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2011 DIGILAW 765 (GUJ)

BHAYABHAI VAJSHIBHAI HATHALIA v. STATE OF GUJARAT

2011-11-17

S.R.BRAHMBHATT

body2011
JUDGMENT On earlier occasion, i.e. on 8-11-2011 / 10-11-2011 this Court had passed following orders: 1. Heard learned advocates for the parties. 2. Learned counsels for the parties have in fact advanced submissions at length and they have agreed for final disposal of the matter at the admission stage. Hence, Rule. Ms. Pathak,learned AGP, Mr. Dhaval D. Vyas and Ms. Anushree Kapadia, waives service of Rule on behalf of respective respondents. 3. The petitioners, opponents in the Appeal being Appeal No. 82/2010-2011 before the District Collector, Jamnagar in respect of the subject matter of lands mentioned therein, have approached this Court under Article 226 of the Constitution of India challenging the order passed by the District Collector along with the Appeal No. 82 of 2010-11 filed by present respondent nos. 5/1 to 5/4, whereunder, the District Collector revoked and cancelled the order dated 8.3.2011 granting N.A. Permission in favour of the petitioners as the litigations in form of civil suit mentioned in the order are pending in the Civil Court, holding that the title to the land is not clear. The said order was required to be revoked. 4. Facts in brief leading to file this petition, as could be culled out from the memo of petition deserve to be set out as under: 1. The lands in question i.e. land bearing Survey Nos. 665/a, 665/2, 43/1 and 43/2 of village: Dwarka, District: Jamnagar belonged to one Kanabhai Varsang Nagesh. After demise of Kanabhai V. Nagesh, entry No. 334 came to be mutated to that effect. The said entry indicated the demise of Surabhai Kanabhai Nagesh and in that entry, present respondent no.5/1 and other appellants name were not mentioned at all. After the demise of Surabhai Kanabhai Nagesh, the lands in question devolve upon his heirs i.e. respondent nos. 4.1 to 4.8 and entry No. 1315 dated 3.3.1986 was made in favour of Surabhai Kanabhai Nagesh. On the same day, on account of partition between co-owners, mutation entry No. 1316 was made. The said mutation was carried out after due notice under Section 135D of the Bombay Land Revenue Code, 1879 and the notice was served upon Lakhman Kana i.e. father of the contesting appellants before the Collector. On the same day, on account of partition between co-owners, mutation entry No. 1316 was made. The said mutation was carried out after due notice under Section 135D of the Bombay Land Revenue Code, 1879 and the notice was served upon Lakhman Kana i.e. father of the contesting appellants before the Collector. In the year 1999, to be more precise on 21.10.1999, Nagesh Harghod Lakhman filed Revision Application No. 3 of 1999-2000 before the District Collector, Jamnagar claiming that he has right in the lands in question and therefore, his name also be entered in the revenue record. On 18.9.1999, an order was passed by District Collector to cancel and mutation entry No. 244, 334, 1315 and 1316 and the Collector further directed that fresh entry should be made in this regard after verifying all the heirs of Laxman Kana. Thereafter, entry No. 1844 came to be mutated and names of heirs of Laxman Kana were also entered along with names of heirs of Sura Kana. Against said order, heirs of Sura Kana filed Revision Application before the Special Secretary, Revenue Department being Revision Application No. 4 of 2000 and 9 of 2002 and as per order dated 16.7.2008, the Revision Applications came to be allowed and entry No. 1844 was suspended. However, while suspending the entry, it was observed in the order that the revenue authorities cannot decide the question of title of a property and the party should approach the Civil Court for the same and result of the civil court would be governing the title. The said order of Revenue Secretary dated 16.7.2008 was subject matter of challenge by the heirs of Laxman Kana in Special Civil Application No. 27 of 2009, which came to be dismissed vide order dated 1.7.2009. The said order dated 1.7.2009 was not assailed in any other proceedings like Letters Patent Appeal and therefore, it is submitted by the petitioners that the resultant effect would be that mutation entry Nos. 1315 and 1316 would revive. 2. Present petitioners have purchased the lands in question by way of registered sale deed dated 28.7.2009, to which, mutation entry No. 2561 was made on 21.5.2009. The concerned Mamlatdar cancelled the said entry, against which, an appeal was preferred before the Collector by present petitioners, which came to be dismissed by the Collector vide order dated 3.6.2010. 2. Present petitioners have purchased the lands in question by way of registered sale deed dated 28.7.2009, to which, mutation entry No. 2561 was made on 21.5.2009. The concerned Mamlatdar cancelled the said entry, against which, an appeal was preferred before the Collector by present petitioners, which came to be dismissed by the Collector vide order dated 3.6.2010. The petitioners assailed said order by preferring Revision Application No. 13 of 2010, wherein, the stay application preferred by present petitioners came to be rejected and accordingly the petitioners have approached this Court by preferring Special Civil Application No. 15404 of 2010, which came to be partly allowed with direction to the concerned respondent authorities to mutate entry on the basis of registered sale deed in favour of the petitioners. At this stage, it is required to be noted that heirs of Laxman Kana were not permitted to be joined as parties by the Collector and therefore, they were not parties before the Special Secretary, Revenue Department or before this Hon'ble Court. The heirs of Laxman Kana preferred Letters Patent Appeal against the order dated 13.12.2010 being Letters Patent Appeal No. 538 of 2011, which came to be disposed of, wherein, this Court has observed that just by mutation of entry, no title is created and the entry made in favour of the petitioners was not disturbed. 