communication, a presumption would arise that the sanction referred to therein had in fact been accorded and that the official act of granting sanction was regularly performed. Such a document would meet the requirements of Section 196-A, Criminal P.C".
In other words, once the matter was brought to the notice of the State Government that a particular order in respect of a particular land passed by the Commissioner of Rajkot Division in favour of the petitioner and others, was not in accordance with law and that way liable to be set aside, it can be taken to have performed all necessary acts for satisfying itself as to the legality or propriety or any such decision or order passed and as to the regularity of the proceedings before such officer unless shown otherwise and sought to be attacked on any such ground. Nothing is suggested or shown by the State Government in that regard, and on the other hand, it has clearly said that the Commissioner's decision in the appeal filed by the petitioner, was affirmed by a decision referred to in the letter of 23-8-1960 addressed to Mr. Jayarambhai Patel. Such a decision arrived at by the State Government can be only in the exercise of its revisional powers under Section 211 of the Land Revenue Code. The mere fact that it is in the nature of a Communication to a third party, which brought to its notice such illegality committed by the Commissioner, would not alter the decision or order passed by it. The State Government can, therefore, be said to have exhausted its powers vested in it under Section 211 of "the Code" and in the absence of any provision which entitles the State Government to revise or review the same, the exercise of such powers of revision by issuing notice against the petitioner would be beyond its authority and powers and that way invalid in law. With due respect, we are unable to agree with the view taken by our learned brother Vakil, J. in the circumstances of this case.
14. In the alternative, it was contended by Mr. Padia that even if for a moment, it was open to the State Government to revise its own order contained either in the letter of 23-8-1960 or the decision dated 10-10-1959 of the Commissioner of Rajkot Division in respect of the same land, such powers in revision have to be exercised within a reasonable time. It would be nearly more than seven years after the order was passed by the Commissioner that the State Government has chosen to issue notice in exercise of those powers under Section 211 of "the Code" and that such a long period is certainly unreasonable in the circumstances of the case. In support thereof, he invited a reference to the decision in the case of State of Gujarat v. Patel Raghav Natha, AIR 1969 SC 1297. The Supreme Court while considering the effect of the exercise of revisional jurisdiction of the State Government under Section 211 read with Section 65 of the Land Revenue Code, held that the powers of revision under Section 211 of "the Code" must be exercised within a reasonable time. The relevant observation runs thus: -
"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".
In that case, however, three months time was considered to be quite reasonable time within which the revisional powers should have been exercised. Now it is true that Section 211 does not lay down any restriction on the power of the State Government in exercising its powers of revision under Section 211 of "the Code" as so far no change was made by the Legislature therein in spite of the observations of the Full Bench of the Bombay High Court in the case of the State of Bombay v. Chhaganlal Gangaram Lavar, reported in 56 Bom LR 1084 at p. 1095 = (AIR 1955 Bom 1 at p.4) (FB). Those observations are as under:
"..........................it is rather extraordinary that there is no period of limitation prescribed for the exercise of the revisional powers of Government under Section 211. Therefore, the result may well be that after several years Government may interfere with a title or with titles and disturb the security of a tenure created a long time back. It is a matter for consideration whether the Legislature should not at least impose a time limit upon the exercise of revisional powers under Section 211, because if an improper or illegal order is made by a subordinate revenue officer, surely Government would have notice of it within a reasonable time. It is also a matter for consideration for the Government whether apart from any legislative provision they should not impose upon themselves some limitation of time in the exercuse of their powers under Section 211."
Much though no such restriction has been placed by the State Government in the exercise of such powers, in view of the decision of the Supreme Court in the case referred to above, we have to consider as to what can be considered reasonable time within which such a power under Section 211 should be exercised by the State Government. Mr. Padia's suggestion was that the reasonable period in the circumstances of this case should not be taken as more than three months or ninety days as contemplated under Section 205 of the Land Revenue Code. Section 205 speaks of the period within which an appeal must be brought. As provided therein, no appeal shall be brought after the expiration of sixty days if the decision or order complained of have been passed by an officer inferior in rank to a Collector or a Superintendent of Survey in their respective department; or after the expiration of ninety days in any other case. That, however, cannot apply when the powers of revision are required to be exercised by the State Government. It is also true that in the case of AIR 1969 SC 1267 (supra) when the Supreme Court thought that the reasonable time in which revisional powers should have been exercised would be three months had its basis on a consideration of the fact that 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. That was enough indication and a period of three months was, therefore, 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. Then the Supreme Court observed as under:-
"Reading Ss. 221 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 too late".
