1.00. Present Special Civil Application under Article 226/227 of the Constitution of India has been preferred by the petitioners, claiming to be villagers of village Bajana, Taluka ; Patdi, District ; Surendranagar challenging the impugned order dtd.26.7.1999 / 7.7.1999 passed by the revisional authority – Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application No.SRD/9 of 1999 by which the revisional authority has allowed the said revision application preferred by the private respondents and has quashed and set aside the order dtd.22/1/1998 passed by the Mamlatdar, Patdi; order 14/5/1999 passed by the Dy.Collector, Dhangadhra and order dtd.24/11/1998 passed by the Collector, Surendranagar. 2.00. It appears that the proceedings under section 61 of the Bombay Land Revenue Code, 1879 were initiated by the Mamlatdar and it was the case on behalf of the private respondents that they are owners of the land in question and road is not passing through their land.
2.01. That all the authorities below, namely, the Mamlatdar, Dy.Collector and Collector held against the private respondents herein. However, in a Revision Application, the revisional authority held that the disputed land in question is of the ownership of the private respondents and therefore, there is no encroachment and therefore, quashed and set aside the orders passed by the authorities below.
2.02. Being aggrieved by and dissatisfied with the impugned order passed by the revisional authority, petitioners herein – villagers of village Bajana have preferred the present Special Civil Application submitting that as such there is a road passing through the very land in question. It is also the case on behalf of the petitioners that in the proceedings under section 61 of the Bombay Land Revenue Code, the authorities below could not have decided the dispute with respect to ownership.
3.00. Having heard Mr.Champaneri, learned advocate appearing on behalf of the petitioners and Mr.J.K. Shah, learned Assistant Government Pleader appearing on behalf of the State, it appears that it is the contention on behalf of the petitioners that in the proceedings under section 61 of the Bombay Land Revenue Code, revisional authority has no jurisdiction to decide the dispute with respect to ownership. There is some substance in the said contention. However, it appears that if there is a dispute with respect to ownership of the land between the Government and the private party, proceedings under section 37(2) of the Bombay Land Revenue Code are to be initiated and/or aggrieved party can initiate appropriate proceedings to claim title over the land. Under the circumstances, it appears that the finding given by the learned revisional authority holding the private respondents as owners of the disputed land in question, cannot be sustained. However, the appropriate authority shall be at liberty to initiate proceedings under section 37(2) of the Bombay Land Revenue Code.
4.00. In view of the above and for the reasons stated above, present Special Civil Application succeeds in part. The impugned order dtd.26.7.1999 / 7.7.1999 passed by the revisional authority – Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application No.SRD/9 of 1999, is hereby quashed and set aside in so far as holding the private respondents herein as owners. However, the same shall be without prejudice to the rights and contentions on behalf of the respective parties to claim title and/or ownership over the land in question by initiating independent appropriate proceedings or to initiate independent proceedings under section 37(2) of the Bombay Land Revenue Code. It will be open appropriate authority to initiate appropriate proceedings under section 37(2) of the Bombay Land Revenue Code. As and when such proceedings are initiated, the same shall be considered in accordance with law and on its own merits. Rule is made absolute to the aforesaid extent. No costs.
[M.R. SHAH, J.] rafik