3. In pursuant to the order passed by this Court in Special Civil Application No. 15404 of 2010, entry No. 2713 has been mutated in favour of present petitioners. Thus, as on date, so far as land revenue record is concerned, there exists the mutation entry No. 2713 and as per that entry, present petitioners are in occupation of the lands in question. The petitioners approached the concerned authority for obtaining permission called N.A. Permission under Section 65 of the Bombay Land Revenue Code, which came to be granted by the Competent Authority on 8.3.2011. 4. For the lands in question, Regular Civil Suit No. 30 of 2000 is filed by respondent nos. 4.1 to 4.8 against respondent nos. 5.1 to 5.5.3 for seeking declaration and permanent injunction. Date: 10.11.2011: 5. At this stage, it was brought to the notice of the Court that Ms. Jani, learned advocate appears only for respondent no. 4. For the lands in question, Regular Civil Suit No. 30 of 2000 is filed by respondent nos. 4.1 to 4.8 against respondent nos. 5.1 to 5.5.3 for seeking declaration and permanent injunction. Date: 10.11.2011: 5. At this stage, it was brought to the notice of the Court that Ms. Jani, learned advocate appears only for respondent no. 5.1, 5.2.2 and 5.5.1 and therefore, technically speaking, she could not have waived Rule on behalf of other respondents, though, they are served with notice but have chosen not to remain present or depute any advocate. In view of this, Ms. Jani was given time to ascertain as to whether she represents all as it was submitted by learned Advocate appearing for petitioners that in fact, respondent no.5.1 is the Power of Attorney holder and has accepted notice on behalf of all the respondents, as could be seen from the endorsement on the notice. If the Rule is technically not waived, then, the Court may not proceed further. Hence, the matter is kept on 15.11.2011 so as to enable Ms. Jani to obtain instructions as to whether she is appearing for all or not. Put up on 15.11.2011 for further orders.” 6. Today i.e. 17/11/201, Ms. Jani, learned counsel submits that her colleague Ms. Kapadia has received Vakalatnama and instructions from all the respondents except respondent no.5.4. Ms. Kapadia, colleague of Ms. Jani has also received instructions from respondent no.5.4 and therefore she would be filing Vakalatnama within ten days from today on behalf of respondent no. 5.4 also. In view of this, now the rule is waived by learned counsel Ms. Jani on behalf of all the private respondents and submitted that the dictation may proceed and the matter be disposed of. 7. The Regular Civil Suit No. 30 of 2000, filed by respondent no. 4.1 to 4.8 against respondent nos. 5.1 to 5.5.3 for seeking declaration and permanent injunction and in the said suit petitioners have themselves got impleaded as parties. One more suit being Special Civil Suit No. 14 of 2011 is also filed by respondent nos. 4.1 to 5.5.3 against the present petitioners. There is one more suit being Regular Civil Suit No. 20 of 2011 against the present petitioners. As it is stated in the memo of the petition, respondent nos. One more suit being Special Civil Suit No. 14 of 2011 is also filed by respondent nos. 4.1 to 5.5.3 against the present petitioners. There is one more suit being Regular Civil Suit No. 20 of 2011 against the present petitioners. As it is stated in the memo of the petition, respondent nos. 5.1 to 5.5.3 preferred an appeal on 23/3/2011 being Appeal No. 82 of 2010-2011 before the Collector against granting of Non Agricultural Permission in favour of the present petitioners along with an application for stay. Vide order dated 25/3/2011 the District Collector partly allowed the application of the said respondents for stay and have stayed implementation of the Non-Agricultural permission. The order dated 25/3/2011 was assailed in Special Civil Application No. 4228 of 2011 which came to be disposed of vide order dated 4/4/2011, directing the petitioners to raise all the contentions before the Collector and can also pray for early hearing of the application. Petitioners thereafter filed an application for early hearing and enlisted their contentions that the very same officer has in fact granted permission for conversion of agricultural land to non agricultural land, subject to outcome of the civil suit. The dates and events were pointed out to the officer and those orders are placed on record in this petition at Annexure-K collectively. The written submissions were also submitted. The District Collector vide order dated 8/6/2011 in appeal No. 82/2010-2011 quashed and set aside the order dated 8/3/2011 passed by Dy. Collector, granting N.A. Permission in favour of the petitioners. Hence the present petition for the grounds mentioned in the memo of the petition. 8. Learned counsel appearing for the petitioners contended that the order impugned is without jurisdiction and per se illegal and hence it is required to be quashed and set aside. Learned counsel appearing for the petitioners submitted that the respondent District Collector was not competent to hear the appeal against the order passed under section 65 of the Bombay Land Revenue Code as the plain language of section 65 would go to show that the power exercised by Deputy Collector was in fact the power exercised on behalf of the Collector and, as such the Collector cannot have to sit in appeal over the order passed by the Dy. Collector, though the Dy. Collector, though the Dy. Collector may be subordinate in hierarchy to District Collector, but that in itself would not leave any scope on the orders passed by the Dy. Collector under section 65 of the Code to be examined in appeal by the