Keshubhai Virbhanbhai Vala vs The Special Secretary (Appeals) ...
2022 Latest Caselaw 4386 Guj

    C/SCA/11744/2021                              CAV JUDGMENT DATED: 26/04/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11744 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-

==========================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy No of the judgment ?

4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== KESHUBHAI VIRBHANBHAI VALA Versus THE SPECIAL SECRETARY (APPEALS) REVENUE DEPARTMENT ========================================================== Appearance:

MR PERCY KAVINA, Senior Advocate with MR VIRAL R GURJAR(10556) for

MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1 to 4 MR KAMAL TRIVEDI, Advocate General with MR G H VIRK(7392) for the

MR MIHIR JOSHI, Senior Advocate with MR AMAR D MITHANI(484) for the

==========================================================

CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 26/04/2022

CAV JUDGMENT

1 By way of this petition, the petitioner has

challenged the order dated 8.7.2021 passed by the

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

Special Secretary (Appeals), Revenue Department -

respondent No.1 in Revision Application No.

MVV/JMN/Gir/11/2021.

1.1 The petitioner has also challenged the

order dated 30.9.2021 passed by respondent No.1 on an

application for speaking to minutes preferred by the

respondent No.5.

1.2 The petitioner has further prayed for

declaration that the impugned order dated 8.7.2021 is

vitiated on the ground of locus of respondent No.5

and has further prayed for quashing and setting aside

the order dated 30.9.2021 whereby leave to appeal is

granted in favour of respondent No.5. The petitioner

has also prayed for declaration that the application

preferred by respondent No.1 before respondent No.1

was not maintainable on the grounds of locus,

estoppel and on the ground that no procedure is

prescribed under the Bombay Land Revenue Code and

Rules framed thereunder for preferring application

for speaking to minutes.

     C/SCA/11744/2021                                       CAV JUDGMENT DATED: 26/04/2022



2                 As      the        main        matter         being          Revision

Application No.MVV/JMN/Gir/11/2021 is pending before

the respondent No.1, an agreement was arrived at

between the parties during the course of hearing that

this Court may only limit itself to determine the

aspects about locus of the respondent No.5 and

whether any application at the instance of respondent

No.5 before the respondent No.1 is maintainable or

not while examining the impugned orders dated

8.7.2021 and 30.09.2021 passed by the respondent

No.1. Hence, in view of the aforesaid agreement,

while deciding this petition, this Court would not

touch the merit of the matter.

2.1 Considering the fact that by way of this

petition what is sought to be examined is the limited

aspect about locus of respondent No.5 and

maintainability of the application filed by

respondent No.5 seeking leave to appeal before the

respondent No.1 while examining the impugned orders

dated 8.7.2021 and 30.9.2021, with the consent of the

parties, the matter was extensively heard for final

hearing on 18.1.2022 and 19.1.2022.

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

3 Issue rule. Mr. Nikunj Kanara, learned AGP

waives notice of rule on behalf of State respondent

Nos.1 to 4, Mr. Amar Mithani, learned advocate waives

service of notice of rule for respondent No.5 and Mr.

G.H.Virk, learned advocate waives notice of rule on

behalf of respondent No.6.

4 Heard learned Senior Advocate Mr. Percy

Kavina with Mr. Viral Gurjar, learned advocate for

the petitioner, Mr. Nikunj Kanara, learned AGP for

respondent Nos.1 to 4, Mr. Mihir Joshi, learned

Senior Advocate with Mr. Amar Mithani, learned

advocate for respondent No.5 and Mr. Kamal Trivedi,

learned Advocate General with Mr. G.H.Virk, learned

advocate for respondent No.6.

5 The case of the petitioner is that two

parcels of lands bearing survey Nos.633 and 637 of

village Sarkhadi, Taluka Kodinar, District Gir

Somnath (originally Junagadh district) came to be

seized by the State under the Agricultural Land

Ceiling Act, 1960 for which a mutation entry No.923

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dated 16.12.1965 was recorded in the revenue record.

5.1 As at that time, the petitioner was

landless agricultural labour, land bearing survey

No.637 paiki admeasuring 11-19 Acres-Gunthas as well

as land admeasuring 5-10 Acres-Gunthas of survey

No.633 of Village Sarkhadi, Taluka Kodinar, District

Gir Kodinar (originally Junagadh district) were

allotted to the petitioner on `santhani' basis.

Similarly 17-00 Acres-Gunthas of the land bearing

No.637 was allotted to brother of the petitioner viz.

Bogha Govind by the Assistant Commissioner, Rajula

vide order No.996 dated 25.3.1969 against the payment

of occupancy price which was quantified at

Rs.2,000/-. Accordingly, a revenue entry No.1303

dated 15.12.1970 was mutated in the revenue record.

5.2 It is further the case of the petitioner

that the land in question was allotted to the

petitioner on `santhani' basis along with his brother

Bogha Govind and since then he is in possession of

the land. Both of them have paid the amount of

occupancy price and pursuant to the payment of

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

occupancy price, name of Bogha Govind continued to

appear as occupant in the revenue record, but the

name of the petitioner was not reflecting in the

column of occupant, but was reflecting in the column

of cultivator. Therefore, in the year 2016 the

petitioner requested the revenue authorities to

mutate his name in the revenue record as occupant.

Pursuant to the aforesaid request, the authority

asked the petitioner to produce the receipt of the

amount paid by the petitioner in the year 1969

towards occupancy price. As the petitioner was not in

possession of the aforesaid receipt of payment of

occupancy price, he could not produce the same and

instead made a request to the revenue authority by

showing his willingness to pay the occupancy price

along with penal interest by preferring an

application dated 2.5.2017, which was addressed to

the Mamlatdar Kodinar. However, the Mamlatdar,

Kodinar rejected the said application vide order

dated 6.5.2017 by observing that since the petitioner

has not paid the occupancy price at the time of

allotment of the land in question, the order

allotting the land to the petitioner automatically

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

stood cancelled and at this juncture the occupancy

price cannot be accepted.

5.3 Once again the petitioner preferred an

application dated 2.2.2018 to the Mamlatdar stating

the circumstances and difficulties faced by him. One

more application was preferred by the petitioner

dated 7.8.2018 which was addressed to the District

Collector, Gir Somnath wherein he categorically

stated that at the relevant point of time, the

occupancy price though was already paid, the receipt

was not in his possession as the same was not

traceable and the petitioner has shown his

willingness to make payment of occupancy price once

again for the second time. In that application, the

petitioner also made reference of similarly situated

persons, who were facing similar circumstances and

yet their cases were considered positively.

5.4 As the petitioner did not receive any

positive response from the authority, the petitioner

made representations up to the level of the Minister,

Revenue Department, Gandhinagar and as nothing turned

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in his favour, the petitioner preferred Special Civil

Application No.18330 of 2018 and challenged the order

dated 6.5.2017 passed by the Mamlatdar, Kodinar.

However, the said petition was withdrawn for availing

alternative remedy.

5.5 Thereafter, the petitioner preferred an

appeal challenging the order dated 6.5.2017 before

the Deputy Collector, which was numbered as

RRT/Delay/Case No.17 of 2019 and the Deputy Collector

vide order dated 8.3.2019 rejected the appeal

preferred by the petitioner on the ground of delay.

5.6 The petitioner challenged the said order

dated 8.3.2019 passed by the Deputy Collector by

filing revision application before the District

Collector, Gir Somnath which was numbered as

Land/3/Appeal/4/2019 and ultimately the Collector

vide order dated 24.9.2019 remanded the case to the

Deputy Collector for examining 3 aspects viz. [1]

whether any breach has been committed by the

petitioner, [2] whether the occupancy price was paid

by the petitioner, and [3] whether the petitioner was

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

in possession of the land and further directed the

Deputy Collector to decide the matter afresh in light

of the aforesaid 3 aspects.

5.7 Before the Deputy Collector, the case was

numbered as Remand Case No.Misc. Remand Case

No.55/2019 and called for report from the Mamlatdar,

Kodinar in respect of the aforesaid three aspects.

The Mamlatdar, Kodinar submitted a report dated

24.12.2019 to the Deputy Collector, Una stating that,

[1] evidence about payment of occupancy price is not

traceable, [2] no evidence about breach of condition

could be established, and [3] possession of the land

in question is with the petitioner. In view of the

aforesaid report submitted by the Mamlatdar, the

Deputy Collector rejected the revision application

preferred by the petitioner and confirmed the order

dated 6.5.2017 passed by the Mamlatdar, Kodinar vide

order dated 20.1.2020. However, in the order the date

is wrongly typed as 20.1.2019.

5.8 The aforesaid order dated 20.1.2020 passed

by the Deputy Collector was once again challenged by

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the petitioner by preferring an appeal before the

Collector, Gir Somnath, which was numbered as Land

Appeal/2/2020 and the Collector, Gir Somnath vide

order dated 17.12.2020 quashed and set aside the

order passed by the Deputy Collector, Una dated

20.1.2020 in Remand Case No.55 of 2019 as well as

order dated 6.5.2017 passed by the Mamlatdar, Kodinar

and directed the authorities to collect the occupancy

price with penal interest as per the Government

Resolution dated 19.2.2018.

5.9 It is the case of the petitioner that

despite the order dated 17.12.2020, the Mamlatdar,

Kodinar declined to accept the occupancy price.

However, ultimately, the payment of occupancy price

with penalty was accepted and after carrying out

necessary procedure, the order of District Collector

was implemented and a mutation entry No.6961 came to

be mutated to that effect and was certified on

17.4.2021. Pursuant to that name of the petitioner

came to be reflected as occupant in the revenue

record being village form No.7/12.

  C/SCA/11744/2021                                          CAV JUDGMENT DATED: 26/04/2022



5.10           After        a     period             of      six        months             of

implementation of order dated 17.12.2020 passed by

the District Collector, Gir Somnath, the petitioner

received a notice dated 28.6.2020 from the respondent

No.1 wherein it was stated that the respondent No.5

has preferred revision application challenging the

order dated 17.12.2020 passed by the District

Collector, Gir Somnath and as per the notice, the

hearing was scheduled on 6.7.2021. Whereas, the

petitioner received notice on 7.7.2021 i.e. the next

day after the hearing was scheduled. On inquiry, the

petitioner found that in absence of the petitioner

without verifying whether notice was served upon the

petitioner or not, the respondent No.1 passed an

order dated 8.7.2021 staying the implementation,

execution and operation of the order passed by the

District Collector and all other subsequent

proceedings. According to the petitioner, when the

petitioner got memo of revision application, the

petitioner found that an application for leave to

appeal challenging the order dated 17.12.2020 was

preferred by respondent No.5. It was alleged by the

petitioner that respondent No.5 is a company having

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

immense political influence and its wings were spread

all over India since last several decades. In that

application for leave to appeal, the respondent No.5

prayed for a relief to grant leave to appeal and to

grant injunction. According to petitioner, though

the order dated 17.12.2020 was challenged, same was

not accompanied by an application for condonation of

delay and even without considering the aspect of

delay, the respondent No.1 straightaway passed order

staying further proceedings till final disposal of

revision application.

5.11 According to the petitioner, an application

for speaking to minutes was filed on 17.8.2021 and

thought the petitioner opposed the said speaking to

minutes, vide order dated 30.9.2021, the respondent

No.1 allowed the application for speaking to minutes

and also granted leave to appeal in favour of

respondent No.5.

5.12 Hence, being aggrieved by and feeling

dissatisfied with the aforesaid two orders dated

8.7.2021 and 30.9.2021 the petitioner has preferred

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this petition on the ground that, [1] the respondent

No.5 has no locus to challenged the order dated

17.12.2020, [2] there is no procedure of speaking to

minutes as per the Bombay Land Revenue Code and Rules

framed thereunder and [3] such application at the

instance of respondent No.5 is not maintainable.

6 The case of the respondent No.5 is that

respondent No.5 is a company incorporated on 1.7.2008

under the provisions of the Companies Act, 1956 and

it is holder of letter of intent dated 25.4.2008 for

the development of Simar Port as an "All-Weather

Direct Berthing Port". The said Letter of Intent is

issued by the respondent No.6 to respondent No.5

pursuant to the bid of M/s. Shapoorji Pallonji & Co.

accepted by the Ports and Transport Department of

Government of Gujarat for the purpose of development

of Simar Port. The aforesaid port is being developed

by respondent No.5 as Multi-user, Multi-Cargo port

along with necessary infrastructure and for that

respondent No.6 shall acquire the land and the same

will be allotted to the respondent No.5 on lease. The

development of the port includes construction of 4500

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meters length break water and berths to handle 15

MMTPA cargo.

6.1 The above project is a part of development

of Green Field Port and as per the Memorandum of

Incorporation of the company, the object is to own,

lease, sub-lease, operate, establish, build,

construct, acquire, maintain, conduct, control,

manage, equip and enlarge ports, wharves, jetties,

embankments, reclamation, water works, water rights,

marine related infrastructure, etc. The respondent

No.6 granted NOC for acquisition of private lands for

port at Villages Chhara and Sarkhadi as back as in

April, 2010 and June, 2014 and as the project is of

larger public interest and national importance, the

Commissioner of Industries granted prior permission

in September, 2010 and July, 2014 for purchasing

private lands for bonafide industrial purpose for the

lands at villages Chhara and Sarkhadi admeasuring

Hectares 361.58.55 Square Meters. The aforesaid

details are given by the respondent to demonstrate

that the project is a large scale project backed by

the State of Gujarat and having larger public

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interest and national importance.

