Gujarat High Court
Manabai W/O Sahebkhan M Sindhisince ... vs Somaji Kalubhai Mali Deceased Through ... on 28 August, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/457/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 457 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MANABAI W/O SAHEBKHAN M SINDHISINCE DECD. THRO HER HEIR & LR
& 1....Petitioner(s)
Versus
SOMAJI KALUBHAI MALI DECEASED THROUGH LEGAL HEIRS &
5....Respondent(s)
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Appearance:
(MR KD VASAVADA), ADVOCATE for the Petitioner(s) No. 1 - 1.1.3 , 1.2 ,
1.2.4 - 1.2.7 , 1.3 - 1.7 , 1.7.8 - 1.7.10 , 1.8 , 2 - 2.4
MR DEVAN PARIKH, SR.ADV. FOR MR DEVARSHI C SHAH, ADVOCATE for
the Petitioner(s) No. 1.1 - 1.1.3 , 1.2.4 - 1.2.7 , 1.3 - 1.8
NOTICE NOT RECD BACK for the Petitioner(s) No. 1.1.1 - 1.1.3 , 1.2.4 - 1.2.7 ,
1.3 - 1.8 , 2.1 - 2.4
MR BHARAT VYAS, AGP for the Respondent(s) No. 4 - 6
MR SN SHELAT, SR.ADV. FOR MR TUSHAR CHAUDHARY, ADVOCATE for
Page 1 of 24
C/SCA/457/1994 CAV JUDGMENT
the Respondent(s) No. 1.1 - 1.6 , 2 - 3
MR SHALIN MEHTA, SR.ADV., FOR MS VIDHI J BHATT, ADVOCATE for the
Respondent(s) No. 1.1 - 1.6 , 2 - 3
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 28/08/2014
CAV JUDGMENT
1. This petition has been filed by the petitioners for quashing and setting aside order at Annexure-J dated 16- 12-1991 passed by the Mamlatdar, Deesa, in Devasthan Case No.1 of 1985, order at Annexure-M dated 30-8- 1993 passed by the Collector, Banaskantha, in Devasthan Appeal No.97 of 1992 and also order at Annexure-N dated 1-1-1994 passed by the Special Secretary(Appeals), Revenue Department, in Revision Application No.2 of 1993 and Appeal No.3 of 1993 and for holding and declaring that Okha Kacharaji Koli was the inferior holder of the land in question on 15-11-1969 and accordingly, petitioner No.2 was inferior holder by inheritance and petitioner No.1 by obtaining the said rights.
2. Facts arising from this petition are that land bearing Page 2 of 24 C/SCA/457/1994 CAV JUDGMENT New Survey No.21 (Old Survey No.315) admeasuring 5 Acres and 36 Gunthas was initially held by Rajpur Math under the provisions of Gujarat Devasthan Inami Abolition Act, 1969 ('the Act' for short). The person in possession of Devasthan land as on the date of the Act came into force on 15-11-1969 was to be recognized as the inferior holder and accordingly, petitioner No.2 was to be named as inferior holder under the Act being the holder of the said land. However, both petitioner No.2 and his father were ignorant about the benefits of the Act, name of father of petitioner No.2 could not be entered as inferior holder and therefore, an Entry No.377 dated 29-10-1971 was made surrendering the said land to the Government. Upon the death of petitioner No.2's father, petitioner No.2 started cultivating the land from 1980-81 onwards by entering his name in the Village Form 7/12. Petitioner No.2 then filed RTS Appeal No.28 of 1989 before the Deputy Collector, Palanpur, for setting aside Entry No.377 and entering his name as inferior holder of the said land. Said RTS Appeal was allowed by Deputy Collector vide order dated 31-12-1980 whereby Entry No.377 was set aside. Thereafter, entry No.712 was made on 2-1-1981 Page 3 of 24 C/SCA/457/1994 CAV JUDGMENT and it was approved on 4-2-1981. Petitioner No.2 thereafter sold the said land to petitioner No.1 for a consideration of Rs.41,000/- by registered sale deed dated 11-2-1981 and accordingly, name of petitioner No.1 was entered in Village Form No.7/12 as Entry No.727 dated 13-2-1981 and she has been cultivating the said land being in possession since then. However, respondent No.1 and his mother Dhaniben filed revision application against petitioner No.2 before the Collector challenging the order dated 31-12-1980 passed by the Deputy Collector in RTS Appeal No.28 of 1989. Since petitioner No.1 was not made as a party in the said revision, an application was filed on 1-2-1983 for being joined as a party. The Collector, upon hearing learned advocates for the petitioner No.1 and petitioner No.2, remanded the matter vide order dated 9-8-1983 specifically directing the Mamlatdar to hear all interested parties before passing final order. As no notice