JUDGMENT - KHARCHE S.T., J.:---Heard Mrs. Sirpurkar, learned Counsel, for the appellant, Mrs. Khade, learned A.G.P., for respondents 1 and 2 and Mr. Sanyal, learned Counsel, for respondents 3 and 4.

2. This appeal is directed against the judgment and order dated 20-9-1991 passed by the learned Single Judge in Writ Petition No. 1137 of 1987, dismissing the writ petition and upholding the order dated 13-8-1986 passed by the Desk Officer, Revenue and Forest Department, granting regularization of the land in favour of respondent No. 3 of the plot area of 2,500 sq. ft. on Nazul Sheet No. 4 of township of Gondia.

3. Brief facts are as under :

The petitioner was in military service from the year 1976 and is said to be a landless person who had made application for allotment of land on 6-10-1980. The plot in dispute of which allotment was sought was Plot No. 8/1, Nazul Sheet No. 4, area 2,500 sq.ft. It is contended by the petitioner that the said plot was found to have been encroached upon by respondent No. 3 on 20-4-1980 and on the report of Nazul Maintenance Surveyor, encroachment proceedings bearing No. 223/LEN 39/80-82 were started and respondent No. 3 was called upon to remove the encroachment. Respondent No. 3 had submitted an application for allotment of the said land on 20-4-1979 and the said application came to be rejected by the Collector on 23-1-1981. The respondent No. 3 being aggrieved by the said order had preferred an appeal before the Additional Commissioner, who confirmed the order of the Collector and consequently rejected the application of respondent No. 3 on 15-6-1981 for regularization, pursuant to which the Naib Tahsildar removed the encroachment in between the period 4-10-1985 to 6-10-1985.

4. Respondent No. 3 had filed an application for regularization of the encroachment which came to be rejected by the order dated 21-6-1982 and this order was challenged before the Resident Deputy Collector, who ordered fresh enquiry and directed to give the petitioner and respondent No. 3 opportunity of hearing and remanded the matter to Sub-Divisional Officer by order dated 14-9-1982.

5. A fresh enquiry was held and it was held that the said land cannot be regularized and by the order dated 18-5-1985 the Chief Officer, Municipal Council, Gondia, was asked to remove the construction standing on the land at the instance of respondent No. 3. The said order was also confirmed by the Sub-Divisional Officer, Gondia, against which an appeal was carried to the Additional Commissioner, Nagpur. It is contended that thereafter the respondent No. 3 moved the State Government, i.e. respondent No. 1. It is contended that without hearing the petitioner who was a party to the aforesaid proceeding, an order was passed on 13-8-1986 by which the encroachment of respondent No. 3 on the disputed plot was regularized. This order of the State Government was challenged in the writ petition which came to be dismissed by the learned Single Judge on 20-9-1991.

6. Mrs. Sirpurkar, learned Counsel, contended that the writ petition was amended on 17-6-1987. She contended that the regularization of the encroachment made by respondent No. 3 is not sustainable in law because the petitioner had also made an application for allotment of the said land and the Nazul Surveyor had recommended for consideration of his application because he was in the service of military. She further contended that no order was passed nor any opportunity of hearing was granted to the petitioner and even he was not interrogated as to whether his application for allotment of land was being considered or was rejected. She contended that the regularization of encroachment in favour of respondent No. 3 was contrary to the provisions of Rule 28 of the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971 (for short the Rules) and was also contrary to the circular issued by the Government of Maharashtra, Revenue and Forest Department, bearing No. LND 1089/18287/G-8 dated 14th Ju

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