6.2 That as the respondent No.5 was required to

acquire lands for development of port project,

Mamlatdar Kodinar submitted a report to the Deputy

Collector, Veraval on 30.9.2010 and on the basis of

of site inspection stated that Talati-cum-Mantri

carried out site inspection on 16.8.2010 wherein it

is found that there was an encroachment over the land

bearing revenue survey Nos.633 and 637 paiki 2 of

Village Sarkhadi by one Rambhai Boghabhai, who is

some one else but not the present petitioner and it

was also found that he is cultivating the government

land encroached by him. The respondent No.6 made a

request for advance possession and acquisition of the

said land to the office of District Collector with

respect to the land in question as the same was

required for development of the port project.

However, the District Collector, Junagadh vide letter

dated 28.12.2010 informed the respondent No.6 about

the encroachment on the said land by local person and

due to encroachment, the aforesaid request was not

considered positively and Mamlatdar, Kodinar was

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directed to take action in respect of the

encroachment over the subject land which was

Government land as per the record. Right from 2010

vide communications dated 28.12.2010, 18.12.2019 and

19.3.2020 office of the Collector directed the Deputy

Collector, Una to verify the record and inquire about

the land in question and to send the proposal /

report with intimation to Gujarat Maritime Board in

respect of the action taken.

6.3 The respondent No.5 has stated that

respondent No.6 has already challenged the orders

dated 17.12.2020, 15.2.2021, etc. passed by the

Collector, Gir Somnath before the Special Secretary

(Appeals), Revenue Department by way of Revision

Application on or around 27.7.2021, which is still

pending. The proposed investment for development of

the port would be around Rs.5,000 Crores for which

during the course of Vibrant Gujarat Summit, 2011,

Memorandum of Understanding came to be signed between

Gujarat Maritime Board and M/s. Shapoorji Pallonji &

Co. for development of green field port at Village

Chhara. In view of the Memorandum of Understanding

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arrived at between the State Government and M/s.

Shapoorji Pallonji & Co. even the Gujarat Coastal

Zone Management Authority recommended the development

of the port project vide letter dated 26.4.2013.

6.4 Vide letter dated 15/17.10.2013, respondent

No.6 approached the Revenue Department, Government of

Gujarat inter alia pointing that for port project as

Letter of Intent has already been issued to

respondent No.5 as per the Build Own Operate and

Transfer (for short, `BOOT') Policy, the acquisition

of the land is the responsibility of the Gujarat

Maritime Board and as survey Nos.633 and 637 are

Government lands, for acquisition of those lands,

necessary exercise be undertaken. The project has

also been cleared by the Ministry of Environment and

Forest. That time and again such request was

reiterated and reminders were sent to the authorities

by Gujarat Maritime Board as well as the respondent

No.5 to the State Government including the District

Collector, Gir Somnath to expedite the process of

allotment of advance possession of the lands.

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6.5 In fact, a tripartite agreement was signed

between the Government of Gujarat, Gujarat Maritime

Board and respondent No.5 on 29.1.2015 and as per the

said agreement, after a period of 30 years, the port

in question to be handed over to the Government.

Thereafter, pursuant to the tripartite agreement even

Government of Gujarat issued notification dated

19.2.2015 and carved out the port limits of Chhara

Port under the provisions of Section 4(5) of the

Indian Ports Act, 1908 and as respondent No.5 has

obtained all necessary permissions for undertaking

construction of the port related to infrastructure

facilities and has completed all the formalities, the

respondent No.6 granted authorization / construction

permission to the respondent No.5 under Section 35(1)

of the Gujarat Maritime Board Act on 18.10.2017.

6.6 The respondent No.5 has stated the

aforesaid facts in its affidavit to demonstrate that

the project which is being undertaken by it is a

project of very large scale and there is involvement

of the State Government as the State Government has

entered into Memorandum of Understanding with the

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respondent No.5 and ultimately after 30 years after

the concession period is over, the port will be

handed over to the Government only.

6.7 In respect of the other aspects, it was

submitted by respondent No.5 that though the

Assistant Collector, Rajula passed order dated

25.3.1969 whereby the land bearing survey Nos.637

paiki and 633 of village Sarkhadi were allotted /

granted to the father of the petitioner but father of

the petitioner at no point of time made any payment

towards occupancy price. Since other beneficiaries

made necessary payment of occupancy price they were

put in possession of the land and hence their names

were started reflecting in revenue records. The name

of father of the petitioner has never been reflected

in the revenue records since last 50 years. Though

order dated 25.3.1969 was passed, for the next 25

years during which original allottee of the land i.e.

father of the petitioner Virbhan Vala was alive and

died on 15.1.1992, no such application was preferred

by him during his life time and it was only after his

death i.e. after further 23 years, the petitioner for

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the first time preferred an application in respect of

payment of occupancy price, which came to be rejected

vide order dated 6.5.2017. Though time and again

various authorities rejected the applications made by

the petitioner for acceptance of occupancy price,

those applications were rightly rejected and

ultimately the Collector vide order dated 17.12.2020

allowed the appeal preferred by the petitioner and

quashed and set aside the well reasoned order passed

by the Deputy Collector dated 20.1.2020 and directed

the Mamlatdar, Kodinar to take necessary action as

per the observations made in order dated 17.12.2020

whereby the Mamlatdar, Kodinar directed to accept the

occupancy price with interest in accordance with the

Government Resolution dated 24.4.2018 and 1.11.2003

and in accordance with Government Circular dated

19.2.2018. Pursuant to which the Mamlatdar, Kodinar

though expressed his inability to accept the

occupancy price, once again the Collector, Gir

Somnath directed to collect the amount on 15.2.2020

and to hand over the possession of the land to the

petitioner.

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6.8 It is the case of respondent No.5 that time

and again the applications for acquisition of the

land by and on behalf of respondent No.5 were made.

Those applications could not be considered only on

the ground that the land in question was encroached

upon. Thought the Mamlatdar and the Deputy Collector

time and again tried to give clear and correct

picture to the Collector, the Collector, Gir Somnath

by overlooking all the material, issued directions in

favour of the petitioner vide order dated 17.12.2020,

which has in turn resulted in condoning delay of 50

years in executing the order dated 25.3.1969, which

was not complied with until 17.12.2020, the date on

which the Collector passed order in favour of the

petitioner. The respondent No.5 has alleged that

though the project is of more than Rs.8,000 Crores,

the Collector, Gir Somnath has committed an error by

giving priority to an individual over a project of

national importance and larger public interest, which

is backed by the State Government. It is the case of

the respondent No.5 that possession of the land is

with Ram Bogha Vala, who is son of Bogha Govind Vala,

who was allotted the land pursuant to order dated

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25.3.1969 and even as per the 7/12 abstract, the

possession of the land was with Bogha Govind and not

with the petitioner, and therefore, the say of the

petitioner that he is cultivating the land is

factually incorrect. The case of respondent No.5 is

that though the respondent No.5 is interested party,

without hearing the interested parties and without

putting them to notice, the order dated 17.12.2020

was passed by the Collector, Gir Somnath. By way of

the affidavit in reply, the respondent No.5 has tried

to justify the act of preferring application for

leave to appeal before the Special Secretary by

stating that as their request for acquisition of the

land was made right from the year 2010 and even prior

thereto those requests were overlooked and he was

never considered to be an interested person and

behind his back vide order dated 17.12.2020 the land

which is important for a large scale project

involving public interest has been allotted to the

petitioner, which would go to show that the

respondent No.5 has locus to challenge the order

before the Special Secretary (Appeals), Revenue

Department.

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6.9 The respondent No.5 has taken a stand that

he has locus to challenge the order passed by the

Collector, Gir Somnath since the said order was

passed behind its back and without issuing notice to

the respondent No.5 or hearing him and hence the

respondent No.5 was constrained to file revision

application challenging the order dated 17.12.2020.

The respondent No.5 has further taken a stand that

while passing order dated 8.7.2021 after hearing the

respondent No.5, though the Secretary allowed the

application for leave to appeal, but since it did not

reflect in the order dated 8.7.2021, a note for

speaking to minutes was filed. The petitioner even

filed his objection to the aforesaid note for

speaking to minutes and thereafter considering the

objections filed by the petitioner, a further order

dated 30.9.2021 was passed whereby the application

for leave to appeal of the respondent No.5 and was

allowed and by keeping the order dated 8.7.2021 as it

is, the stay of the proceedings till final outcome of

the revision application was extended and the matter

was adjourned to 8.10.2021.

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6.10 In the affidavit, the respondent No.5 has

taken a stand that civil and criminal disputes

between the petitioner and respondent No.5 are

pending before the competent court of law being

Special Civil Suit No. 2 of 2014, which is pending

before the court of Senior Civil Judge, Una, which is

in respect of sale deed executed between the

respondent No.5 and legal heirs of Bogha Govind as

well as Criminal Inquiry No.1 of 2011 before the

Court of JMFC, Kodinar which would go to show that

the land in question belongs to Bogha Govind, who

executed sale deed in favour of respondent No.5 and

the petitioner actually does not have any land nor

was he allotted any land. However, by virtue of order

dated 17.12.2020 the Mamlatdar was directed to act in

accordance with the Government circulars and

Resolutions, the occupancy price was accepted from

the petitioner and he was put into possession of the

land in question, and therefore, as the respondent

No.5 is vitally affected he is an `aggrieved person',

and therefore, he has locus to challenge the

aforesaid order.

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

7 Learned Senior Advocate Mr. Percy Kavina

appearing with Mr. Viral Gurjar, learned advocate for

the petitioner submitted that the respondent No.5

challenged the order dated 17.12.2020 passed by the

District Collector, Gir Somnath by preferring

revision application before the respondent No.1

whereby the respondent No.1 issued notice on

28.6.2020 and matter was scheduled for hearing on

6.7.2021. However, though the petitioner did not

receive notice prior to 6.7.2021 and in fact received

the notice on 7.7.2021, upon inquiry it was found by

the petitioner that respondent No.1 passed order

dated 8.7.2021 whereby even without waiting for the

service of notice, the respondent No.1 passed order

without hearing the petitioner and stayed the

implementation, execution and operation of the order

dated 17.12.2020. Not only that thereafter respondent

No.5 preferred an application for speaking to minutes

stating that while hearing the matter on 6.7.2021 a

specific request was made by the advocate for the

respondent No.5 to grant leave to file the

proceedings and upon such request, the respondent

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No.1 has specifically declared / pronounced about

allowing the application seeking leave to file the

proceedings. However, in the speaking to minutes, it

is stated that the aforesaid oral pronouncement did

not reflect in the order dated 8.7.2021, and

therefore, a prayer was made in the note for speaking

to minutes to pass appropriate order so as to

transcribe the order upon the application seeking

leave to file appeal, which was orally granted at the

time of hearing, but left out to be typed in the

order dated 8.7.2021. Mr. Kavina, learned Senior

Advocate drew attention of the Court to the language

of Sections 203 and 211 of the Bombay Land Revenue

Code and submitted that as per the provisions of

Sections 203 and 211 of the Bombay Land Revenue Code,

only a person, who is aggrieved by the order passed

by the revenue authority can file an appeal. In the

instant case, the respondent No.5 cannot be said to

be an `aggrieved person', and therefore, he has no

locus to challenge the order dated 17.12.2020 passed

by the District Collector, Gir Somnath.

7.1 Mr. Kavina, learned Senior Advocate also

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drew attention of this Court to the provisions of

Sections 205 and 206 of the Code and contended that

as per the provision of Sections 205 and 206 of the

Bombay Land Revenue Code, if an order passed by the

Collector is challenged, in that case, it is required

to be challenged within a period of 90 days from the

date of the order as per the limitation prescribed

under Section 205 of the Bombay Land Revenue Code. In

the instance case, since the period of limitation of

90 days had already been expired, an application for

leave to appeal, revision application and stay

application were required to be accompanied by

application for condonation of delay and unless the

delay is condoned in preferring the application and

unless the application for leave to appeal is

granted, no stay could have been granted in favour of

respondent No.5. Learned Senior Advocate also

contended that after the order dated 8.7.2021 was

passed when the respondent No.5 preferred an

application for speaking to minutes, the respondent

No.1 not only considered an application for speaking

to minutes, but allowed the same by order dated

30.9.2021. Mr. Kavina, learned Senior Advocate

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

submitted that as per the provisions of the Bombay

Land Revenue Code and Rules framed thereunder and as

per the rules of business, no such procedure under

the name of speaking to minutes is available. Mr.

Kavina, learned Senior Advocate further submitted

that if a procedure is not prescribed under the Act,

the authority cannot adopt the said procedure and

pass an order on such application for speaking to

minutes.

7.2 Mr. Percy Kavina, learned Senior Advocate

submitted that the aforesaid speaking to minutes was

preferred as an afterthought and though originally

vide order dated 28.7.2021 the leave to appeal was

not granted vide order dated 30.9.2021, the

respondent No.1 allowed the note for speaking to

minutes and granted leave to appeal as well. Learned

Senior Advocate submitted that despite the reply to

the note for speaking to minutes was preferred by the

petitioner, the respondent No.1 without considering

the submissions made by the petitioner opposing the

note for speaking to minutes passed an order dated

30.9.2021 and allowed the note for speaking to

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minutes and thereby though vide original order dated

8.7.2021 leave to appeal was not granted in favour of

respondent No.5, the same was granted subsequently.