was issued by the Mamlatdar, petitioner No.1 was not knowing anything about these proceedings. Petitioner No.2 defended the proceedings on his own. Application filed by the petitioner No.2 to cross examine Bai Dhaniben, mother of respondent No.1, was rejected Page 4 of 24 C/SCA/457/1994 CAV JUDGMENT by the Mamlatdar. Ultimately, the Mamlatdar decided the matter by judgment and order dated 16-12-1991 passed in Devasthan Case No.1 of 1985. Against the said judgment and order, petitioners preferred Devasthan Appeal No.1 of 1992 before the Deputy Collector. Said appeal was allowed on 1-9-1992 holding late Okhaji Kacharaji as inferior holder on 15-11-1969 and by inheritency, petitioner No.2 was held to be the inferior holder and entry No.712 dated 2-1-1981 was ordered to be restored. Entry No.2208 dated 3-9-1992 was posted by Talati-Cum-Mantri, Palanpur based on the order of Deputy Collector. Similarly, Entry No.2209 dated 3-9- 1992 was also made. In pursuance of death of Dhaniben (mother of respondent No.1), her children namely, Ramilaben Mafatlal Mali, Kantilal Mafatlal Mali (respondent Nos.2 and 3 respectively) and respondent No.1 Somaji Kalujibhai Mali being heirs preferred Devasthan Appeal No.97 of 1992 before the Collector,Palanpur. Said appeal was allowed by the Collector by judgment and order dated 30-8-1993. Being aggrieved by the said judgment and order, the petitioners preferred Revision Application No.2 of 1993. The petitioners also preferred Appeal No.3 of 1993 Page 5 of 24 C/SCA/457/1994 CAV JUDGMENT against the order of Mamlatdar dated 16-12-1991 before the Special Secretary (Appeals), Revenue Department. Both these matters were heard and decided together by common judgment and order dated 1-1-1994, which is giving rise to the present petition.
3. Heard learned Senior Advocate, Mr.Devan Parikh for Mr.D.C.Shah, for the petitioners, learned Senior Advocate, Mr.S.N.Shelat for Mr.Tushar Chaudhary, for respondent Nos.1 to 3, learned Senior Advocate, Mr.Shalin Mehta for Ms.Vidhi J.Bhatt, for respondent Nos.1 to 3 and learned AGP, Mr.Bharat Vyas, for respondent Nos.4 to 6.
4. Learned Senior Advocate, Mr.Devan Parikh, submitted that there is a jurisdictional error going to the very root of the matter and hence, the impugned order cannot survive. According to him, against the order passed by the Mamlatdar, appeal shall lie directly to the Special Secretary, Revenue Department(Appeals) and not before the Deputy Collector or the Collector by way of RTS proceedings. The respondents preferred RTS proceedings before the Collector and not before the Special Secretary, Revenue Department and therefore, Page 6 of 24 C/SCA/457/1994 CAV JUDGMENT both the orders passed by the Mamlatdar and the Special Secretary require to be quashed and set aside. 4.1 Learned Senior Advocate, Mr.Parikh, further submitted that principles of natural justice have been violated in this case as the person, who purchased the property i.e. petitioner No.1, widow of Sahebkhan Sindhi, was not heard before passing the order. He further submitted that while passing the order on remand, the learned Mamlatdar did not consider the facts that entry dated 2-1-1981 was certified on 4-2-1981 declaring Koli Manaji Okhaji as the 'inferior holder'; that entry No.717 dated 13-2-1981 was certified on 16-3- 1981 stating that Manabai Sahebkhan Sindhi had purchased the property by registered sale deed dated 11-2-1981 and that the revenue records show that the purchaser Manabai was the owner from 1981 and therefore, it was imperative for the learned Mamlatdar to have heard the petitioner No.1 being a necessary, interested and proper party before passing the order on remand by the Collector more particularly when the Collector while remanding the matter had specifically ordered to hear all the interested parties. He, therefore, Page 7 of 24 C/SCA/457/1994 CAV JUDGMENT submitted that since petitioner No.1 being an interested and proper party was not heard before passing impugned order by the Mamlatdar, the matter requires to be remanded before the Mamlatdar for a fresh hearing and decision on merits on affording an opportunity of hearing to petitioner No.1. In this connection, he relied on the following decisions:
