Anant Krishnaji Nulkar and Others vs The Secretary of State For India in Council and Another

Beaumont, C.J.—This is an appeal from the decision of the District Judge of Khandesh at Dhulia who dismissed the suit. The first three issues raised were:

(1) Whether the suit is barred by Section 11 of the Bombay Revenue Jurisdiction Act,

(2) Whether the Plaintiff proves that he became the owner of the land in suit in virtue of the Collector''s order, and

(3) Whether the Plaintiff proves that the subsequent demand of any occupancy price and his dispossession on failure to pay the. same were illegal.

The facts are not in dispute and can be shortly stated. In May 1919, the first Appellant (whom I will refer to as the Appellant, the second Appellant being his wife who claims under him by a deed of gift) who had been serving in the Indian Medical Service applied to the Collector for a grant of land under the Land Revenue Code, and on May 22, 1919, the Collector made an order, which is Exhibit 31, in which he granted the Appellant certain Survey Numbers on certain conditions which included freedom from payment of occupancy price and freedom for a limited time from assessment to land revenue. The order was followed by a Kabulayat or agreement Exhibit 41. The Plaintiff entered into possession and spent a certain amount of money on cultivating the land. On December 6, 1921, the Commissioner who is the superior officer of the Collector appears to have taken the view that the Collector''s order was wrong and he framed a document entitled "order " which is Exhibit 34. In that document after stating the effect of the Collector''s order and that the order was illegal and that the Commissioner was not inclined to withdraw the grant from the Appellant altogether, he directed that the proper occupancy price according to the full market value of the land on the date on which the grant was originally made, i.e., in May 1919, should be recovered from the Appellant and the ordinary land revenue (consolidated) should be recovered from the year 1919-20, and he directed that the Appellant should be informed of the issue of the orders. The document is addressed to the Collector and there is nothing to show that the Appellant ever saw the document. On December 15, 1921, the Appellant was informed (Exhibit 35) of the Commissioner''s order to recover from the Appellant the full occupancy price of the land according to the full market value on the date on which the grant was made, that the value of the land on the date on which the grant was made was estimated at Rs. 12,075, that the consolidated land revenue from the year 1919-20 came to Rs. 355-3-3 and the Local Fund on Rs. 12,075 came to Rs. 754-11-0 and the notice finished up: Thus the total amount you have to pay is Rs. 13,184-14-3. You are therefore requested to remit the amount into Government treasury, within a period of one month ". The only order of the Commissioner served on the Appellant was an order to pay money simpliciter, and was not an order to pay money or go out of possession of the land. The Appellant paid under protest the land assessment, but he did not pay the sum charged against him as occupancy price. On August 29, 1922, an order was made by the Assistant Collector (Exhibit 38) that the Appellant having been served with notice to pay up the occupancy price of the land in question and the period of notice having expired, the lands were thereby declared to be forfeited to Government. The forfeiture of the land for non-payment of occupancy price is justified by Government u/s 62 of the Land Revenue Code which provides that occupancy price shall be recoverable as an arrear of land revenue. On September 23, 1923, the Appellant was actually dispossessed. The Appellant did not appeal from the order of the Commissioner of December 6, 1921. and he did not present an effective appeal from the order of the Assistant Collector of August 29, 1922.

The first point taken against him is that the suit does not lie having regard to the terms of Section 11 of the Revenue Jurisdiction Act which provides:

No Civil Court shall entertain any suit against Government on account of any act or omission of any Revenue-officer, unless the Plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.

Being a Section which deprives the subject of a right to litigate against the Government, it must be construed strictly, although not unfairly.