7.3 Mr. Kavina, learned Senior advocate

appearing for the petitioner relied on the following

judgments:

[1] Patel Vinodbhai Khodidas vs. Patel

Pravinbhai Kachrabhai reported in 2021(2) GLH

650.

[2] Saurashtra Rachnatmak Samiti, Rajkot vs.

State of Gujarat reported in 2007(2) GLR 1649.

[3] Ravi Yashwant Bhoir vs. District Collector,

Raigad & Ors. reported in 2012(4) SCC 407.

[4] Adi Pherozshah Gandhi vs. H.M.Seervai,

Advocate General of Maharashtra, Bombay reported

in 1970(2) SCC 484.

[5] Shree Vavdi Seva Sahkari Mandali limited

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

vs. State of Gujarat & Ors. in Special Civil

Application No.11321 of 2017 vide judgment dated

23.12.2019.

[6] Hari Narain vs. Badri Das reported in 1963

AIR(SC) 1558.

[7] Sri V.N.Krishna Murthy & Anr. vs. Sri

Ravikumar & Ors. passed by the Hon'ble Apex

Court in Civil Appeal No.2701-2704 of 2020 vide

judgment dated 21.8.2020.

7.4 Learned Senior Advocate Mr. Kavina first

canvassed the contention about who can be said to be

an `aggrieved person'. Learned Senior Advocate Mr.

Kavina by relying upon the decision in the case of

Adi Pherozshah Gandhi (Supra), more particularly

relying on paras 7 to 11, submitted that a `person

aggrieved' must be a person who had suffered a legal

grievance, a man against whom a decision has been

pronounced which had wrongfully deprived him of

something or wrongfully refused him something or

wrongfully affected his title to something. Merely

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because an order is wrongly made would not itself

give a grievance to a person to be said to be an

aggrieved person. Learned Senior Advocate submitted

that only because of a person who feels disappointed

about the result of a case cannot be termed to be an

`aggrieved person'. He must demonstrate that he is

disappointed of a benefit which he would have

received if the order had gone the other way.

7.5 Thereafter, Mr. Kavina, learned Senior

Advocate relying upon the decision in the case of

Ravi Yashwant Bhoir (supra), more particularly para

44, submitted that a legal right is an averment of

entitlement arising out of the law. The complainant

has to establish that he has been deprived of or

denied of a legal right and he has sustained an

injury to any legally protected interest. A person

having a remote interest cannot be permitted to

become a party. A person who wants to become a party

in a case has to establish that he has a proprietary

right which has been or threatened to be violated.

For the reasons that a legal injury creates a

remedial right in the injured person, a person cannot

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

be heard as a party unless he answers the description

of an aggrieved party as decided in the case of Adi

Pherozshah Gandhi (Supra) and other such cases.

7.6 Thereafter Mr. Kavina, learned Senior

Advocate relying upon the decision dated 23.12.2019

rendered by this Court in Special Civil Application

No. 11321 of 2017 in the case of Shree Vavdi Seva

Sahkari Mandali Limited vs. State of Gujarat & Ors.

and pointed out that in the said judgment also the

ratio laid down in the case of Ravi Yashwant Bhoir

(supra) was followed. It is further submitted that in

that case also it was held by the co-ordinate Bench

of this Court that the petitioner is not deprived or

denied of any legal right and has not sustained any

legal injury to any legally protected interest, and

therefore, respondent No.5 cannot be termed as an

`aggrieved person'.

7.7 Mr. Kavina, learned Senior Advocate

thereafter relieved upon a judgment dated 21.8.2020

of the Hon'ble Apex Court in the case of Sri

V.N.Krishna Murthy & Anr. vs. Shri Ravikumar & Ors.

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

in Civil Appeal No.2701 of 2020 and submitted that

respondent No.5 herein could not demonstrate by way

of material placed on record that how order dated

17.12.2020 passed by the Collector, Gir Somnath would

adversely or prejudicially affect him. Mr. Kavina,

learned Senior Advocate relied upon the aforesaid

judgment in support of his submission that right to

appeal can be created by statute only and it would be

improper to grant leave to appeal to every person who

may in some remote or indirect way be prejudicially

affected by a decree or judgment. Learned Senior

Advocate reiterated the test for grant of leave to

appeal and submitted that ordinarily leave to appeal

should be granted to persons who, though not party to

the proceedings, would be bound by the decree or

judgment in that proceeding and who would be

precluded from attacking its correctness in other

proceedings. Learned Senior Advocate further

submitted that in the instant case, the respondent

No.5 had only applied for the land in question and

merely by applying for the land in question, it

cannot be said any legal right is created in favour

of respondent No.5 and therefore the respondent No.5

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

cannot be said to be an `aggrieved person' who can

initiate proceedings before the Secretary (Appeals),

Revenue Department by filing an application for leave

to appeal.

7.8 By citing the aforesaid judgments, learned

Senior Advocate Mr. Kavina submitted that in the

instant case, the case of the respondent No.5 is that

they are a big company, who has entered into a MoU

with the State of Gujarat for development of Simar

Port as Multi-user, Multi-Cargo port along with

necessary infrastructure. He further submitted that

on the strength of the MoU no statutory right is

created in favour of respondent No.5, and therefore,

when respondent No.5 had only applied for acquisition

of land in question to the State Government and

considering the fact that the aforesaid application

was twice rejected by the State Government, no right

was ever created in favour of respondent No.5 to get

the land in question by way of acquisition of the

aforesaid land or otherwise. Respondent No.5 in the

past also was in no way connected with the land in

question, and therefore, merely because respondent

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No.5 had made an application for acquisition of the

aforesaid land to the State of Gujarat, and if the

land is allotted to the petitioner, the aforesaid

allotment would not bring respondent No.5 within the

meaning of `aggrieved person'. He further submitted

that the application of respondent No.5 for

acquisition of land was independently considered and

rejected. When the Collector in an independent

proceedings, which were originally initiated in 2017

and ultimately passed order on 17.12.2020, in those

proceedings from beginning the respondent No.5 was

not party to any of the proceedings, merely because

the land is allotted to the petitioner over which

respondent No.5 also had made claims in the past be

that by way of acquisition merely by making claim

over the land may not bring the respondent No.5

within the meaning of `aggrieved person'. The order

dated 17.12.2020 is passed in independent proceedings

as the land was originally acquired by the State

Government under the Gujarat Agricultural Land

Ceiling Act proceedings and thereafter it was given

to the father of the petitioner on `santhani' basis

and as the petitioner was enjoying the possession of

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

the land and cultivating the land ever since it was

granted to the father of the petitioner by way of

`santhani', name of the petitioner was not there in

the revenue record as assignee. He preferred an

application for entering his name as assignee and as

he could not trace out the receipt of the amount paid

by him towards occupancy price, the proceedings

before the Collector took place. Right from 1969 till

2020 the possession of the land in question was

enjoyed by the petitioner and he is still enjoying

the land in question and at no point of time the

respondent No.5 was in picture. Merely because a MoU

is executed between the State Government, Maritime

Board and respondent No.5, it would not confer any

right in favour of respondent No.5 in respect of the

land in question, and therefore. respondent No.5

cannot be said to be an `aggrieved person', and

therefore he has no locus to challenge the order

dated 17.12.2020, and the respondent No.1 has

committed an error by granting application for leave

to appeal in favour of respondent No.5.

7.9 By making the aforesaid submissions,

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

learned Senior Advocate Mr. Kavina submitted that the

impugned orders dated 8.7.2021 and 30.9.2021 are

required to be quashed and set aside on the following

grounds:

[a] Vide order dated 30.9.2021 respondent No.1

has entertained an application upon a note for

speaking to minutes, which procedure is not

prescribed under the statute or Rules of

Business and hence the order dated 30.9.2022

ought not to have been passed by the respondent

No.1.

[b] The respondent No.5 cannot be said to be an

`aggrieved person' in respect of the order dated

17.12.2021 passed by the Collector, Gir Somnath

and hence the respondent No.5 has no locus to

challenge the aforesaid order.

[c] While preferring revision application along

with application for leave to appeal, the

respondent No.1 granted stay in favour of the

petitioner and allowed the application for leave

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to appeal. However, the order dated 17.12.2020

was challenged only in June, 2021 and hence

application for leave to appeal, revision

application and stay application were required

to be accompanied by an application for

condonation of delay, but respondent No.5 never

preferred the same. Hence, the respondent No.1

has committed an error while passing the orders

dated 8.7.2021 and 30.9.2021 even without

considering the aspect of delay.

[d] While order dated 8.7.2021 was passed, the

same was passed without hearing the petitioner

and hence virtually that was an ex parte order.

[e] Learned Senior Advocate further submitted

that if the land in question is a very important

and precious land for the purpose of fulfillment

of the project of respondent No.5 in that case

respondent Nos.5 and 6 must enter into

negotiation with the present petitioner and they

can purchase the land from the petitioner

subject to fulfillment of the conditions imposed

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

by the State, but respondent No.5 cannot

challenge the order passed by the Collector, Gir

Somnath as respondent No.5 cannot be said to be

an `aggrieved person' and hence respondent No.5

has no locus.

[f] By making the aforesaid submissions,

learned Senior Advocate Mr. Kavina prayed for

quashing and setting aside the impugned orders

dated 8.7.2021 and 30.9.2021.

8 As against the above, Mr. Mihir Joshi,

learned Senior Advocate submitted that the say of the

petitioner is factually incorrect. In fact, the

petitioner is an encroacher. Mr. Joshi, learned

Senior Advocate submitted that it is true that father

of the petitioner i.e. Virbhanbhai Vala was allotted

land admeasuring 11-19 Acres-Gunthas of survey No.637

and 5-10 Acres-Gunthas of survey No.633 of Village

Sarkhadi, Taluka Kodinar, District Gir Somnath upon

payment of Rs.2,000/- as occupancy price on new and

impartial tenure vide order dated 25.3.1969.

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8.1 Mr. Mihir Joshi, learned Senior Advocate

drew attention of this Court to the Entry No.1303

produced at page 48 and typed copy of which is at

page 48A of the paper book and submitted that vide

entry No.1303 what was recorded was about order dated

25.3.1969 by which the land was allotted to the

father of the petitioner. Learned Senior Advocate

referring to form 7/12 abstract in respect of the

land bearing survey No.633 pointed out that from

1966-67 till 1998-99 it was either Bogha Govind or

his family members were cultivating the land and not

the petitioner. As regards survey No.637 it was

submitted by learned Senior Advocate that only for 2

years i.e. 1969-70 and 1970-71 name of father of the

petitioner was shown as farmer in respect of total

land i.e. 28-19 Acres-Gunthas. However, after 1971

name of only Bogha Govind is stated in the revenue

record. Learned Senior Advocate also drew attention

of this Court to the fact that 7/12 abstract of

survey No.633 is in respect of 5-10 Acres-Gunthas,

which is the total area of land, which was allegedly

allotted to the petitioner. Whereas, revenue record

of Survey No.637 mentions about total area of 28-19

C/SCA/11744/2021 CAV JUDGMENT DATED: 26/04/2022

Acres-Gunthas out of which only 11-19 Acres-Gunthas

was alleged to have been allotted to the petitioner.

The aforesaid land was thereafter converted into a

new tenure land after the name of Bogha Govind was

entered into the revenue record vide entry No.1303.

Mr. Joshi, learned Senior Advocate, submitted that

after 1971-72 at no point of time name of father of

petitioner or the petitioner figured in the revenue

records in respect of land bearing survey No.637. In

fact, vide entry No.1612 names of legal heirs of

Bogha Govind were entered into the revenue records,

but even at that point of time also name of father of

the petitioner or petitioner was not entered into the

revenue record. By making the aforesaid submissions,

learned Senior Advocate submitted that the claim of

the petitioner over the land in question as assignee

by way of `santhani' is absolutely ill-founded.

Learned Senior Advocate further submitted that the

petitioner never paid the occupancy price pursuant to

the order dated 25.3.1969 nor was he in possession of

the land in question after 1971-72 and the aforesaid

facts are indicated in the revenue record, which are

produced by the petitioner himself in the petition,

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and therefore, the petitioner cannot dispute the

aforesaid facts. Learned Senior Advocate referring

to the aforesaid record, order dated 25.3.1969 and

conditions of allotment, submitted that as per

condition No.4, land was required to be cultivated by

the allottee himself and in case for two consecutive

years if the land remains uncultivated, in that case

that land would be vested into the Government. In the

instant case, as the petitioner has never cultivated

the land after 1971-72, in all the subsequent

entries, the land in question is shown as Government

land and name of the petitioner is nowhere mentioned

in the revenue record. Learned Senior Advocate

further pointed out from the revenue record that

name of Bogha Govind is mentioned, who happens to be

brother of father of the petitioner and he was also

allotted a portion of land from survey No.637, and

therefore, he being altogether different person,

petitioner cannot claim any right over the land in

question. Learned Senior Advocate further submitted

that as far as the land bearing survey No.633 is

concerned, the aforesaid land was never allotted to

Bogha Govind and when Bogha Govind was in possession

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of the land in question, all throughout, the land is

shown as Government land.

