Judgment:
Jayant Patel, J.
1. The short facts of the case are that the petitioners, who are owners of the land, applied for conversion of the land for non-agricultural purpose as per the application dated 2.11.2002. On 20.1.2003, the District Development Officer, Vadodara addressed a letter to the petitioners that the application is rejected for administrative reasons. It is the case of the petitioners that the communication by the District Development Officer dated 20.1.2003 is not supported by any Resolution of the Executive Committee or any other Committee of the District Panchayat and the District Development Officer had no power to take the decision independently in absence of any Resolution of the Committee.
2. It appears that thereafter the petitioners moved an application to the District Panchayat for reconsideration of the case for conversion of the land for non-agricultural purpose. The said application was submitted on 28.1.2003. It appears that thereafter the Executive Committee of the District Panchayat considered the matter and after following necessary procedure of inviting 'No Objection Certificate' and recommendations from the Authority concerned on 7.2.2003, the permission is granted for converting the land for non-agriculture purpose. Respondent No.3 who is claiming to have the tenancy right over the land in question belonging to the petitioners preferred revision before the State Government under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as 'the Code') and in the said revision the State Government found that there is no power of review with the District Panchayat to accord permission under Section 65 of the Code and, therefore, consequently the order of the Executive Committee of the District Panchayat granting permission under Section 65 of the Code was set aside by allowing the revision as per the order dated 19.7.2003 and it is under this circumstances, the petitioners have approached this Court by preferring this petition.
3. So far as the status of respondent No.3 is concerned, even in the affidavit-in-reply filed in this petition, it has been admitted that the respondent No.3 has not been able to succeed for claiming the tenancy right over the land in question upto the level of the Dy. Collector. However, it has been stated in the said affidavit that the revision is pending before the Gujarat Revenue Tribunal and the said revision is admitted. Therefore, at the most the status quo of respondent No.3 can be said as that of the person claiming the tenancy right over the land in question, but as such it cannot be said that Respondent No.3 is directly connected with the issue for grant of permission under Section 65 of the Code. It may not be necessary for this Court to express any final opinion on the locus of respondent No.3, because the fact remains that the State Government entertained the revision at the instance of respondent No.3 and the matter is considered on merits and, therefore, the said issue is kept open.
4. The aforesaid takes me to examine the merits of the order passed by the State Government in exercise of the revisional jurisdiction. If the facts are considered, it appears that the District Development Officer communicated as per the order dated 27.1.2003 that the application is rejected and in the said communication there is no reference to any resolution being passed by the Executive Committee rejecting the application or by the General Body of the District Panchayat rejecting the application. It appears that the petitioner having learnt about the aforesaid communication moved the application to the District Panchayat for review and thereafter the matter was once again considered by the District Panchayat and the order dated 7.2.2003 was passed granting permission for non-agriculture purpose. It is well settled that no such bar of review applies in the decision which are having administrative character. If it is a decision in capacity as the quasi judicial authority and if the decision is to be reviewed on account of procedural lapse like hearing is not given etc., then in that case even if there is no express provision or power for review, such power of review with quasi judicial authority for procedural aspects is read as inherent power of quasi judicial authority. If it is the matter pertaining to the merits and other than that of procedural lapse, the in that case, there should be express provisions for review.
Therefore, it will have to be examined for scope and ambit of power under Section 65 of the Code for granting permission for non-agriculture purpose. The aforesaid point would not detain the Court more in view of the decision of this Court in case of 'Yashkamal Builders, Baroda v. State of Gujarat and Anr.', reported in 1989(1) GLR, 382. In the case case of M/s. Yashkumar Builders (supra), this Court at para 8 has observed as under:
'8. ...Power under Sec 65 of the Code conferred on the Collector is an executive power or a power of an administrative character. It is, therefore, that it was transferred or delegated to the District Panchayats and Taluka Panchayats. Therefore, when Taluka Panchayat exercises power under Sec.65 of the Code it is an executive or administrative power. Once this becomes clear there is no doubt that such power vests in Taluka Development Officer under Sec. 123(1) of the Panchayats Act. But apart from that it is not disputed that power under Sec. 65 of the Code has not been conferred on any committee or Presiding Officer or any Officer of the Taluka Panchayat under clause (b) of sub-sec. (2) of Sec. 123 of the Panchayats Act. Thus Taluka Development Officer will be entitled to exercise power under Section 65 of the Code by virtue of sub-sec. (2) of Sec. 123. Therefore, whether the power conferred under Section 65 of the Code is an executive or administrative or not, the Taluka Development Officer has power to act under this Section. Therefore, in any view of the matter after delegation of power to the Taluka Panchayat of Halol by the District Panchayat, the Taluka Development Officer has power to grant permission for non-agricultural use of land under Section 65 of the Code. As pointed out above the District Panchayat of Panchmahals delegated powers to the Taluka Panchayat by its Resolution dated March 29, 1979. Permission for non-agricultural use of the land was granted by the Taluka Development Officer on December 17, 1981. Therefore, when the Taluka Development Officer passed the order he had power to do so under Sec. 65 of the Code read with Sec. 123 of the Panchayats Act. The State Government has completely overlooked the provision of Sec. 123 of the Panchayats Act while holding that Taluka Development Officer has acted without authority or jurisdiction in passing the order granting permission for non-agricultural use of land.'
