N.V.ANJARIA,J. - (1.) Heard learned senior advocate Mr.Anshin Desai with learned advocate Mr.Bhaumik Dholariya for the petitioner, learned Assistant Government Pleader Mr.Manan Mehta for the respondent - State, whereas learned senior advocate Mr.Rasesh Sanjanwala with learned advocate Mr.Hitesh Patel and learned advocate Mr.Vimal Patel for private respondent Nos.10 to 13.
(2.) The petitioners herein, who are the revisionist before the Special Secretary (Appeals), Revenue Department - the revisional authority in Revision Application No.119 of 2017, have filed this petition praying to set aside order dated 29th December, 2017/02nd January, 2018 passed by respondent No.1 - revisional authority and has prayed further to allow their stay application filed in the said proceedings. 2.1 The revision application of the petitioners was directed against order dated 24th November, 2017 passed by the Collector, Surat, who, in turn, had confirmed the order of the Deputy Collector dated 10th October, 2017. The Deputy Collector, Kamrej, by setting aside order of the Mamlatdar directed to certify Entry No.1524 dated 25th July, 2011 and the certification was made subject to the observations made in paragraph 10 of the order. In paragraph 10 of the order, the Deputy Collector stipulated that as a condition of certification of the mutation entry, private respondent Nos.10 to 13 herein may pay 25% premium. This condition came to be confirmed by the Collector who directed that until the premium is paid, land shall not be transferred. In other words, the transfer of land was permitted upon payment of premium of 25% by the private respondents. Along with revision application, petitioners prayed for stay of the aforesaid order. Their ground was that the revenue authorities did not have the jurisdiction to pass such order by placing condition of payment of premium for certification of entry and further that in passing such order, the private respondents were allowed to clear the land by paying the premium to the prejudice of the petitioners' rights.
(3.) The subject matter land revenue survey No.49/2 at Village Ved, Taluka Katargam, Surat, admeasuring 01 Hector-83 Are-12 Sq. Mtrs. was a restricted tenure land subjected to the restrictions of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948. The land originally belong to one Jethabhai Vallabhbhai who died on 08th October, 1995, leaving behind him four daughters named Mangiben, Kamuben, Chandanben - all three deceased - and Somiben. Respondent No.7 - Hasmukhbhai and respondent No.9 - Jamnabhai happens to be the son of the deceased Chandanben who had also two daughters named Ushaben - petitioner No.3 herein and deceased Pushpaben. Pushpaben had died on 24th May, 1000. petitioner No.1 - Hinaben and petitioner No.2 - Jaynaben are the daughters of deceased Pushpaben. 3.1 According to the case of the petitioners, Somiben got prepared a forged Will from said Jethabhai Vallabhbhai dated 11th May, 1995 in respect of the land bearing Survey Nos.48 and 49/1 and it was stated that the said Will was further tampered. On the basis of the Will, Entry No.1009 was mutated on 02nd August, 1996 and was certified without service of notice under Section 135D of the Gujarat Land Revenue Code. The challenge to the said entry is presently stated to be pending before the Collector, Surat. 3.2 The petitioners have instituted Special Civil Suit No.427 of 2010 before the Court of learned Principal Senior Civil Judge, Surat, praying to declare the Will to be illegal. Respondent No.7 has also filed Special Civil Suit No.293 of 2010 for similar prayers. It is stated that about alleged conduct of forging the Will, criminal complaint is also filed with Katargam Police Station. 3.3 With these facts in the background, respondent Nos.5 and 6 herein and Pareshbhai C. Patel, now deceased, sold the land bearing Survey No.49/2 by registered sale deeds dated 07th May, 2010 and 13th May, 2010, to private respondent Nos.10 to 13. It is the case of the petitioners that mutation Entry No.1524 in respect of the sale transaction came to be mutated after gap of one year and two months. When the petitioners took out the objection with regard to the said entry by initiating the proceedings before the Mamlatdar, by order dated 29th June, 2012, the Mamlatdar rejected the objections of the petitioners, and also rejected simultaneously Entry No.1524. 3.4 The Mamlatdar's order was carried in appeal before the Deputy Collector. Respondent Nos.10 to 13 preferred Appeal No.346 of 2016 whereas petitioners herein preferred Appeal Nos.347 of 2016 and 350 of 2016. The Deputy Collector allowed the appeal of the respondents, however rejected the petitioners' Appeals by order dated 10th October, 2017. The said order was challenged before the Collector to culminate into order dated 24th November, 2017. Thereafter revision application was preferred by the petitioners in which interim application was filed, which was not accepted as per the impugned order. As already noted, the Deputy Collector and Collector prescribed condition for certification of entry by payment of premium to the tune of 25% and upheld the mutation entry on such condition. 3.5 There are further attendant facts, which bear no less relevance. As the land was new tenure land, in the proceedings before the Deputy Collector, Choryasi, Surat, order of the Mamlatdar dated 27th February, 1957 came to be set aside. The Deputy Collector as per his order dated 23rd May, 2008 while allowing the appeal, lifted the restriction of Section 43 of the Tenancy Act in respect of the land on payment of fine to the State Government. Respondent No.7 herein preferred revision application against the said order before the Gujarat Revenue Tribunal. The State Government also preferred Revision Application No.06 of 2013 against the very order. The Gujarat Revenue Tribunal by its order dated 31st March,2014 allowed Revision Application No.06 of 2013 of the State Government, set aside order dated 23rd May, 2008 of the Deputy Collector. The Tribunal, in its order, recorded that since the land was of restricted nature and new tenure land, Collector, Surat, may pass appropriate order in accordance with law if the parties concerned were to make request for payment of premium. Private respondent Nos.10 to 13 have challenged the said order of the Tribunal by filing Special Civil Application No.7851 of 2014 before this Court, which is pending along with other cognate petitions. 3.6 Interim stay application of the petitioners in the revision application as above was not accepted on the ground that the petitioners did not have the prima facie case, that the balance of convenience is not in their favour and further that the land in question was sold by way of registered sale deeds. ;