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HIGH COURT OF BOMBAY
CHAGLA, DIXIT, SHAH, JJ.
State of Bombay
Versus
Chhaganlal Gangaram Lavar
Second Appeal No.651 of 1952, from decision of Extra Asst. J., Ahmedabad, in Appeal No.588 of 1950.
Decided On : 15-07-1954
Bombay Land Revenue Code, 1879 - Ss. 62, 203, 211, 37 - Bombay Land Revenue Rules, R. 37 - Grant of land under S. 62 - Kabulayat executed in pursuance of the grant - Whether the grant and the kabulayat can be modified or cancelled under S. 211 - Distinction between an order passed by the District Deputy Collector under S. 62, which does not result in a kabulayat being passed by the party in whose favour the grant is made, and an order which results in a kabulayat - Held, that the kabulayat is nothing more than a part of the proceedings provided for by the Land Revenue Code and the Rules for the grant of Government land to a person who applies for it - Title of the plaintiff to the land depends upon the order passed under S. 62 and not upon the kabulayat which is executed in pursuance of that order - Kabulayat is merely a formality which the law requires in order to give effect to the order passed by the authority under S. 62 - Rights of the plaintiff to occupy this land is a statutory right and not a contractual right - Obligations of Government towards the citizen in respect of an occupancy tenure are not contractual obligations, but statutory obligations - Every step taken in the proceedings which ultimately led up to the execution of the kabulayat was the result of statutory provisions and the various acts done by the revenue officers were also done pursuant to the powers conferred upon them by statute - Kabulayat by itself does not give any better or higher right to the plaintiff than the order itself - If an order passed by the Collector or the District Deputy Collector under Section 62 can be revised by Government under S. 211, the mere fact of a kabulayat having been executed in pursuance of that order does not make the order any the less revisable under Section 211, nor does the execution of the kabulayat impose upon the Government any limitation with regard to its powers under that section.
Fact of the Case:
Plaintiff applied to the Collector to grant him a permanent occupancy lease of six lands bearing various survey numbers in the village of Mukharaba. On 15-6-1943, the District Deputy Collector passed an order making a grant of a lease on occupancy tenure with certain conditions attached to that case. On 21-7-1943, the Mamlatdar gave a written permission to the plaintiff to occupy these lands and on 21-8-1943, the plaintiff executed a kabulayat in accordance with the rules and the form under the Act. On 1-4-1947, the Collector set aside the order passed by the District Deputy Collector on 15-6-1943, and the Government, exercising its revisional powers, set aside the order of the Collector, but modified the order of the District Deputy Collector by directing that the plaintiff should hold the lands, not on the old, but the new tenure, the effect being that the lands which were alienable and transferable became unalienable without the previous sanction of Government. On 7-2-1949 the plaintiff filed a suit challenging the order passed by Government on 8-7-1948, as ultra vires, null and void. The trial Court decreed the plaintiffs suit. In appeal, the learned District Judge dismissed the appeal and confirmed the decree of the trial Court, and the State of Bombay then came to the Supreme Court in second appeal and in the second appeal the learned Judges have raised the following question for consideration of the Full Bench: "Where a grant has been made under S.62, Land Revenue Code and a kabulayat has been taken in pursuance of the said grant under R.37, Land Revenue Rules, can the said grant and the kabulayat be modified or cancelled under S.211, Land Revenue Code?"
Finding of the Court:
The Court held that the kabulayat is nothing more than a part of the proceedings provided for by the Land Revenue Code and the Rules for the grant of Government land to a person who applies for it. The title of the plaintiff to the land depends upon the order passed under S. 62 and not upon the kabulayat which is executed in pursuance of that order. Kabulayat is merely a formality which the law requires in order to give effect to the order passed by the authority under S. 62. Rights of the plaintiff to occupy this land is a statutory right and not a contractual right. Obligations of Government towards the citizen in respect of an occupancy tenure are not contractual obligations, but statutory obligations. Every step taken in the proceedings which ultimately led up to the execution of the kabulayat was the result of statutory provisions and the various acts done by the revenue officers were also done pursuant to the powers conferred upon them by statute. Kabulayat by itself does not give any better or higher right to the plaintiff than the order itself. If an order passed by the Collector or the District Deputy Collector under Section 62 can be revised by Government under S. 211, the mere fact of a kabulayat having been executed in pursuance of that order does not make the order any the less revisable under Section 211, nor does the execution of the kabulayat impose upon the Government any limitation with regard to its powers under that section.
Issues: Whether the grant and the kabulayat can be modified or cancelled under S. 211, Land Revenue Code?