i) Shankerlal Ambalal v. Union of India, 1990(1) G.L.H. (U.J.) 33;
ii) Thomson Press(India) Ltd. v. Nanak Builders and Investors Pvt. Ltd., (2013)5 SCC 397; and
iii) Nisha Devi Vs. State of H.P., 2014(3) SCALE 132;
4.2 Learned Senior Advocate, Mr.Parikh, further submitted that cross-examination of Dhaniben, one of the supposed 'inferior holders' has not been granted especially when the Mamlatdar made a reference to statement of Dhaniben in the impugned order and therefore, the basic principle of natural justice has been denied and hence also, matter requires to be remanded. 4.3 Apart from the above, he submitted that there is an unexplained delay in preferring the revision. According to him, against the order of the Deputy Collector dated Page 8 of 24 C/SCA/457/1994 CAV JUDGMENT 31-12-1980, revision was filed on 15-12-1982 and therefore, there is a delay of two years in preferring the revision. He submitted that no application for condonation of delay has been filed nor have any reasons for such a delay been assigned in the revision and hence, there is a jurisdictional error going to the root of the matter and therefore also, on the aspect of condonation of delay, the impugned order cannot be sustained and on that count also, matter requires to be remanded.
4.4 On merits, learned Senior Advocate, Mr.Parikh, submitted that order passed by the Mamlatdar is based on the order passed by the Collector on remand and when order passed by the Collector suffers from jurisdictional error in view of the aspect that issue of condonation of delay has not been dealt with by the Collector, both the orders passed by the Collector and consequent order passed by the Mamlatdar are unsustainable. Taking this Court through the history of the present proceedings, he submitted that order of the Mamlatdar exercising power under the Enamdari Act declaring Mana Okha as 'inferior holder' by entry Page 9 of 24 C/SCA/457/1994 CAV JUDGMENT No.712 dated 2-1-1981 was never challenged by the respondents and the proceedings challenged by the respondents are by way of RTS Revision before the Collector challenging the order dated 31-12-1980 passed by the Deputy Collector in RTS proceedings and not entry No.712 contained in the order under Enamdari Act. Still, however, the Collector set aside the entry No.712 and hence, the order passed by the Collector setting aside Entry No.712 and directing the Mamlatdar to hold inquiry afresh under the Enamdari Act is ex-facie without jurisdiction. In view of the above, he submitted that the order passed by the Mamlatdar which is based on the order passed by the Collector setting aside Entry No.712 is without any jurisdiction. In this regard, he relied on a reported decision of this Court in the case of Evergreen Apartment Co-operative Housing Society v. Special Secretary, Gujarat State in 1991(1) G.L.R. 113. 4.5 Learned Senior Advocate, Mr.Parikh, also submitted that as per Sections 2(9) and 2(4), definitions of "inferior holder" and "unauthorised holder" are relevant. Section 2(9) defines "inferior holder" as any person, who is in possession of Devasthan land in any Page 10 of 24 C/SCA/457/1994 CAV JUDGMENT manner (because of use of the words "or otherwise") and the definition of "inferior holder" provides that a person in possession based upon alienation which is null and void under any law is "unauthorised holder". In the present case, according to him, Okha Kachra was in possession of the land at the relevant time till he expired in 1980 and upon his death, Mana Okha came in possession till 1981 and he sold the property on 11-2- 1981 to the present petitioner No.1-Manabai Sahebkhan Sindhi and petitioner No.1 is in possession of the property in question since February, 1981 which is proved by panchnama dated 1-2-1994 and order of Deputy Collector under Section 65 of the Bombay Land Revenue Code and therefore, petitioner No.1 is in possession of the property as on date being an "inferior holder" as declared by the Mamlatdar vide order dated 2-1-1981 and certified by Entry No.712 on 4-2-1981 and is paying the land revenue. Moreover, said possession has not been disputed at any point of time by filing a suit by the respondents and, therefore, he prayed to allow this petition.
