The short facts of the case are that the land bearing Old Survey No.141 2 Acre and 9 Guntha situated at Village : Ghagratiya, Taluka : Limdi, Dist. Surendra-nagar, was owned by Trivadi Harishanker Zinabhai. Thereafter Trivadi Harishanker Zinabhai expired and after his death interest in the property was transferred to his daughter Oja Taraben Ranchhodabhai and she executed Registered Mortgage Deed on 21.4.2051 (sic) and as per the Mortgage Deed the possession of the land was also given to Odhavjibhai Patel, father of the petitioner. It is the case of the petitioner that based on the Mortgage Deed the revenue entry was also mutated on 13.10.1983 and the petitioner remained in possession since the period of his father Odhavjibhai Patel.

2. On 23.3.1998 the application was made to the revenue authority informing that Trivadi Harishanker Zinabhai had expired intestate without any legal heirs. The Mamlatdar thereafter informed to the District Collector and suggested the forfeiture of ownership right. On 11.10.1999 the District Collector passed an order under Section 72 of the Bombay Land Revenue Code (hereinafter referred to as the Code) whereby the occupancy rights were forfeited. Thereafter the order was passed for auctioning the land. The public notice was also issued. The petitioners had filed the objections. However, on 11.1.2001 the respondent No.2 passed an order for auctioning of the property. The petitioners carried the matter before the State Government in revisional jurisdiction and vide order dated 20.5.2011 the said revision came to be dismissed. Under the circumstances the present petition before this Court.

3. I have heard Mr. Nanavati, learned counsel appearing for the petitioners and Mr. Jayswal, learned A.G.P. appearing for the State authority.

4. As such the issue centers around the interpretation of Section 72 of the Code. Section 72 reads as under :

“72. Intestate occupancy or holding to be sold. If an occupant who is either a Hindu, a Mahomedan, or a Buddhist dies intestate and without known heirs, the Collector shall dispose of his occupancy by sale, subject to the provisions of this Act, or of any other law at the time in force for the sale of forfeited occupancies in realization of the land revenue, and the law at the time in force concerning property left by Hindus, Mahomedans or Buddhists, dying intestate and without known heirs shall not be deemed to apply to the said occupancy but only to the proceeds of such sale after deducting all arrears of land revenue due by the deceased to the [Government] and all expenses of the said sale.

5. The aforesaid shows that if any occupant either Hindu or Mahomedan or Budhhist died intestate without any legal heirs, the Collector may dispose of the occupancy by sale under this Act or of any other law at the time in force for realization of the revenue. It has been further provided that the law at the time in force concerned to the property left by Hindu, Mahomedan or Budhhist shall not deem to apply to the said occupancy but only to the proceeds of such sale after deducting all arrears of land revenue due by the deceased to the Government and the expenses of the said sale.

6. Such would mean that, if any, person has died intestate and the Collector concerned will have power to dispose of the occupancy by sale for realization of the revenue and the expenses of the sale then the State through the Collector will have prior rights but the original rights or title or interest of the deceased occupant and the subordinate rights that too shall remain unaffected by such sale. To say in other words the Collector will have right under this section to sale the occupancy right of the deceased person having no legal heirs for realization of the land revenue and the expenses of sale of the land revenue can be recovered therefrom. The balance would be governed by the law other than the land revenue.

7. If the facts of the present case are further examined it appears that the rights of