JUDGMENT : 1. Special Civil Application No.6519 of 2005 and Special Civil Application No.8965 of 2005 under Articles 226 and 227 of the Constitution of India have been filed by the petitioners challenging common judgment and order dated 29.11.2004 passed by the learned Gujarat Revenue Tribunal, Ahmedabad (page 133/137), whereby Appeal No.33/1992 with Appeal No.34 of 1992 filed the petitioners were dismissed confirming order dated 31.7.1992 passed by the Collector, Surendranagar (page 95/103) in Case No.3/1988-89. 2. The brief facts of the case are as under : 2.1 The petitioners (hereinafter referred to as ‘the trust’ for brevity and convenience) were granted land admeasuring 26125 sq.ft. and 20910 sq.ft. by the then Government of Saurashtra vide document No.101 dated 2.3.1948 and No.1802 dated 20-2-1948 respectively. Petitioner of Special Civil Application No.8965 of 2005 constructed wall on its eastern side and six rooms in its own premises by obtaining permission from competent authority on 7-8-1963. On the eastern side of the land, there is a temple namely, Shri Hareshvar Mahadev Mandir. Land admeasuring 26125 sq.ft was purchased by Shri Jaswantsinhji Audichya Brahman Boarding Trust and the Lekh was issued by the Collector, Zalavad District on 11-11-1952 on condition that the public way to Shri Hareshwar Mahadev Temple should not be blocked and no construction in front of the other mess should be made. 2.2 It appears that a complaint was made by Trustee of Hareshwar Mahadev Mandir to the Collector about the illegal construction made by the present petitioner causing prejudice to it and also to persons coming to the temple for worship and prayers. The Collector, initiated the proceedings for breach of condition being Case No.3/A-525-3090 and passed an order dated 4.10.1985. Being aggrieved by the said order, the petitioners moved the Additional Chief Secretary (Appeals) under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as ‘the Code’ for brevity and convenience). The Additional Chief Secretary (Appeals) by order dated 27.4.1988 remanded the matters to the Collector by setting aside the order made by the Collector. 2.3 The Collector thereafter made the impugned order dated 31.7.1992 after hearing the parties whereby it was held that construction of 6 rooms and wall made by the petitioners was without permission and hence, was illegal. The Additional Chief Secretary (Appeals) by order dated 27.4.1988 remanded the matters to the Collector by setting aside the order made by the Collector. 2.3 The Collector thereafter made the impugned order dated 31.7.1992 after hearing the parties whereby it was held that construction of 6 rooms and wall made by the petitioners was without permission and hence, was illegal. It was also observed by the Collector that since the illegal construction of wall made by the petitioners was contrary to the documents dated 20.2.1948 and 2.3.1948, said illegal constructions were directed to be removed. 2.4 Being aggrieved by the order made by the Collector, the petitioners preferred appeals before the Gujarat Revenue Tribunal being Appeal No.33/1992 and Appeal No.34 of 1992 respectively. The learned Tribunal by common judgment and order dated 29.11.2004 dismissed the appeals and confirmed the order made by the Collector. 2.5 Both the matters were admitted and interim order was passed vide order dated 6.5.2005 passed in Special Civil Application No.6519 of 2005 staying the impugned orders of demolition of construction on condition that the petitioners complies with the statement and declaration made before the Court as recorded in the said order. The Court also gave liberty to the petitioners to move the collector or the State Government for allowing the remaining impugned construction by regularization or by post facto approval. 2.6 Pursuant to the interim order dated 6.5.2005 passed in Special Civil Application No.6519 of 2005 by this Court, Deputy Collector, Surendranagar, filed an affidavit-in-reply dated 12.1.2006 placing on record a copy of the report prepared after examination of the building through Design Circle of the State Government. 2.7 The petitioner of Special Civil Application No.6519 of 2005 was informed that the application for post facto permission was rejected by the Collector. Thereafter an application was made for amendment for including the challenge to the rejection of the application for post facto permission in Special Civil Application No.6519 of 2005. 3. Heard learned advocates, Mr.Ashish H.Shah for the petitioner of Special Civil Application No.6519 of 2005, Mr.M.C.Dave for the petitioner of Special Civil Application No.8965 of 2005, Mr.Navin Pahwa for M/s Thakkar Associates for Hareshwar Mahadev Mandir, Limdi, and learned Assistant Government Pleader, Mr.Manan Maheta for the respondents-State and Collector in both the petitions. 4. 