The first point taken by Mr. Coyajee for the Appellant is that the cause of action is not in respect of the orders to which I have referred but the dispossession which followed the orders and that a mere act is not appealable u/s 203 of the Land Revenue Code. I think, however, that if the order of forfeiture was valid, the dispossession was merely ancillary to the order, and this action would not lie having regard to Section 11 of the Revenue Jurisdiction Act. This conclusion is strengthened by the unreported case of Dongar Dagdu Patil v. The Secretary of State for India in Council (1918) First appeal No. 252 of 1915, decided on January 30, 1918 (Unrep.) to which the learned Government Pleader drew our attention. If, however, the order of the Commissioner and the order of forfeiture founded upon it were invalid, then the Appellant was not bound to appeal from them but was entitled to wait until he was attacked. This has been laid down in many cases the last of which is (1927) L.R. 54 I.A. 380 (Privy Council) . the passage in question being at page 394. The real question in this appeal therefore in my view turns on whether the Commissioner''s order of December 6, 1921, was valid or ultra vires. Government rely on Section 211 of the Land Revenue Code which provides, so far as material, that the Commissioner may call for and examine the record of any proceedings of any subordinate revenue officer for the purpose of satisfying himself as to the legality or propriety of any decision or order and as to the regularity of the proceedings of such officer and if in any case it shall appear to the Commissioner that any decision or order or proceeding so called for should be modified, annulled or reversed, he may pass such order thereon as he deems fit. It has been held in Parapa Virupakshapa v. The Secretary of State for India in Council (1891) P.J. 230. and in Dattatraya v. Secretary of State (1929) 31 Bom. L.B. 1235. that there is no time limit within which the Commissioner must modify, annul or reverse the order of the Collector and these decisions which are binding upon us seem to show that a title to land acquired under an order of the (Collector is never secure. But however that may be, Section 211 in my view only entitles the Commissioner to pass an order which is a modification, annulment or reversal of the Collector''s order and does not entitle him to make an entirely new order which the Collector himself could not have made. The Collector''s order was an order that the Appellant should be granted certain land free of occupancy price. The order of the Commissioner does not reverse or annul this order, because it leaves the Appellant still in occupation of the land. The Commissioner''s order of December 6, 1921, so far as the operative part was concerned, was simply a direction that the Appellant pay a certain sum of money to be ascertained by the occupancy price of the land on a particular date, that is to say, it is an order for payment pure and simple and it was only of this part of the order that notice was given to the Appellant. It appears to me to be an order which the Collector could not himself have made, and not to be in any sense a modification of the Collector''s order. The Collector in May 1919 might of course have offered to grant the land to the Appellant if the Appellant would pay Rs. 13,000 and the Appellant could have either accepted or rejected such offer. But the Collector could not have made an order u/s 62 of the Land Revenue Code or otherwise requiring the Appellant to pay Rs. 13,000 against the Appellant''s will. The learned Government Pleader has argued that the real effect of the Commissioner''s order is to modify the Collector''s order by charging the occupancy price which in the Commissioner''s view should have been charged originally. But that is not the form of the order, nor was that the order of which notice was served upon the Appellant. He was directed to pay a specific sum, and was not told that he might pay that sum or give up possession of the land. In my view in considering whether to appeal from a revenue order so as to avoid the bar contained in Section 11 of the Revenue Jurisdiction Act, the subject is entitled to look strictly at the words of the order served upon him and is not bound to speculate on what the revenue authority may have meant. The Appellant when he received the notice of December 15, 1921, and the order of August 29, 1922, was entitled in my opinion to say that the Commissioner had no power to order him to pay Rs. 13,000 which he had not agreed to pay and then to forfeit his land for non-payment, and to ignore the orders. The Commissioner''s order is treated by the Government as an order for payment of occupancy price u/s 62 of the Land Revenue Code, and as such recoverable as an arrear of land revenue u/s 150. Under that Section land revenue may be recovered not only by forfeiture of the land (the remedy adopted in this case) but amongst other remedies by distraint and sale of the defaulter''s moveable property and by sale of the defaulter''s immoveable property and by arrest and imprisonment of the defaulter. Under the Commissioner''s order, if valid, the Government could have enforced payment of the sum which the Appellant was directed to pay either by forfeiting the land or by selling the Appellant''s property or imprisoning him. If the Government''s contention is right it seems to follow logically that once a person has been granted unoccupied land by the Collector, the Commissioner may at any distance of time afterwards require that person to pay any sum as occupancy price and recover the amount by execution. The Government Pleader admitted that his argument went as far as this, though he naturally repudiated any desire on the part of Government to act in an unreasonable or arbitrary manner. In view, however, of the conduct of the Commissioner in this case in repudiating the order of his Collector made 21/2 years before, as to the bona fides of which no question has been raised, I am not disposed to assume that if Commissioners have the wide powers contended for, they will never exercise them unreasonably.

A further difficulty in the way of the Government has been suggested. Section 62 of the Land Revenue Code applies in my opinion only to unoccupied land. I think this is clear partly from the powers conferred by the Section, partly from the reference in the Section to Section 60 which relates only to unoccupied land, and partly from the side-note which refers to unoccupied land. When the Commissioner made his order in December 1921 the land in question was not unoccupied. It was and had been since 1919 occupied by the Appellant. It is argued that although, the order of the Commissioner u/s 211 may relate back to the order of the Collector, yet the Commissioner cannot alter the facts and deal with land as unoccupied which is in fact occupied. I think that there is some force in this argument but I prefer to rest my judgment on the view that the Commissioner''s order of December 6, 1921, served on the Appellant on December 15, 1921, was not authorised by Section 211 of the Land Revenue Code. In my opinion the order of the Commissioner of December 6, 1921, and the order of the Assistant Collector of August 29, 1922, were invalid. That being so, I think that this suit lies and the Appellant is entitled to an order against both the Defendants for delivery of the land included in the original grant to him and for mesne profits. Defendant No. 2 who was let into possession of the land after the eviction of the Appellant admits that he is in the same position as the Government.