Collector as per the scheme of the Code. Learned counsel has heavily relied upon the decision of this Court in case of Hussainbhai Joyebhai Bharmal Thro' POA Bharatkumar C Mehta Vs. Collector & Ors., in LPA No. 660 of 2011 in Special Civil Application No. 4758 of 2010, decided on 9/9/2011. In the said LPA the question involved was whether the Collector had jurisdiction to entertain revision application under section 211 of Land Revenue Code against the order passed under section 37(2) of the Code. Learned counsel invited this Court's attention to various observations of the Division Bench and contended that Dy. Collector while exercising power under section 65 of the Code was in fact acting as Collector so far as the grant of N.A., was concerned. Hence the District Collector could not have exercised appellate jurisdiction over the order of Dy. Collector. Learned counsel for the petitioners relied upon the decision of this Court in case of Prayas Woollens (Pvt) Ltd Vs. State of Gujarat and Ors. Reported in 1997 (3) GLR 2058 (equivalent: 1997 AIR 55 Guj), and submitted that the facts in the case cited were relating to the provision of section 65 of the Code and N.A. Permission and provision of Section 211 of the Code and observations made therein is squarely governing the facts of the present case and therefore, in view of the observations made there under, it can very well said that the order of granting N.A. though passed by the Dy. Collector could not have been subject matter of scrutiny by way of appeal before the Collector as per the scheme of the Code and as per the ratio of the law laid down by this Court in the aforesaid two decisions. 9. Collector could not have been subject matter of scrutiny by way of appeal before the Collector as per the scheme of the Code and as per the ratio of the law laid down by this Court in the aforesaid two decisions. 9. Learned counsel without prejudice to the aforesaid contentions on jurisdiction further submitted that even on merits also the order of granting N.A. could not have been said to be illegal in any manner as the occupation is with the present petitioners and their names are entered in the revenue record and granting of N.A. cannot be assailed by those persons like the contesting respondents who are yet to establish their right & title over the land. Pendency of the civil suits are also cannot be made basis for cancelling the N.A. which was granted in favour of the petitioners. The revenue authorities maintain record of land revenue for physical purposes and for a specific purpose occupation of the land in question is entered in the revenue record. The plain reading of section 65 of the Code would clearly show that the said section did not require any elaborate inquiry in any manner or else section 65 power would never be exercised as any interested busy body on a semblance of some interest could also intervene in the process of grant of N.A., and thus may thwart and bring to halt the process of development which may have serious repercussions upon the property rights of the person/ occupant. This being the situation of law, section 65 of the Code cannot be permitted to be stretched so as to encompass the intervenor to have right to say in the matter of grant of N.A. Permission. The grant of N.A. Permission in respect of piece of land also would not in any manner have any effect upon the title of the land in question, as the title of the land in question, if at all it is disputed, the dispute would lie in the realm of civil suit and the civil suit order shall always been pending. It is further submitted that though the civil court proceedings are taken by both the parties, the contesting respondents who have filed stay application so far not been successful in obtaining any prohibitory order from any of the civil suits filed by them in the year 2011. It is further submitted that though the civil court proceedings are taken by both the parties, the contesting respondents who have filed stay application so far not been successful in obtaining any prohibitory order from any of the civil suits filed by them in the year 2011. Whereas the suit filed by present petitioners and non-grant of injunction also could not have been held against the petitioners so far as the N.A. Permission is concerned, as the plain reading of those orders would go to show that there was admitted facts on the part of the parties that the land was in possession of the predecessor of the original owners. Therefore present petitioners could not have been denied N.A. Permission and they were readily not denied by concerned Dy. Collector. Now that order passed by Dy. Collector on 8/3/2011 therefore could not have been subject matter of appeal before the Collector and the Collector in turn also did not have any power or authority or jurisdiction to examine the order as otherwise it would amount to reviewing the order / revising the order without jurisdiction in law. 10. Learned counsel for the petitioners extensively invited this Court's attention to the orders not granting injunction in favour of predecessor of the petitioners and pointed out there from that the findings cannot be said to be in any manner against the fact that the possession of the land was never been in question. In fact the Court has held that there existed no imminent threat of disturbing the possession and therefore injunction was denied. That happened way back in the year 2007 in the suit no. 30/2000. In view of this the order impugned cannot be sustained in any manner. 11. Learned counsel appearing for the petitioners, answering the contention of the contesting respondents counsel that the petitioners have remedy of filing revision application under section 211 of the Code,. That happened way back in the year 2007 in the suit no. 30/2000. In view of this the order impugned cannot be sustained in any manner. 