ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

Order in Letters Patent Appeal :

1. Caption Letters Patent Appeal arise from the oral judgement and order dated 01.05.2018 passed by learned Single Judge in Special Civil Application No. 14484 of

2011 whereas civil application has been filed under Section 5 of the Limitation Act to condone the delay of 738 days in preferring the Letters Patent Appeal and another civil application has been filed for staying the execution, implemention and operation of the order dated

01.05.2018 passed in Special Civil Application.

2. Instead of dealing with the civil application under Section

5 of the Limitation Act, with consent of the learned advocates appearing for the respective parties, Letters Patent Appeal is taken up for final hearing, which is listed along with the said application.

3. Mr. J.K.Shah, learned Assistant Government Pleader, states that the appellants do not want to bring any legal heirs of respondent Nos. 3.3 as his presence in not required particularly when the land in question has already been sold to contesting respondent No. 1 – original petitioner.

4. Rest of the respondents are served; however, except respondent No.1 – original petitioner, they have chosen not to appear in this Court. Respondent No.1 is represented by Mr. Hriday Buch, learned advocate assisted by Mr. Darshan Varandani, learned advocate.

5. Short facts arise from the record are as under:

5.1. That the land in question bearing Survey No.13/1 admeasuring 708 sq.mtrs. and Survey No.13/2 admeasuring 708 sq.mtrs are situated at village Bharthana (Vesu), Taluka and District Surat. The original respondent Nos. 3 to 15 were the original owners of the land in question. Several sale deeds were executed qua both the land in question in favour of present respondent No.1 – original petitioner. When the land in question was purchased, no restrictions were recorded in the revenue recorded and ultimately, sale deed was registered on

30.12.2000.

5.2. Entry No. 832 regarding the restriction of Section 73(AA)

of the Land Revenue Code (hereinafter referred to as ‘the Code’ for short) was mutated for the first time on 12.12.1991 that too subsequent to purchase of the land in question. Having come to know about mutation of such entry, respondent No.1 – original petitioner approached the Mamlatdar for deletion of Entry no. 832 in view of the fact that the land was already transferred. The original owners have supported the say of respondent No.1 before the Mamlatdar. Accordingly, on 22.12.2004, order was passed by the Mamlatdar deleting the Entry No.832. Accordingly, on 23.12.2004, Entry No. 1280 was mutated and was certified on 24.01.2005.

5.3. The District Collector issued notice on 15.09.2009 i.e.

after a period of almost five years from the deletion of Entry No. 832 mutated on 22.12.2004 on the ground of breach of Section 73(AA) of the Code since the land in question was transferred to non-tribal. The District Collector, by order dated 26.08.2010, set aside the order dated 23.12.2004 passed by the Mamlatdar, by which, Entry No.832 was deleted and Entry No.1280 was mutated. The said decision was challenged before the Special Secretary, Revenue Department by filing revision application, which came to be dismissed. Respondent No. 1 – original petitioned approached this Court by filing Special Civil Application No. 14484 of 2011, which was allowed relying upon the provisions of law and decision rendered by the Division Bench of this Court.

5.4. Hence, this Letters Patent Appeal.

6. Mr.J.K.Shah, learned Assistant Government Pleader appearing for the appellants, would submit that original owners were tribal and there is bar of transferring the land to non-tribal and the transaction itself is barred by law and therefore, the District Collector has rightly quashed and set aside the order of Mamlatdar, by which, restrictions have been lifted. The said order passed by the District Collector came to be challenged before the Special Secretary, Re