Point of Law:
If an occupant who is either a Hindu, a Mohammedan, or a Buddhist dies interstate 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, Mohammedans or Buddhists dying interstate 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.

JUDGMENT :

1. Rule. Learned AGP waives service of rule for the respondent nos.1 to 4.

2. In the present writ petition, the petitioner has, inter alia, prayed for the following relief:

“A. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the order dated 28.11.2016 passed by the learned District Collector in Appeal/Revision Land Revenue Code 211 Case No.11 of 2012 as well as order dated 27.12.2011 passed by the learned Deputy Collector, Mundra as well as order dated 26.09.2007 passed by the learned Special Mamlatdar and further be pleased to remand the matter back to the Ld. Mamlatdar, Bhuj for fresh adjudication.”

3. The brief facts of the case leading to filing of the present writ petition are as under:

3.1. The land bearing Survey No.109 as well as Survey No.333 of Village Kotadi Mahadevpuri, Taluka Mandvi, District Kachchh was in occupation of the father of the petitioner. The father of the petitioner was cultivating the aforesaid land in question in the capacity of the tenant. Though the land in question is in occupation and possession of the petitioner, the concerned authorities had never initiated any proceedings for deciding the tenancy rights of the petitioner over the land in question.

3.2. On 21.02.2007, the petitioner preferred an application before the Special Mamlatdar, Bhuj, whereby it was stated that since the land in question was cultivated by the father of the petitioner in the capacity of tenant and, therefore, the petitioner preferred the aforesaid application for declaring him as a tenant of the land in question as well as for deciding the occupancy price with respect to the land in question.

3.3. After receiving the aforesaid application, the Special Mamlatdar has registered the same as KEN Case No.853 of 2007 and issued notices to the private respondents. The aforesaid notices were returned back as the concerned private respondents were not residing in the aforesaid village.

4. Learned advocate Mr.Vimal Purohit appearing for the petitioner has submitted that the impugned order passed by the Special Mamlatdar is without jurisdiction since he has made the observations by invoking the provisions of the Gujarat Land Revenue Code, 1879 (for short “the Code”) with regard to the application filed by the petitioner under the provision of the Gujarat Tenancy (Vidharbha Region and Kutch) Area Act, 1958. (for short “the Tenancy Act, 1958”). He has submitted that thereafter being aggrieved, the petitioner approached Deputy Collector, Mundra-Bhuj by filing an appeal, who by the order dated 27.12.2011 rejected the appeal filed by him.

4.1. Learned advocate Mr.Vimal Purohit for the petitioner has further invited the attention of this Court to the order dated 30.11.2016 passed by the Collector, Kachchh-Bhuj in Consolidated Appeal/Revision/L.R.C. S.211/ Case No.11 of 2012 and has submitted that the District Collector has traveled beyond the scope of the application and has made the observations with regard to the provisions of the Bombay Inami (Kutch Area) Abolition Act, 1958. He has submitted that the said revision application is not maintainable against him and hence, it could not be entertained. Thus, he has submitted that the authorities below right from the Mamlatdar upto the District Collector have confused the issue raised before them and the petitioner had made only a simple application for declaring him as a tenant. Thus, he has submitted that the impugned orders may be set aside and the matter may be remanded to the appropriate authority for reconsideration.

5. Per contra learned AGP Mr.Sahil Trivedi has submitted that the impugned orders may not be disturbed as admittedly the same have been passed after proper verification of the parties. He has submitted that since the Mamlatdar has found that the concerned land being Survey No.109 did not satisfy the provisions of the Tenancy Act, 1958, the Mamlatdar has precisely passed the order of vesti