11. Learned counsel appearing for the petitioners, answering the contention of the contesting respondents counsel that the petitioners have remedy of filing revision application under section 211 of the Code,. submitted that the order is assailed in this petition on the ground of lack of jurisdiction and hence when the order is said to be without jurisdiction then the extra ordinary jurisdiction of this Court can always be invoked and therefore, availability of appellate forum is of no avail as it would unnecessarily result in to prolonging the litigation amounting to denial of present petitioners right to enjoy the property purchased by them and the same would be at the behest of contesting respondents, who are yet to establish their right in the civil suit filed by them. Therefore, in view of these facts & circumstances the petition is required to be allowed. 12. Learned counsel for the contesting respondents submitted that the District Collector has appellate power and jurisdiction to examine the order passed by DY. Collector in view of section 10 of the Revenue Code. Learned consul for the contesting respondents invited this Court's attention to provision of section 10 of the Code and submitted that Dy. Collector was in fact an authority from whose order as provided in section 10 the appeal would lie to the superior, as plain reading of section 10 indicate that the Dy. Collector even if he is placed incharge of revenue administration of one or more talukas in his district, would be subject to provision of Chapter-XIII, would be performing of the part of exercise of the power conferred upon the Collector. By virtue of this provision it could be said that though the Dy. Collector while exercising power of Collector in a taluka or where in a taluka he is incharge, that exercise of power is always subjected to provision of Chapter-XIII and as per Chapter-XIII of the Code the provision is clearly made that Dy. Collectors orders are subject to scrutiny by way of appeal before the immediate superior i.e. the Collector and the code has clearly provided Collectors are admittedly superior to Dy. Collectors and hence the power and jurisdiction of the Collector to examine and hence the order passed by Dy. Collectors orders are subject to scrutiny by way of appeal before the immediate superior i.e. the Collector and the code has clearly provided Collectors are admittedly superior to Dy. Collectors and hence the power and jurisdiction of the Collector to examine and hence the order passed by Dy. Collector are flowing from the statutory provision and as such it cannot be said that there existed no power in the Collector to scrutinize the order passed by Dy. Collector. Therefore the submission qua lack of jurisdiction raised by the petitioners would brook no further consideration. 13. Learned counsel for the contesting respondents without prejudice to the aforesaid contentions submitted that under the scheme of the Act and so far as section 65 is concerned same is also governed by the Government Resolution dated 1/7/2008 produced on record at page-341 which contains specific confirmation of power upon specified authorities so far as section 65 of the Code is concerned. Now according to that table the Dy. Collector so far as the order mentioned against the name is concerned, is the designated authority and therefore, he being the competent authority, he cannot be said to be in any manner an authority taken out of the purview of the Act. The said resolution provides for different authorities who have been designated as competent authorities for granting N.A. Permission in the order prescribed against their designation. Therefore the appeal would lie to the immediate superior of the said competent authority. The appeal being a statutory right same cannot be said to be whittle down in any manner on account of the resolution in question. In fact the Bombay Land Revenue Code, Chapter-XIII is absolutely clear qua the Collector's appellate power upon the orders of his subordinate and as per the provision, especially provision of section 10 of the Code it can well be said that the Collector did not act without jurisdiction in entertaining the appeal. 14. In fact the Bombay Land Revenue Code, Chapter-XIII is absolutely clear qua the Collector's appellate power upon the orders of his subordinate and as per the provision, especially provision of section 10 of the Code it can well be said that the Collector did not act without jurisdiction in entertaining the appeal. 14. Learned counsel for the contesting respondents has further contended that the Collector is exercising his appellate power as provided in Chapter-XIII of the Code and the petitioners, if at all they were aggrieved, they could have moved the State by way of revision under section 21 of the Code and they were not entitled to file the petition straightway as the petitioners were required to have first exhausted the alternate remedy, and on this ground also the petition is required to be dismissed. 15. Learned counsel for the contesting respondents relying upon the decision of this Court in case of Patel Khodidas Gangaram Ramchand Vs. S.K. Chaudhri, reported in 1972 GLH page 1029, and contended that this Court had held that it has been clearly laid down by Division Bench of Bombay High Court that an order passed by Dy. Collector or Assistant Collector under any law for the time being in force is in the absence of any express provision of the Code or of any other law appealable in the manner provided by Chapter-XIII. In the instant case, there is no express provision either in the Code or in any other law which takes away incidence of appeal from the order of the Dy. Collector to the Collector while exercising power of Collector was negatived. 