8.2 Mr. Mihir Joshi, learned Senior Advocate

submitted that as per the record Virbhan Govind,

father of the petitioner expired on 15.1.1992

(photocopy of death certificate of Virbhan Govind is

produced at page 113) and after death of father of

the petitioner, till 2017 nothing was done by the

petitioner to get his name entered in the revenue

record by making necessary application. Mr. Joshi,

learned Senior Advocate, submitted that for the first

time in the year 2017 an application was made by the

petitioner for payment of occupancy price and

submitted that an amount of Rs.2,000/- may be

accepted from the petitioner towards occupancy price.

However, the aforesaid request made by the petitioner

was rejected on 2.5.2017 vide communication dated

6.5.2017 by Mamlatdar, Kodinar. Learned Senior

Advocate thereafter pointed out from the record that

on 22.8.2017 petitioner made an application

addressing to the Deputy Collector, Una wherein he

has specifically stated that the occupancy price of

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Rs.2,000/- could not be paid by father of the

petitioner and admitted the fact that the land is

vested into the Government and prayed for regnant of

land by accepting the amount from the petitioner as

per the then existing policy of the Government. After

pointing out the aforesaid communication dated

22.8.2017 produced at page 289 of the paper book,

learned Senior advocate pointed out to the

communications dated 2.2.2018 and 7.8.2018 addressed

to the Mamlatdar, Kodinar and the Collector, Gir

Somnath, respectively and submitted that immediately

in the next year the stand of the petitioner had

changed by canvassing that he had already paid the

occupancy price in the year 1969, and as he could not

trace out the proof of payment, he is ready and

willing to pay the occupancy price as per the

prevailing policy of the Government and hence the

same may be accepted.

8.3 Mr. Mihir Joshi, learned Senior Advocate,

submitted that against the order of Mamlatdar,

Kodinar dated 6.5.2017, the petitioner also preferred

an appeal before the Deputy Collector, Una, which was

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registered as No.RRT/Delay Case No.17/19, which was

rejected on the ground of delay vide order dated

8.3.2019. Against which, the petitioner preferred an

appeal before the Collector, Gir Somnath being Appeal

No.Land/3/Appeal No.4/19 and the Collector, Gir

Somnath quashed and set aside the order dated

8.3.2019 and partly allowed the appeal preferred by

the petitioner and directed the Prant Officer, Rajula

to ascertain as to whether the petitioner is entitled

to the benefit of new policy of the Government in

respect of the relevant Government policy. The

aforesaid order was passed in Appeal No.4/19 on

24.10.2019. Pursuant to which the Deputy Collector

forwarded the aforesaid issue for examination of the

Mamlatdar, Kodinar and accordingly the Mamlatdar,

Kodinar submitted his opinion dated 24.12.2019.

8.4 Mr. Joshi, learned Senior Advocate further

submitted that after taking into consideration the

opinion of the Mamlatdar, Kodinar dated 24.12.2019 in

Remand Case No.55/19, ultimately the Collector, Una

rejected the application preferred by the petitioner.

It was specifically stated by the Deputy Collector,

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Una that the Government Resolution dated 19.2.2018 is

not applicable to the facts of the present case and

ultimately the aforesaid order of the Deputy

Collector, Una dated 20.1.2019 was carried in appeal

(the date should be 20.1.2020) by way of

Land/3/Appeal No.2/13 before the Collector, Gir

Somnath, wherein vide order dated 17.12.2020 the

Collector, Gir Somnath passed the impugned order in

favour of the petitioner, which is the subject matter

of challenge before the respondent No.1. By stating

the aforesaid facts, learned Senior Advocate

submitted that by way of the order dated 17.12.2020

the Collector, Gir Somnath issued direction and

pursuant to the aforesaid direction ultimately the

occupancy price along with penalty was accepted from

the petitioner and possession of the land in question

was handed over to the petitioner.

8.5 Learned Senior Advocate further submitted

that the record indicates that though the land was

allotted to father of the petitioner in the year

1969, but he never paid the occupancy price, and the

petitioner was not sure about the payment of

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occupancy price. Though the petitioner has no right

and title over the land in question as the land was

neither cultivated by him nor his name was there in

the revenue records and the petitioner is an

encroacher in respect of the land in question.

However, the Collector, Gir Somnath without

considering any material on record passed the order

dated 17.12.2020 in favour of the petitioner.

8.6 After canvassing that in fact it was the

petitioner who had no interest left in the land in

question after 1971-72. Mr. Joshi, learned Senior

Advocate submitted that respondent No.5 can be said

to be an interested person or aggrieved person in

respect of the land in question. For that the learned

Senior Advocate from the record pointed out that a

letter of intent for development of Simar Port was

issued by the Gujarat Maritime Board in favour of

respondent No.5 as back as on 25.5.2005 and

thereafter vide communication dated 7.4.2010, the

Gujarat Maritime Board intimated the respondent No.5

that the Gujarat Maritime Board has decided to grant

NOC for acquisition of private land to M/s. Shapoorji

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Pallonji Group on its own expenses, but subject to

certain conditions. Vide communication dated

10.6.2014 once again another NOC was granted in

respect of the land bearing survey No.637 paiki 1 of

Village Sarkhadi by Gujarat Maritime Board.

8.7 In fact, the respondent No.5 had applied

for grant of the aforesaid land to the Gujarat

Maritime Board and the Gujarat Maritime Board has in

turn requested the Collector, Veraval for the

aforesaid land as back as on 7.4.2010 and at that

time since Gir Somnath district was not created the

application was addressed to the Collector, Junagadh

and ultimately, the Mamlatdar, Kodinar vide

communication dated 3.9.2010 addressed to the Deputy

Collector, Veraval submitted that the land in

question is encroached by Rambhai Boghabhai and

treating the fact that he is not cultivating, the

land may not be allotted to respondent No.5. Mr.

Joshi, leaned Senior Advocate for that purpose drew

attention of this Court to the communication dated

30.9.2010 by Mamlatdar, Kodinar to the Deputy

Collector, Veraval which is at page 270 of the paper

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book.

8.8 Similarly, the learned Senior Advocate

submitted that accordingly vide communication dated

28.12.2010 the Gujarat Maritime Board was intimated

by the Collector, Junagadh about the fact that the

request for allotment of the land in question was

rejected on account of encroachment upon the said

land by a local person. The aforesaid letter dated

28.12.2010 is produced at page 204 of the paper book.

Learned Senior Advocate thereafter pointed out to the

communication dated 18.12.2019 by the Mamlatdar-2,

Gir Somnath District to the Port Officer, Gujarat

Maritime Board, Veraval, which is produced at page

205 of the paper book and submitted that in the

aforesaid letter also there is a reference about

communication dated 28.12.2012 rejecting the

application of the respondent No.5 for allotment of

land in question. By way of all these communications,

it can be seen that application of the respondent

No.5 was rejected only on the ground that the land

was encroached by a local person. However, at no

point of time, the application of respondent No.5 was

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rejected on merit.

8.9 Learned Senior Advocate further submitted

that the record would indicate that the petitioner

applied for the land in question as back as in the

year 2010. It is only after the fact that twice the

application preferred by the petitioner was rejected

by the Government authorities on the ground that the

land encroached by a local person, only in 2017 after

sensing that the land in question is situated at a

strategically very important location for respondent

No.5, the petitioner started making claim over the

subject land and offered to pay the occupancy price

only in the year 2017. Learned Senior Advocate

further submitted that if the claim of the petitioner

vis-à-vis respondent No.5 is seen in that case

respondent No.5 has made application for allotment of

the aforesaid land in the year 2010, whereas name of

the petitioner is not even shown as encroacher in the

revenue record as in the report submitted by the

Mamlatdar, Kodinar dated 30.9.2010 the name of

Rambhai Boghabhai was stated as encroacher over the

land in question and not of the petitioner. It is

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further submitted that the petitioner was never in

possession of the land in question and yet for the

first time he made a claim over the said land in the

year 2017, that too by taking contrary stands viz.

after the land was allotted vide order dated

25.3.1969, the petitioner could not pay the occupancy

price and later on changed his stand and stated that

though the occupancy price was paid at the relevant

point of time he could not trace out the receipt of

the payment. The aforesaid conduct of the petitioner

would show that the petitioner was never an occupier

of the land in question, and therefore, if the stand

of the petitioner vis-à-vis respondent No.5 is seen,

the respondent No.5 has made application for

allotment of the land in question prior in point of

time coupled with the fact that the application of

the respondent No.5 is in respect of a project having

larger public interest and which is backed by the

State Government as State Government has also entered

into the MoU with respondent No.5 for development of

Simar Port.

8.10 Learned Senior Advocate further submitted

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that the Collector, Gir Somnath has passed order

dated 17.12.2020 by overlooking the facts of the case

and claim of the petitioner, and therefore,

respondent No.5 can be said to be an `aggrieved

person', and though respondent No.5 was never a party

to the proceedings has rightly made an application

for leave to appeal along with revision application

and application for stay, which has been considered

in its true spirit by respondent No.1 by passing the

orders dated 8.7.2021 and 30.9.2021. Leaned Senior

Advocate further drew attention of this Court to page

309 of the paper book and submitted that there is an

inter se dispute between the legal heirs of Virbhan

Govind and Bogha Govind for which Special Civil Suit

No.2 of 2014 is pending before the Court of learned

Civil Judge at Una whereby the legal heirs of the

petitioner has prayed for declaration and permanent

injunction in respect of the land situated at survey

No.637 wherein he has challenged the sale deed

executed between the legal heirs of Bogha Govind and

respondent No.5 on 17.1.2014 in respect of land

admeasuring 17-00 Acres-Gunthas and the suit is

preferred for cancelling the aforesaid sale deed and

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that the prayer is limited to 17-00 Acres-Gunthas

allotted to Bogha Govind, which is sold to the

respondent No.5 company by registered sale deed. The

aforesaid land is just adjacent to the land in

question. In the memo of the plaint there is no

mention about the details of allotment order in

favour of the father of the petitioner, area of the

land, survey number, etc. Mr. Joshi, learned Senior

Advocate further pointed out that with regard to

entry No.1303 the proceedings are pending before the

JMFC, Kodinar, but that fact has been suppressed

conveniently by the petitioner. By making the

aforesaid submissions, Mr. Joshi, learned Senior

Advocate relied upon the following judgments to

substantiate the case of respondent No.5:

[1] Hardevindar Singh vs. Paramjit Singh

reported in 2013(9) SCC 261.

[2] Jasbhi Motibhai Desai vs. Roshan Kumar,

Haji Bashir Ahmed & Ors. reported in (1976)1 SCC

671.

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[3] Black's Law Dictionary, "aggrieved party".

[4] Hemant Pragjibhai Patel vs. State of

Gujarat passed in Special Civil Application

No.15745 of 2017 with Civil Application

No.1/2010 - CAV Order in IA dated 30.4.2018.

[5] Hiraben Bachu Puja Ayar & Ors. vs. Deputy

Collector & Ors. passed in Special Civil

Application Nos.15039 of 2013 & 15357 of 2013

vide Common Oral judgment dated 7.12.2016.

[6] Kanjibhai Valjibhai & Ors. vs. Noormohammad

Ibrahim Paleja & Ors. passed in Special Civil

Application No. 4385 of 2007 vide order dated

19.2.2007.

[7] State of Maharashtra vs. Ramdas Shrinivas

Nayak & Anr. reported in (1982) SCC 463.

[8] Sarat Chandra Maiti & Ors. vs. Bibhabati

Debi & Ors. reported in AIR 1921 Cal. 584.

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8.11 Mr. Joshi, learned Senior Advocate relying

upon the judgment in the case of Jasbhi Motibhai

Desai (supra), more particularly paras 13, 35 and 39,

submitted that the expression `aggrieved person'

denotes an elastic and to an extent an elusive

concept. It cannot be confined within the bounds of a

rigid, exact and comprehensive definition. At best,

its features can be described in a broad tentative

manner. Its scope and meaning depends on diverse,

variable factors such as the content and intent of

the statute of which contravention is alleged the

specific circumstances of the case, the nature and

extent of the prejudice or injury suffered by him.

Mr. Joshi, learned Senior Advocate, submitted that

what is required to be examined by the Court is to

determine as to whether a person is `person

aggrieved' or merely a stranger would be to determine

the factors such as; Whether the person is a person

whose legal right has been infringed? Has he suffered

a legal wrong or injury, in the sense that his

interest, recognised by law has been prejudicially

and directly affected by the act or omission of the

authority? Whether that person has suffered a legal

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grievance, or whether a person against whom a

decision has been pronounced which has wrongfully

deprived him of something or wrongfully refused him

something, or wrongfully affected his title to

something? He further submitted that what is required

to be determined is whether he was entitled to object

and be heard by the authority before it took the

impugned action. He further submitted that to

determine whether a person is an aggrieved or not,

the totality of the facts are required to be seen.

8.12 Mr. Joshi, learned Senior Advocate, relying

upon a decision of this Court in the case of Hemant

Pragjibhai Patel (supra), more particularly, paras

5.5 and 5.6, submitted that the word `person

aggrieved' would include a person whose interest is

prejudicially affected by a decision. A person who

has a genuine grievance that a decision has adversely

hit him and denied him something which was otherwise

legally possible to be due to him. In that case he

can be termed as an `aggrieved person'. The word

`aggrieved person' is a word of wide import and

cannot be subjected to a restricted interpretation.

