JUDGMENT - KHARCHE S.T., J.:---Heard Mrs. Sirpurkar, learned Counsel, for the appellant, Mrs. Khade, learned A.G.P., for respondents 1 and 2 and Mr. Sanyal, learned Counsel, for respondents 3 and 4. 2. This appeal is directed against the judgment and order dated 20-9-1991 passed by the learned Single Judge in Writ Petition No. 1137 of 1987, dismissing the writ petition and upholding the order dated 13-8-1986 passed by the Desk Officer, Revenue and Forest Department, granting regularization of the land in favour of respondent No. 3 of the plot area of 2,500 sq. ft. on Nazul Sheet No. 4 of township of Gondia. 3. Brief facts are as under : The petitioner was in military service from the year 1976 and is said to be a landless person who had made application for allotment of land on 6-10-1980. The plot in dispute of which allotment was sought was Plot No. 8/1, Nazul Sheet No. 4, area 2,500 sq.ft. It is contended by the petitioner that the said plot was found to have been encroached upon by respondent No. 3 on 20-4-1980 and on the report of Nazul Maintenance Surveyor, encroachment proceedings bearing No. 223/LEN 39/80-82 were started and respondent No. 3 was called upon to remove the encroachment. Respondent No. 3 had submitted an application for allotment of the said land on 20-4-1979 and the said application came to be rejected by the Collector on 23-1-1981. The respondent No. 3 being aggrieved by the said order had preferred an appeal before the Additional Commissioner, who confirmed the order of the Collector and consequently rejected the application of respondent No. 3 on 15-6-1981 for regularization, pursuant to which the Naib Tahsildar removed the encroachment in between the period 4-10-1985 to 6-10-1985. 4. Respondent No. 3 had filed an application for regularization of the encroachment which came to be rejected by the order dated 21-6-1982 and this order was challenged before the Resident Deputy Collector, who ordered fresh enquiry and directed to give the petitioner and respondent No. 3 opportunity of hearing and remanded the matter to Sub-Divisional Officer by order dated 14-9-1982. 5. A fresh enquiry was held and it was held that the said land cannot be regularized and by the order dated 18-5-1985 the Chief Officer, Municipal Council, Gondia, was asked to remove the construction standing on the land at the instance of respondent No. 3. 5. A fresh enquiry was held and it was held that the said land cannot be regularized and by the order dated 18-5-1985 the Chief Officer, Municipal Council, Gondia, was asked to remove the construction standing on the land at the instance of respondent No. 3. The said order was also confirmed by the Sub-Divisional Officer, Gondia, against which an appeal was carried to the Additional Commissioner, Nagpur. It is contended that thereafter the respondent No. 3 moved the State Government, i.e. respondent No. 1. It is contended that without hearing the petitioner who was a party to the aforesaid proceeding, an order was passed on 13-8-1986 by which the encroachment of respondent No. 3 on the disputed plot was regularized. This order of the State Government was challenged in the writ petition which came to be dismissed by the learned Single Judge on 20-9-1991. 6. Mrs. Sirpurkar, learned Counsel, contended that the writ petition was amended on 17-6-1987. She contended that the regularization of the encroachment made by respondent No. 3 is not sustainable in law because the petitioner had also made an application for allotment of the said land and the Nazul Surveyor had recommended for consideration of his application because he was in the service of military. She further contended that no order was passed nor any opportunity of hearing was granted to the petitioner and even he was not interrogated as to whether his application for allotment of land was being considered or was rejected. She contended that the regularization of encroachment in favour of respondent No. 3 was contrary to the provisions of Rule 28 of the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971 (for short the Rules) and was also contrary to the circular issued by the Government of Maharashtra, Revenue and Forest Department, bearing No. LND 1089/18287/G-8 dated 14th June, 1978, wherein guidelines have been laid down for disposal of the land by the Government in accordance with the provisions of Rules. 7. Mrs. Sirpurkar further contended that the petitioner did not own any land in the town at Gondia and since he was in the defence service, his application ought to have been considered for grant of the disputed plot to him. 7. Mrs. Sirpurkar further contended that the petitioner did not own any land in the town at Gondia and since he was in the defence service, his application ought to have been considered for grant of the disputed plot to him. She also contended that though the petitioner had submitted his application for allotment of the said land, no order was passed on the said application nor the petitioner has received any communication as to the result of his application and he has been deprived of the opportunity of getting the said land. She further contended that in the circumstances the regularization of the encroachment made by respondent No. 3 on the disputed plot, therefore, cannot be sustained. 8. Mr. Sanyal, learned Counsel, for respondents 3 and 4 contended that respondent No. 4 is the son of respondent No. 3. Respondent No. 3 had filed an application for regularization of the encroachment and the authorities have rejected his application. Ultimately, the State Government has regularized the encroachment by the order dated 13-8-1986. He contended that the proceedings were initiated by the appellant vide his representation dated 30-12-1986 to the then Human Resources Minister, Shri P.V. Narsimha Rao, which ended with the respondent No. 2 rejecting the same vide order dated 2-3-1987. He contended that the appellant had made an application for grant of lease of the disputed plot to him and the Nazul Surveyor did not recommend the grant of lease of the said land to him. Thereafter the appellant did not pursue the matter and after a lapse of five years he made an application to the Minister for Human Resources, as mentioned above. He contended that the appellant