3. Heard learned advocates, Mr.Ashish H.Shah for the petitioner of Special Civil Application No.6519 of 2005, Mr.M.C.Dave for the petitioner of Special Civil Application No.8965 of 2005, Mr.Navin Pahwa for M/s Thakkar Associates for Hareshwar Mahadev Mandir, Limdi, and learned Assistant Government Pleader, Mr.Manan Maheta for the respondents-State and Collector in both the petitions. 4. Mr.Ashish H.Shah, learned advocate for the petitioner of Special Civil Application No.6519 of 2005 submitted that construction was made after obtaining the permission from Limbdi Nagarpalika. He further submitted that it was due to natural calamity, emergent circumstances coupled with ongoing academic year of the students that the petitioner had to make the construction and it was a bona fide one. According to him, the construction was made at the same place where earlier construction had existed. He further submitted that complaint was filed due to enmity with the petitioner. He further submitted that 17126 sq.ft. of land out of 17397 sq.ft. was kept as open land and therefore, construction was not illegal. 4.1 He further submitted that provisions of Section 79A of the Act has no application in the facts of the present case as the said powers are vested with the Collector to summarily evict a person, who is unauthorizedly and wrongfully occupying and possessing any land. According to him, in view of document No.1830 of 1948, it cannot be said that occupation is unauthorized and possession of the subject land is wrongful. 4.2 He further submitted that the impugned action is also in breach of the principles of natural justice since no hearing or notice was given to the petitioner before making a visit of the premises by the Collector. He further submitted that both the Collector and the learned Tribunal have misread the document inasmuch as there is no complete bar to make construction. 4.3 He further submitted that application to grant post facto permission/regularization of the illegal construction in pursuance of interim order passed by this Court was rejected by the Collector without application of mind. 5. Learned advocate, Mr.M.C.Dave, for the petitioner of Special Civil Application No.8965 of 2005, adopted the submissions made on behalf of Mr.Ashish H.Shah for the petitioner of Special Civil Application No.6519 of 2005. 5. Learned advocate, Mr.M.C.Dave, for the petitioner of Special Civil Application No.8965 of 2005, adopted the submissions made on behalf of Mr.Ashish H.Shah for the petitioner of Special Civil Application No.6519 of 2005. He has further submitted that in the ‘LEKH’, no condition had been mentioned like the condition as mentioned in the ‘LEKH’ related to Special Civil Application No.6519 of 2005 and hence, the question of breach of condition would not arise in Special Civil Application No.8965 of 2005. Referring to internal page 5 of the order dated 29-11-2004 passed by the Gujarat Revenue Tribunal, learned advocate, Mr.Dave for the petitioner, has submitted that once the advocate of the respondent No.3 herein has submitted before the said Tribunal that so far as the dispute pertaining to building of Bhojanshala related to Brahman Gnyati is concerned, now they have no objection for the same and no dispute regarding the same is being carried further and therefore, now the respondent No.3 herein is restricted from taking any dispute relating to Brahman Gnyati because in light of the statement and declaration made before this Court for removal of construction shown in the map as A-B-C-D as observed in order dated 6-5-2005, the same had been complied with by the petitioner of Special Civil Application No.8965 of 2005 and thus, principle of estoppel would come in their way. Moreover, the above referred aspects have been ignored by the Gujarat Revenue Tribunal while passing the impugned order dated 29-11-2004 at Annexure-D (page Nos.28 to 32) and hence, this Court should consider the same to impart substantial justice to the parties. 6. Learned advocate, Mr.Navin Pahwa for M/s Thakkar Associates for Hareshwar Mahadev Mandir, submitted that detailed speaking orders have been passed by the Collector and the learned Tribunal. He further submitted that it is an undisputed fact that the petitioners had made construction of 6 rooms and the wall without obtaining prior permission and which is contrary to the document of 1948 as the said constructions are also causing prejudice to Hareshwar Mahadev Mandir and the persons coming to the temple for worshiping. He further submitted that it is an undisputed fact that the petitioners had made construction of 6 rooms and the wall without obtaining prior permission and which is contrary to the document of 1948 as the said constructions are also causing prejudice to Hareshwar Mahadev Mandir and the persons coming to the temple for worshiping. He further submitted that the document of 1948, which is clear and unambiguous, in terms stipulate to keep a specified area as open land, however, the petitioners have made breach of the said condition of the document and therefore, the constructions are illegal and without permission and the alleged permission of Limbdi Nagarpalika is of no relevance and as the land was given by the Government, Government can condone the illegal action of the petitioners. According to him, the permission given by the Nagarpalika for construction would not tantamount to condoning the breach of condition of the grant of order made by the Government. 