Vipul M. Pancholi,J. - (1.) In this petition, which is filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 04.07.2005 passed by respondent No.1 Special Secretary, Revenue Department (SSRD) in Revision Application No.SRD/NA/ST/7/2002.
(2.) Heard learned advocate Mr.Digant Popat for the petitioners, learned Assistant Government Pleader for respondent Nos.1 to 3 and learned advocate Mr.Viral K. Shah for respondent Nos.4.1 to 4.4.
(3.) Learned advocate for the petitioners submitted that respondent No.4 and one Shri Bhalabhai Bhangadbhai Ahir (father of the petitioner Nos.2 to 4) were cousin brothers and petitioner Nos.2 to 4 are the nephews of respondent No.4. It is submitted that father of respondent Nos.2 to 4 executed an Agreement for Sale dated 07.04.1980 in favour of one Shri Dolatray Maganray Desai in respect of land bearing Survey No.37 admeasuring approximately 9 Acres and 15 Gunthas situated at Village Anjana, Sub-District Choryasi, District Surat. It is the case of the petitioners that respondent No.4 as well as the father of petitioner Nos.2 to 4 had received an amount of consideration from the concerned purchaser. Thereafter, respondent No.4 also executed agreement for development on 06.07.1987. Learned advocate thereafter submitted that respondent No.4 as well as father of petitioner Nos.2 to 4 had executed irrevocable Power of Attorney on 21.01.1988 in favour of petitioner No.1. It is submitted that Regular Civil Suit No.1156 of 1995 was filed by respondent No.4. Learned advocate has referred the details of the civil proceedings which are filed between the concerned parties from the memo of the petition. Learned advocate Mr.Popat thereafter submitted that respondent No.2 Collector vide order dated 16.08.2002 granted permission under Section 65 of the Bombay Land Revenue Code, 1879 ('the Code' for short) for conversion of land from agriculture to nonagricultural use. Copy of the said order is placed on record at Page-64 of the compilation. It is contended that the private respondent herein respondent No.4 challenged the said order passed by the Collector by filing Revision Application before respondent No.1 SSRD. Respondent No.1 SSRD allowed the said Revision Application and, thereby, quashed and set aside the order passed by respondent No.2 Collector. The petitioners, therefore, filed the present petition. 3.1 Learned advocate for the petitioners mainly contended that the dispute with regard to the ownership of the land in question is pending before the concerned Civil Court between the parties. However, when respondent No.2 Collector has passed an order granting permission for conversion of land for non-agricultural purpose while exercising powers under Section 65 of the Code, respondent No.1 SSRD ought not to have interfered with the said order. It is further submitted that the said permission shall be subject to the final out come of the civil proceedings i.e. Regular Civil Suit No.1156 of 2015 and Special Civil Suit No.118 of 2003 pending before the learned Civil Judge (SD), Surat and, therefore, this Court may quash and set aside the impugned order passed by respondent No.1 SSRD. 3.2 Learned advocate for the petitioners has placed reliance upon the decision rendered by this Court in the case of Bhayabhai Vajshibhai Hathalia & Ors Vs. State of Gujarat & Ors. , 2012 2 GLR 1741. ;