S. H. SHETH, N. K. VAKIL, J.

( 1 ) THIS Letters Patent Appeal is directed against the order of summary dismissal made by our learned brother J. M. Sheth J on 16th April 1969 in Special Civil Application No. 658 of 1969. The facts of the case briefly stated are as follows:-

( 2 ) THE petitioner is the owner of a village site land situate in village Bhagal (Jagona) Palanpur Taluka Banaskantha District. It was sold to the petitioner at an auction by an Aghat sale. Adjoining this piece of land there are two other plots of land one of which admeasures 46x 23 and another admeasures 36x 20 1/2.

( 3 ) ON 28th August 1962 the petitioner made an application to the Mamlatdar of Palanpur requesting him to sell to him these two adjoining plots of land in order to enable him to put up a building construction on them. The Mamlatdar of Palanpur reported the matter to the Prant Officer at Palanpur. On 5th October 1962 the Prant Officer made an order whereby he directed that the said two adjoining plots of land be sold by auction. On 10th December 1962 in pursuance of the order made by the Prant Officer Palanpur a public auction was held for selling these two plots of land and it appears that these two plots of lands were purchased by the appellant at this public auction.

( 4 ) ON 23rd March 1963 the appellants bid for purchasing them was sanctioned by the Mamlatdar of Palanpur by his order made in that behalf. Thereafter the appellant paid the price of these two plots of land. On 26 April 1964 he executed a deed of Kabuliyat in respect of these two plots of land. By the said Kabuliyat he agreed to pay non-agricultural cess in respect of these two plots of land at the rate of 2 pies per one square yard and to complete the building construction thereon within two years from the date of his taking their possession. The said deed of Kabuliyat also showed plan of these two plots.

( 5 ) MORE than two years thereafter on 7th July 1966 the Collector of Banaskantha issued notice to the appellant to show cause why the said auction sale should not be cancelled why the order of the Mamlatdar of Palanpur sanctioning the appellants bid should not be cancelled and why the Kabuliyat which the appellant had executed in respect of these two plots of land should not be cancelled. The Collector of Banaskantha admittedly issued this notice under sec. 211 of the Bombay Land Revenue Code. This notice further stated that the lands which were sold to the appellant were part of a public street and that therefore their sale was illegal and improper.

( 6 ) THE appellant gave a reply to this notice in which he raised several contentions. Firstly he contended that no public street passes through these plots of land. Secondly he contended that this notice was issued by the Collector of Banaskantha on the application of some of the residents of the village who wrongly alleged that the building construction on these plots of land would be an obstruction to the State Transport buses passing from there. Thirdly he contended that he had executed a Kabuliyat in respect of these plots of land in 1964 and that the State Transport Corporation had started operating its buses in the neighbourhood of these plots of land only in 1965. He therefore finally contended that when these plots of land were sold to him there was no bus route or public street passing through them. The Collector of Banaskantha held an inquiry into the matter and by his order dated 3rd October 1966. discharged the notice and found that the auction sale of these plots was legal proper and in order.

( 7 ) THEREAFTER the respondents Nos. 2 to 5 filed an appeal before the State Government against this order of the Collector of Banaskantha. The State Government heard the appeal and by its order dated 18th November 1967 allowed the appeal set aside the public auction of these lands cancelled the Prant Officers order to sell the lands by public auction and also cancelled the order made by the Mamlatdar of Palanpur sanction

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