5. Learned Senior Advocate, Mr.S.N.Shelat, assisted Page 11 of 24 C/SCA/457/1994 CAV JUDGMENT by learned advocate, Mr.Tushar Chaudhary, on the other hand, submitted that all the petitioners including the purchaser of the property preferred Appeal No.1 of 1992 and said appeal was allowed by the Deputy Collector on 31-3-1992 and respondents preferred Appeal No.97 of 1992 before the Collector, Palanpur, which was allowed by the Collector on 30-8-1993 and thereafter Revision Application No.2 of 1993 and Appeal No.3 of 1993 were preferred by the petitioners before the Special Secretary (Appeals), Revenue Department, and common order passed therein on 1-1-1994 is impugned herein. Taking this Court through running page 127 onwards, he submitted that from 25-10-1957, entry No.5 regarding Survey No.375 of Kalubhai Vasabhai i.e. father of Somaji Kalubhai, the respondent No.1, which is the subject matter had been certified and on 21-7-1966, the heirs of deceased Kalubhai Vasabhai were shown by entry No.256 and therefore, the respondents are in possession from 1957. He took this Court through page 61, which is the order passed by the Collector, and submitted that entry No.712 is in favour of respondents and said order is not the subject matter of controversy by the petitioners as the entry part is also accepted by the Page 12 of 24 C/SCA/457/1994 CAV JUDGMENT petitioners and now they cannot argue on the said point. Drawing my attention towards page 70, he submitted that entry No.712 was not in existence when section 4(1) was canvassed by the respondents and when Mamlatdar was deciding the matter under Section 4(1), their entry was already deleted and only two claimants were in existence. He further submitted that proceedings under Sec.4(1) were initiated from 17-10-1983 and concluded by judgment dated 16-12-1991, copy of which is at page 91, declaring that respondents were declared as "inferior holders'. Taking this Court through page 109 and the definition of "inferior holder" as defined under section 2(9) of the Gujarat Devasthan Inami Abolition Act, 1969, he submitted that not a single document has been placed on record to suggest that petitioner No.1 is in possession bearing new Survey No.21 admeasuring 5 Acres and 36 gunthas either by inheritence or succession or valid transfer under the tenancy law or otherwise and hence, petitioner No.1 has no claim whatsoever in the Devasthan land. Therefore, petitioner No.1 is not necessary party and at the best petitioners are proper party and they were heard all-throughout and according to him, no prejudice was caused to the petitioners. Page 13 of 24 C/SCA/457/1994 CAV JUDGMENT 5.1 In this connection, learned Senior Advocate, relied on the decision of Hon'ble Apex Court reported in AIR 1997 Supreme Court 1300 more particularly paragraph No.17 and submitted that since the petitioners have gone in appeal and contested the appeal, no prejudice is caused to them. Learned Senior Advocate also relied on the following decisions:
i) AIR 1997 SC 1300 in the case of the United Planters Association of Southern India v. K.G. Sangameswaran;
ii) (2008)9 SCC 31 in the case of Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja;
iii) AIR 1984 SC 38 in the case of Mohd. Yunus v.
Mohd. Mustaqim and others;
iv) AIR 1975 SC 1297 in the case of Babhutmal Raichand Oswal v. Laxmibai R. Tarte and another; and
v) 2008 (10) JT 56 in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (Deceased) Through Lrs. & Ors.
6. Learned Senior Advocate, Mr.Shalin Mehta, for learned advocate, Ms.Vidhi J. Bhatt, however, submitted that so far as the hearing is concerned, there is no violation of principle of natural justice in this case and therefore, matter need not be remanded. Taking this Court through the definition of "inferior holder", he submitted that there is not a single document showing Page 14 of 24 C/SCA/457/1994 CAV JUDGMENT petitioners' possession over the property like tenancy right, order, sale deed or any will in their favour. He further submitted that nothing has come on record to shake the conscience of this Court that this is a case where petitioner No.2 was there right from inception while 19 reasons have been assigned by the Special Secretary holding in favour of the respondents. He further submitted that the Collector specifically mentioned 'hithdharo' which means that the interested parties under the Act. According to him, Sahebkhan is certainly a purchaser and not an "inferior holder" for which, sufficient reasons are given in the order itself. 6.1 He further submitted that on merits also, under Section 2(9), petitioners have no case to claim the status of "inferior holders" and burden certainly lies on them to show that they are inferior holders and they have failed in the same as nothing was there in their favour. According to him, both the authorities namely, the Special Secretary and the Mamlatdar have held that "inferior holders" are respondent Nos.1 and 2 and not the petitioners and since the petitioners failed under Section 2(9), they have no case.
