ORDER :

1. Rule. Learned AGP waives service of notice of rule on behalf of the respondent No.1 –State.

2. In the present writ petition, the petitioners have prayed for quashing and setting aside the order dated 13.08.2021 passed by the respondent No.2 – Collector, Banaskantha and a further direction is sought to consider their application dated 31.05.2021 a fresh within a stipulated time.

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

3.1 It is the case of the petitioners that their father Shri Rabari Hathibhai Valabhai purchased the land bearing Survey No.243, ad-measuring 0-71-83 sq.mtr., situated at village Rajpur, Tal : Deesa, District Banaskantha, (hereinafter referred as “subject land”) through a registered sale deed dated 15.09.2011 from Mahanat Tejpuriji Guru Jamnapuri and Entry No.9918 to that effect was recorded in the village Hak Patrak No.6 on 17.09.2011, which was accordingly certified by the Circle Officer on 12.12.2011.

3.2 Further the case of the petitioners is that their father passed away on 03.11.2014 and hence, succession Entry No.10414 came to be recorded in the revenue records and thereby the names of legal heirs of the deceased Rabari Hathibhai Valabha came to be recorded. Accordingly, the names of the present petitioners came to be entered with other legal heirs. In view of the sale deed dated 15.09.2011, the competent authority has made the succession entry No.10414 in the name of the legal heirs of the deceased Rabari Hathibhai Valabhai, therefore the present petitioners became the owners and occupants of the subject land and are doing their agricultural activities. Thereafter, the petitioners had made an online application dated 27.05.2021/31.05.2021 to the respondent No.2 – Collector, Banaskantha seeking permission for conversion of the subject land from agricultural to non-agricultural use under Section 65 of the Gujarat Land Revenue Code, 1879 (for short, “the Code”) along with all necessary documents and the same was rejected by the respondent No.2 vide order date 13.08.2021, on the following grounds : -

(a) As per the entry No.10243 and entry No.10299, it has been stated therein that the decision of Regular Civil Suit No.88/2011 will be binding to the parties and on verification, it appears to the respondent No.2 that the above referred civil suit is not finally disposed of.

(b) As per the 7/12 abstract of year 1956-57, the land is shown as Padtar in the holders account.

(c) Khed rit -3 is shown in the revenue record.

(d) As per 7/12 abstract of the year 1969, Rajpur Math is shown as occupier and after Mahant Chandrapuri is shown as holder of the land, which is required to be verified and the persons shown in the entry No.6858 does not appear to be straight line heirs and hence the application of the petitioners is rejected.

4. Learned advocate Mr.Rakesh Patel, appearing for the petitioners has submitted that so far as the first ground as stated in the impugned order with regard to the pendency of the regular civil suit, the same is already dismissed for non-prosecution vide order dated 23.08.2017 by 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Deesa.

4.1 Learned advocate Mr.Patel, while placing reliance on the judgment of this Court in the case of Tusharbhai Harjibhai Ghelani Vs. State of Gujarat, 2019 (4) GLR 2578, has submitted that while deciding the application under the provision of Section 65 of the Code, the Collector has only to see the name of the applicant in the revenue records and he is an occupant of the land, it is submitted that in fact, the revenue records reveal that the petitioners are the occupants of the land, however, the Collector has straightway rejected their application.

4.2 Learned advocate for the petitioners has further relied upon the judgment passed by this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat in Special Civil Application No.5924 of 2019, and has submitted that while the aforesaid