5. Therefore, it has been expressly held that the exercise of power under Section 65 of the Bombay Land Revenue Code is an executive and administrative power and, therefore, when the character of exercise of power is administrative in nature, the view taken by the State Government cannot be maintained in the eye of law that there is no power of review. The surprising aspect is that in spite of the binding decision in the case of 'Yashkamal Builders, Baroda' (supra) was brought to the notice of the State Government, the same is neither properly understood, nor the decision of this Court is followed by the State Government while exercising the power as quasi judicial authority. It is needless to state that the view expressed by the High Court in exercise of its constitutional powers are binding to all quasi judicial authority of the State including the State Government while exercising the power under Section 211 of the Bombay Land Revenue Code was exercising power as quasi judicial authority and, therefore, the aforesaid decision was binding to State Government as revisional authority.
6. The perusal of the order passed by the State Government in revisional jurisdiction shows that the State Government did not consider the distinction between the exercise of power as having character of administrative in nature and the exercise of power as quasi judicial authority. Once the character of power under Section 65 is held as that of administrative in nature, the principles that there should be express provision in statute for exercise of power of review which are applicable to exercise of the powers which are having character of quasi judicial in nature would not have any applicability. The finding of the State Government shows that the review in question is not procedural but substantive. In my view, the State Government had ex facie committed error in applying the principles for exercise of power of review of a quasi judicial authority in a matter where the decision is taken by the District Panchayat under Section 65 of the Code having character of administrative in nature in view of the aforesaid decision of this Court in case of 'Yashkamal Builders' (supra). Therefore, there is apparent error committed by the State Government in holding that there was lack of power of review on the part of the District Panchayat in considering the matter for grant of permission under Section 65 of the Code.
7. Mr. B.S. Patel, learned Counsel appearing for respondent No.3 submitted that even if it is held that there was power of review, then also there was no additional material for exercise of the power of review and he also submitted that the objections were filed by respondent No.3 to the application for converting the land for non-agricultural purpose and such objections are not at all considered by the Executive Committee of the District Panchayat while considering the matter for grant of permission. Mr. Patel also submitted that it has been held by the State Government that as there was lack of power of review, it is not necessary to go into other contentions raised by both the sides and, therefore, he submitted that even if this Court finds that there was power with the Executive Committee, either the matter may be remanded to the State Government for reconsideration of the case on merits or in alternative he submitted that in absence of any material before the District Panchayat to review and since objections of the petitioners were not considered, the order passed under Section 65 of the Code may be set aside. Mr. J.M. Patel for the petitioners submitted that even if other contentions of the respondent No.3 were examined, Petitioner would have succeeded in establishing in law that the order under Section 65 of the Code, does not deserve to be set aside.
8. It appears that the State Government has not considered the other contentions raised on behalf of the petitioners as well as the respondent and the revision came to be decided only on the point that there is no power of review. As the power in revision is exercised by the State Government as quasi judicial authority, it would be just and proper to direct the State Government to hear the revision application on merits and to consider the matter on the basis as if there was power with the District Panchayat to review its order under Section 65 of the Bombay Land Revenue Code.
9. In view of the above, the order dated 24.7.2003 Annexure 'A' passed by the State Government is quashed and set aside. However, as the other contentions are not decided, the revision shall stand restored to the file of the State Government and the State Government shall give an opportunity of hearing to both the sides and shall pass appropriate orders in accordance with law as early as possible, preferably within a period of two months from the date of receipt of the order of this Court. It is made clear that the contentions of both the sides shall remain open on the merit or demerit of the order passed under Section 65 of the Code, save and except the question of power as held hereinabove.
10. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs. Direct service permitted.