JUDGMENT : B.N. KARIA, J. ORDER IN CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021 In R/LETTERS PATENT APPEAL NO. 2941 of 2010. The Legal Representatives of the deceased Shivrambhai Narayandas Rajgor (Heir of deceased original Petitioner), who said to be expired on 07.09.2020, are taken on record. Civil Application (For Bringing Heirs) No. 1 of 2021 is accordingly disposed of. (DR. VINEET KOTHARI, J.) (B.N. KARIA, J.) ORDER IN R/LETTERS PATENT APPEAL NO. 2941 of 2010 in SPECIAL CIVIL APPLICATION NO. 11748 of 2009. 1. Present Appellants, who are the legal heirs of the deceased Shivrambhai Narayandas Rajgaur, have requested to quash and set aside the Judgment and Order dated 27th October 2010 passed by the learned Single Judge (Coram: Mr. Justice K. S. Jhaveri, J.) in Special Civil Application No. 11748 of 2009, wherein deceased Shivrambhai Narayandas Rajgaur was the Original Petitioner, who died during the pendency of this Appeal. 2. Brief facts of the present case may be described as under: 2.1 Shivrambhai Narayandas Rajgaur, who was known as “Narayan Bapu” through his disciple Mr. J. D. Panchal, requested the Government for allotment of the land to establish “Ashram” at Bharuch. That, the Government of Gujarat was pleased to pass an order on 18th November 1993 allotting the land of 2-80-00 hectare Aare Sqr. meter in favour of deceased Narayan Bapu. The land was allotted to Shri Narayan Bapu for the establishment of “Ashram” and residential “Kutir” on payment of Rs.1,82,000/-. The said amount was deposited and the Sanad was duly issued. Respondent No.2 issued Show Cause Notice dated 12.05.2005 on the ground that deceased Narayan Bapu had exchanged the land to Mr. J.D.Panchal, which was not permissible. As per the submissions of the original Petitioner, as the land allotted to the deceased was not in straightline and was occupied for the purpose of construction of Temple, Ashram and Kutir. The disciple of Narayan Bapu i.e. Mr. J.D.Panchal had also got adjoining land, and therefore, a proposal was made to the Deputy Collector, Bharuch for exchanging the area of the land so that rectangle land can be available for construction of the Ashram etc., The Deputy Collector called a Report from the D.I.L.R and granted permission on 14.08.2003. Then Narayan Bapu constructed the building including Temple, Ashram, Kutir etc. and spent approximately amount of Rs.25 to Rs.30 Lakhs. Then Narayan Bapu constructed the building including Temple, Ashram, Kutir etc. and spent approximately amount of Rs.25 to Rs.30 Lakhs. 2.2 Thereafter, on 26.12.2008, permission granted by the Deputy Collector, Bharuch dated 14.08.2003 was cancelled by the Collector. The original Petitioner challenged the order of the Collector cancelling the order of the Deputy Collector, Bharuch before the Revisional Authority, which was still pending. That, reply was given of the Show Cause Notice on 25.07.2005 by Narayan Bapu and subsequently he was expired on 17.11.2007. After, lapse of Three and half years, hearing was made and Order was passed by the Collector. Again the original Petitioner approached the Revisional Authority under Section 211 of Bombay Land Revenue Code. As the hearing of the Revision Application could not be taken place, Respondent No.3 issued Notice for taking possession of the land in question and further order was passed. 2.3 Therefore, the original Petitioner approached this Court by filing Special Civil Application No. 1344 of 2009 wherein, Ad Interim relief was granted in favour of the Petitioner on 17.02.2009. In that Petition, learned Assistant Government Pleader made a statement before the Court on 23.06.2009 that Respondent No.1 will decide the Revision Application within a period of Two months from the date of the said order, and therefore, the original Petitioner withdrawn that petition. Thereafter, hearing was taken place before the Revisional Authority, however, the Respondent No.2 – Collector, Bharuch did not accept the contentions of the original Petitioner and by an order dated 14th October, 2009, he had dismissed the Revision Application. Hence, the original Petitioner approached this Court by filing Special Civil Application No. 11748 of 2009, which was also dismissed by an order dated 27.10.2010. Hence, this Letters Patent Appeal has been preferred by the original Petitioner namely deceased Narayan Kalidas Rajgaur of Halol, District Panchmahal. 