6.1 He further submitted that the provisions of Section 79A of the code squarely apply to the present cases in view of the fact that the document of 1948 prevented the petitioners to make any construction and therefore, the construction made by the petitioners is illegal and unauthorized. 6.2 He further submitted that before passing the order by the Collector, show cause notice was issued, a visit to the premises was made and petitioners were heard and hence, sufficient opportunities were given to the petitioners and therefore, the contention that the Collector ought to have issued notice before visiting the site is untenable. Even though the Collector was not required to give any notice to the parties before visiting the site, a notice has been given to the petitioners. 6.3 He further submitted that the Collector has rightly rejected the request made by the petitioners for grant of post facto approval. The land was granted by the State on condition that the petitioners will not make construction on a definite portion of the land but the petitioners have made a clear breach of the said condition and hence, according to him, it is now not open for the authority to condone any such breach and if it is condoned, this Court would be turning down the decision made by the authority under Article 227 of the Constitution of India. He further submitted that there is no prayer in the petitions for regularizing the illegal construction. 6.4 According to him, Hareshwar Mahadev Mandir, Limbdi, is directly affected by the constructions made by the petitioners and hence, the proceedings were initiated against the petitioners pursuant to the complaint made. Moreover, the document of 1948 also recognizes the existence of Hareshwar Mahadev Mandir, Limbdi. He further submitted that the petitioners made Hareshwar Mahadev Mandir, Limbdi, as party in appeals before the learned Tribunal as also in the present petitions. 6.5 He further submitted that though these petitions are filed under Article 226 and/or 227 of Constitution of India, this Court has exercised the powers under Articles 227 of the Constitution of India. He further submitted that both the Collector and the learned Tribunal had given cogent reasons in passing the impugned orders and they do not suffer from any illegality. Moreover, the petitioners could not point out anything to the contrary and therefore, it is requested that this Court may not interfere with the impugned orders while exercising its jurisdiction under Article 227 of the Constitution of India. 7. I have gone through both the order passed by the Collector as well as the common order passed by the learned Tribunal and have given thoughtful consideration to the rival submissions made on behalf of the respective parties. 8. It is to be noted that so far as petitioner-Jaswantsinhji Audichya Brahmin Boarding Trust i.e. Special Civil Application No.6519 of 2005 is concerned, the land was granted to the petitioner by the then Government of Saurashtra vide document No.101 dated 2.3.1948 on conditions that public way to Shri Hareshwar Mahadev Temple should not be blocked and no construction should be made on definite portions of the land mentioned therein. However, constructions were made by the petitioner on the land creating hindrance to the people visiting the temple and thereby making a breach of the condition of the LEKH referred hereinabove. It was contended by the petitioner that permission was obtained from Limbdi Nagarpalika before making construction though nothing has come on record to substantiate said contention, however, it is to be noted that land was granted by the Government and hence, no permission could have been given by Limbdi Nagarpalika. Even if permission was granted, said permission would not serve the purpose as the land was granted by the Government. Even if permission was granted, said permission would not serve the purpose as the land was granted by the Government. Thus, there is a breach of provisions of Section 79A of the code and therefore, the construction made by the petitioner of Special Civil Application No.6519 of 2005 was and is illegal. 