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He further submitted that legal injury can be said to

have been suffered even in absence of apparent damage

suffered by such injury and in that case the sufferer

of the injury would have been accorded a remedy and

he would be invested with right to challenge conduct,

action or order which may have resulted into causing

a legal injury to him. This right in the nature of

legal injury may be right to assert a particular

thing or it may be a right to raise defence on a

particular count and if the rights of this nature are

violated, in that case even the sufferer can also be

said to be an `aggrieved person' who can claim locus

standi in law. By relying upon the aforesaid

judgment, Mr. Joshi, learned Senior Advocate,

submitted that the respondent No.5 applied for

acquisition of the land in question ever since 2010.

However, at no point of time, his claim was rejected

considering the merits of the matter. The petitioner

applied for the said land though the land continued

to be shown as Government land and even the

possession over the land in question was not with the

petitioner though he has applied for right over the

land in question in the capacity of assignee by

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offering the occupancy price along with interest.

When the claim of the petitioner and respondent No.5

were in respect of the same Government land the

Collector, Gir Somnath vide order dated 17.12.2020

passed an order in favour of the petitioner,

including the claim of the respondent No.5. That

amounts to legal injury to respondent No.5 and hence

respondent No.5 can be said to be an aggrieved

person.

8.13 Mr. Joshi, learned Senior Advocate also

relied on the definition of `aggrieved party' from

the Black's Law Dictionary, which reads as under:

"AGGRIEVED PARTY. One whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by a decree or judgment. Glos v. People, 259 I11.

322, 103 N.E. 763, 766, Ann. Cas.1914C. 199. See next topic. One whose right of property may be established or divested. McFarland v. Pierce, 151 Ind. 546. 45 N.E. 706. The word "aggrieved refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation. Roullard v. McSoley, 54 R.I. 232,

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172 A.326, 327. Injured in a legal sense. In re Donnelly's Estate, 55 S.D. 426 N.W. 563, 565)"

8.14 Mr. Joshi, learned Senior Advocate, by

relying upon the judgment of the Hon'ble Apex Court

in the case of Samir Agrawal vs. Competition

Commission of India & Ors. reported in (2021)3 SCC

136, submitted that the word "aggrieved person' must

be interpreted in the context of controversy in

question. It cannot have any rigid meaning, but it

must be understood widely and not to constructed

narrowly. Learned Senior Advocate relied upon the

observations made in para 21 of the judgment, wherein

the case of Adi Pherozshah Gandhi v. Advocate General

of Maharashtra, (1970)2 SCC 484 was considered by

three Judges Bench of the Hon'ble Supreme Court and

after considering the aforesaid judgment the Hon'ble

Supreme Court observed that the word `aggrieved

person' must be construed in the context of the act,

and to be understood widely and not to be constructed

narrowly.

8.15 By relying upon the judgment and order in

the case of Kanjibhai Valjibhai (supra), Mr. Joshi,

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learned Senior Advocate submitted that the respondent

No.5 being affected party they were required to be

heard by the Collector before passing any order in

favour of the petitioner.

8.16 Mr. Joshi, learned Senior Advocate, by

relying upon the judgment of this Court in the case

of Hiraben Bachu Puja Ayar (supra) submitted that in

a similar situation when the petitioner of the

aforesaid petition was granted land in the year 1969,

he could not pay the occupancy price nor he had any

document to show that the predecessors of the

petitioner has paid the occupancy price and

measurement charges and when he raised the dispute

for the first time after death of predecessor in the

year 2012, his claim was rejected by the Deputy

Collector and that order of the Deputy Collector was

challenged before this Court and ultimately the order

of the Deputy Collector was upheld by this Court

while observing that in absence of any document on

record to show that the petitioners or their

predecessors had taken any action to comply with the

conditions contained in the order dated 25.3.1969

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the Assistant Collector had rightly rejected their

applications. Learned Senior Advocate by relying

upon the above judgment submitted that in the instant

case also the land was granted to the petitioner of

that petition as back as in the year 1969 only just

like the case on hand and as at the relevant point of

time the occupancy amount could not be paid by the

petitioner of that case, the claim of the petitioner

to accept the occupancy and measurement charges of

the land was rejected by the Deputy Collector and the

said order was confirmed by this Court as the

conditions of the order was not complied with by the

original assignee.

8.17 Mr. Mihir Joshi, learned Senior Advocate

relying upon judgment of the Hon'ble Apex Court in

the case of Ramdas Shrinivas Nayak (supra), more

particularly para 4, submitted that if the judges say

in their judgment that something was done, said or

admitted before them, that has to be the last word on

the subject. The principle is well settled that the

statement of fact as to what transpired at the time

of hearing recorded in the judgment of the Court are

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conclusive of the facts so stated and no one can

contradict such statements by affidavit or other

evidence. If a party thinks that the happenings in

the Court are wrongly recorded in a judgment it is

incumbent upon the party while the matter is still

fresh in the minds of the judges to call attention of

the very judges who have made the record to the fact

and pointed out the aforesaid error and to get

necessary clarification as that is the only way to

have the record corrected. Learned Senior Advocate

Mr. Joshi further submitted that as far as order

dated 30.9.2021 passed on an application for speaking

to minutes is concerned, when the authority itself

has stated in the order that leave to appeal was

granted, however, the said order was left out to be

typed in the order dated 8.7.2021 and such statement

of the authority cannot be allowed to contradict by

statement at the Bar or by affidavit and other

evidence. If a Judge or a quasi judicial authority

says something in the order, the same must be

believed by considering his word to be the last word.

8.18 Learned Senior Advocate Mr. Joshi by

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relying upon the aforesaid judgment submitted that

when the respondent No.5 realized that while passing

order dated 8.7.2021 the leave to appeal was granted

and the same was left out to be typed in the order.

To rectify the aforesaid mistake, an application for

speaking to minutes was filed by respondent No.5.

The said application was filed as there was no other

mode available to respondent No.5 to get the

aforesaid mistake rectified. What is paramount is to

ensure that something that was part and parcel of the

order, but was left out in the copy of the order is

to be brought to the knowledge of the concerned

authority with a view to enable the authority to

rectify the mistake, which has resulted into omission

of some part of the order while transcribing the

order. That was done to ensure that the ends of

justice would be met and such application was

preferred immediately as soon as the aforesaid

mistake was noticed by the respondent No.5 to ensure

that it is preferred at the earliest when the matter

is still fresh in the mind of the authority. He

further submitted that more or less because there is

no provision of application like leave to appeal, in

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the rules of business it does not mean that if any

mistake is done by the authority while transcribing

the order on paper, which amounts to omission of some

part of the order at the time of transcribing the

order on paper, in that case making an application

before the concerned Judge would be only remedy or

course of action available to the concerned person,

who notices such mistake.

8.19 Mr. Joshi, learned Senior Advocate

submitted that nomenclature may be different in

respect of different proceedings, but what is

required to be seen is the purpose for which the

application was made. He further submitted that even

if any procedure like note for speaking to minutes is

not prescribed or is not a part of rules of business,

yet an application for correcting the order can

always be made by a person, who notices the error in

the order and if such application is preferred

irrespective of its nomenclature, the same is

required to be considered by the authority. In the

instant case, the authority has not committed any

error by considering the application made by

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respondent No.5 for speaking to minutes and by

passing order dated 30.9.2021 on it.

8.20 Mr. Joshi, learned Senior Advocate

thereafter relying upon the judgment in the case of

Sarat Chandra Maiti (supra), more particularly, the

observations made in para 12 of the said judgment,

that, "Again in Nellavadivn v. Subvanianiya, Mr.

Justice Sadasiva Iyer observed that a statement in a

judgment as to an admission made before the Court of

first instance should not be doubted lightly by the

appellate Court, specially in the absence of an

affidavit by the Vakil who appeared in the Court of

first instance. It is plain that in cases of this

character where a litigant feels aggrieved by the

statement in a judgment that an admission has been

made, the most convenient and satisfactory course to

follow, wherever practicable, is to apply to the

Judge without delay and ask for rectification or

review of the judgment.", and submitted that since

the respondent No.5 found that a part of the order

passed by the respondent No.1 was missing as left out

to be typed in the order, an application for speaking

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to minutes was filed and when such application was

filed along with an affidavit of the lawyer himself,

who appeared before the authority, the same cannot be

doubted and the same cannot be said to be illegal or

contrary to the provisions of the law.

8.21 As far as the submission of Mr. Kavina,

learned Senior Advocate in respect of invocation of

powers under Section 211 by preferring a revision

application by respondent No.5 is concerned, learned

Senior Advocate Mr. Joshi relying upon a judgment of

this Court in the case of Kamlaben Babarbhai Solanki

through Power of Attorney vs. State of Gujarat -

through Special Secretary & Ors. reported in 2016 SCC

OnLine Guj 6528, more particularly, paras 5 and 6,

submitted that so far as the contention with regard

to non-maintainability of the Revision Application

under section 211 at the instance of Private party is

concerned, it has been specifically held in the said

decision that it is open to the State Government

under Section 211 to exercise revisional powers

either suo moto or otherwise and to examine the order

or decision of the Collector to find out whether it

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is legal and proper. On plain reading of Section 211,

it clearly transpires that it is a residuary section

in the sense that an officer empowered by that

section on his own motion or otherwise can correct or

set-aside an erroneous decision of the subordinate

officer. This power could be exercised by the State

government or revenue officer at the instance of any

person, even if he is not the aggrieved party. There

is nothing in the said Section to suggest that it

could be invoked suo moto only and not at the

instance of the aggrieved or private party.

8.22 By citing the aforesaid judgment, learned

Senior Advocate Mr. Joshi submitted that revision

application can be preferred by a person, who is not

a party to the original proceedings. He further

submitted that any person, who is aggrieved by the

order passed by the authority can prefer revision

application under Section 203 as well as 211 of the

Bombay Land Revenue Code. He further submitted that

as per the settled proposition of law even a private

party who is not a party to the original proceedings

if is of the view that the order passed by the

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Collector is an illegal order, he can prefer a

revision application and by invoking the remedy

provided under Section 211 of the Bombay Land Revenue

Code and thereafter it is the matter of discretion of

the Secretary (Appeals), Revenue Department as to

whether to exercise the revisional powers available

to him under Section 211 of the Code. But such

application can be said to be maintainable.

Therefore, the submission of learned Senior Advocate

Mr. Kavina that the application for leave to appeal

is not maintainable, is misconceived.

9 Mr. Kamal Trivedi, learned Advocate General

appearing with learned advocate Mr. Virk for the

respondent No.6 submitted that the revisional powers

of the Secretary (Appeals), Revenue Department under

Section 211 of the Act are very wide. He submitted

that the respondent Nos. 5 and 6 cannot be said to be

strangers to the proceedings in question before the

Collector.

9.1 Mr. Kamal Trivedi, learned Advocate General

submitted that when the land is given on the basis of

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`santhani' to someone the title of the land remains

with the State only and the allotment would be made

to that person can always hold the land and not as an

absolute owner and only for the purpose of

cultivating and earning livelihood out of the same.

Learned Advocate General, relying upon para 2 of the

order dated 18.9.2017 passed in Special Civil

Application No.16601 of 2017 in the case of

Chhaganbhai Arjanbhai Vegada vs. State of Gujarat &

Ors., submitted that the allotment of land on

'santhani' basis is always pursuant to the policy of

the State Government. If a particular person is found

to be a landless labourer, then to provide him with

some means of livelihood, the State Government would

allot the land of restricted tenure, subject to

certain terms and conditions. The person in whose

favour such allotment is made would always hold the

land not as an absolute owner, but for the purpose of

cultivating and earning livelihood out of the same.

The ownership of the land would vest and remain with

the State Government. Learned Advocate General

further submitted that when the land is given on

`santhani' basis to someone, that person would have

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very limited right and that person would not get

absolute ownership rights.

9.2 Since the submission made by Mr. Kavina,

learned Senior Advocate that if the respondent No.5

wants the land in question for completion of their

project, in that case respondent No.5 should

negotiate with the petitioner, Mr. Kamal Trivedi,

learned Advocate General submitted that as per the

petitioner at no point of time even if he is believed

to be the holder of the land on the basis of

`santhani' throughout cannot be said to be absolute

owner of the land in question, and therefore, he

cannot negotiate the land, as the said land is vest

with the Government, and therefore, there is no

question of negotiating with the petitioner.

9.3 Mr. Kamal Trivedi, learned Advocate General

took this Court to the order dated 25.3.1969 whereby

the land was allotted to the father of the petitioner

on `santhani' basis. Learned Advocate General

submitted that allotment of land on `santhani' basis

was subject to certain conditions. The petitioner was

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required to pay the occupancy price within a

specified period mentioned in the order itself. In

the instant case, since the father of the petitioner

failed to comply with the aforesaid conditions the

land was shown in the name of the Government in the

revenue record. Learned Advocate General further

submitted that the land in question was not allotted

to respondent No.5 as it could not be acquired on

account of encroachment on the land by private

persons and not by considering the merit of the

matter. Learned Advocate General further relying upon

the Letter of Intent dated 25.4.2008 and submitted

that the Letter of Intent was issued in favour of

respondent No.5 as back as in the year 2008 and in

2008 as per the revenue record, the land was running

in the name of Government. It is on 13.1.2011 during

the Vibrant Gujarat, a Memorandum of Understanding

was arrived at between respondent Nos.5 and 6 and

pursuant to the aforesaid Memorandum of

Understanding, respondent No.6 requested the

authority to acquire the land for the purpose of

respondent No.5. Learned Advocate General drew

attention of the Court to the application for

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acquisition of land in Chhara and Sarkhadi villages

made by the Vice Chairman and Chief Executive Officer

of Gujarat Maritime Board to the Principal Secretary,

Revenue Department, Government of Gujarat vide

application dated 15/17.10.2013.