3. Heard learned Senior Counsel Mr. B.S.Patel with Mr. Chirag B.Patel, learned Counsel appearing for the Appellants and learned Assistant Government Pleader Mr. Soaham Joshi for the Respondents. 4. Learned Senior Counsel Mr. B.S.Patel with Mr. Chirag B.Patel, learned Counsel appearing for the Appellants has submitted that the impugned Orders passed by the learned Single Judge as well as Respondent-Authorities are contrary to the facts and law as well as are perverse. Soaham Joshi for the Respondents. 4. Learned Senior Counsel Mr. B.S.Patel with Mr. Chirag B.Patel, learned Counsel appearing for the Appellants has submitted that the impugned Orders passed by the learned Single Judge as well as Respondent-Authorities are contrary to the facts and law as well as are perverse. It is further submitted that exchange of land was not only with a permission of Deputy Collector, Bharuch, but it was not hit by any condition of allotment. That, Sanad issued by the Government cannot be cancelled by the Respondent No.2. It is further submitted that under the provisions of Bombay Land Revenue Code 1979, the State Government has no Authority to cancel the Sanad. It is further submitted that in the religious Ashram, Temple is always a part of the Ashram, for which, no separate permission is necessary. That, on issuing Notice by Respondent No.2, the Panchnama was drawn within a period of 15 days by the original Petitioner with a view to bring correct facts on record, which also clearly reveals that the construction had been carried out. It is further submitted that considering the construction of Temple, it cannot be said to be a breach of the condition, as land was allotted for the purpose of “Ashram” and related usages. That, observations of the learned Single Judge that permission to construction for “Ashram” and permission to construction for “Temple” are totally different subjects are not correct in the present case. It is further submitted that Temple was constructed on small portion of the land and it was religious activities, which was the part of the Ashram. That, revisional powers were not exercised properly by the authorities below. 4.1 Referring the definition of “Ashram” in Bhagavadromandal Part-2 and Part 7, it is submitted that Ashram includes the Parnakuti, Math, Madhi, Madhuli, Munivas, Residence for Rushimunies, residence of Saints, etc. Thereafter, referring the definition of “Math”, it is submitted that Math includes the Devmandir, Religious Place, Small Temple, Devalaya as well. It is submitted that Temple includes the place by whatever designation known, used, as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu Community or of any section thereof, as a place of public religious worship. It is submitted that Temple includes the place by whatever designation known, used, as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu Community or of any section thereof, as a place of public religious worship. It is submitted that the learned Single Judge as well as Authorities below have failed to consider that Temple is the part of the Ashram and there was no breach of the condition regarding the land allotted to the original deceased Petitioner. 4.2 Learned Advocate for the Appellants has produced certain photographs of the land, wherein Temple in question is found and filed an additional Affidavit on behalf of the Appellants clarifying exact situation of the land as per the order dated 30th June, 2020. Ultimately, it was requested by learned Counsel for the Appellants to quash and set aside the impugned judgment and order dated 27.10.2010 passed by the learned Single Judge in Special Civil Application No. 11748 of 2009 as well as orders passed by the Collector, Bharuch and Revisional Authority. 5. Per contra, learned Assistant Government Pleader Mr. Soaham Joshi for the Respondents has supported the impugned Judgment and Order dated 27.10.2010 passed by the learned Single Judge in Special Civil Application No. 11748 of 2009 and reasoning Orders passed by the Respondent Nos. 1 and 2 and has argued that all the Orders are reasoning Orders after verifying the record and condition stipulated to the original grant dated 18th November, 1993 and therefore, it does not require any interference by this Court. It is submitted that the Deputy Collector, Bharuch had given a permission for internal exchange of the land as per Section 119 read with Section 10 of the Bombay Land Revenue Code. It is further submitted that powers are vested only with the Collector and powers were never delegated to the Deputy Collector, and therefore, any permission granted by the Deputy Collector is in consequential, thus also the Appeal is required to be dismissed. 