DAMJIBHAI BIJIBHAI VASAVA v. RANCHHODBHAI ZINABHAI AND ORS

Citation: [2000] 1 S.C.R. 738

Court: Supreme Court of India

Bench: S. SAGHIR AHMAD, S.N. PHUKAN

Judgment text

A DA! 'vfJI. BHAl BUIBHAI VASAVA .. v. RANCHHODBHAI ZINABHAI AND ORS. FEBRUARY Y, 2(,'00 B (S. SAGHIR AHMAD AND S. N. PHlJKA~, JJ. ] Code of Civil Procedure, 1908. Section 54--Decree-Paltitivn--Paymenf of revenue to Government. c Code of Civil Procedure, 1908. Section JQO- -Second Appeaf-Sr4bstantial question of law. Bombay Land Revenue Code, 1879 : Section~· 203 and 21I. D Collector--Order passed by-Powers of Deputy Secretary to consider propriety ofsuch an order. Partition suit-Decree passed in-Part ofproperty in decree assessed to E land revenue-Partition of proper!. ies under Section 54 C. P. C. -co/lector's order challenged before Deputy Secretary -Deputy Secretary remanded the matter to Co/lecto,......

(,"'hal/enge to order ofDeputy Secretary-Ground chat he had no jurisdiction to consider the propriety of order passed by Coilecto,-Suit decreed and appeal against decree dismissed-Second Appeal-Dis~ F missal on the ground that it did not involve substantial question of law-Hence, appeal before Supreme Court-Held: important and substantial question of law was involved in the case-Order of High Court set aside-Case rema'Jded to High Court-Second Appeal :,·hall be treated as admitted-Appeal should be disposed on merits after notice to parties. G Paygonda Survgonda Patil & Ors. v. Jingonda Surgonda Pati/ & Ors. Affi (1968) Bombay 198; Ramac/Uilldra Shamarao Kulkami v. Prahlad Krishnaji Kulkarni & Ors. , AIR (1964) Mysore 31 and Sree Rajah Matripragada Venkataraghava Roo Bahadur, Zamindar Garu & Ors. v. Sri Rajesh Mantripragad Venkata Hanumantha Rao Bahadur, Zamindar Garu H (deceased) & Ors. , AIR (1945) Madras 336, referred to. 738 D. B. VASAVA v. RANCHHODBHAI Zl~ABHAI (S. S. AHMAD,J.

j 739 ~ CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1707 of A 1995. From the Judgment and Order dated 17. 8. 84 of the Gujarat High Court in S. A. No. 190 of 1984. A. K. Ganguli, Harish J. Zaveri, Jatin Zaveri and Ms. Kavita Gulati B for the Appellant. Ms. Hemantika Wahi, Ms. Sumita Hazirika and Abhijat P. Mcdh for Respondents. c The following Order of the Court was delivered by : S. SAGHIR AHMAD, J. Suit for partition filed by the respondents in respect of Plot No. 64/1/A and other properties was decreed by the trial court in 1%9 which decree was uphe! d by the fust appellate court and also by the High Court. Since one of the properties in respect of which partition D decree was passed was assessed to land revenue payable to the State Govt. , the trial court referred the matter to Collector under Section 54 of the • Code of Civil Procedure for partition. The Collector partitioned the properties by his order dated 1. 6. 1976.

The order of the Collector was challenged by the appellant befon: the Deputy Secretary under Section 211 E of the Bombay Land Rewnuc Cod~:, 1879. This Revision was allowed on 2. 7. 1977 and the Deputy Secretary remanded the matter to the Collector. The order of the Depllty Secretary was challenged hy the respondents in Regular Civil Suit No. 71 of 1978 on the ground that the Deputy Secretary had no jurisdiction to consider the propriety of the order passed by the Collector under Section 54 of the Code of Civil Procedure. The suit was F decr~ed on 22. 12. 1981. The appeal prderred by the appellant against this decree was dismissed by the District Judge on 20. 8. 1983. The second appeal thereafter filed by the appellant was summarily dismissed by the High Court on 17. 8. 1984 on the ground that the appeal did not involve any substantial question of law. The matter is now before us.

