Judgement

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.

2. 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 be acquired on or about September 22, 1988, agricultural land bearing survey No. 417 which in all measured about 12 acres and 12 gunthas, After some acquisitions by the State out of this survey number he was left with 2 acres and 10 gunthas of agricultural land. On October 20, 1958, the petitioner applied to the Collector for permission to convert this land to nonagricultural 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 nonagricultural 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 M1 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.

3. It appears that the Municipal Committee of Rajkot had objected 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 northern and the western corners 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.

4. 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 have 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 N. A. 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.

5. The following grounds were urged before the learned Judge:

(1) The Commissioner or the State Government had no authority under S. 211 of the Code to revise the order of theCollector so as to 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 Commissioner had no jurisdiction t