9.4 Learned Advocate General also drew

attention of the Court to the environment clearance

given by the Ministry of Environment & Forest to

respondent No.5. Mr. Trivedi, learned Advocate

General pointed out from the record that since 2014

the respondent No.6 has communicated with the

Principal Secretary of Revenue Department for advance

possession of the land in question, whereas the

petitioner applied before the concerned authority on

3.5.2017. Learned Advocate General submitted that

there are contradictions in the application made by

the petitioner. On the one hand, the petitioner

stated that though the occupancy price was paid at

the relevant point of time by his father, he could

not trace out the receipt of the same and on the

other hand vide application dated 22.8.2017 he stated

that since his father could not deposit the amount of

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occupancy price, the land was vested in the

Government, which would indicate that the

petitioner's interest in the land ended on the date

on which father of the petitioner failed to pay the

occupancy price. Learned Advocate General pointed out

from two communications dated 7.8.2018 and 22.8.2017

whereby the petitioner has taken two different,

stands as stated herein above.

9.5 Learned Advocate General pointed out from

the letter dated 17.6.2019 written by Gujarat

Maritime Board to Collector, Gir Somnath wherein it

is categorically stated that since 9 years Gujarat

Maritime Board applied for allotment of the land for

timely implementation of the project and requested to

allot the land without there being any further delay

to Collector, Gir Somnath. The communication dated

17.6.2019 is produced at page 189 of the compilation.

9.6 Learned Advocate General further submitted

that the Government Resolution dated 19.2.2018 is not

applicable to the facts of the present case. Learned

Advocate General thereafter relying upon Division

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Bench decision of this Court in the case of Muman

Habib Nasir Khanji vs. State of Gujarat & Ors.

reported in 1970 GLR 307, more particularly, para 26,

submitted that under Section 211 of the Bombay Land

Revenue Code the State Government may exercise its

revisional powers suo moto or may not exercise at

all. Once the order of the Collector is brought to

the notice of the State Government it is within the

discretion of the State Government to take further

steps in the matter or not. The learned Advocate

General further submitted that once an order of the

Collector is brought to the notice of the State

Government, it is for the State to exercise

discretion whether to exercise revisional powers or

not, but merely because a contention is raised that a

person who is not person aggrieved has preferred an

appeal or has no right to file an appeal and hence

the proceedings before the State would become

incompetent, cannot be accepted as once the matter is

brought before the State Government, it is for the

State Government to exercise its discretion.

9.7 Mr. Kamal Trivedi, learned Advocate General

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further submitted that the proceedings under Section

211 of the Act can be initiated either suo motu by

the State or otherwise, and therefore, it cannot be

said that the revision application preferred by the

respondent No.5 is not maintainable. By making the

aforesaid submissions, learned Advocate General

prayed for dismissal of the petition.

10 Heard learned counsels for the parties and

perused the entire record of the petition and

considered the judgments cited by all the learned

counsels for the parties.

10.1 The record of the case reveals that the

land was originally allotted to the father of the

petitioner viz. Virbhan Govind on `santhani' basis

vide order dated 25.3.1969. Virbhan Godind got two

parcels of land bearing survey No.637 paiki

admeasuring 11-19 Acre-Gunthas and land bearing

survey No.633 admeasuring 5-10 Acre-Gunthas upon

payment of occupancy price of Rs.2,000/-. The

aforesaid occupancy price was to be paid within the

time frame stated in the order.

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10.2 Now, as far as the petitioner's claim over

the land in question is concerned, the petitioner

himself has vide his application made to the Deputy

Collector, Una dated 22.8.2017 categorically stated

that the father of the petitioner could not deposit

the payment towards assignment of land and the land

was vested into Government. The aforesaid application

made by the petitioner is produced at Annexure-XII at

page 289 along with the reply filed by the respondent

No.5. Further, on page 290 of the reply, the

responded No.5 has produced the reply given by the

petitioner before the Revenue Talati, Sarkhadi on

18.10.2017 whereby he has categorically stated that

at the time when the land was allotted to father of

the petitioner, the petitioner's father could not pay

the occupancy price towards the land in question. So

there is a clear cut admission on the part of the

petitioner not once but twice in respect of the fact

that the father of the petitioner could not pay the

occupancy price at the relevant point of time and the

land had vested into the Government.

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10.3 The petitioner has not filed any rejoinder

disputing the aforesaid reply filed by respondent

No.5 nor has the petitioner questioned the

genuineness about the aforesaid two documents. This

fact is required to be seen along with the revenue

record produced by the petitioner himself along with

the petition by way of annexures. In 7/12 abstract in

respect of survey No.633, since at the relevant point

of time, brother of the father of the petitioner had

paid the occupancy price in the revenue record, name

of Bogha Govind is shown. Whereas, name of the father

of the petitioner is not shown either as owner or

occupier though there is a reference about the order

dated 25.3.1970. Further, the area of the survey

No.633 is 5-10 Acres-Gunthas, whereas the area of

survey No.637 is 28-11 Acres-Gunthas, out of which as

per the order dated 25.3.1970 Bhogta Govind is given

only 17-00 Acres-Gunthas, whereas father of the

petitioner was allotted 11-19 Acres-Gunthas. Revenue

record in respect of survey No.633 indicates that it

was Bogha Govind, who was in possession of the entire

28-11 Acres-Gunthas and not the petitioner (page

No.58) right from 1966-67 till 1970-71. The revenue

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record in respect of 1971-72 onwards at page 59

indicates that from 1971-72 onwards, only Bogha

Govind was having possession of 17-00 Acres-Gunthas

and 11-19 Acre-Gunthas was owned by the Government,

which would indicate that in respect of survey No.637

the petitioner was never having possession either in

form of legal possession or in the form of

encroachment.

10.4 As far as survey No.633 is concerned, the

name of the petitioner is not there right from 1971-

72 and 5-10 Acres-Gunthas land was occupied by Bogha

Govind. This would indicate that the petitioner at

the relevant point of time could not pay the

occupancy price and even the statement made in the

petition in para 8 of the potion at pages 6 and 7

that the name of the petitioner was reflected in the

column of cultivator, is factually incorrect. In the

column of cultivator also only name of Bogha Govind

and his legal heirs are stated but not the name of

the petitioner.

10.5 Therefore, when the petitioner made an

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application dated 2.5.2017 praying for accepting an

amount of Rs.2,000/- towards occupancy price, the

same was rejected on the ground that the amount was

required to be paid in the year 1969 and therefore at

this juncture it cannot be accepted. Vide application

dated 2.2.2018 at page 68 of the petition, the

petitioner has taken a contradictory stand while

making an application to Mamlatdar by stating that at

the relevant point of time, the father of petitioner

had paid the occupancy price.

10.6 The aforesaid facts would indicate that

when the petitioner made an application for the first

time to Mamlatdar, Kodinar, at that point of time,

name of the petitioner was not there in the revenue

record and land had already vested into the

Government long back on account of non-payment of

occupancy price. For the first time on 2.5.2017 the

petitioner made an attempt to get his name entered

into the revenue records and to become the owner of

the land in question on the basis of the order dated

25.3.1969 passed in favour of father of the

petitioner. From the record it appears that during

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the life time of father of the petitioner, who died

on 15.1.1992, the petitioner did nothing to claim his

right over the land in question and for the first

time for enforcement of order dated 25.3.1969, the

petitioner made an application in the year 2017 i.e.

almost after 50 years after the land was allotted to

father of the petitioner and almost 25 years after

the death of father of the petitioner.

10.7 As against the above, the record reveals

that the respondent No.5 company was given Letter of

Intent on 25.4.2008 by respondent No.6 pursuant to

that for the first time an application for

acquisition of the land bearing survey Nos.633 and

637 was given by respondent No.5 to the Collector,

Junagadh through respondent No.6 vide letter dated

7.4.2010. A reference to the aforesaid application

dated 7.4.2010 can be seen from the letter dated

30.9.2010 whereby for the first time the Mamlatdar

pursuant application of the petitioner dated 7.4.2010

replied to the Deputy Collector, Veraval stating that

the land in question is a Government land and Rambhai

Boghabhai has encroached upon the land in question

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(Rambhai Boghabhai is the son of Bogha Govind and

that indicates that on 30.9.2010 the land was

encroached upon by Rambhai Boghabhai and not by the

petitioner). This letter also falsifies the claim of

the petitioner that he and his father were in

possession and were cultivating the land in question

ever since in the year 1969 it was given on

`santhani' basis to his father. Further, by way of

another letter dated 12.5.2014 addressed to the

Principal Secretary, Revenue Department, Government

of Gujarat, the respondent No.6 once again reiterated

the request for advance possession of the land

bearing survey Nos. 843 paiki, 633 and 637. Both

these communications were made in the year 2010 and

2014 i.e. much prior to the date of application made

by the petitioner for acceptance of occupancy price

made to the Mamlatdar, Kodinar on 2.5.2017.

10.8 The aforesaid fact would indicate that the

respondent No.5 as well as the petitioner both were

claiming the land bearing survey Nos.633 and 637 of

village Sarkhadi, but on the respective date of

application none of them were having any right, title

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or interest over the said land, as per the record

produced before this Court. Both made applications

for allotment of the land in question for two

different purposes. The petitioner claimed the land

by stating that he is in possession of the land in

question and raised contradictory grounds by stating

that though the land was allotted on `santhani' basis

to his father in the year 1969 at once he said that

his father could not pay the occupancy price and

hence he may be permitted to pay the same, whereas at

some point he stated that though his father paid the

occupancy price, as receipt could not be traced out

the occupancy price along with interest may be

accepted from him and land may be granted in his

favour. Whereas, the respondent No.5 claimed the

ownership of the land by seeking acquisition of the

aforesaid land on the strength of Letter of Intent

given to it by respondent No.6, therefore, mode of

seeking allotment of land by the petitioner and

respondent No.5 were different as the intention to

use of land by both of them was for different

purposes.

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10.9 These facts whereby a comparison in respect

of interest of petitioner vis-à-vis respondent No.5

in respect of land in question are important to be

borne in mind to determine the issues as to whether

the respondent No.5 can be said to be an `aggrieved

person' or not and to determine as to whether

respondent No.5 has locus to prefer an application

for leave to appeal before the Secretary (Appeals),

Revenue Department.

10.10 Now, if in light of the aforesaid

facts, the judgments cited by learned Senior

Advocates for the respective parties are considered,

in that case, learned Senior Advocate Mr. Percy Kaina

very heavily relied upon the judgment in the case of

Adi Phirozshah Gandhi (supra), which is a judgment by

a 5 Judges Bench of the Hon'ble Supreme Court,

wherein in paras 7 to 11, it is observed as under:

"[7] As a result of the frequent use of this rather vague phrase, which practice, as Lord Parker pointed out in Dealing Corporation v.

Jones(1), has not been avoided, in spite of the confusion it causes, selections from the

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observations of judges expounding the phrase in the context of these varied statutes were cited before us for our acceptance. The observations often conflict since they were made in different contexts and involved the special standing of the party claiming the right of appeal. Yet these definitions are not entirely without value for they disclose a certain unanimity on the, essential features of this phrase, even in the diversity of the contexts. The font and origin of the discussion is the well-known definition of the phrase by James L.J. in In Re Sidehotham Ex. j. Sidebotham(2). It was observed that the words person aggrieved' in s. 71 of the Bankruptcy Act of 1869 meant :

"Not really a person who is disappointed of a benefit which he might have received, if some order had been made. A `person aggrieved', must be a man who had suffered a legal grievance, a man against whom a decision has been pronounced which had wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."

[8] The definition was held in later cases to be not exhaustive and several other features of the phrase were pointed out. Thus under the Bankruptcy Acts, where the Board of Trade

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summoned to support the validity of the appointment of a trustee, went before the judge, and failed, it was considered a person aggrieved' on the principle that a person who is brought before the Court to :submit to its decision, but not a person who is heard in a dispute between others must be treated as a person aggrieved' (see In Re Lamb Ex., p. Board of Trade(1) per Lord Esher). Here again the words to notice are brought before the-court to submit to its decision that, is to say, a person who is in the nature of a party as contra- distinguished from a person who is next described as a person who is heard in a dispute between others. To distinguish between these two positions Ist may refer to a few more decisions. In In Re Kitson, Ex. p. Sugden (Thomas) & Sons Ltd.(2), it was further explained that.

"the mere fact that an order is wrongly made does not of itself give a grievance to a person not otherwise aggrieved."

(per Phillimore J.) It was added that a person deprived of the fruits of litigation which he had instituted in the hope for them, is `a person aggrieved'. Similarly, a creditor who did not wish an adjudication order, to be made was held not-to be a person aggrieved-See In Re Brown Ex. p.