Baker, J.

The first Appellant, who held a temporary Commission in the I. M. S. during the war, was granted certain lands near Jalgaon by the Collector of East Khandesh free of occupancy price and with certain concessions as regards assessment, on May 22, 1919. Two and a half years later, on December 6, 1921, the Commissioner, C. D., in the exercise of his powers u/s 211 of the Land Revenue Code set aside the order of the Collector and directed that the full occupancy price amounting to over Rs. 13,000 should be recovered from the Appellant, together with arrears of assessment. The Appellant paid the assessment, but not the occupancy price, and the land was consequently forfeited, and the Appellant dispossessed. The Appellant and his wife, to whom he passed a deed of gift of the land brought the present suit for a declaration that the order of forfeiture was illegal and for possession.

The suit was dismissed as barred by Section 11 of the Revenue Jurisdiction Act as the Plaintiffs had not appealed against the order of the Commissioner, and also on the merits, and they have appealed.

There is no dispute as to the facts, but the case raises important questions of law. No appeal was made against the order of the Commissioner directing the recovery of the full occupancy price, and an appeal to the Collector against the order of forfeiture was dismissed as time-barred. It was at one time conceded by Mr. Coyajee for the Appellants that he could not press the appeal as regards the declaration that the order of forfeiture is illegal, i.e., paragraph (a) in the plaint, as no appeal was made against the Commissioner''s order, but he contends that on the authority of Sakharam v. The Secretary of State for India in Council (1904) 28 Bom. 382. he can claim that the order of dispossession should be set aside without an appeal being preferred against the Commissioner''s order. That case lays down that the expression " all such appeals " in Section 11 of the Revenue Jurisdiction Act (X of 1876) means appeals in respect of the act or omission. Therefore the bar of Section 11 would not apply to a suit wherein the cause of action is not an order in respect of which there was a right of appeal under the Land Revenue Code. And the argument put forward by Mr. Coyajee is that as the Land Revenue Code, Section 203, provides only for appeals against the decision or order of a Revenue Officer, whereas Section 11 of the Revenue Jurisdiction Act refers to an act or omission of a Revenue Officer, the bar of Section 11 would not apply to the present case. I am unable to accept this argument. The present the learned Government Pleader has pointed out, is the case of an order followed by an act. The case of Sakharam v. The Secretary of State for India in Council (1904) 28 Bom. 332. was one of an act, the leasing of lands by Government, and not of an order. The whole of the present case turns on the order of the Commissioner directing full occupancy price to be recovered. The order of forfeiture and of subsequent dispossession are merely ancillary to the order of the Commissioner and are necessary consequences of it, and the present case appears to me to fall within the principle laid down in an unreported case of Dongar valad Dagdu v. The Secretary of State for India (1918) F.A. 252 of 1915 decided on January 30, 1918 (Unrep.) to which the learned Government Pleader has referred

The real question in this appeal is whether the order made by the Commissioner was one which he had power to make u/s 211 of the Land Revenue Code. As has been pointed out by the learned Chief Justice, whose judgment I have had the advantage of perusing, it is settled law that when an order is invalid, it need not be set aside, vide Laxmanrao Madhavrao v. Shriniwas Lingo (1927) 54 I.A. 880 at p. 891.

In order to decide this point it is necessary to see what the powers of the Commissioner are under the Land Revenue Code, and what exactly are the terms of the order in this case.

u/s 4 of the Land Revenue Code the Commissioner is the chief controlling revenue authority. The Collector is u/s 8 subordinate to him. u/s 211 the Governor in Council and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey may "call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying himself as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer," and " if, in any case, it shall appear to the Governor in Council, or to such officer as aforesaid, that any decision or order or proceedings so called for should be modified, annulled or reversed, he may pass such order thereon as he deems fit." The Section, therefore, as it stands, gives the widest powers to a superior revenue officer in dealing with the orders passed by his subordinates, and it is admitted that there is no limitation with regard to the time within which the powers may be exercised, vide Parapa Virupakshapa v. The Secretary of State for India in Council (1891) P.J. 230. and Dattatraya v. Secretary of State (1929) 31 Bom. LB. 1235. There can, therefore, be no doubt as to the general powers of the Commissioner to revise an order of the Collector granting the lands to the Appellant free of occupancy price u/s 62 of the Land Revenue Code. As I have the misfortune to differ from the learned Chief Justice as regards the validity of the Commissioner''s order, I will set out the two orders. The order of the Commissioner, which is Exhibit 34, at p. 29 of the record dated December 6, 1929, is as follows. After reciting the facts and stating that the grant is opposed to the order of Government in respect of the grants of land for war services, it says:

