1. Heard Mr.Vibhuti Nanavati, learned advocate for the petitioners and Ms.Nisha M. Thakore, learned Assistant Government Pleader for the respondents. It is submitted by the learned advocate for the petitioners that the land in question had been mortgaged to the father of the petitioners by the daughter of the original owner, after the death of the original owner by way of a registered Mortgage Deed. That the original mortgagee, that is the father of the petitioners, had made an application to the Revenue Authorities to the effect that he is in possession of the land in question since 21.04.1951, when the Mortgage Deed was executed. It is submitted that without appreciating the factual position that the original owner had a daughter, who was his legal heir, the Collector issued a public notice under Section-72 of the Gujarat Land Revenue Code ("the Code", for short), forfeiting the occupancy rights of the land in favour of the State Government. It is contended that the petitioner only came to know regarding the said notice when he saw it in the newspaper, therefore, he filed an objection against the same. Without affording an opportunity of personal hearing, an order was passed by respondent No.2 (the Collector, Surendranagar), who occupied the property in question. Being aggrieved thereby, the petitioners filed a Revision Application before the Additional Secretary (Appeals), that has been dismissed by the impugned order. The learned advocate for the petitioners contends that the very invocation of the provisions of Section-72 of the Code is without jurisdiction, as the said provision can only be exercised when the occupant of a land dies intestate and without any heirs. In the present case, the original owner of the land had a daughter, who was his legal heir and the mortgage in favour of the father of the petitioners has been executed by the daughter, who had become the owner of the property upon the death of her father, therefore, the provisions of Section-72 would not be applicable.
2. Opposing the submissions made by the learned advocate for the petitioners, Ms.Nisha M. Thakore, learned Assistant Government Pleader has submitted that the daughter of the original land owner has executed a conditional Mortgage Deed on 21.04.1951, whereby the occupancy rights have been granted only for 50 years, therefore, the petitioners have no legal right to stay the auction of the land and the provisions of Section-72 have been rightly invoked by the Revenue Authorities.
3. Having heard the learned counsel for the respective parties, it prima-facie appears that the original owner of the land in question has died leaving behind a legal heir, namely, his daughter, who has executed a Mortgage Deed in respect of land in question in favour of the father of the petitioners, therefore, the Court shall have to consider whether it can be said that the occupant of the land in question has died intestate, without leaving behind any heir, or not and whether the powers under Section-72 could have been exercised by the Revenue Authorities, or not.
4. Issue Rule returnable on 23.04.2012.
5. Ms.Nisha M. Thakore, learned Assistant Government Pleader waives service of notice of Rule for the respondents.
6. The status-quo order granted earlier is confirmed and shall continue, till final decision of the petition.
(Smt.
Abhilasha Kumari, J.) ~gaurav~ Top