16. Learned counsel for the contesting respondents thereafter relying upon the decision of the Apex Court in case of State of Gujarat Vs. Patel Raghav Natha & Ors, reported in 1969 GLR pg. 992, and contended that the Collector's order is absolutely just & proper as even the Apex Court has observed in the aforesaid decision that in case if the title of the land in question is disputed then the revenue authorities should not have gone into it and the matter should have been referred to the competent authority. In the instant case the dispute has attained so serious magnitude that a murder is reported and FIR is also filed and investigation is going on. In the instant case the dispute has attained so serious magnitude that a murder is reported and FIR is also filed and investigation is going on. When two parties are having dispute of serious nature on question of land then the petitioners could not have been permitted to take advantage of their names entered in the revenue record by way of entry which admittedly does not confer any title or right upon the occupant. The civil court proceedings are on going and the suit preferred by contesting respondents in the year 2011 is in fact going on and the exhibit-5 application for temporary injunction is being heard and in view of this, it was absolutely just and proper on the part of the District Collector to revoke the order of N.A. Passed by Dy. Collector and it could not have been assailed by the petitioners straightway by filing this petition under Article 226 of the Constitution of India. 17. Learned counsel appearing for the contesting respondents in a strenuous attempt to establish existence of jurisdiction in Collector draws analogy between relevant provisions of Land Revenue Code and Hindu Marriage Act, 1955. It was submitted on behalf of the contesting respondents that in case before this Court when plea was made that because of the provision of H.M. Act, especially provision of Section 13 (1) (b) and 28 and section 16 of the Bombay Civil Code Act 1969, the forum for appeal would be governed by Bombay Civil Courts Act and the submission that though it is defined as District Court the appeal would lie only hierarchically to superior Court as provided in Bombay Civil Court Act 1969. In support of this say reliance is placed upon the decision of this Court in case of Ramjibhai Lalbhai Patel Vs. Smt. Shantaben D/o Manilal Jashkanbhai Patel, reported in 1984 GLH-986. 18. Learned counsel for the contesting respondents submitted that the present contesting respondents cannot be said to be not interested and or remotely interested party so far as the controversy in land in question is concerned. The present contesting respondents were very much interested in the land in question and in case if the N.A. Permission is permitted to be acted upon, then, the petitioners would create more equities and complications which would result into depriving the contesting respondents of their legitimate right, even if they succeed in the suit. The present contesting respondents were very much interested in the land in question and in case if the N.A. Permission is permitted to be acted upon, then, the petitioners would create more equities and complications which would result into depriving the contesting respondents of their legitimate right, even if they succeed in the suit. Therefore in the interest of justice and equity also the status-quo as on date could have been ordered and the N.A. Permission therefore was rightly granted in favour of present contesting respondents. 19. This Court has heard learned counsels for the parties. Before adverting to rival contentions of learned counsel for the parties, it is expedient to set out few indisputable aspects emerging form the matter. 1. The entire controversy is revolving around a parcel of land on which there was disputes on the revenue side for entry. Now, in those disputes the entry of the petitioners predecessor had been on the record since years. The contesting respondents after it received 135D notice it had not been assailed or objected to in any manner. This facts are on record. After the demise of contesting respondents father, for the first time in the year 1989 an objection was raised for non-inclusion of the names on account of challenging the parties of the property. Their entry was made being entry no. 1844 which was subject matter of scrutiny at the level of revenue authorities and ultimately that entry remained suspended by highest authority of revenue side i.e. Special Secretary as per the order dated 16/7/2008 of Special Secretary. 2. From the aforesaid it can very well be said that so far as the Land Revenue Code is concerned, present contesting respondents have not been acknowledged as occupants and or even interested party by the revenue authority and so far their name is concerned same is suspended and is made explicit subject to out come of civil suit of the parties and rightly so as revenue authority cannot go into the title and disputed question of facts so far as the land and properties are concerned. 3. As against this, the entry in question of the petitioners predecessor was existing on the land revenue record since decades as could be seen from the revenue proceedings placed on record. 