The grant can therefore only be held to have been made by the Collector under the Land Revenue Code. As such it contravenes the provisions of old Rule 19 u/s 214 of the Land Revenue Code which was then in force (corresponding to new Rule 39). The grant is therefore illegal as the Collector had not the power to make the grant without the sanction of the Commissioner. The Commissioner, however, is not inclined to withdraw the grant from Capt. Nulkar altogether. He therefore directs that the proper occupancy price according to the full market value of the land on the date on which the grant was originally made i.e. in May 1919, should be recovered from Capt. Nulkar and the ordinary land revenue (consolidated) should be recovered from the year 1919-20.

The question is whether this is an order which the Commissioner had power to make, and with great respect I regret that I cannot agree with the view taken by the learned Chief Justice. u/s 211 of the Land Revenue Code the Commissioner has power to modify, annul or reverse the order of the Collector and to pass-such order thereon as he deems fit. Although in form the order calls on Captain Nulkar to pay a sum of money, the order in fact modifies the order of the Collector, and annuls that part of it which refers to the grant of the land free of occupancy price and the exemption of land revenue till the land is brought under cultivation. In view of the terms of Section 211 which authorises the Commissioner to pass such order thereon (that is, on the order of his subordinate) as he deems fit, I am unable to agree with the view that he could not pass an order which the Collector himself could not have passed. Rut it. seems to roe. with respect, that u/s 62 the Collector himself could pass such an order demanding the full occupancy price and the full assessment at the time of the grant of the land. The fact that Captain Nulkar had entered into possession does not seem to me to make any difference. He could have refused to take up the land on these terms, and after entering into occupation he could have refused (as in fact he did) to pay the occupancy price demanded by the Commissioner. It may be that the Revenue authorities could have recovered the arrears of land revenue from him in some other way, but if he chose to give up the land on receiving the Commissioner''s order, I do not suppose the Revenue authorities would have taken any steps beyond recovering the assessment for the period during which he had been in possession. Supposing the Commissioner had annulled the grant altogether, as he could have done, the matter would be simpler, but in my opinion the order must be construed as a modification of the Collector''s order which u/s 211 the Commissioner had power to make. The gist of the order is that full occupancy price and assessment must be paid, which is an order the Commissioner in question had power to make, and the order for payment necessarily follows on that.

I agree that Section 62 refers only to the grant of unoccupied land. That must be so, because under the Land Revenue Code an occupant cannot be dispossessed within the term of his occupancy so long as he pays the assessment, and it is only when his occupancy ceases, which may happen for various reasons, that the land is at the disposal of the Collector. Putting aside such formalities such as execution of a kabulayat and the like, the creation of an occupancy depends on two circumstances, (1) payment of occupancy price, if any; (2) payment of assessment. In the present case although Captain. Nulkar was in possession of the land from the date of the Commissioner''s order, these conditions were not fulfilled, because he had not paid the occupancy price (as ultimately fixed by the Commissioner) and the assessment for the first year of his occupation. In my opinion the order of the Commissioner must be regarded as dating back to the time when Captain Nulkar entered into occupation. It is a modification of the Collector''s order under which he entered on the land and dates back to it just as a decree of an appellate Court has retrospective effect on the rights of the parties who may be in possession under the original decree. With great respect, it seems to me that to hold otherwise would involve difficulty. The effect would be that where a patty, as in the present case, has entered into possession of unoccupied land under the order of the Collector, to hold that the Commissioner in revision could not deal with the land as unoccupied would practically amount to holding that the Collector''s order granting the occupancy free of occupancy price could not be revised, which seems to be against the provisions of Section 211 of the Land Revenue Code. As the Commissioner has a very large area under him and a great many revenue cases to deal with, it may often happen, as in the present case, that considerable delay may take place before his orders modifying the Collector''s order are passed, and in the interval a party may have entered into possession under the Collector''s order. But I do not think that this can deprive the Commissioner of his authority to revise the Collector''s order under which possession is taken, and to determine the conditions under which the occupancy is granted, a power expressly conferred on him by Statute. I fully recognise the hardship which may ensue, and" which I think has ensued in the present case, but in view of the provisions of the Statute which seem to me plain, and the admitted absence of any limitation for the exercise of his revisional powers by the Commissioner the only remedy would be by a change in the law.

In these circumstances, I must, with great respect, hold that the order of the Commissioner was a legal and valid order in exercise of his statutory powers u/s 211, and that the subsequent proceedings for forfeiture and dispossession are merely ancillary to the order. That being so, the Appellant''s remedy was by way of appeal against the order, and as he did not avail himself of that remedy, the present suit is barred by Section 11 of the Revenue Jurisdiction Act.