9. It is pertinent to note that so far as Special Civil Application No.6519 of 2005 is concerned, ample opportunities were afforded to the petitioner before passing the impugned order by issuing show cause notice by the Collector and hearing the petitioner and hence, principles of natural justice were properly followed by the authorities. Further, request made by the petitioner for grant of post facto approval was rejected by the Collector. Further, as the construction made by the petitioner was causing hindrance to Hareshwar Mahadev Mandir, the respondent No.3 herein, proceeding was initiated against the petitioner pursuant to the complaint made by said Hareshwar Mahadev Mandir. Since it appeared to both the authorities that the construction was made without permission and was contrary to the documents of 1948 i.e. LEKH dated 2-3-1948 causing prejudice to the respondent No.3 herein and the persons coming to the temple for worshiping, it was held to be illegal by both the authorities. 10. It appears that both the authorities below have passed reasoned orders taking into account different aspects of the matters. This Court do not find any illegality or perversity in the findings arrived at by both the authorities so far as Special Civil Application No.6519 of 2005 is concerned and hence, this Court is of the opinion that both the orders do not require any interference by this Court so far as Special Civil Application No.6519 of 2005 is concerned. 11. So far as Special Civil Application No.8965 of 2005 is concerned, I have carefully perused the submissions made by the learned advocates appearing for the respective parties in light of the documentary evidence forthcoming on the record. It is not under dispute that ‘LEKH’ No.1802 related to petitioner of Special Civil Application No.8965 of 2005 is dated 20-2-1948 i.e. prior to the ‘LEKH’ dated 2-3-1948 executed of the petitioner of Special Civil Application No.6519 of 2005. It is not under dispute that ‘LEKH’ No.1802 related to petitioner of Special Civil Application No.8965 of 2005 is dated 20-2-1948 i.e. prior to the ‘LEKH’ dated 2-3-1948 executed of the petitioner of Special Civil Application No.6519 of 2005. So far as this Special Civil Application No.8965 of 2005 is concerned, the question of breach of condition of ‘LEKH’ would not arise is the submission made by the learned advocate, Mr.M.C.Dave for the petitioner of Special Civil Application No.8965 of 2005. The learned advocate, Mr.Pahwa for the respondent No.3 could not point out that in the ‘LEKH’ dated 20-2-1948 related to Special Civil Application No.8965 of 2005, any condition in relation to construction had been mentioned like the condition as mentioned in the ‘LEKH’ dated 2-3-1948 related to Special Civil Application No.6519 of 2005. I have carefully gone through both the above referred ‘LEKHS’. No condition related to construction in the ‘LEKH’ dated 20-2-1948 is mentioned as had been mentioned in ‘LEKH’ dated 2-3-1948 referred above. Hence, question of breach of condition has not arisen in Special Civil Application No.8965 of 2005. Thus, provisions of Section 79A of the Code are not applied to the petitioner of Special Civil Application No.8965 of 2005 in view of the fact that the document ‘LEKH’ dated 20-2-1948 did not prevent the said petitioner to make any construction. It is not denied by the learned advocate for the the respondent No.3 that so far as petitioner of Special Civil Application No.8965 of 2005 is concerned, the relevant statement and declaration made before this Court for removal of construction shown in the map/sketch at page No.174 of the record of Special Civil Application No.6519 of 2005, as observed in order dated 6-5-2005 had not been complied with by the petitioner of Special Civil Application No.8965 of 2005. Drawing attention of this Court on page No.174 referred above, the learned advocate, Mr. Dave for the petitioner of Special Civil Application No.8965 of 2005 submitted that portion shown as ‘D & C’ and “Gnyati-ni Diwal 8.20” shown on right hand side of ‘D & C’ of the said sketch has been removed. The said submission has not been controverted by the learned advocate, Mr.Pahwa for the respondent No.3 but it was confirmed also. Dave for the petitioner of Special Civil Application No.8965 of 2005 submitted that portion shown as ‘D & C’ and “Gnyati-ni Diwal 8.20” shown on right hand side of ‘D & C’ of the said sketch has been removed. The said submission has not been controverted by the learned advocate, Mr.Pahwa for the respondent No.3 but it was confirmed also. 11.1 The relevant English translation of the contents in the vernacular language appearing on page No.32-internal page-5 of the impugned order of the learned Tribunal dated 29-11-2004 reads as under: “Ld. Advocate, Mr.R.J.Sheth has appeared in this case for the Pujari of Hareshwar Mahadev Mandir Trust. He has clearly admitted that they have no dispute regarding the building existed from the beginning. They have