5.2 It is further submitted by learned Assistant Government Pleader for the Respondents that the land in question of Survey No. 75 paiki at mauje Jadeshwar admeasuring 2-80-00 Hectare Aare Sqr. Meters was granted for the purpose of Ashram and related usages to the Ashram by an Order dated 18.11.1993 . 5.2 It is further submitted by learned Assistant Government Pleader for the Respondents that the land in question of Survey No. 75 paiki at mauje Jadeshwar admeasuring 2-80-00 Hectare Aare Sqr. Meters was granted for the purpose of Ashram and related usages to the Ashram by an Order dated 18.11.1993 . That, the land was granted on new and impartible tenure and there was a breach of Condition No.5 (Kabuliyat), and therefore, Notice was issued on 25.05.2005, and thereafter, an order was passed on 26.12.2008. That, the Orders passed by both the Authorities below as well as learned Single Judge are just and proper and it cannot be disturbed by this Court. Without prior permission of the Collector, Temple was constructed by the original Petitioner, which cannot be considered as a part of the Ashram, but it was a breach of the Condition imposed in the order dated 18.11.1993. That, the Appeal preferred by the Appellants has no substance to interfere the impugned Orders, and therefore, it was requested by learned Assistant Government Pleader for the Respondents to dismiss present Letters Patent Appeal. 6. Having heard learned Counsel for the Appellants as well as learned Assistant Government Pleader for the Respondents, it appears that the land of Survey No. 75 paiki admeasuring 28000 sqr meter at Village: Zadeshvar, District: Bharuch was granted to the original Petitioner based on the Note dated 23.07.1993 of the Revenue Department of the Government vide Order No. Bhumi/Vashi/5097 dated 18.11.1993 issued by the Collector, Bharuch for the purpose of Hermitage and residence as the new and individual and restricted tenure land. As per the opinion of the respondent, the original Petitioner in that proceedings, committed the breach of the condition, and thereafter, the Collector, Bharuch, after obtaining the instructions from the Revenue Department had initiated the proceedings for breach of the condition and passed an Order dated 26th December 2008 for taking over and vesting the land in question with the Government. The original Petitioner, being aggrieved by the said order, filed Revision Application before the Revenue Department and challenged the Order. During the pendency of this Revision Application preferred by the original Petitioner, process for taking over the possession of the land was initiated, and therefore, the original Petitioner approached this Court by preferring Special Civil Application No. 1344 of 2009. The original Petitioner, being aggrieved by the said order, filed Revision Application before the Revenue Department and challenged the Order. During the pendency of this Revision Application preferred by the original Petitioner, process for taking over the possession of the land was initiated, and therefore, the original Petitioner approached this Court by preferring Special Civil Application No. 1344 of 2009. This Court, vide its Oral Order dated 23rd June 2009, directed to decide the case of the Petitioner pending before the Competent Authority within Two Months from the date of the Order and after hearing the parties, the Revisional Authority found that it does not appropriate to make any change in the impugned order dated 26.12.2008 passed by the Collector, Bharuch. Revision Application of the original Petitioner was disallowed vide order dated 14.10.2009. Against the order passed by the Revisional Authority, the original Petitioner approached this Court by filing Special Civil Application No. 11748 of 2009, which also came to be dismissed vide order dated 27th October 2010. 