Debtor v. Official Receiver. The utmost

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that this series of cases goes is to be found in the observations of James L.J. in Ellis Ex. p. Ellis that even a person not bound by the order of adjudication must be treated as a person aggrieved' if the order embarrasses him. In a later case (In Re Woods Ex. P. Ditton) Cotton L.J. held that even so the person must be aggrieved by the very order and not by any of the consequences that ensue. This was clarified in R. v. London County Keepers of the Peace and Justices(6), by Lord Coleridge C.J. while dealing with the Highway Act, denying the right of appeal in these words:

"Is a person who cannot succeed in getting a conviction against another a person aggrieved ? He may be annoyed at finding that what he thought was a breach of the law is not a breach of law; but is he aggrieved because some one is held not to have done wrong ? It is difficult to see that the section meant anything of the kind. The section does not give an appeal to anybody but a person who is by the direct act of the Magistrate aggrieved that is who has had something done or determined against him by the Magistrate. "these observations again show that the person must himself suffer a grievance, or

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must be aggrieved by the very order because it affects him.

[9] Two cases which may usefully be seen in the same context may next be mentioned. In Jennings v. Kelly(1) in relation to the Government of Ireland Act 1920, Lord Wright did say that if a person was treated in certiorari proceedings as a competent party and notice was served on him as being a proper party he would be a person aggrieved.' The point to bear in mind is that the person must be treated as a party. However the force of the observation was considerably weakened because the party there was ordered to pay costs and the right of appeal was held to be available on that limited ground. Further qualification is to be found in In Re Riviere (1884) 26 Ch. D. 48 where Lord Selborne observed:

"... It must be a legal grievance; it must not be a stet pro ratione voluntas; the applicant must not come merely saying I do not like this thing to be done, it must be shown that it tends to his injury, or to his damage, in the legal sense of the word. "the locus standi of the person aggrieved must be found from his position in the first proceeding and his grievance must arise from that standing taken with the effect of the order on him.

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[10] These cases are of course far removed from the one before me and as Branwell L.J. observed in Robinson v. Currey(2) the expression is nowhere defined and, therefore, must be construed by reference to the context of the enactment in which it appears and all the circumstances. He pointed out that "the words are ordinarily English words, which are to have the ordinary meaning put upon them."

[11] From these cases it is apparent that may person who feels disappointed with the result of the case is not a Person aggrieved. He must be disappointed of a benefit which he would have received if the order had gone the other way. The,-order must cause him a legal grievance by wrongfully depriving him of something. It is no, doubt a legal grievance and not a grievance about material matters but his, legal grievance must be a tendency to injure that the order is wrong or that it acquits some one who he thinks ought to be convicted does not by itself give rise to a legal grievance. These principles are gathered from the cases cited and do not, as I shall show later, do violence to the context in which the phrase occurs in,the Advocates Act. Although I am aware that in Seven Oaks Urban District Council v. Twynham(1) Lord Hewart C.J. uttered words of caution, again emphasised by Lord Parker C.J. in Ealing Corporation v.

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Jones(2), in applying too readily the definitions given in relation to other statutes but I do not think I am going beyond what Lord Hewart C.J. said and what Lord Parker C.J. did in the case. Lord Parker observed:

".... As Lord Hewart C.J. pointed out in Seven Oaks Urban District Council v. Twynam : But as has been said again and again there is often little utility in seeking to interpret particular expressions in one statute by reference to decisions given upon similar expressions in different statutes which have been enacted alio intuitu. The problem with which we are concerned is not, what is the meaning of the expression aggrieved' in any one of a dozen other statutes, but what is its meaning in this part of this statute ?' Accordingly, I only look at the cases to which we have been referred to see if there are general-principles which can be extracted which will guide the court in approaching the question as to what the words person aggrieved' mean in any particular statute." If I may say respectfully I fully endorse this approach.

I am now in a position to examine the Advocates' Act but before so I must refer to a case near in point to this case, than any considered before.

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10.11 The aforesaid judgment was subsequently

considered in the case of Ravi Yashwant Bhoir (supra)

and the judgment of Ravi Yashwant Bhoir was followed

in the case of Shri Vavdi Seva Sahkari Mandli Limited

(supra). By relying upon the aforesaid three

judgments, learned Senior Advocate Mr. Kavina tried

to canvass that the respondent No.5 had merely

applied for the land in question, no legal right was

ever created in favour of the respondent No.5 and

therefore, by way of order passed by the Collector

dated 17.12.2017 when the land in question was

granted in favour of the petitioner, no legal right

of the respondent No.5 can be said to have been

affected. As the respondent No.5 was only hoping that

the land may be allotted to him and because of the

order dated 17.12.2020, the petitioner at the most

can be said to be disappointed, but as in the entire

proceedings pursuant to which order dated 17.12.2020

was passed by the Collector, at no point of time the

respondent No.5 was a necessary party as none of his

rights were ever affected by way of the aforesaid

proceedings. Therefore, since none of the rights of

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the respondent No.5 were affected, it cannot be said

that the respondent No.5 has received any legal

injury as no legal right was ever created in its

favour.

10.12 However, the aforesaid judgments as well as

the submission of learned Senior Advocate Mr. Kavina

are required to be considered in light of the latest

judgment of the Hon'ble Supreme Court on the issue on

hand in the case of Samir Agrawal (supra). The

judgment in the case of Samir Agrawal (supra) is

though a judgment by three Judges of Hon'ble Supreme

Court, the Hon'ble Supreme Court had taken into

consideration the judgment of Adi Phirozshah Gandhi

(supra) and after considering the same, the Hon'ble

Supreme Court in paras 19, 20 and 21 observes as

under:

"19. With the question of the Informant's locus standi out of the way, one more important aspect needs to be decided, and that is the submission of Shri Rao, that in any case, a person like the Informant cannot be said to be a "person aggrieved" for the purpose of sections 53B and 53T of the Act. Shri Rao relies heavily upon Adi

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Pherozshah Gandhi (supra), in which section 37 of the Advocates Act, 1961 came up for consideration, which spoke of the right of appeal of "any person aggrieved" by an order of the disciplinary committee of a State Bar Council. It was held that since the Advocate General could not be said to be a person aggrieved by an order made by the disciplinary committee of the State Bar Council against a particular advocate, he would have no locus standi to appeal to the Bar Council of India. In so saying, the Court held:

"11. From these cases it is apparent that any person who feels disappointed with the result of the case is not a "person aggrieved". He must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something. It is no doubt a legal grievance and not a grievance about material matters but his legal grievance must be a tendency to injure him. That the order is wrong or that it acquits some one who he thinks ought to be convicted does not by itself give rise to a legal grievance...."

20. 19. It must immediately be pointed out that

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this provision of the Advocates Act, 1961 is in the context of a particular advocate being penalized for professional or other misconduct, which concerned itself with an action in personam, unlike the present case, which is concerned with an action in rem. In this context, it is useful to refer to the judgment in A. Subash Babu v. State of A.P., (2011) 7 SCC 616, in which the expression "person aggrieved" in section 198(1)(c) of the Code of Criminal Procedure, 1973, when it came to an offence punishable under section 494 of the Indian Penal Code, 1860 (being the offence of bigamy), was under consideration. It was held that a "person aggrieved" need not only be the first wife, but

can also include a second "wife" who may complain of the same. In so saying, the Court held:

"25. Even otherwise, as explained earlier, the second wife suffers several legal wrongs and/or legal injuries when the second marriage is treated as a nullity by the husband arbitrarily, without recourse to the court or where a declaration sought is granted by a competent court. The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its

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scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant. Section 494 does not restrict the right of filing complaint to the first wife and there is no reason to read the said section in a restricted manner as is suggested by the learned counsel for the appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by the wife living and not by the woman with whom the subsequent marriage takes place during the lifetime of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom the second marriage takes place which is void by reason of its taking place during the life of the first wife."

"21 Clearly, therefore, given the context of the Act in which the CCI and the NCLAT deal with practices which have an adverse effect on competition in derogation of the interest of consumers, it is clear that the Act vests powers

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in the CCI and enables it to act in rem, in public interest. This would make it clear that a "person aggrieved" must, in the context of the Act, be understood widely and not be constructed narrowly, as was done in Adi Pherozshah Gandhi (supra). Further, it is not without significance that the expressions used in sections 53B and 53T of the Act are "any person", thereby signifying that all persons who bring to the CCI information of practices that are contrary to the provisions of the Act, could be said to be aggrieved by an adverse order of the CCI in case it refuses to act upon the information supplied. By way of contrast, section 53N(3) speaks of making payment to an applicant as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II of the Act, having been committed by an enterprise. By this sub-section, clearly, therefore, "any person" who makes an application for compensation, under sub-section (1) of section 53N of the Act, would refer only to persons who have suffered loss or damage, thereby, qualifying the expression "any person" as being a person who has suffered loss or damage. Thus, the preliminary objections against the Informant/Appellant filing Information before the CCI and filing an appeal before the NCLAT are rejected."

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10.13 In view of the aforesaid judgment since the

Hon'ble Supreme Court was considering the word

`person aggrieved' by keeping in mind the fact that

the CCI and NCLAT deal with practices which have an

adverse effect on competition in derogation of

interest of the consumer and since the Act vests

power in CCI which enable it to act in ram or in

public interest, the word `person aggrieved' must be

construed in the context of the Act and to be

understood widely and not to be constructed narrowly

as was done in the case of Adi Phorizshah Gandhi. Now

in this context, keeping this judgment in mind,

coupled with the ratio laid down in the judgment in

the cases of Jasbhai Motibhai Desai (supra) as well

as Hemant Pragbhai Patel (supra) this Court has

considered the fact that the application made for

grant of land by the petitioner was for his own

purpose. Whereas, the respondent No.5 was seeking

acquisition of the land in question for development

of Simar Port as an all whether direct berthing port

for which even MoU was also came to be signed between

respondent No.5 and respondent No.6 during Vibrant

Gujarat Summit, 2011. In fact, a tripartite agreement

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was signed between the Government of Gujarat, Gujarat

Maritime Board and respondent No.5 on 29.1.2015 and

as per the said agreement, after a period of 30

years, the port would be handed over to the

Government, which can be said to be of larger public

importance. Therefore, keeping the object behind the

request for acquisition of the land in question, the

word `person aggrieved' is required to be considered.

As discussed earlier, keeping the ratio laid down by

way of judgment of Samir Agrawal (supra), Jashbhai

Motibhai Desai (supra) and Hemant Pragbhai Patel

(supra), while interpreting the word `aggrieved

person', what is required to be seen is the nature of

dispute, factors attributing to the controversy as

well as the circumstances which have led to the

dispute. For that there cannot be any straight jacket

formula. To determine the person aggrieved, the Court

is required to look at the issue by giving wider

perspective to the controversy in question rather

than rigidly interpreting the word `person

aggrieved'. The Court is required to take into

consideration various aspects such as, similarity or

disparity in respect of the status and circumstances

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between the person who is claiming to be the `person

aggrieved' vis-à-vis the person in whose favour the

order is passed. The Court is required to see the

object behind the actual dispute as the word 'person

aggrieved' can be determined only in respect of the

nature of controversy and not in general.

10.14 Therefore, if we compare petitioner's

personal interest in respect of the land in question

vis-à-vis the interest of respondent No.5 as well as

the purpose for which the land was required by

petitioner as well as the respondent No.5, in that

case, this Court is of the view that to determine the

`person aggrieved', the Court is required to consider

the overall consideration of the injury that may be

suffered by respondent No.5 on account of grant of

land in favour of the petitioner.

10.15 In the instant case, except for the

land in question, no other factor is similar in

respect of the petitioner and respondent No.5. Both

applied for grant / acquisition of the land in

question for different purposes and under different

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capacities. Though the Collector, Gir Somnath

considered the application of the petitioner by

resorting to various Government Resolutions of the

State Government as well as upon some past

precedents, the Collector, Gir Somnath overlooked the

fact as to who made an application for land prior in

point of time and the purpose behind requirement of

the land in question. This Court is mindful of the

fact that this Court has to confine itself only to

the fact as to whether the respondent No.5 has locus

to prefer an application for leave to appeal or not

and whether any such application at the instance of a

third party i.e. respondent No.5 is maintainable or

not. Therefore, this Court leaves the aforesaid

questions here itself and does not deem it

appropriate to go further into it.

10.16 However, this Court cannot overlook the

fact that the respondent No.5's project is backed by

State Government and respondent No.6 by way of a

tripartite agreement, through respondent No.6

application for acquisition of the land was made to

the Collector, Gir Somnath who passed order dated

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17.12.2010 in favour of the petitioner. Demand for

the land in question had come from respondent no.5 in

the year 2010 and at no point of time the same was

rejected by considering the merit, but the same was

rejected only on the ground of encroachment on the

land in question. When the application made by the

respondent No.5 was never considered by the

Collector, Gir Somnath on merit and when the

application of the respondent No.5 was prior in point

of time, the Collector vide order dated 17.12.2020

granted the land in question in favour of the

petitioner.

10.17 As can be seen from the communication dated

12.5.2014 by respondent No.6 to the Principal

Secretary, Revenue Department (page 282) whereby a

specific request was made to allotment of land

bearing survey Nos.633 and 637 in favour of

respondent No.5, Which would indicate that though the

petitioner and respondent No.5 both were neither in

possession of the land in question nor had any right,

title or interest in the land in question immediately

before they made their respective applications for

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allotment of the said land. Therefore, the question

of `aggrieved person' is required to be determined in

the context of applications for allotment of land

made by the petitioner vis-a-vis respondent No.5 and

not by taking into consideration that the proceedings

before the Collector, which were initiated vide

application made by the petitioner before the

Mamlatdar on 2.5.2017 for grant of land wherein

respondent No.5 was never a party nor can he be

expected as a party because those proceedings were in

respect of re-grant of land which was allotted to

father of the petitioner before 50 years. The case of

the petitioner for re-grant of land was considered by

the Collector on merit pursuant to his application

made in the year 2017. Whereas, the case of

respondent No.5 for allotment of the very land for

larger public interest was never considered on merit

by the Collector nor was it considered vis-a-vis

object for allotment of land by comparing the case of

the petitioner with the case of respondent No.5 as

both were seeking allotment of the same same land.