No question of estoppel has been argued or could arise in the circumstances.

Even if a suit were not barred, it would, in my view of the Commissioner''s order, fail on the merits, as, if the Commissioner has powers, as I think he has, to revise the proceedings of the Collector, and to pass such order thereon as he may deem fit, the merits of the order cannot be called in question in a Civil Court, as the question of whether the full occupancy price should or should not be levied or whether the assessment should be levied from the commencement of the occupancy or not, is a matter entirely within the discretion of the Commissioner. The appeal on the merits against such an order is by law provided to the Governor in Council, but no such appeal has been made.

In my opinion, therefore, the appeal fails, and should be dismissed with costs.

Per Curiam.--As we differ on a point of law, we refer to a third Judge the following questions for his decision:

Whether the order of the Commissioner of December 6, 1921 Exhibit- 34 (the substance of which was communicated to the Appellant Capt. Nulkar by the document Exhibit 35), was valid?

Whether the order of the Assistant Collector dated August 29, 1922, was valid ?

The reference was heard by Blackwell J. on August 7, 1930.

H.C. Coyajee, with W.B. Pradhan, for the Appellants:

There are two orders in this case, the one passed by the Commissioner on December 6, 1921, and the other passed by the Assistant Collector on August 29, 1922. The second is ancillary to the first. If these orders are illegal and ultra vires I can neglect them, and I am entitled to proceed with my suit; but if not, then my suit is barred u/s 11 of the Revenue Jurisdiction Act

In order to determine whether the order of 1921 is legal or illegal, it is necessary to consider the relevant provisions of the Land Revenue Code. The discussion can be divided into three heads: (1) what are the statutory powers of revenue authorities for imposing land revenue; (2) what are the statutory powers for enforcing payment of such land revenue; (3) what are the statutory powers as to appeal and revision in revenue matters. First, the provisions as regards imposition of land revenue will be found in Chapter VI. The heading of the Chapter is: " Of the grant, use and relinquishment of unalienated land." The material provision is in Section 62, which gives the Collector power to grant unoccupied land subject to conditions. It is the only provision which either the Collector or the Commissioner could invoke for imposing conditions. If the Collector had given an option to the Plaintiff at the start, the Plaintiff would either have accepted the conditions imposed or rejected the offer altogether. But all this should happen " before permission to occupy is given u/s 60." It is not open to the revenue authorities to impose fresh conditions on the Plaintiff two and a half years after he has gone into possession of the land and sunk his own money to make the land cultivable. The Commissioner in making his order has not acted u/s 62; the order is, therefore, illegal. Secondly, if arrears of land revenue are validly claimable and not paid, an order of forfeiture follows as indicated in Sections 56 and 57. Chapter XI deals specifically with " the realization of land revenue and Other revenue demands." Liability to pay land revenue is defined by Section 136. What arrears of land revenue are is. shown in Sections 146 and 147. Section 150 lays down six different processes by which arrears of land revenue can be recovered. The order of 1921 by the Commissioner was simply to pay up; there was nothing to show that the land was to be forfeited. The order must be specific and should not leave the subject to speculate about the intention of the maker of the order. The statutory consequences of non payment are enumerated in Section 150. The consequence may either be forfeiture (Section 153), or sale of defaulter''s moveable (Section 154) or immoveable property (Section 155), or arrest and imprisonment of the defaulter (Sections 157, 158). The Commissioner''s order being thus ultra vires could be ignored. See (1927) L.R. 54 I.A. 380 (Privy Council) at p. 394. Thirdly, the provisions as to appeals are contained in Chapter XIII. Sections 203 to 210 relate to appeals. The exercise of revision powers is g(c)verned by Section 211. No period of limitation is provided for the exercise of the power. It may be so. The position still is this. The order which the revising authority may pass must be one which he may pass under the Code or an order which the Collector may pass under the Code. It cannot be any whimsical or fanciful order. All that is open to the Commissioner to do is to pass an order conformable to Section 62. Under the Section, the Collector could have asked the Plaintiff to pay a sum of money for the grant of land or not to go in for the land if the money. was not paid. He could not have ordered the Plaintiff to go into possession of the land and pay Rs. 12,000 odd. If the Collector cannot do so, the Commissioner also could not do so in revision. Under Clause 3 of Section 211 the power of the revising authority is to modify, annul or reverse the order or "he may pass such order thereon as he deems fit." The phrase quoted above does not mean that the Commissioner can pass even an unreasonable order. The order says: " The proper occupancy price...should be recovered from Capt. Nulkar." There is no warrant for such an order in the Land Revenue Code. The order is also bad, because the Commissioner could claim occupancy price u/s 62 only for lands which are unoccupied. In the present case, at the date of the Commissioner''s order the land was occupied. The scope of Section 62 becomes clear when it is read with Sections 60 and 61. To say the least, the Commissioner''s order places the Plaintiff in an impossible position.