7. From the record, it appears that the Government of Gujarat was requested by Mr. J. D. Panchal, Disciple of Narayan Bapu to establish the Ashram at Bharuch and for allotment of the land thereof. The Government of Gujarat, vide order dated 18.11.1993, allotted the land admeasring 2-80-00 Hectare Aare Sqr Meter in favour of the Narayan Bapu (Deceased) after considering the requirement for the purpose of establishing the Ashram and residential Kutir, on payment of Rs. 1,82,.000/-. The said amount was deposited by the Deceased and the Sanad had been issued. On 12.05.2005, the Respondent No.2 issued a show cause notice on the ground that that deceased Narayan Bapu had exchanged the land with Mr. J.D.Panchal, which was not permitted. As the land was occupied for the purpose of construction of Temple, Ashram and Kutir, it was to be constructed on the land having got straight line. But unfortunately, the same was not available, and therefore, as per the submissions made by the original Petitioner, Mr. J.D.Panchal, which was not permitted. As the land was occupied for the purpose of construction of Temple, Ashram and Kutir, it was to be constructed on the land having got straight line. But unfortunately, the same was not available, and therefore, as per the submissions made by the original Petitioner, Mr. J. D. Panchal, Disciple of Narayan Bapu has also got adjoining land, proposal was submitted to the Deputy Collector, Bharuch for exchange of the area of the land, so that rectangle land can be available for construction of the Ashram etc., The Deputy Collector, Bharuch was pleased to grant the permission dated 14.08.2003, and thereafter, the deceased Narayan Bapu constructed the building including the Temple, Ashram, Kutir etc., and spent approximately Rs.25 to Rs.30 Lakhs . Thereafter, the Collector cancelled the permission granted by the Deputy Collector against which, Revision Application was preferred by the original Petitioner, which was still pending. Reply of the Show Cause Notice dated 12th May 2005 was given by the deceased Narayan Bapu on 25th July 2005 and subsequently, he expired on 17th November 2007. After lapse of Three and Half years, the Respondent No.2 passed an Order directing to take over the land of Survey No. 75 paiki admeasuring 2-80-00 Hectare, Aare, Sqr Meter situated at village Zadeshvar, Taluka and District: Bharuch granted to Shri Narayan Kalidas Rajgaur alias Narayan Bapu for the purpose of Hermitage and residence as the new and indivisible and restricted tenure land vide Order No. Bhumi/Vashi/5097 dated 18.11.1993 regarding the breach of the condition of the said order and vesting it with the Government . The Mamlatdar, Bharuch was directed to take away the possession of the said land from the original Petitioner and submitted the possessions receipt to the office. Revision Application preferred by the original Petitioner could not be proceeded for hearing for a considerable period, the Special Civil Application No. 1344 of 2009 was preferred by the original Petitioner, wherein Interim Order was passed on 17th February 2009. Thereafter, on the basis of the statement made by learned Assistant Government Pleader that the matter pending before the Respondent No.2 would be decided by the Authority within a period of 2 months, the Petition was withdrawn on 23rd June 2009. 8. Thereafter, on the basis of the statement made by learned Assistant Government Pleader that the matter pending before the Respondent No.2 would be decided by the Authority within a period of 2 months, the Petition was withdrawn on 23rd June 2009. 8. It appears from the record that the Respondent Authority, mainly on the ground to construct the Temple by the deceased Narayan Bapu on the said land, passed the impugned order observing that as per Condition No. 3 of the order dated 18th November 1993 and Condition no.5, Undertaking (Kabuliyat) without permission of the Competent Authority, the land or any part thereof cannot be transferred in any manner to any person and despite this, out of this land, the land admeasuring 943.68 sqr meters was transferred in favour of Mr. J. D. Panchal for the purpose of change in boundary. It was further observed that as per the Condition No.5 of the Undertaking (Kabuliyat), land was allotted for a purpose of Hermitage and residence as the new and indivisible and restricted tenure land, Temple was constructed, and there was a breach of Condition Nos. 3 and 5 of the Undertaking (Kabuliyat). Here, this Court would like to refer the