Page 15 of 24 C/SCA/457/1994 CAV JUDGMENT 6.2 On the point of jurisdiction, he submitted that extraordinary discretionary jurisdiction under Article 226 of the Constitution is only meant for correcting reversible error. According to him, two orders, which are well reasoned considering all the aspects of the matter, are in favour of the respondents and petitioners could not show any illegality or perversity in the same. Taking this Court through panchnama at running page 157, he submitted that petitioner No.1 is a dubious purchaser and therefore, this petition requires to be dismissed.
6.3 Drawing attention of this Court towards running page 190, Mr.Shalin Mehta submitted that Entry No.5 in 1958 is the first entry in point of time, Entry No.256 is the second entry made in 1966 and Entry No.377 is the third one made in 1970. He further submitted that the petitioners have taken advantage of filing RTS Appeal No.21 of 1988 contending that the land in question was wrongly vested in the State Government and therefore, Entry No.377 is required to be cancelled. He further submitted that petitioner No.1 being a dubious and Page 16 of 24 C/SCA/457/1994 CAV JUDGMENT clandestine purchaser has no right of being heard. He, therefore, submitted that no case is made out for interference by this Court against the order dated 16-12- 1991 passed by the competent authority under the Act and confirmed in Revision Application and Appeal by the Special Secretary, Revenue Department, State of Gujarat, by order dated 1-1-1994.
7. I have considered the rival submissions made by the learned Senior Advocates appearing for the respective parties together with the decisions relied on by them. There cannot be any dispute regarding the principles laid down in the decisions cited by them. Keeping in mind the principles laid down therein, I proceed further.
8. In order to determine the controversy involved in the matter, the factual matrix of the matter is required to be kept in mind. Land bearing New Survey No.21 (Old Survey No.315) admeasuring 5 Acres and 36 gunthas was initially held by Rajpur Math under the Act and the person in possession of Devasthan land at the relevant time of the Act i.e. on 15-11-1969 was to be recognized Page 17 of 24 C/SCA/457/1994 CAV JUDGMENT as the inferior holder. It is to be noted that for one reason or the other, petitioner No.2 or his father was not recognized as "inferior holder" and therefore, an Entry No.377 dated 29-10-1971 was made surrendering the land to the Government. According to the petitioners, petitioner No.2 cultivated the said land from 1980-81 onwards consequent upon his father's death by entering his name in the Village Form 7/12. Record shows that petitioner No.2 filed RTS Appeal No.28 of 1989 before the Deputy Collector, Palanpur, for entering his name as inferior holder of the said land by setting aside Entry No.377. Said entry No.377 was set aside by Deputy Collector vide order dated 31-12-1980 passed in said RTS Appeal and entry No.712 was made on 2-1-1981 and approved on 4-2-1981. Said land was thereafter sold by petitioner No.2 to petitioner No.1 by registered sale deed dated 11-2-1981. Name of petitioner No.1 was thereafter entered in Village Form No.7/12 as Entry No.727 dated 13-2-1981. In the meantime, respondent No.1 and his mother Dhaniben challenged the order dated 31-12-1980 passed by the Deputy Collector in RTS Appeal No.28 of 1989 before the Collector by way of revision. As petitioner No.1 was not made as a party in Page 18 of 24 C/SCA/457/1994 CAV JUDGMENT the said revision, an application was filed for being impleaded as party on 1-2-1983. On conclusion of hearing, the Collector remanded the matter vide order dated 9-8-1983 to Mamlatdar for a decision afresh after hearing all interested parties. However, it appears that no notice was issued by the Mamlatdar on petitioner No.1 and therefore, petitioner No.2 contested the proceedings. An application filed to cross examine Bai Dhaniben, mother of respondent No.1, was rejected by the Mamlatdar. The Mamlatdar decided the matter on 16-12-1991 against which, Devasthan Appeal No.1 of 1992 was preferred by the petitioners before the Deputy Collector. It was allowed by order dated 31-3-1992 and entry No.712 was restored. Upon the Dhaniben's death, her heirs filed Devasthan Appeal No.97 of 1992 before the Collector, Palanpur, which allowed vide order dated 30-8-1993. Revision Application No.2 of 1993 was preferred against the said order and against the order of Mamlatdar dated 16-12-1991, Appeal No.3 of 1993 was preferred before the Special Secretary (Appeals), Revenue Department. Both the revision and appeal were heard and decided together by common judgment and order dated 1-1-1994.