P.B. Shingne, Government Pleader, for the Secretary of State:The grant in this case was made under the Land Revenue ''Code, and would be governed by the rules made under the Code. It was not a contract. It was a grant to a person, a sort of a free grant subject to certain remission for a certain length of time. When the Plaintiff applied for a grant of lands, he knew full well that the grant could only be under the provisions of the Land Revenue Code. The Collector''s power of making grants are limited by the Code and the rules made thereunder. He has to keep within the rules when making a free grant. Rule 39 of the rules framed u/s 214 of the Land Revenue Code requires that a grant of revenue free lands, assessment of which exceeds one hundred rupees, can be made only " with the previous sanction of the Commissioner ". This procedure was not followed. Whether the Collector acts within or beyond his powers his order is liable to be revised by the Commissioner u/s 211 of the Land Revenue Code. The Commissioner is not bound by any limitation. See Parapa Virupakshapa Hundekar v. The Secretary of State for India (1891) P.J. 230 and Dattatraya v. Secretary of State (1929) 81 Bom. L.R. 1235. He may intervene at a time which may not be convenient to the occupier. Some hardship may result. Nonetheless the High Court will not interfere with the Commissioner''s order u/s 211. Every one who takes a grant under the Land Revenue Code takes it subject to the possibility of higher authorities intervening and modifying the grant. The grant here was a free grant. The Plaintiff took it as a grantee. He was not in the position of a contracting party, and was not in the position of a bona fide purchaser for valuable consideration. The grant was liable to be upset or modified. These considerations will Have to be kept uppermost in approaching this case.

u/s 211 the Commissioner, it is true, cannot pass fanciful or whimsical orders. But if the contention of the other side is allowed, the revision power would be almost nil. Sections 192 and 193 give certain clues as to the manner in which revenue inquiries should be conducted. It cannot be said that Section 211 clothes the Commissioner with arbitrary powers; but still it gives him a wide discretion. He could pass any order, provided that the order could be passed under the Land Revenue Code. He can exercise any power which could be exercised under any Section of the Land Revenue Code or the rules made thereunder. It is open to the Commissioner to say in revision that in a free grant the grantee should pay full occupancy price and also assessment from the start. In effect, the Commissioner here has confirmed the grant but modified the conditions of the grant. It was open to the Collector to have charged full occupancy price and levy assessment from the date of the grant. It is equally open to the Commissioner to do the same in revision. The Commissioner has only changed the conditions attaching to the grant. It was open to the Plaintiff to have surrendered the land if he found the changed conditions unacceptable. He did not do so; but paid up only the arrears of assessment and retained the land.

It cannot be said that the Commissioner''s order is ultra vires merely because it does not give the Plaintiff an option to surrender the land. As a matter of fact the option always remained with the Plaintiff. Is it correct to say that the order is void, simply because it does not say that the land would Be forfeited if the occupancy price were not paid. At the most the order does not mention its ancillary effect, and assuming that it was not happily expressed it cannot be said that it is ultra vires. ,Even if the order is unhappily expressed or is wrong, it is binding unless it is upset on appeal. See Malkarjim v. Narhari (1900) 25 Bom. 337 at p. 347. The remedy of the Plaintiff was by way of appeal under Sections 203 and 204. The Code is to that extent self-sufficient.

The construction sought to be put on Section 62 is not correct. When the Commissioner proceeds to revise the order he has to assume that the land is unoccupied. In fact the occupation of the land was subject to the incident that the conditions might be revised by the Commissioner.

Coyajee, in reply. The question here is an extremely narrow one. On the order of the Commissioner as presented to the Plaintiff, was he bound to appeal? Was the order legal ? On the face of the document, is it so very clear that the Plaintiff was bound to appeal ?

The position is this. The Plaintiff was called upon to pay Rs. 12,000. If he did not pay, the revenue authorities could have arrested him u/s 157. "If he was so arrested, could he have pleaded in defence that the order had only asked him to pay up and nothing more. That is the test. The order as it is must be construed strictly, for it deprives the subject from exercising the common law right to go to the civil Court.

The Plaintiff paid the assessment under protest. How does the fact of payment make the initial order an appealable order ?

Blackwell, J.

The Chief Justice and Baker J. having differed on a point of law, the following questions have been referred to me for decision:

Whether the order of the Commissioner of December 6, 1921, Exhibit 31 (the substance of which was communicated to the Appellant Capt. Nulkar by the document Exhibit 35), was valid?