So far as the facts and circumstances of this case are concerned, as already observed hereabove, the State was a party-respondent in the appeal filed by this petitioner in respect of the land before the Commissioner of Rajkot Division, Rajkot. Naturally therefore, any order passed against the respondent State in that appeal can be taken to be within its knowledge, and the State Government which had revisional powers under Section 211 of "the Code", could have easily looked into the matter and passed suitable orders after hearing the petitioner-appellant in the matter. Not only the State Government remained quite, but when in October 1960 Mr. Jayarambhai Patel brought to its notice the illegality committed by the Commissioner in passing such an order in that appeal, it can be taken to have looked into it and affirmed the order of the Commissioner as saying that it did not see and find any reason to interfere with the decision. That happened so far back as on 23-8-60. Going further, a notification under S. 4 of the Land Acquisition Act was issued on 27-8-1965 for acquiring the same for public purpose and a subsequent notification under Section 6 was also issued by the Government. It was only after that or by about the time when the acquisition proceedings were pending before the Land Acquisition Officer the State Government chose to reconsider the decision given by the Commissioner and that was sought to be done in the exercise of its powers under Section 211 of the Land Revenue Code. Thus, it was on 14-4-1967 that a notice "E"x. "I" was issued against the petitioner and others for showing cause why the earlier orders in respect of the land should not be set aside. In other words, the facts of this case and the circumstances connected therewith make it abundantly clear that if the State Government or its Officers really intended to exercise its powers under Section 211 of the Land Revenue Code as it now proposes to do viz. to annul the said order, it being invalid, it should have done so long ago, and at any rate and in any event within three months from 1-10-1959 the date when the application was made by Mr. Jayarambhai Patel, bringing to the notice of the State Government about the illegality committed by the Commissioner in that appeal. That much period would be quite reasonable under the circumstances of the matter. The State Government cannot keep the sword hanging on any such person in respect of his property by choosing to act and revise the order at its sweet will, which may be after seven years as it sought to be done in this case. Now if on the other hand any such order was passed against this petitioner-appellant by the Commissioner, he would have been obliged to move the State Government for reversal thereof, if permissible under Section 211 of "the Code", within three months or so as to any rate he would have to file a suit within one year under Art. 14 of the First Schedule of the Indian Limitation Act, 1908 and cannot wait till the State Government decides anything in that matter. That Art. 14, is incorporated in Art.100 of the Indian Limitation Act as amended by Act 36 of 1963. That Art.100 refers to a suit for altering or setting aside any act or order of the Officer of the Government in his official capacity and such a suit has to be brought within one year from the date of the act or order of the officer as the case may be. In other words, the Legislature has thought it proper to provide for one year as a period within which any part affected by such act or order passed by the officer of the Government could file a suit and there is no reason why the State Government also should not do so, if it were so affected by any such order such as the order of the Commissioner in the present case by revising the same under Section 211 of the Land Revenue Code. The maximum period, it may be able to claim, cannot be more than a year from the date of the Commissioner's order, and to say that it can do so after any length of time as is sought to be done in this case viz. after about seven years or so, cannot be called at all reasonable. It had thus no right to revise the Commissioner's order after a period of seven years or so.
15. In the view we have taken, the other point raised about the Government being estopped from Challenging any such order is not gone into.
16. In the result, therefore, the appeal is allowed and the order passed by the Court in Special Civil Application No. 578 of 1967 is set aside. It is hereby declared that the notice "E"x. "I" dated 14-4-1967 issued by the Special Secretary, Revenue Department, Government of Gujarat, Ahmedabad, is invalid and unenforceable in law inasmuch as the State Government has exceeded its powers and jurisdiction in exercising its powers under Section 211 of the Land Revenue Code.
17. A writ of prohibition shall be issued to the State Government - respondent No. 1 forbidding it to continue the revision proceeding bearing. No. LND Rev. 55 of 1967 scheduled for hearing before its Special Secretary in the Revenue Department. The land acquisition proceedings are said to be pending and they will take their own course in accordance with law.
18. The respondent No. 1 shall pay the costs of this appeal as also in the petition to the appellant and bear it's own. There shall be no order as to costs in respect of other respondents.
19. Appeal allowed.
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