3. As against this, the entry in question of the petitioners predecessor was existing on the land revenue record since decades as could be seen from the revenue proceedings placed on record. The revenue entry for the first time came to be mutated so far as the petitioners are concerned in favour of petitioners predecessor father on 5/2/1953 and this 1953 entry had not been objected. After the demise of petitioners predecessor father petitioners predecessor were also shown to be entered by way of entry no. 1315 dated 3/3/1986. Thus these entries remained and thereafter the petitioners purchased the land in question by way of registered sale deed and by virtue of provision of section 135C interest acquired in the land by virtue of registered sale deed as a matter of course is required to be entered into revenue record as nothing delves upon the revenue record so far as the ownership is concerned. Therefore section 135C absolves the predecessor through registered sale deed for obligation of notifying to concerned authority. Thus the registered sale deed purchased by the present petitioner came to be reflected in the mutation entry no. 2713 dated 18/12/2010 and the said entry has attained its finality as there existed now no challenge to it. Based upon this entry when the N.A. Permission was applied for land it was granted by the competent authority i.e. Dy. Collector, the same was assailed by the contesting respondents, who are yet to establish their right on the land in question. 4. The petitioners predecessor have filed civil suit in the year 2000 for permanent injunction being Civil Suit No. 30/2000 and in that suit the injunction was not denied on account of any adjudication order found qua possession but it was denied on account of no imminent threat of possession as could be seen from the order passed in the suit. 5. The contesting respondents have filed civil suit, wherein till date no prohibitory order has been obtained against any one including present petitioners and or to the predecessors. In other words the contesting respondents have not been successful in establishing even semblance of their right which would have qualified them for obtaining temporary injunction or atleast status-quo of the land in question. In other words the contesting respondents have not been successful in establishing even semblance of their right which would have qualified them for obtaining temporary injunction or atleast status-quo of the land in question. In other words had there been any right found in favour of the contesting respondents by the competent civil court then only there would have been an order of status-quo restraining the predecessor of the petitioners and petitioners from alienating the character of land or creating more equities in respect of the land in question. 6. The Section 65 of the Code on its plain reading do not provide for any scope of raising objection in the party who is yet to establish its right in favour on the land in question. 7. The seriousness of the dispute and its grave repercussions, including commission of murder would not be held against the present petitioners in developing the land. Petitioners have not been named in any manner in the FIR though this dispute had taken place long back as the FIR is of the year 2000. 20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throatling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all. 21. Bearing the aforesaid proposition of law in mind when one examines the aspect of appeal preferred by the contesting respondents, one would find it difficult to accept as to how the right to appeal is said to have been conferred upon a third party who has failed in establishing any right before the civil court so far as the land in question is concerned. When the party has not obtained any order or has not been succeeful in obtaining any order in any manner from civil court, which is competent, i.e. only court to adjudicate upon and acknwoeldge their rights and title in the land in question, that party cannot be permitted to throw spanner in the wheels of developemnt set in motion by the legitimate competent authroty, whose entery is there in the reveue record. Therefore the appeal itself from the point of view of locus was also not obtained. 22. Therefore the appeal itself from the point of view of locus was also not obtained. 22. This brings the Court to consider the aspect of jurisdiction in Collector to examine the order of Dy. Collector in exercise of power under section 65 of the Code. Section 65 of the Code is required to be set out as under. “Sec. 65: Uses to which occupant of land for purposes of agriculture may put his land. [1] Any occupant, of land [assessed or held for the purpose of agriculture] is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient [use for the purpose aforesaid]” 23. Plain reading of section 65 of the Code would show that the Code does not recognize at all the authority to be an authority obtained to exercise power under section 65 of the Code. Section 8 provides for appointment of Collector in the District, section 8-A is in respect of appointment of Addl. Collectors in a district and section 9 permits for appointment of Assistant and Dy. Collector and Additional Collector is expressly not made subordinate to Collector in any manner. Whereas section 9 provides Assistant Collector, Dy. Collector to be expressly subordinate to Collector. So far as the land revenue administration of the district is concerned it would be appropriate to set out these provisions for its ready reference while examining the controversy involved in the present petition. “Sec. 8. Collector of the district: The [the State Government] shall appoint in each district as officer who shall be the Collector and who may exercise, throughout his district, all the powers and discharge all the duties conferred and imposed on a collector or an Assistant or Deputy Collector by this Act, or any other law for the time being in force, and in all matters not specially provided for by law shall act according to the instructions of [the State] Government. 8-A. Additional Collectors: (1) The State Government may appoint in each district so many Additional Collectors as it may deem fit. 8-A. Additional Collectors: (1) The State Government may appoint in each district so many Additional Collectors as it may deem fit. The Additional Collector shall exercise such powers and discharge such duties as are exercised or discharged by the Collector in the district or a part of district under this Act or any other law for the time being in force as the State Government may direct. (2) An Additional Collector appointed under sub-section (1) shall not be subordinate to the Collector except in such matters as the State government may be a general or special order specify in this behalf. 