was allotted three acres of land by the State Government vide order dated 31-10-1985 and the land is situated at village Tumsar. The appellants mother also owns land and dwelling house at Lohiya Ward, Ring Road, Gondia. The appellant is retired from military service and is working as a Watchman in Manganese Ore India Ltd. The respondents 3 and 4 are in possession of the disputed plot and the encroachment has been regularized according to the provisions of law. 9. The learned A.G.P. does not dispute that the appellant had filed an application for allotment of the disputed plot to him. 9. The learned A.G.P. does not dispute that the appellant had filed an application for allotment of the disputed plot to him. She contended that the proceedings bearing No. 80/LMN/22/1978-79 were started and those proceedings ended by an order rejecting the application. She does not dispute that the encroachment of the land by respondent No. 3 has been regularized by the Government vide order dated 2-3-1987 and this order was communicated to the appellant. She, therefore, supports the contention of respondent No. 3 that the land has been regularized in accordance with the provisions of the Act. 10. We have considered the contentions canvassed by the learned Counsel for the parties. The record and proceedings bearing No. 80/LMN/22/1978-79 were called during the course of the hearing of this appeal. We have perused the said record and proceedings and what we find is that though it has been mentioned in the order sheet that the order was passed on 2-3-1987 rejecting the application of the appellant for grant of land, the said order is not at all passed and simply it has been mentioned in the Roznama that the said order was communicated to the appellant. After receipt of the application of the appellant for grant of allotment of the land, the Collector ought to have passed an order on the said application of the appellant which was received from the Ministry of Human Resources Development. 11. It is necessary to reproduce Rule 28 of the Rules, which read as under: "Grant of land to freedom fighters, members of armed forces, goldsmiths and Government servants.—(1) Subject to the provisions of this rule, building sites of suitable sizes may, on receipt of an application in that behalf, granted for residential use by the Collector, with the previous sanction of the State Government to freedom fighters, serving members of the armed forces and ex-servicemen who are ordinarily residents in the State for not less than fifteen years immediately before the commencement of the Gold Control Order made under the Defence of India Act, 1962 and to Government servants of the State Government, without auction in occupancy right under section read with section 31. (2) Such grant may be made on inalienable tenure on payment of occupancy price which may be determined having regard to the factors specified in sub-rule (2) of Rule 26, if the Collector, after necessary inquiries, is satisfied that these persons do not own any building, plot or a building either in their own name or any member of their family anywhere in any urban area of the State or outside to State. (3) A serving member of the armed forces or an ex-servicemen for if he is dead or is unable to write for any reason, then his wife, major son, father, mother or brother in an undivided family, may make an application for grant of land for re-residential use to the Collector. Such application shall be made through the Chairman, District Sailors, Soldiers and Airmens Board. (4) Except with the previous permission of the State Government, no land shall be granted to any person, who on the 15th day of August, 1968- (a) having three or less than three children, has exceeded three after that date; (b) having more than three children, has exceed that number after that date." 12. Perusal of this provision of law would reveal that the Collector has to undertake an enquiry after receipt of the application for grant of land and he is supposed to follow the procedure while passing the order keeping in mind the rules along with the Government Circular especially when the appellant is a defence personnel and claims allotment of land under the said provisions. 13. In the present case, there were two claimants to the plot bearing Plot No. 8/1, sheet No. 4, of the area of 2,500 sq.ft. The appellant and respondent No. 3 have claimed the allotment of the land in their favour by making an application and it was also found that the respondent No. 3 had made encroachment on the said land which was removed in the first instance and thereafter it was regularized by the orders of the State Government. When there were two claimants for the allotment of the same plot, the Collector, or for that reason the State Government, ought to have considered the applications by following guidelines laid down in the circular issued by the Government of Maharashtra on 14-5-1978. This has admittedly been not done. 14. When there were two claimants for the allotment of the same plot, the Collector, or for that reason the State Government, ought to have considered the applications by following guidelines laid down in the circular issued by the Government of Maharashtra on 14-5-1978. This has admittedly been not done. 14. On perusal of the record and proceedings, we are satisfied that no orders have been passed by the Collector on the application of the appellant and, therefore, we are of the considered view that the matter deserves to be remanded to the Collector for fresh consideration according to law. In that view of the matter, we set aside the order passed by the learned Single Judge and remand the matter for fresh consideration of the Collector who shall take into consideration the circular issued by the Government of Maharashtra as well as the provisions of Disposal of Government Land Rules. We make it clear that the regularization of the land in favour of respondent No. 3 by the Government would be subject to the result of the decision of the Collector. Consequently, the appeal is allowed. In the meantime, the parties would maintain status quo. We hope that the Collector would expeditiously dispose of the application. The record and proceedings be sent back forthwith. Appeal allowed. -----