Judgment:
A.N. Divecha, J.
1. In all these three petitions the petitioner is common. The subject-matter in all these three petitions is one parcel of land bearing Survey No. 69/1 admeasuring 3 acres 22 gunthas situated at village Nandelav in taluka and district Bharuch (the disputed land for convenience). It originally belonged to respondent No. 3 in Special Civil Application No. 624 of 1987 who is respondent No. 2 in the remaining two petitions. For the sake of convenience I shall refer to him in this judgment as the vendor and the petitioner as the vendee. These three petitions are inter-related in the sense that the order of 1st February 1985 is challenged in Special Civil Application No. 624 of 1987 and consequential orders pursuant thereto are challenged in the other two petitions. Common questions of fact and law are found arising in all these three petitions. I have, therefore, thought it fit to dispose of all these three petitions by this common judgment of mine.
2. The facts giving rise to all these three petitions move in a narrow compass. The disputed land was a piece of agricultural land in the hands of the vendor. He applied for what is popularly known as the N.A. permission under Section 65 of the Bombay Land Revenue Code, 1879 (the Code for brief). By the order passed by the Taluka Development Officer at Bharuch on 26th October 1983, the N.A. permission qua the disputed land came to be granted on certain terms and conditions. Its copy is at Annexure A each to Special Civil Application No. 624 of 1987 (the first petition for convenience) and Special Civil Application No. 745 of 1988 (the second petition for convenience). That order appears to have come to the notice of the concerned officer of the State Government. He appears to have found it not according to law. Its suo motu revision was, therefore, contemplated. A show-cause notice thereupon came to be issued on 30th November 1984 calling upon the vendor to show cause why the N.A. permission order at Annexure A to the first and the second petitions should not be revised. Thereafter, by the order passed by and on behalf of the State Government on 1st February 1985, the N.A. permission order at Annexure A to the first and the second petitions came to be quashed and set aside. Its copy is at Annexure B each to the first and the second petitions. That aggrieved the vendee. He has, therefore, approached this Court by means of Special Civil Application No. 624 of 1987 under Article 226 of the Constitution of India for questioning its correctness.
3. It appears that the disputed land in the hands of the vendor was a new tenure land. It was required to be converted into an old tenure land when an application for the N.A. permission was made. It appears that the Collector of Bharuch by his communication of 6th July 1983 conveyed to the Taluka Development Officer (respondent No. 2 in the first petition) the amount of premium to be charged for conversion of the disputed land from new tenure to old tenure. Apropos, the amount of premium was required to be paid and it was paid on 11th October 1983 by means of one Challan No. 51. Its zerox copy is at Annexure D to the first petition. That fact came to be recorded in the N.A. permission order at Annexure A to the first and the second petitions. On cancellation of the N.A. permission order by the order passed on 1 st February 1985 at Annexure B to the first and the second petitions, an application was made by the vendor to the Collector of Bharuch for refund of the premium amount. By the order passed on 29th June 1987, the Collector of Bharuch ordered refund of the premium amount in favour of the vendor. Its copy is at Annexure D to the second petition. That aggrieved the vendee. He carried the matter in revision before the State Government under Section 211 of the Code. By the order passed by and on behalf of the State Government on 22nd January 1988, the revisional application came to be rejected. Its copy is at Annexure E to the second petition. That aggrieved the vendee. He has, therefore, approached this Court by means of the second petition under Article 227 of the Constitution of India for questioning the correctness of the order at Annexure D thereto as affirmed in revision by the order at Annexure E thereto.