G Learned counsel for the appellant contended that the Collector was a Revenue Officer and therefore he was amenable to the jurisdiction of the State Government under the provisions of the Bombay Land Revenue Cod~ 1879. He plared reliance upon Sections 203 and 211, which are reproduced below : H 740 SUPRf-. MF. C'CJURT REPORTS 1200011 S. C. R. A ' 203. ln th~ absence of any cxprcss provision of this Act, or of any law for th~ time being in force ~u the contrary, an app~:al shall lie from any decision or ord~r passed by a rev~nue ofticer under this Act or any other law for the tim-. bdog in force, to that officer's immediate su~rior, whether such dcc.. ision or order may itself have been passed on appeal from a subordinat~ officer's decision or B order or not. 211. The Statt: Gov~rnment and any revcm. le officer, not inferior in rank to an Assistant or Dt:puty Collector or a Supl.!

rintcndcnt of Surwy, in their respective dt:partments, may call fur and cxc amint: th~ record of any inquiry l>r thc proccedings of any subordinate re\lcnu~ offi~;er, for the purpo~e of satisfying itself or himsc:. lf, as the C. ts~ may be, as to th~ legality or propri~ty of any d~cision or order passed, and as to the rebrularity of the proceedings of such officer. D The following officers may in the same manner call for and examine the proceedings of any officer suborclinate to them in any matter in which neither a formal nor a summary inquiry has been hdd, namely, • • • a Mamlatdar, a Mahalkari and Assistant Superintendent of Survey and an As:. istant Settlement Officer. E If in any case, it shall appL~ar to the Stale ( iovanmcnt or to such Offic\::r aforesaid that any dt·c. :ision or 11rd~r or procc~ding~ so called for should bt modified, annulled or rcvcrstd, it or he may pass ! >och order thereon as \t or h~ dc~ms fit.

F Providt:d 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. " G It is contended that since it is specifically provided under Section 203 that any order passed by a Revenue Offiet:r under this Act {or any other law for the time being force) would be appealable to that officer's imm~· diate superior, the order passed b)' the Collector could be legally chal· lenged under the Cod~ to the superior officer. Under Section 211, the H revisional jurisdiction of the State Government could also be invoked. lW. VASAVA v. RANCHHODBHAl ZlNABHAl [S. S. AHMAD, J. J . 741 In ord~r to substantiate his contention, learned counsd placed A n~liance upon the:: decision of tht! Bombay High Court iu Paygonda Survgonda Patil & Or~·. v. Jingonda Surgunda Patil & Ors. AIR (1986) Bombay 198,. ....

in which it was, inter alia, laid down as under : ''(11) We arc, however unable to acct:pt the first part of the B learned Oovcrnment pleader's argument, viz. th~ CoUector ~ not a revcnu~ officer when he is engaged in any official work other than 'lht: businc. :ss ofthe land revenue or ofth urvcys, assessment, accounts, or r. :cords c0nnected therewith. " No instance of such an act was brought to our notice. " F It was further held : ~he fact that the duty to effect a partition of revenue paying lands is cast by section 54 on the Collector or any gazetted subordinate of the Collector deputed by him does not exclude the G right of superior revenue authorities to examine and correct any decision or order of the Collector in the exercise of their appellate and revisional powers. Section 54 contains no provision and certainly no express provision, which runs counter to the appellate powers conferred by section 203 of the Bombay Land Revenue H Code. D. B. VASAVA v.

RANCHHODBHAI ZINABHAI [S. S. AHMAD, J. j 743 We are accordingly of the view that the Commissioner erred A in law in holding that he had no jurisdiction to entertain an appeal or a revisional application against any order of a Collt:ctor passed in proceedings relating to the execution of a decree for partition of revenue paying lands passt:d by a Civil Court. " The Bombay High Court dissented with the view taken by the Mysorc B High Court in Ramachandra Sham(l]'ao Kulkarni v. Prahlad Krishnaji Kulkarni & Ors. AIR (1964) Mysore 31, in which tht: provisiom of Bombay Land Revenue Code were considered. The view expressed by the Bombay High Court is in consonance with the view of the Madras High Court in Sree Rajah Mantripragad Venkataraghava Rao Bahadur, Zarnindw Garo & C o~·. v. Sri Rajesh Mantripragad Venkata Hanumantha Rao Bahadur, Zamindw Garu (deceased) & Ors. , AIR (1945) Madras 336.

It is thus apparent that there was an important and substantial question of law, which was involved in thi,. ; case, which required a decision from the High Court. Since the second appeal filed by the appellant was D summarily dismissed on the ground that no substantial question of Jaw was involved, we allow this appeal set aside the order passed by the Gujarat High Court and rt:mand the case back to the High Court so that the second appeal which shall be treated as ''admitted" may be disposed of on merits, after notice to the parties. No order as to costs. E T. N. A. Appeal allowed. ~· ! \