objection only for the new building which is constructed in violation of conditions. Mr.Sheth has further submitted that the permission granted by the Municipality on 7-8-63 is regarding the building of dining hall of Brahmin Gnyati and we have no dispute against the same also. We have dispute against the two-storey building constructed by the Boarding Trust subsequently. Therefore, the building in which permission was granted on 7-8-63 and the building under the present dispute are two separate matters. Their main dispute is against the construction that is carried out by the boarding in the land which was vacant and which had to be kept vacant.” It is not under dispute that before the learned Tribunal, learned advocate, Mr.R.J.Sheth was representing the case of present respondent No.3 of Special Civil Application No.8965 of 2005. As referred above, the said learned advocate, Mr.Sheth for the present respondent No.3 had submitted before the learned Tribunal that so far as dispute pertaining to Brahman Gnyati is concerned, now they have not disputed and the same is not required to be carried further. No other adverse circumstances are brought to my notice by the learned advocate, Mr.Pahwa appearing for the respondent No.3 herein. No other adverse circumstances are brought to my notice by the learned advocate, Mr.Pahwa appearing for the respondent No.3 herein. The above concession as well as absence of any condition in the ‘LEKH’ dated 20-2-1948 relating to petitioner of Special Civil Application No.8965 of 2005 is ignored by the learned Tribunal while passing the impugned order dated 29-11-2004 at Annexure-D at page Nos.28 to 32 and I am of the view that said ignorance had led him to come to a wrong finding that provisions of Section 79A of the Code are also attracted in the case of Special Civil Application No.8965 of 2005. Moreover, the western side “Gnyati-ni Diwal 8.20” referred above and the portion ‘D&C’ has been removed and as such, as referred above, so far as petitioner of Special Civil Application No.8965 of 2005 is concerned, it had taken permission of Municipality dated 7-8-1963 and as there is no breach of condition of the ‘LEKH’ dated 20-2-1948, there appears force and substance in the above referred submissions made by learned advocate, Mr.M.C.Dave for the petitioner of Special Civil Application No.8965 of 2005. Under the above circumstances, this Court is of the opinion that both the impugned orders do require interference so far as Special Civil Application No.8965 of 2005 is concerned and accordingly, the same is required to be allowed. 12. In view of the above, as far as Special Civil Application No.6519 of 2005 is concerned, the same is required to be dismissed and is accordingly dismissed. So far as Special Civil Application No.6519 of 2005 is concerned, both the impugned orders dated 29-11-2004 passed by the learned Gujarat Revenue Tribunal, Ahmedabad, in Appeal No.33 of 1992 and 31-7-1992 passed by the Collector, Surendranagar, in Case No.3/1988-89 related to petitioner of Special Civil Application No.6519 of 2005, opponent No.2 therein, are confirmed. Rule is discharged. Interim relief granted earlier stands vacated. 12.1 In view of the above, so far as Special Civil Application No.8965 of 2005 is concerned, the same is required to be allowed and is accordingly allowed. Both the impugned orders dated 29.11.2004 passed by the learned Gujarat Revenue Tribunal, Ahmedabad, in Appeal No.34 of 1992 and 31.7.1992 passed by the Collector, Surendranagar, in Case No.3/1988-89 related to petitioner of Special Civil Application No.8965 of 2005 are quashed and set aside. Rule is made absolute. 13. Both the impugned orders dated 29.11.2004 passed by the learned Gujarat Revenue Tribunal, Ahmedabad, in Appeal No.34 of 1992 and 31.7.1992 passed by the Collector, Surendranagar, in Case No.3/1988-89 related to petitioner of Special Civil Application No.8965 of 2005 are quashed and set aside. Rule is made absolute. 13. Registry is directed to place a copy of this judgment in each matter. (G.B.SHAH, J.) RADHAN Further Order: After pronouncement, learned advocate Mr. C. P. Champaneri for Mr. Ashish H. Shah, learned advocate for the petitioner in Special Civil Application No. 6519 of 2005, has requested to stay the implementation and operation of the present judgment and order and has further requested that the interim relief granted earlier be extended for a period of 30 days as the petitioner herein wants to challenge this judgment and order before the higher forum, to which, Mr. Abhimanyu Rathod, learned advocate for M/s. Thakkar Assosiates for the respondent No. 2 has objected. However, considering the peculiar facts and circumstances of the case, the implementation and operation of this judgment and order is stayed and interim relief granted earlier is extended for a period of 15 days.