JUDGMENT :

Vaibhavi D. Nanavati, J.

1. Issue RULE, returnable forthwith. Mr. Jayneel Parikh, learned Assistant Government Pleader waives service of Rule for and on behalf of the respondent – State authorities. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing.

2. Heard Mr. Nishit P. Gandhi, learned advocate appearing for the petitioners and Mr. Jayneel Parikh, learned Assistant Government Pleader appearing for the respondent –State authorities.

3. By way of the present petition, petitioners herein are aggrieved by the impugned order passed by the respondent no.2 dated 21.02.2023 (Annexure-M), wherein, the petitioners’ application seeking Non-Agriculture (N.A.) use permission under Section 65 of the Gujarat Land Revenue Code, 1879 (for short ‘the Code’) for the land Survey /Block No. 146/P1 (Old Survey No. 12/P2) situated at Village: Sotamala, Tal.: Deesa, District: Banaskantha (for short ‘the land in question’) came to be rejected. While passing the impugned order dated 21.02.2023, the application of the petitioner was rejected mainly on the ground that in view of the Entry No. 1942 with regard to the order passed by the Civil Court, the land in question was entered in the name of non-tribal, and therefore the order passed by the learned Civil Court is without jurisdiction and same is in breach of Section-73-AA of the Code, as no prior permission was taken. It is further stated in the impugned order that, since the sale transaction was not in consonance with the provision of Section 73-AA of the Code, there is a variation in the Village Form No. 7/12 of the year 1993-94 as compared to entry no. 128. The aforesaid has given rise to the filing of the petition, wherein, the petitioners herein have prayed for the following reliefs:

“(22) In the premises aforesaid, the petitioners most humbly and respectfully pray that:

(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 21.02.2023 (at ANNEXURE-M) passed by the District Collector and further be pleased to direct the learned District Collector to grant N.A. permission qua the land in question;

(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of the impugned order dated 21.02.2023 (at ANNEXURE-M) passed by the District Collector and further be pleased to direct the learned District Collector to reconsider the application of the petitioner for grant of N.A. permission strictly in accordance with the provisions of Section 65 of Gujrat Land Revenue Code, 1879;

(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.”

4.1. Mr. Nishit Gandhi, learned advocate appearing for the petitioners submit that, the petitioners herein have purchased the land in question by way of a registered sale dated 04.08.2022, the entry of which is mutated in the revenue record by entry no. 2549 and the petitioners herein are the 5^th purchaser. It is submitted that, the initial order was passed by the competent Civil Court in Special Civil Suit No. 5 of 2016, wherein, the order came to be passed below Exh.1 in terms of the compromise arrived at between the parties on 15.01.2016. It is submitted that, the original transaction in question was prior to the Amendment of Section 73-AA of the Code and in view thereof, it was within the domain of the the competent Civil Court and it was competent for the Civil Court to pass the compromise decree, wherein, it is recorded that the transfer of occupancy by way of sale was effected in 1963, much before coming into force of the Amendment of 1980. Hence, the sale transaction could not have been stated to be in contravention of Section 73-AA sub- clause(1) of the Code. It is submitted that