Ratio Decidendi: The Court held that the kabulayat is nothing more than a part of the proceedings provided for by the Land Revenue Code and the Rules for the grant of Government land to a person who applies for it. The title of the plaintiff to the land depends upon the order passed under S. 62 and not upon the kabulayat which is executed in pursuance of that order. Kabulayat is merely a formality which the law requires in order to give effect to the order passed by the authority under S. 62. Rights of the plaintiff to occupy this land is a statutory right and not a contractual right. Obligations of Government towards the citizen in respect of an occupancy tenure are not contractual obligations, but statutory obligations. Every step taken in the proceedings which ultimately led up to the execution of the kabulayat was the result of statutory provisions and the various acts done by the revenue officers were also done pursuant to the powers conferred upon them by statute. Kabulayat by itself does not give any better or higher right to the plaintiff than the order itself. If an order passed by the Collector or the District Deputy Collector under Section 62 can be revised by Government under S. 211, the mere fact of a kabulayat having been executed in pursuance of that order does not make the order any the less revisable under Section 211, nor does the execution of the kabulayat impose upon the Government any limitation with regard to its powers under that section.
Final Decision: The Court answered the question in the affirmative and held that where a grant has been made under Section 62, Land Revenue Code and a kabulayat has been taken in pursuance of the said grant under S.37, Land Revenue Rules, the order making the grant and the kabulayat can be modified or cancelled under S.211, Land Revenue Code.
Key Points: - The judgment discusses whether government can modify or cancel an order under S.211 when a kabulayat has been executed in pursuance of an order under S.62. (!) (!) - It holds that the kabulayat is a formality and the title/occupancy rights depend on the S.62 order, not the kabulayat, and that S.211 revisional power can modify/cancel such orders, even if a kabulayat exists. (!) (!) (!) - It analyzes whether occupancy rights arise as contractual rights or statutory rights, concluding they are statutory rights and not contractual, thereby allowing revisional interference with the order underlying the kabulayat. (!) (!) (!) - The decision emphasizes that the revising authority must be satisfied as to legality, propriety, or irregularity and must provide grounds when modifying, annulling, or reversing an order under S.211. (!) (!) - It distinguishes between cases where there is no formal contract and those where a formal sanad/sanads (contracts) exist, with different implications for the revisional powers. (!) (!) (!) (!) - It notes absence of time limits for exercising S.211 and discusses need for reasons in orders passed under S.211. (!) (!) - The final decision: the order making the grant and the kabulayat can be modified or cancelled under S.211. (!) (!)
CHAGLA, C.J.:- Mr. Justice Gajendragadkar and Mr. Justice Vyas, while hearing a second appeal, have referred a certain question to this Full Bench and the question comes to be referred under the following circumstances.
2. It appears that Government let out six lands bearing various survey numbers in the village of Mukharaba to the plaintiff in the suit from which the second appeal arises. The lease was a temporary lease for three years and it was for the period 1940 to 1943. On 29-5-1943, the plaintiff applied to the Collector to grant him a permanent occupancy lease, and on 15-6-1943, the District Deputy Collector passed an order making a grant of a lease on occupancy tenure with certain conditions attached to that case, and the conditions were that it was to be on the old impartible tenure on the term of raising foodgrains till the completion of the war and on certain other conditions with which we are not concerned.
On 21-7-1943, the Mamlatdar gave a written permission to the plaintiff to occupy these lands and on 21-8-1943, the plaintiff executed a kabulayat in accordance with the rules and the form under the Act. On 1-4-1947, the Collector set aside the order passed by the District Deputy Collector on 15-6-1943, and the Government, exercising its revisional powers, set aside the order of the Collector, but modified the order of the District Deputy Collector by directing that the plaintiff should hold the lands, not on the old, but the new tenure, the effect being that the lands which were alienable and transferable became unalienable without the previous sanction of Government.
On 7-2-1949 the plaintiff filed a suit challenging the order passed by Government on 8-7-1948, as ultra vires, null and void. The trial Court decreed the plaintiffs suit. In appeal, the learned District Judge dismissed the appeal and confirmed the decree of the trial Court, and the State of Bombay then came to this Court in second appeal and in the second appeal the learned Judges have raised the following question for consideration of the Full Bench:
"Where a grant has been made under S.62, Land Revenue Code and a kabulayat has been taken in pursuance of the said grant under R.37, Land Revenue Rules, can the said grant and the kabulayat be modified or cancelled under S.211, Land Revenue Code?"
3. In order to understand and appreciate this question and to come to a conclusion as to what the proper answer to the question should be, it is necessary to look at the relevant provisions of the Land Revenue Code. Section 37 of the Code provides that all lands wherever situated, which are not the property of individuals or of aggregates of persons legally capable of holding property vest in Government and are the property of Government, and that it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by the Government.
Section 60 provides that any person desirous of taking up unoccupied land which has not been alienated must, previously to entering upon occupation, obtain the permission in writing of the Mamlatdar, and this was the permission that was granted by the Mamlatdar on 21-7-1943. Section 62 provides that it shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under S.60.
Therefore, it is open to the Collector to fix the price and also to annex such conditions as he thinks proper to the grant and it was in pursuance of this power that the Collector attached certain conditions to the grant of the lands to the plaintiff by his order dated 15-6-1943. Then S.68 provides that the rights of the occupant are conditional: either his tenure is of a limited period or,
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