Whether the order of the Assistant Collector dated August 29, 1929, was valid ?

The facts necessary for the determination of these questions may be stated shortly. The first Plaintiff in the suit out of which the present appeal arises (hereinafter referred to as the Appellant, the second Plaintiff being his wife who claimed under him by virtue of a deed of gift) applied to the Collector of East Khandesh for a grant of land. On May 21, 1919, the Collector passed an order Exhibit 31, granting to the Appellant the land therein mentioned subject to certain conditions, of which the material conditions are (1) " Freedom from payment of occupancy price," and (3) " Freed of assessment till the land is brought under cultivation, afterwards payment of the land revenue and local fund cess as usual."

At this date the land was unoccupied. On July 10, 1919, an agreement was signed by the Appellant accepting the land on these terms Exhibit 41. Thereupon the Appellant went into occupation and spent money in developing the land.

On December 6, 1921, the Commissioner for the District passed an order addressed to the Collector of East Khandesh Exhibit 34, which after setting out the terms of the grant, stated that the grant was opposed to the order of Government in respect of the grants of land for war service, that it could only be held to have been made by the Collector under the Land Revenue Code, and that as such it was illegal as the Collector had no power to make the grant without the sanction of the Commissioner. The order then stated as follows:The Commissioner, however, is not inclined to withdraw the grant from Captain Nulkar altogether. He therefore directs that the proper occupancy price according to the full market value of the land on the date on which the grant was originally made, i.e. in May 1919, should be recovered from Captain Nulkar and the ordinary land revenue (consolidated) should be recovered from the year 1919-20," and it directed that the Appellant should be informed of the issue of these orders. It does not appear that the Appellant was ever served with this order, which was addressed, not to him, but to the Collector of East Khandesh.

Next the Appellant received a letter dated December 15. 1921, Exhibit 35. which, omitting formal parts, is in the following terms:

I have the honour to inform you that the Commissioner. C.D., has ordered to recover from you the full occupancy price of the land of Asoda granted to you according to the full market value of the land on the date on which the grant was made and the consolidated Land Revenue from the year 1919-20. The value of the land on the date on which the grant has been made is estimated by the Panchas at Rs. 12,075 and the consolidated land revenue of the land '' from the year 1910-20 comes to Rs. 355-3-3. The Local Fund on Rs. 12,075 comes to Rs. 750-11-0. Thus the total amount you have to pay is Rs. 13,184-14-3. You are therefore requested to remit the amount into Government Treasury within a period of one month.

The Appellant did not appeal against the order of the Commissioner as communicated to him in this letter. He did not pay Rs. 12,075, as demanded. He paid under protest Rs. 355-11-0 on account of land Revenue, Exhibit 37.

On August 29, 1922, the Appellant was served with an order issued by the Assistant Collector, Exhibit 38, declaring the lands to be forfeited to Government for non-payment of the occupancy price and local cess fund. From this order, the Appellant appealed to the Collector, but this appeal was dismissed by the Collector as time-barred, Exhibit 42. The Appellant-preferred no appeal against this order of the Collector.

The Appellant and his wife having been dispossessed of the lands, brought the suit out of which this appeal arises against the Secretary of State for India in Council and the second Defendant to whom the lands were granted after they were dispossessed.

The answers to the questions submitted to me depend upon the true construction of Section 211 of the Bombay Land Revenue Code of 1879. That Section empowers the officers therein mentioned to call for the records and proceedings of a subordinate revenue officer for the purpose of satisfying themselves as to the legality or , propriety of any decision or order passed, and it authorises the superior officer, if it should appear to him that any decision or order or proceedings so called for should be modified, annulled, or reversed, to pass such order thereon as he deems fit.

The Government Pleader relies upon this Section as justifying the order of the Commissioner dated December 6, 1921, and submits that if that order was valid, the suit out of which this appeal arises would not lie having regard to Section 11 of the Bombay Revenue Jurisdiction Act, 1876. Mr. Coyajee for the Appellant admits that there is no time limit to the Commissioner''s power u/s 211 of the Land Revenue Code, and he concedes that if the order of December 6, 1921, was valid, his suit will not lie, as he preferred no appeal against that order. He contends however that that order was ultra vires and invalid, and if that be so, he submits on the authority of (1927) L.R. 54 I.A. 380 (Privy Council) at p. 894. that he was not obliged to appeal against the order, and could bring his suit if he was dispossessed. The Government Pleader concedes that if the order was ultra vires and invalid, it could be disregarded, and that the suit would then lie.