Page 19 of 24 C/SCA/457/1994 CAV JUDGMENT
9. From the aforesaid, it appears that in pursuance of revision preferred before the Collector by respondent No.1 and his mother challenging the order dated 31-12- 1980 passed by the Deputy Collector in RTS Appeal No.28 of 1989 setting aside entry No.377 surrendering the land to Government, petitioner No.1 was not made as a party and therefore, when matter was remanded by the Collector to the Mamlatdar for a decision afresh after hearing the interested parties, petitioner No.1, who was the purchaser of the disputed land from the petitioner No.2, was neither issued with any notice nor was he or anybody on his behalf heard. However, petitioner No.2, who got his name entered in the revenue record, was made a party. Mamlatdar did not think it fit to hear petitioner No.1 as she was not an interested party. According to learned Senior Advocate, Mr.Devan Parikh for the petitioners, against the order passed by the Mamlatdar, appeal shall lie directly to the Special Secretary and not before the Deputy Collector or Collector by way of RTS proceedings, however, the respondents preferred RTS proceedings before the Collector and not before the Special Secretary, Revenue Page 20 of 24 C/SCA/457/1994 CAV JUDGMENT Department. Further, no opportunity of hearing was given to petitioner No.1 before passing the order. However, according to the learned Senior Advocates, Mr.S.N.Shelat and Mr.Shalin Mehta, not a single document has been placed on record by the petitioners to suggest that petitioners No.1 is in possession of disputed land either by inheritence or otherwise and hence, since the petitioner No.1 was not necessary party, he was not required to be heard and thereby no prejudice was caused to the petitioners.
10. Another aspect of the matter is that there is a delay in preferring revision. It appears that revision was filed on 15-12-1982 challenging the order of the Deputy Collector dated 31-12-1980 and therefore, a delay of two years appears to have been occasioned in filing the revision. No application for condonation of delay was also stated to have been filed nor any satisfactory and sufficient reasons have been assigned for such an unexplained delay.
11. It further appears that while passing the order on remand, the learned Mamlatdar did not take into Page 21 of 24 C/SCA/457/1994 CAV JUDGMENT account that entry dated 2-1-1981 was certified on 4-2- 1981 stating Koli Manaji Okhaji as the 'inferior holder'. It also appears that entry No.717 dated 13-2-1981 was certified on 16-3-1981 stating that Manabai Sahebkhan Sindhi had purchased the property by registered sale deed dated 11-2-1981. Revenue records also show that the purchaser Manabai was the owner from 1981. Under the circumstances, petitioner No.1 ought to have been heard by the Mamlatdar while passing the order when matter was remanded by the Collector especially when it has been directed by the Collector to hear all the interested parties.
12. All the above aspects do not appear to have been considered by the Mamlatdar before passing the order by affording an opportunity of hearing to all the interested parties. In view of the above, it is in the interest of justice that the matter requires to be remanded for a decision afresh after affording an opportunity of hearing to all the concerned parties including petitioner No.1.
13. In view of the above, this petition is partly allowed. Page 22 of 24 C/SCA/457/1994 CAV JUDGMENT
Order dated 16-12-1991 passed by the Mamlatdar, Deesa, in Devasthan Case No.1 of 1985, order dated 30- 8-1993 passed by the Collector, Banaskantha, in Devasthan Appeal No.97 of 1992 and also common order dated 1-1-1994 passed by the Special Secretary(Appeals), Revenue Department, in Revision Application No.2 of 1993 and Appeal No.3 of 1993 are set aside and matter is remanded back to the Mamlatdar for a decision afresh as early as possible after giving opportunity of hearing to all the concerned parties. Rule is made absolute to the aforesaid extent.
(G.B.SHAH, J.) RADHAN Further order
1. After pronouncement, learned advocate, Mr. N. P. Chaudhary with learned advocate, Mr. Tushar Chaudhary, for the respondent Nos. 1.1 to 1.6, 2 and 3 requested to stay the operation and implementation of this judgment and order.
2. Considering the peculiar facts and circumstances of the case, the request is granted. The operation and implementation of this judgment and order is hereby stayed upto 30th September 2014. Page 23 of 24 C/SCA/457/1994 CAV JUDGMENT
(G.B.SHAH, J.) RADHAN Page 24 of 24