definition of “Ashram” as provided in Gujarati Dictionary Bhagavadromandal Part-2 and Part 7, wherein “Ashram” is defined including Parnakuti, Math, Madhi, Madhuli, Munivas, Residence for Rushimunies, residence of Saints, etc. Thereafter, as referred by learned Counsel for the Appellants, definition of “Math” includes the Devmandir, Religious Place, Small Temple, Devalaya as well. “Temple” includes the place by whatever designation known, used, as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu Community or of any section thereof, as a place of public religious worship. If we consider the definition as provided in the Gujarati Dictionary Bhagavadromandal Part-2 and Part 7, a Temple would a part of Ashram and Math. Learned Counsel for the Appellants has produced a zerox copy showing the Temple constructed in the land for public religious worship. It appears from the record that before constructing the Residence, Hermitage and Temple, permission was granted on 20th April 1994 by the Zadehvar Village Panchayat, Taluka: Bharuch to the original Petitioner - Narayan Kalidas Rajgaur subject to fulfillment of all the conditions. It appears from the record that before constructing the Residence, Hermitage and Temple, permission was granted on 20th April 1994 by the Zadehvar Village Panchayat, Taluka: Bharuch to the original Petitioner - Narayan Kalidas Rajgaur subject to fulfillment of all the conditions. As per the order passed by the Zadeshvar Village Panchayat, original Petitioner was permitted to make following constructions. Name of village Survey No. Plot No. Area Zadeshvar 75 paiki - 119.67 sqr. Mtrs. For residence 637.92 sqr. Mtrs. For Hermitage 84.00 sqr. Mtrs. For Temple 841.52 Sqr. Mtrs Total 9. The permission granted by the Zadeshvar Village Panchayat dated 20th April 1994, has not been touched by any of the Authority ie., Respondents No.1 and 2 in their order authorizing the original Petitioner to construct the residence, Hermitage and Small Temple that was constructed in 37.00.00 Sqr meter as per the Affidavit filed by Mr. D. D. Desai, Mamlatdar, Bharuch dated 25.01.2017. Only on the ground of breach of the condition of the order dated 18th November 1993, impugned orders were passed by the Respondent Authorities. However, after getting necessary permission, small Temple for worship was constructed by the original Petitioner. Permission for residence as well as Hermitage was already granted to the original Petitioner in the order dated 18th November 1993. Shri Shivrambhai Narayandas Rajgaur has filed his Affidavit-in-Rejoinder at Page No. 92, wherein he has stated in Para 2 on oath as under: 2. I submit that Revenue Survey No. 75 is a very big survey number of land which is adjacent land to the land in question which has been allotted by the State Government to Narayan Charitable Trust for running an eye hospital on which eye-hospital as well as general hospital is constructed by the disciples of Narayan Bapu but the same is outside the limit of the land which is allotted to the appellant. I submit that the land had been allotted to deceased Narayan Bapu for the purpose of establishing an Ashram. I state that permission for putting up residential construction and Satsang Hall is also sanctioned but because of the litigation trust has not put up construction, however, the trust wants to utilize the land by putting up Satasang Hall. I submit that the land had been allotted to deceased Narayan Bapu for the purpose of establishing an Ashram. I state that permission for putting up residential construction and Satsang Hall is also sanctioned but because of the litigation trust has not put up construction, however, the trust wants to utilize the land by putting up Satasang Hall. I submit that, at present, the disciples of Narayan Bapu is in surrounding vicinity and they used to visit Ashram frequently and on many occasions Tent (Mandap) is required to be prepared by the appellant.” 10. In response to the Affidavit filed by the said person, Shri Jaysukhbhai Dhirubhai Patel, Resident Additional Collector, Bharuch has filed Affidavit in Reply produced at Page No. 88, wherein the facts stated by the original Petitioner is not clearly denied or refused. 11. Further it appears from the order passed by the Respondent Authorities, straightway, it was ordered for vesting the land with the Government along with an order to take over the possession of the land from the original Petitioner. Sanad issued under Rule 43 which is produced at Page No. 44 (Annexure-F). 