9. Assistant and Deputy Collector: The [the State Government] may appoint to each district so many Assistant Collectors, and so many Deputy Collectors as [it] may deem expedient; the Assistants shall be called “First”, “Second”. “Supernumerary”, etc as may be expressed in the order of their appointment. To be sub-ordinate to the Collector: All such Assistant and Deputy Collectors and all other officers employed in the land revenue administration of the district shall be subordinate to the Collector. 10. Their duties and powers: Subject to the general orders of [the State Government], a Collector may [place any of his assistants or deputies in charge of the revenue administration of one or more of the talukas in his district, or may himself retain charge thereof. Any Assistant or Deputy Collector thus placed in charge shall, subject to the provisions of Chapter XIII, perform all the duties and exercise all the powers conferred upon a Collector by this Act or any other law at the time being in force, so far as regards the taluka or talukas in his charge: Provided that the Collector, may whenever he may deem fit, direct any such Assistant or Deputy not to perform certain duties or exercise certain powers, and may reserve the same to himself or assign them to any other Assistant or, Deputy subordinate to him. To such Assistant or Deputy Collector as it may not be possible or expedient to place in charge of talukas, the Collector shall, under the general orders of [the State Government] assign such particular duties and powers as he may from time to time see fit.” 24. Learned counsel for contesting respondents relying upon section 10 of the Code contended that so far as Collector or Dy. Learned counsel for contesting respondents relying upon section 10 of the Code contended that so far as Collector or Dy. Collector, even if he is placing incharge of the revenue territory falling under the district would not be considered to be acting as Collector so far as provision of Chapter-XIII is concerned, as it is expressly made subject to provision of Chapter-XIII and hence the appellate power of Collector upon the order of his subordinates is expressly provided in the suit itself. In my view, this statement is incorrect, as in the instant case first of all the Dy. Collector is not shown to have been obtained under section 10 for taking out proceedings under section 65 of the Code. The Government Resolution placed 1/7/2008 is in fact containing various authorities having various territories in the State of Gujarat declared to be competent for granting N.A. Now, therefore, if it is shown to be an authority not appointed under section 10 of the Code by the Collector, then, it cannot be said that Dy. Collector was in any manner exercised power as subordinate officer to Collector. In fact plain reading of section 65 would go to show that Dy. Collector was in fact discharging function of Collector only and therefore those orders could not have been subjected to scrutiny by way of appeal as could be seen from the observations of this Court in case of Prayas Woollens (Pvt ) Ltd Vs. State of Gujarat And Ors (supra) as well as LPA No. 660 of 2011. Relevant paragraphs of said LPA are set out as under. “9. Under Sec. 9, Assistant Collector and Deputy Collector are to be subordinate to the Colector. Under Sec. 10, any Assistant or Deputy Collector can be placed in charge of he Collector. When such person is placed as Incharge Collector, he is empowered to pass order under Sec. 37[2] only in the capacity of Collector, and not in the capacity of Assistant Collector or Deputy Collector. Therefore, we hold that once an order is passed under Sec. 37[2] , for all purposes, the order is to be treated to be an order passed by the Collector and cannot be stated to be an order passed by Assistant Collector or Deputy Collector officer subordinate to the Collector. 10. Therefore, we hold that once an order is passed under Sec. 37[2] , for all purposes, the order is to be treated to be an order passed by the Collector and cannot be stated to be an order passed by Assistant Collector or Deputy Collector officer subordinate to the Collector. 10. Under Sec. 11 of the Code, Assistant to the Collector of the highest rank present in the district succeeds temporarily the office of the Collector and shall be held to be a Collector. In such case, if the highest officer is of the rank of Assistant Collector or Deputy Collector, under Sec. 11, on creation of temporary vacancy, such officer succeeds temporarily to the office of the Collector and shall be held to be a Collector. In that capacity also, if any order is passed under Sec. 37[2] by such officer who succeeds the office of th Collector, will be deemed to be an order passed by the Collector for all purposes and cannot be treated to be an order passed by the officer subordinate to the Collector. 