MANABAI Vs. SOMAJI KALUBHAI MALI

JUDGEMENT

(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 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 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 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 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.) 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, both the orders passed by the Mamlatdar and the Special Secretary require to be quashed and set aside.