1. By way of these petitions under Article 226 of the Constitution of India, the petitioner has challenged order dated 14.06.1993 passed by the Deputy Collector, Patan in Review/RTS/Case No.35 of 1992 and order dated 02.02.1998 passed by the Secretary (Appeals) in SRD/HKP/Meh. No.18 of 1995.
2. As both the petitions are interrelated, the same are dealt with by this common judgment and are hereby disposed of accordingly.
3. The facts narrated in Special Civil Application No.6026 of 1998 are taken as basis of this common judgment which are enumerated as under.
3.1. One Smt.Shardaben Desai, widow of Dahyabhai Desai, was allotted land bearing City Survey Sheet No.46 in City Survey No.86 situated at Harij, original District Mehsana (now District Patan) in the year 1936 by the erstwhile rulers. It appears from the documents on record and further documents produced on record by the learned counsel appearing for the parties that the land in question was sold to predecessor of Smt.Shardaben by erstwhile State with a condition to pay revenue. It appears from the record that thereafter, name of Smt.Shardaben Desai appeared in the revenue records. It further appears from the record that the authorities undertook city survey for Harij town in the year 1976 and by order dated 24.06.1976, classified various types of lands of Harij town.
4. Ms.Asmita Patel, learned A.G.P. also made available the original record of city survey. On perusal of the same, it is found that in the year 1976, an inquiry was conducted by the City Survey authorities. A notice was also given as contemplated under the City Survey and Land Manual in Form-A and B to Smt.Shardaben and after recording the statement, an entry has been made in the concerned sheet i.e. Sheet No.86 whereby, as per the City Survey, the lands in question have been notified as 'B Class'.
5. It also appears from the documents submitted by the learned counsel that there is no such entry in the revenue record to justify that the lands in question were new tenure lands. This Court finds that Sanad in Form-H has been issued by the concerned authority. It appears from the record that the present petitioner purchased the land in question from Smt.Shardaben by way of Registered Sale Deed dated 23.04.1991 and since then, the petitioner is in possession of the land in question. It is the case of the petitioner that on the basis of the said Registered Sale Deed, the entries were mutated in the name of petitioner and the petitioner thereafter, applied for allotment of the adjoining land by application dated 19.12.1991 which came to be rejected. Against which, the petitioner has filed Special Civil Application No.6027 of 1998 which is being disposed of by this common judgment. The petitioner thereafter, preferred a review application before the Deputy Collector, Patan which came to be rejected by order dated 14.06.1993. It is contended that the competent authority i.e. Deputy Collector, Patan, while passing the order, also cancelled the said sale deed and the entries made in favour of the petitioner on the basis of the sale deed, as aforesaid. Being aggrieved by the aforesaid order, the petitioner preferred Revision Application under Section 211 of the Bombay Land Revenue Code which came to be entertained by the revisional authority and by order dated 19.01.1994, the matter came to be remanded back to the Deputy Collector, Patan. On matter being remanded, the petitioner also filed further submissions dated 02.06.1995 and, after considering the same and after giving opportunity of being heard, the Collector, Mehsana by order dated 30.09.1995, rejected the said application and confirmed the earlier order. Against the aforesaid order passed by the Collector, Mehsana, the petitioner filed revision application which came to be rejected by the Secretary (Appeals) by order dated 02.02.1998.
6. This Court (Coram: M.S. Shah, J., as he then was) by order dated 11.02.1999, was pleased to pass the following order:-
"The learned counsel for the petitioner states that the petitioner has not encroached upon any land other than the land which was purchased by the petitioner in the year 1991 and for which the entry was made on 08.05.1991.
Rule. Ad-interim relief granted earlier to continue until further orders on the same condition."
7. Heard Mr.K.A. Vyas, learned counsel appearing for the petitioner and Ms.Asmita Patel, learned A.G.P. appearing for the respondent-authorities.
8. It transpires from both the orders impugned in the present petition that the authorities below have only taken into consideration the fact that as per the property card, the land is of "B category" and, therefore, cannot be transferred without prior permission of the competent authority. However, except the said narration, both the authorities below have not dealt with the aspect whether the land allotted to original owner in the year 1936 with a condition to pay revenue would ipso facto amount for being categorized under "B"
category". It transpires from the documents submitted before this Court that neither the petitioner nor the respondent-authorities have brought to the notice of the Revenue Secretary that even Sanad was issued in Form-H. Though Ms.Patel, learned A.G.P., on the basis of the original record produced before this Court, contended that at the time of City Survey, Smt.Shardaben was issued notice and thereafter, the land in question has been categorized as "B" as per order dated 24.06.1976, however, the authorities below have not considered the original village Form No.2 and the Sanad having been issued in Form-H, as aforesaid.
It is also the case of the petitioner that since the date of purchase, the petitioner is in actual possession of the land in question. Considering the fact that such vital documents have not been considered by both the authorities below and as the fact of issuance of Sanad in Form-H is not at all examined by the Deputy Collector, Patan while passing the first order, this Court is of the opinion that the matter requires relook by the authorities below after considering all the original revenue records and the City Survey proceedings, copies of which are produced by the learned counsel for the parties. It is no doubt true that neither the petitioner nor the respondent-authorities have brought the said fact to the notice of the Revenue Secretary while passing the impugned orders. However, it would be appropriate that the first authority i.e. the Deputy Collector, Patan re-examines the matter after considering the revenue records and City Survey records, as aforesaid.
9. In view of the above, order dated 14.06.1993 passed by the Deputy Collector, Patan in Review/RTS/Case No.35 of 1992 and order dated 02.02.1998 passed by the Secretary (Appeals) in SRD/HKP/Meh. No.18 of 1995 are hereby quashed and set aside and the proceedings are restored to the file of the Deputy Collector, Patan for its fresh hearing.
10. Considering the fact that the issue is pending since long, the Deputy Collector, Patan shall, after giving opportunity of being heard to the petitioner and after considering the records denovo, as per the direction given in this common judgment, dispose of the said proceedings within a period of three months from the date of receipt of copy of the order passed by this Court and take appropriate decision on merits.
11. With the above observations, Special Civil Application No.6026 of 1998 is hereby allowed. Rule is made absolute to the aforesaid extent. As far as Special Civil Application No.6027 of 1998 is concerned, as the orders impugned in Special Civil Application No.6026 of 1998 are quashed and set aside, Special Civil Application No.6027 of 1998 is hereby allowed. Rule is made absolute accordingly.
However, the petitioner shall be at liberty to apply again after the proceedings are decided by the Deputy Collector, Patan, as directed above.
12. With the above observations and directions, both the petitions stand disposed of. No order as to costs.
(R.M.CHHAYA, J.) Hitesh Top