11. In the case of Patel Khodidas Gangram Ramchand v. S.K. Chaudhari, reported in 1972 GLR 1029 , the aforesaid facts had not been noticed by the learned Single Judge nor discussed in proper perspective. Learned Single Judge, while discussing in the unreported decision dated 16th June, 2009 in the case of “Virjibhai Jivrajbhai” in Special Civil Application No. 12230 of 2002 also failed to notice the aforesaid provisions and failed to interpret the power under Sec.211 against the order of Collector. Therefore, we hold that the decision rendered by the learned Single Judge in the case of Patel Khodidas Gangaram Ramchabnd v. S.K. Chaudhari [supra] [ 1972 GLR 1029 ] and in the case of Virjibhai Jivrajbhai v. State of Gujarat [Special Civil Application No. 12230 of 2002], do not hold good in the eye of law. 12. So far as the Division Bench decision of the Bombay High Court in the case of Vishnu Dadu Lokhande v. Umabai, reported in 1955 Vol. LVII, 816 is concerned, therein, the Court has discussed Sec. 9 and noticed that only when Assistant or Deputy Collector is put in charge of revenue administration of a taluke, he is authorized to exercise powers of the Collector to perform the duties. On rest of the provision including provision of Sec.211, the Court is silent. LVII, 816 is concerned, therein, the Court has discussed Sec. 9 and noticed that only when Assistant or Deputy Collector is put in charge of revenue administration of a taluke, he is authorized to exercise powers of the Collector to perform the duties. On rest of the provision including provision of Sec.211, the Court is silent. Therefore, we hold that the decision of the Bombay High Court in the case of Vishnu Dadu Lokhade v. Umabai, reported in 1955 Vpl. LVII, 816, is per in curium and not applicable in the present case. 13. Learned counsel for the respondent stressed on language of the provision that exercise of power by the Assistant or Deputy Collector is made subject to the provision of Chapter XIII of the Bombay Land Revenue Code. We may only observe that all such orders including the orders passed by the Collector are subject to the provisions of Chapter XIII, which relates to “appeals and revision”. Therefore, if any orders are passed by any officer of the rank of Assistant Collector, Deputy Collector or Collector, the same are subject to the provisions of appeal and revision. This does not mean that the collector can sit in appeal over an order passed by the Collector or Collector can exercise revisional power over an order passed by the Collector. 14. As we have held that an order passed under Sec.37[2] of the Code for all purposes will be deemed to be an order passed by the Collector, at the cost of repetition, we hold that no appeal will lie nor any revision application will lie against such order before an officer of equivalent rank i.e. Collector. The order passed under Sec. 37[2] cannot be treated to be an order passed by the Assistant Collector or Deputy Collector nor can Collector entertain an appeal or revision on the ground that it was actually passed by the Assistant Collector or Deputy Collector. 15. In the present case, as we find that the order of revision has been passed under Sec. 211 by the Collector, Rajkot, we hold that the impugned order is illegal and in any case, the matter having already settled under Sec.37[2] on remand, the respondents are bound to comply with the directions issued by the Incharge Collector under Sec. 37[2] of the Code. Respondents are accordingly directed to act on the basis of such order passed under Sec.37[2] of the Code and pass necessary order.” 25. In my view, therefore, the contentions with regard to lack of jurisdiction raised by the petitioners deserves to be accepted. When lack of jurisdiction is held to be established the plea of non-existing of alternative remedy will fall into insignificance. In that view of the matter petitioners can well be said to have right to approach this Court under section 226 and also under Article 227 of the Constitution of India. 26. The petitioners have shown on record that the Collector while exercising the power of appellate authority did not appreciate the fact that he himself has granted N.A. permission in number of cases which have been cited and those contentions of the petitioners have remained unanswered, though Collector is served and duly represented. Be that as it may; the Court may not delve upon it in any manner as the reply of Collector is unfortunately not there on the record to meet with those contentions. Suffice it to say here that the order of Dy. Collector which was under scrutiny by the Collector was not the order passed by the subordinate, in the sense conferring upon him power of appellate authority. Hence those facts coupled with the facts with regard to lack of any established or substantive interest in the contesting respondents would not prevent him from passing order which would have repercussion upon the petitioners activity of development, which has come to a grinding halt on account of such order. 27. Learned counsel for the contesting respondents has relied upon decision of the learned Single Judge of this Court in case of Patel Khodidas Gangaram Ramchand (supra), but that decision was in fact upon the provision of Sec. 10 and 37 (1) of the Code, and the Division Bench decision is later in point of time and later in strength shall have to be accepted and ratio of the Division Bench is in respect of reiteration of the order confirming the ratio laid down by learned Single Judge of this Court in case of Prayas Woollens (Pvt) Ltd Vs. State of Gujarat & Ors., and therefore reliance placed on this decision by contesting respondents is of no avail to them. 28. In the result, the petition is required to be allowed and is allowed. State of Gujarat & Ors., and therefore reliance placed on this decision by contesting respondents is of no avail to them. 28. In the result, the petition is required to be allowed and is allowed. The order passed by District Collector on 8/6/2011 is hereby quashed and set aside being order without jurisdiction in Appeal no. 82 of 2010-2011. Rule is made absolute to the aforesaid extent. No order as to costs. 29. Ms. Jani at this stage requests that the order be stayed for a period of three weeks. Said request is strongly opposed by Mr. Majmudar. However, this Court is of the view that the request is reasonable and hence the same is accepted, and the order shall come into effect only after a period of two weeks, i.e. from 29/11/2011. 30. In view of the order passed in the main petition, no order in civil application and the same would not survive and shall stand disposed of.