In order to determine the validity of the order it is necessary to refer to certain Sections of the Land Revenue Code. Section 60 requires any person desirous of taking up unoccupied land which has not been alienated to obtain the permission in writing of the Mamlatdar or Mahalkari. Section 62 empowers the Collector (inter alia) to require the payment of an occupancy price in, connection with the grant of unalienated land, and provides that such price (if any) shall be recoverable as an arrear of land revenue. Sections 56 and 57 provide that failure to pay arrears of land revenue, shall render the lands liable to forfeiture, and that the Collector may take possession of lands so forfeited and dispose of the same. Section 153 empowers the Collector to declare the land in respect of which an arrear of land revenue is due to be forfeited to Government, and to sell or otherwise dispose of it under the provisions of Sections 56 and 67. Section 150 sets out the various processes by which arrears of land revenue may be recovered, among them being distraint and sale of the defaulter''s moveable property, sale of the defaulter''s immoveable property, and arrest and imprisonment of the defaulter. If then the order of December 6, 1921, is valid, in addition to the other penalties above referred to, the Appellant was liable to arrest and imprisonment for non-compliance with the order.

The Government Pleader admits that in exercising his powers u/s 211 of the Land Revenue Code, the Commissioner can only pass such an order as he could properly pass under the Code itself and the Rules made thereunder. The question therefore arises as to whether the Commissioner could make the order of December 6, 1921, without giving the Appellant as an alternative the option of vacating the land. The answer to this question seems to me to depend upon another question, namely, whether either the Collector or the Commissioner could in the first instance have insisted upon the Appellant taking the land upon the terms that he should pay Rs. 12,075 as the occupancy price. In my opinion it is plain that they could not have done so. A person desirous of taking up unoccupied land must obtain permission to do so, and Section 62 authorises the Collector to require the payment of an occupancy price. But if the payment of an occupancy price is sought to be imposed condition of taking up the land, the applicant is perfectly free to decline to take it up. Neither the Collector nor the Commissioner could insist upon an applicant signing an agreement and taking up the land on the terms sought to be imposed by them, if he were unwilling to do so. The result, therefore, of the order made by the Commissioner on December 6, 1921, is that the Appellant has had forced upon him lands subject to terms which he might never originally have been willing to agree to, and such terms must be treated as written into the agreement which he originally signed. In my opinion the making of such an order was beyond the powers of the Commissioner. It is, in my judgment, in no sense a modification of the Collector''s order. It is a new order, imposing upon the Appellant terms which he has never been given an opportunity of refusing. Such an order is in my opinion entirely outside the scope of Section 62 of the Land Revenue Code, and this is the only Section under which an occupancy price can be fixed. I hold therefore that the order of December 6, 1921, is for this reason invalid. It follows that the second order of August 29, 1922, which was founded upon the first order, is equally invalid.

The Government Pleader has contended that a right to vacate the land if the Appellant should be unwilling to pay the occupancy price is implied in the order of December 6, 1921. I do not agree with this contention. So far from this being the case, the order states that the Commissioner is not inclined to withdraw the grant, and it directs that the occupancy price should be recovered from him. Moreover, the letter dated December 15, 1921, which was sent to the Appellant called upon him to pay the occupancy price and other sums therein mentioned within one month. As regards that document it certainly cannot be contended that any right to vacate the land could be implied. If the Appellant had been arrested for non-payment, he could not in my opinion have been heard to say that a right to vacate the land was implied either in the letter served upon him, or in the order of December 6, 1921, and that he wished to vacate the land. Further, in my judgment an order of this character must be plain in its terms, and the person served ought not to be driven to speculate as to whether any term is implied which will give him some right which is not plainly stated in the order. In my opinion the only direction communicated to the Appellant was that he was to pay a sum of money, and nothing more.

The Government Pleader further contended that any person taking up unoccupied land must be deemed to know that he takes it subject to the power of revision conferred upon a superior officer by Section 211 of the Land Revenue Code to pass such order in regard to the land as he deems fit. This is no doubt the case, but it does not affect the question whether, in purporting to modify the original order, the Commissioner is entitled to pass an order, the effect of which will be to force upon the occupant terms which he might never have been willing to agree to originally. It may well be that the Commissioner might have annulled the Collector''s order, and have required immediate possession of the land, or he might, as an alternative, have offered to permit the Appellant to continue in occupation upon certain terms. This he did not do. He merely called upon the Appellant to pay a large sum of money. This in my opinion can in no sense be described as a modification of the original order, but amounts to the making of a fresh order. For the reasons already given by me, I held that the Commissioner had no power to make such an order without giving the Appellant as an alternative the option of vacating the land, and thus placing him in the position in which he would have been originally if the offer had then been made to him to take up the land on those terms, or not, as he pleased.

I answer both the questions submitted to me in the negative.