12. It further appears from the record that surprisingly, the original Order dated 18.11.1993 of granting land to the original Petitioner was not produced on record. Further, permission as has been granted and receipt of the Collector, Bharuch for initiating process regarding breach of the alleged condition by the original Petitioner was also not produced on record. It further appears that the issuance of notice dated 12.05.2005 by the office of the Collector was not available on record as it is not placed on record. The Conditions imposed in the original Order dated 18.11.1993 (without place on record) were referred by the Respondent Authorities in their orders respectively. While passing the order by the Respondent Authorities, his Sanad dated 16.01.1995 issued by the Collector, bharuch was also impliedly cancelled irrespectively. 13. In support of his arguments, learned Counsel for the Appellants has relied upon the case reported in 2007(1) GLR Page 671- Govind Murji Patel (Kerai) and Ors. v. State of Gujarat and Ors. wherein it is held that once Sanad is issued pursuant to allotment of land, revisional jurisdiction cannot be exercised by the revenue authorities. In this case, order passed by the revisional authority was held without jurisdiction. 14. v. State of Gujarat and Ors. wherein it is held that once Sanad is issued pursuant to allotment of land, revisional jurisdiction cannot be exercised by the revenue authorities. In this case, order passed by the revisional authority was held without jurisdiction. 14. That without having sale certificate nullified and Sanad being declared to be incorrect, no authority much less, the Deputy Collector and Collector have any power or jurisdiction for issuing Show Cause Notice. 15. In case of “Shri Ram Mandir Indore versus State of Madhya Pradesh & Others” (Civil Appeal No. 5043 of 2009), Hon’ble Apex Court has held in para 14 as under: “14. In Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas and others (1969) 2 SCC 853 , the Supreme Court held that “the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, are relevant factors to establish whether a temple is a public temple. or a private temple.” Likewise, as held in Tilkayat Shri Govindlalji Maharaj Etc. v. State of Rajasthan and others [1964] 1 SCR 561, the participation of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations may be a very important factor to consider in determining the character of the temple. In the present case, the appellant has not adduced any evidence to show that there is restricted participation of the public for darshan.” 16. In the present case also, before issuing Show Cause Notice dated 12.05.2005 to the original Petitioner, Sanad dated 16.01.1995 issued by the Collector, Bharuch was never questioned by the Respondent Authorities straightway passed the orders by the Respondent No.2 on 26.12.2008 and by the Respondent No.1 on 22.10.2009 directing to vest the land with the Government. The Respondent No.1 confirmed the order dated 26.12.2008, which was as per our opinion, was not legal and correct. 17. It appears from the record Annexure R/2- Letter was issued by the office of the Mamlatdar on 2nd May 2016 stating that the entry made in the revenue record of vesting the lands with the Government as per the order dated 26.12.2008 passed by the Respondent no.2 was cancelled by the Circle Officer, Nabipur as the Interim Injunction was granted by this Court on 17.02.2009. As per the submissions made by learned Counsel for the Appellants that the Appellants/Original Petitioners are in possession of the land in question and photographs produced on record also support the statement of the original Petitioner. 18. For the aforesaid reasons, we are of the opinion that the present Letters Parent Appeal is required to be allowed without touching other submissions and is hereby allowed. The order dated 26.12.2008 passed by the Respondent no.2 and order dated 22.10.2009 passed by the respondent no.1 as well as Judgment and Order dated 27th October 2010 passed by the learned Single Judge in Special Civil Application No. 11748 of 2009 are quashed and set aside. Present Letters Patent Appeal is accordingly disposed of. No order as to costs.