4. It appears that, pursuant to the sale transaction of the disputed land between the vendor and the vendee, the necessary entry in the revenue record came to be mutated on 9th January 1984 by means of Entry No. 1002. It was duly certified on 26th April 1985. Its copy is at Annexure C to the first petition and Annexure A to Special Civil Application No. 4266 of 1988 (the third petition for convenience). On cancellation of the N.A. permission by the order passed on 1st February 1985 at Annexure B to the first and the second petitions, the vendor applied to the Deputy Collector at Bharuch for taking the mutation entry in revision. By the order passed by the Deputy Collector on 11th July 1986, the application for revision of the aforesaid mutation entry came to be rejected. Its copy is at Annexure B to the second petition. That aggrieved the vendor. He carried the matter in revision before the Collector of Bharuch. By the order passed by the Collector of Bharuch on 7th November 1986, the vendor's revisional application came to be accepted and the aforesaid mutation entry came to be set aside. Its copy is at Annexure C to the second petition. That aggrieved the vendee. He, therefore, carried the matter in further revision before the State Government. By the order passed by and on behalf of the State Government on 21st December 1987, the aforesaid revisional application of the vendee came to be rejected. Its copy is at Annexure D to the third petition. That aggrieved the vendee. He has, therefore, approached this Court by means of the third petition under Article 227 of the Constitution of India for questioning the correctness of the order at Annexure C thereto as affirmed in further revision by the order at Annexure D thereto.
5. Learned Assistant Government Pleader Shri Uraizee for the State Government has raised a preliminary objection against maintainability of all these three petitions under Article 227 of the Constitution of India. At this stage learned Advocate Shri Jadeja for the petitioner orally prays for treating all these petitions as also under Article 226 of the Constitution of India. Such oral request is granted and all these petitions are treated as also under Article 226 of the Constitution of India on condition of payment of the deficit Court-fees, if any, within 15 days from today.
6. Learned Advocate Shri Jadeja for the petitioner is right in his submission that the revisional powers qua the N.A. permission under Section 65 of the Code could not be exercised beyond the reasonable period of 3 months in view of the binding ruling of the Supreme Court in the case of Stale of Gujarat v. Patel Raghav Natha and Ors. reported in 1969 X GLR 992. The N.A. permission order was passed on 26th October 1983. The show-cause notice for its revision under Section 211 of the Code was issued on 30th November 1984, that is, nearly 13 months after the date of the N.A. permission order. It was thus clearly beyond the reasonable period of 3 months in view of the aforesaid binding ruling of the Supreme Court. The order at Annexure B to the first and the second petitions cannot be sustained in law on this ground alone.
7. Even on merits the impugned order passed on 1 st February 1985 at Annexure B to the first and the second petitions cannot be sustained in law. As many as three grounds are given for interference with the N.A. permission order at Annexure A to the first and the second petitions. In the first place, the objection is that no opinion was obtained from the Land Acquisition Officer as to whether or not the disputed land was under acquisition. It transpires from the N.A. permission order at Annexure A to the first and the second petitions that the necessary opinion was obtained from the Special Land Acquisition Officer and by his communication of 6th March 1983 it was stated that the disputed land was not under acquisition. It thus becomes clear that the revisional authority has not applied its mind to this aspect of the case. The aforesaid ground taken into consideration for revision of the N.A. permission order can be said to be an outcome of non-application of mind on the part of its author.
8. The second ground given is that the layout plan for the disputed land was of the area of 14,816 square meters whereas the actual area of the disputed land was 14,468 square meters, and as such the N.A. permission was granted for the larger area than the actual area. Again, this ground also appears to be a product of non-application of mind on the part of the author of the impugned order at Annexure B to the first and the second petitions. It transpires from the N.A. permission order at Annexure A to the first and the second petitions that the N.A. permission was granted qua the disputed land showing its area to be 14,468 square meters, that is, the actual area thereof. It is not granted for an area larger than the actual area thereof.
9. The third ground given for upsetting the N.A. permission order was that the premium was not fixed in accordance with the Government Resolution of 13th July 1983 and that the amount of premium was not paid. Both these grounds appear to be contrary to the material on record. It appears that either the record of the proceeding was not before the author of the impugned order at Annexure B to the first and the second petitions or that he did not choose to read the same before embarking upon deciding the matter.
10. If the record of the proceeding was not before the revisional authority, no power under Section 211 of the Code could have been exercised. The condition precedent for exercise of the powers thereunder is to call for the record and to peruse the same for the purpose of finding out illegality, if any, therein. If the record is not called for, the condition precedent for exercise of the revisional powers thereunder is not satisfied.
11. If the record of the proceeding was with the author of the impugned order at Annexure B to the first and the second petitions, the aforesaid third ground for upsetting the order of N.A. permission is an outcome of total non-application of mind on his part. The N.A. permission order is at Annexure A to the first and the second petitions. In para 11 of particulars of information it has clearly been mentioned that the premium was fixed by the Collector of Bharuch by his communication of 6th July 1983 and the applicant did pay the premium amount on 11th October 1983 by means of Challan No. 51, a copy of which is at Annexure D to the first petition. In spite of this glaring fact appearing on the record, it is strange and surprising that the author of the impugned order at Annexure B to the first and the second petitions chose to come to the conclusion that the premium amount was not fixed according to the Government Resolution of 13th July 1983 and that the premium amount was not paid. It cannot be gainsaid that a Government Resolution is always in the nature of executive instructions. It is a settled principle of law that executive instructions have no retrospective operation. It is thus clear that the Government Resolution of 13th July 1983 could not have any retrospective operation with respect to fixation of the premium by the Collector of Bharuch on 6th July 1983 as transpiring from the N.A. permission order at Annexure A to the first and the second petitions.
In view of my aforesaid discussion, I am of the opinion that the impugned order at Annexure B to the first and the second petitions cannot be sustained in law even on merits. It deserves to be quashed and set aside.
12. That brings me to the order under challenge in the third petition. It transpires from the material on record that, pursuant to the N.A. permission order at Annexure A to the first and the second petitions, the necessary mutation entry bearing Entry No. 995 was made in the revenue records on 1st November 1983 with respect to the disputed land. On revision of the N.A. permission by and on behalf of the State Government by the impugned order at Annrxure B to the first and the second petitions, Entry No. 995 in the revenue record with respect to the disputed land was treated to have become redundant and it was treated to have been effaced. In that view of the matter, the Collector of Bharuch came to the conclusion that the disputed land retained its character of new tenure land and it could not have been transferred without the permission under Section 63 of the tenancy legislation, and as such the transaction between the vendor and the vendee was void. Consequently, Entry No. 1002 at Annexure A to the third petition and at Annexure C to the first petition was treated to be of no consequence and it was set at nought. Since the entire order of the Collector was based on the impugned order at Annexure B to the first and the second petitions and since that order is held to be illegal and invalid in this judgment, the order passed by the Collector of Bharuch at Annexure C to the third petition as affirmed in revision by the order passed by and on behalf of the State Government at Annexure D thereto deserves to be quashed and set aside.
13. That brings me to the second petition. It appears that pursuant to the order at Annexure B to the first and the second petitions, the vendor applied for refund of the premium amount. An order for refund of the amount was passed by the Collector of Bharuch on 29th June 1983 at Annexure D to the second petition. It has been affirmed in revision by the order passed by and on behalf of the State Government on 22nd January 1988 at Annexure E thereto. The impugned orders at Annexures D and E to the second petition deserve to be quashed and set aside as the basis thereof, namely, the order passed on 1st February 1985 at Annexure B to the first and the second petitions, is held to be liable to be quashed and set aside in this judgment hereinabove.
14. Learned Advocate Shri Shah for the vendor has submitted that the order of refund need not be quashed and set aside at the instance of the vendee in this petition for the simple reason that the matter of refund is between the State Government and the applicant claiming such refund. Ordinarily, I would have accepted such submission. However, since it is found that the order of refund is based on the impugned order at Annexure B to the first and the second petitions and since the said order is held to be contrary to law and held to be liable to be quashed and set aside, I think the impugned orders at Annexures D and E to the second petition also deserve to be quashed and set aside.
15. In the result, all these three petitions are accepted. The order passed by and on behalf of the State Government on 1st February 1985 at Annexure B to the first and the second petitions is quashed and set aside. The order passed by the Collector of Bharuch on 29th June 1987 at Annexure D to the second petition as affirmed in revision by the order passed by and on behalf of the State Government at Annexure E thereto is also quashed and set aside. The order passed by the Collector of Bharuch on 12th November 1986 at Annexure C to the third petition as affirmed in revision by and on behalf of the State Government by the order passed on 21st December 1987 at Annexure D thereto is also quashed and set aside. Rule issued in each of these petitions is made absolute with no order as to costs.