Since case of respondent No.5 was never considered on

merit vis-a-vis case of the petitioner on merit and

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the order dated 17.12.2020 was passed by keeping in

mind the order dated 25.3.1969 passed by the

Collector, Gir Somnath granting the land in question

in favour of the petitioner without considering the

application made on behalf of respondent No.5 can

definitely said to have been caused injury to the

respondent No.5, and therefore, the respondent No.5

can be said to be an `aggrieved person' and

accordingly respondent No.5 is held to be an

`aggrieved person'.

10.18 Since the respondent No.5 is now held

to be an `aggrieved person', because of allotment of

land in question in favour of the petitioner, the

only remedy available to the respondent No.5 would be

to challenge the order dated 17.12.2020 passed by the

Collector, Gir Somnath by way of filing a proper

application before the appropriate authority.

Therefore, this Court holds that the respondent No.5

has the locus to challenge the order dated 17.12.2020

even if the respondent No.5 was never party to any of

the proceedings before the revenue authorities.

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10.19 As far as the question as to whether a

revision application or an application for leave to

appeal at the instance of third party would be

maintainable or not is concerned, the learned

Advocate General relied upon a decision in the case

of Muman Habib Nasir Khanji (supra), whereas, learned

Senior Advocate Mr. Mihir Joshi relied upon a

judgment in the case of Kamlaben Babarbhai Solanki

through Power of Attorney (supra). In the judgment of

Kamlaben Babarbhai Solanki (supra), the judgment

relied upon by the learned Advocate General in case

of Muman Habib Nasir Khanji (supra) is already

considered and by considering the Division Bench

judgment, the learned Single Judge in paras 5 and 6

of the judgment observed as under:

"5. In the opinion of the court, the three fold contentions raised by the learned Sr. Counsel Mr. Mehta for the respondent nos. 3 and 4 are answered by the Division Bench of this Court in case of Muman Habib Nasir Khanji v/s. State (Supra). The contention with regard to filing of appeal under Section 203 of the Code has been dealt with in Para-17 thereof, which reads as under-

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"17- This section provides for an appeal against the order of a revenue officer whether passed under the Bombay Land Revenue Code or under any law for the time being in force to that officers immediate superior. Secondly such an appeal lies against original as well as appellate decision. The question which arises for our consideration is:- what is the meaning of the phrase to that officers immediate superior? It is true that the words immediate superior officer have not been used in sec.203 but only the words immediate superior have been used. Looking to the context in which they have been used the words immediate superior connote immediate superior officer. Since the word officer has already been used immediately before the words immediate superior it has not been repeated after those words. Mr. Shelat contends that the phrase immediate superior means immediate superior authority. He therefore further proceeds to content that if the words immediate superior are construed so as to mean immediate superior authority sec.203 will permit an appeal from the decision of the Collector even under sec.211 of the Code to the State Government. We are unable to accept this contention of Mr. Shelat for

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several reasons. Firstly it appears to us that reading sec.203 as a whole and reading the words immediate superior in the context in which they have been used it is very clear that they have been used to connote and mean immediate superior officer. Since the words immediate superior are immediately preceded by the word officer as stated above the Legislature has thought fit not to repeat it after them. If it was the intention of the Legislature that immediate superior must mean immediate superior authority nothing would have been easier for it then to use the words immediate superior authority instead of only using the words immediate superior. A word can be left to be understood in the context of the language if it occurs in the earlier part of a sentence. An altogether new word which has not occurred anywhere earlier in a sentence ordinarily will not be left to be understood in the context. It therefore appears to us that the word officer has been left to be understood after the phrase immediate superior. In this view of the matter it appears to us that sec.203 contemplates an appellate hierarchy of revenue officers from the lowest to the highest. Now the State Government is not and cannot be superior officer Under the Constitution of India and

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also under the earlier Constitution Acts it has been an ultimate executive authority in respect of the matters assigned to it.

Therefore the State Government is not an immediate officer within the meaning of sec.203."

6 In view of the aforesaid observation made by the Division Bench, the submission of Mr. Mehta that the petitioner was required to file appeal under Section 203 of the said Act, cannot be accepted. So far as the contention with regard to non-maintainability of the Revision Application under section 211 at the instance of Private party is concerned, it has been specifically held in the said decision that it is open to the State Government under Section 211 to exercise revisional powers either suo moto or otherwise and to examine the order or decision of the Collector to find out whether it is legal and proper. On plain reading of Section 211, it clearly transpires that it is a residuary section in the sense that an officer empowered by that section on his own motion or otherwise can correct or set-aside an erroneous decision of the subordinate officer. This power could be exercised by the State government or revenue officer at the instance of any person, even if he is not the aggrieved party. There is nothing in the said Section to suggest that it could be invoked suo moto only and not at the

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instance of the aggrieved or private party. The court therefore does not find any substance in the submission of Mr. Mehta that the Revision Application at the instance of the petitioner was not maintainable before the respondent no.1."

10.20 Further, the Division Bench in the case of

Muman Habib Naris Khanji (supra) observed in para 26

as under:

"26. Mr. Patel's next submission is that in any case an appeal by respondents No. 2 to 5 was not competent because they had no right to file an appeal to the State Government. In view of our finding that the State Government has only revisional jurisdiction in the matter under Section 211, this question need not detain us any longer. The question whether respondents Nos. 2 to 5 had any right of appeal or not against the decision of the Collector loses its significance and value in view of the fact that under Section 211 of the Bombay Land Revenue Code the State Government can exercise revisional powers suo motu. Therefore, the

ended with their bringing this matter to the notice of the State Government. Thereafter, it was within the discretion of the State

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Government to take further steps in the matter or not to take any. The State Government may exercise its powers under Section 211 either on its own motion or otherwise or may not exercise them at all. In this view of the matter the question whether respondents Nos. 2 to 5 had a right to file an appeal or not does not arise. We, therefore, reject the second part of Mr. Patel's contention that the proceedings before the State Government were incompetent because the respondents Nos. 2 to 5 had no right to file an appeal against the decision of the Collector. In view of this finding of ours it is not necessary for us to deal with Mr. Shelat's counter contention that respondents Nos. 2 to 5 are 'persons interested' or 'persons aggrieved'. So also it is not necessary for us to refer to the case of Punjabhai v. Jayantilal reported in 6 G.L.R. 849 which deals with the question as to who is 'a person interested' or 'a person aggrieved'."

10.21 Both the aforesaid judgments, categorically

held that it is at the discretion of the State

Government under Section 211 of the Bombay Land

Revenue Code to decide whether to exercise the powers

of revision or not. The Government may exercise its

powers under Section 211 either on its own motion or

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otherwise or may not exercise them at all. The

function and role of a third party is to bring that

matter to the notice of the State Government which is

the order passed by the Collector, Gir Somnath in the

instant case. Further, even the language of Section

211 also nowhere prohibits that except for a person

who is party to the proceedings, no other person can

seek revision of a decision or an order passed by any

revenue officer not inferior in rank to Assistant or

Deputy Collector.

10.22 The aforesaid judgment as well as language

of Section 211 would make it amply clear that what is

required for testing the order passed by the

Collector is to bring to the notice of the State

Government by making necessary application and

thereafter it is the discretion of the State

Government to decide as to whether to exercise the

revisional power or not. In the instant case, the

respondent No.5 had preferred leave to appeal

challenging the order dated 17.12.2020 and upon his

application the respondent - Secretary (Appeals),

Revenue Department passed an order on 30.9.2021

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whereby the leave to appeal application was granted

on a note for speaking to minutes. Meaning thereby,

the State thought it fit to exercise its power of

revision under Section 211 and hence the application

for leave to appeal preferred by respondent No.5 can

be said to be maintainable and accordingly it is held

maintainable.

10.23 As far as grievance of learned Senior

Advocate Mr. Kavina about the fact that any procedure

or nomenclature like note for speaking to minutes is

not there in Bombay Land Revenue Code nor there is

any practice nor it finds place in rules of business

is concerned, what is required to be seen is whether

on a particular day while passing the order whether

something was omitted which was though a part of

order could not find a place on paper. Therefore, in

this regard, this Court has considered the submission

of learned Senior Advocate Mr. Mihir Joshi whereby

the learned Senior Advocate relied upon the judgment

in the case of Ramdas Shrinivas Naik (supra) wherein

in para 4, the Hon'ble Apex Court held as under:

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"4 When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation".(1) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the

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happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. (2) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment."

10.24 In view of the aforesaid judgment cited by

learned Senior Advocate Mr. Mihir Joshi, what can be

seen is that when something is recorded by the judges

in their judgment, the same cannot be allowed to be

contradicted by statement at Bar or by affidavit or

by any other evidence. If judges say in their

judgment that something was done said or admitted

before them that has to be the last word on the

subject. However, if a party thinks that the

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happenings in the court proceedings are wrongly

recorded in a judgment, then as per the aforesaid

judgment, it is incumbent upon the party while the

matter is very fresh in the minds of the judges to

draw attention of very judges to have made the record

to the fact that the statement made with regard to a

particular statement was an error and that is the

only way by which the record can be corrected. In the

instant case, the first order was passed by the

Secretary (Appeals), Revenue Department on 8.7.2021

whereby though the Secretary (Appeals) was pleased to

grant leave to appeal the same did not transcribe in

the order dated 8.7.2021 and therefore, on 18.8.2021

an application for leave to appeal was filed by the

respondent No.5. The petitioner by filing a written

reply even objected to the said application. However,

vide order dated 30.9.2021 the learned Secretary

(Appeals) Revenue Department passed an order whereby

the application for leave to appeal was granted and

the same was amended and thereby the order dated

8.7.2021 was corrected. Now if the authority has

committed some mistake, to rectify that mistake if

there is no specific procedure prescribed under the

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Act or Rules or Rules of Business, in that case

merely because that procedure does not find a place

in the statute or rules of business, a party cannot

be rendered remediless. What is paramount is to

ensure that the ends of justice is served and correct

facts are recorded in the order. Hence, the only way

to bring it to the notice of the authority that

something has remained to be transcribed in the order

though was pronounced in the court is by way of an

appropriate application. Nomenclature of the said

application may be anything but what is required to

be seen is what is the prayer made by way of that

application. By way of a note for speaking to minutes

the respondent No.5 had prayed for the following

relief:

"Your Honour may be pleased to pass appropriate order, so as to transcribe the order upon the application seeking leave to fine appeal, which was orally granted at the time of hearing, but left out to be typed in the order dated 08.07.2021".

10.25 It is noteworthy that the aforesaid

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application for speaking to minutes was affirmed by

advocate himself who appeared before the authority on

6.7.2021, whereas, the petitioner himself has

admitted that as he did not receive the notice in

time, he could not remain present before the

authority on 6.7.2021. The aforesaid prayer would

itself indicate that the note was filed just to

correct the record as something which was done during

the course of hearing and though an order was passed

the same was not transcribed on paper, and therefore,

considering the purpose for which note for speaking

to minutes was filed, the same cannot be said to be

illegal or contrary to the provisions of the law.

10.26 Further, when the advocate who appeared in

the matter himself has filed an affidavit by filing a

note for speaking to minutes and the same was

believed by the authority and thereby allowed the

note for speaking to minutes vide order dated

30.9.2021. The said order cannot be said to be an

illegal order as the advocate for the respondent No.5

who appeared before the authority pointed out about

the omission of the fact that leave to appeal was

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granted but not transcribed in the order. The same

was accepted by the authority, more particularly,

when there is an admission on the part of the writ

petitioner that the aforesaid order was passed in his

absence, the order dated 30.9.2021 cannot said to be

illegal.

10.27 As far as learned Senior Advocate Mr.

Kavina's contention about the fact that application

for leave to appeal though was filed belatedly the

same was not accompanied by an application for

condonation of delay is concerned, what is required

to be seen by the Court is that the order which was

sought to be challenged by way of leave to appeal was

an order dated 17.12.2020 passed by the Collector,

Gir Somnath. The application for leave to appeal was

filed by respondent No.5 on 7.6.2021 as can be seen

from the record. At that time, the Hon'ble Supreme

Court's order about cessation of applicability of

limitation Act was in force, and therefore, even if

the application for leave to appeal was not

accompanied by application for condonation of delay,

the same cannot be said to have filed without

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following the due procedure.

10.28 As far as the submission of learned Senior

Advocate Mr. Kavina about the fact that if the

respondent No.5 want the land for their purpose, in

that case they could have negotiated with the

petitioner is concerned, this Court is not dealing

with the aforesaid submission as if this Court deals

with the aforesaid submission, that will amount to

entering into the merit of the matter.

10.29 As far as the contention of learned Senior

Advocate Mr. Kavina about the ex parte relief being

granted in favour of the respondent No.5 till the

final disposal of the revision application and hence

his prayer for quashing the order dated 8.7.2021 is

concerned, this Court is of the view that considering

the fact that after the order dated 30.9.2021 was

passed by respondent No.1 for about more than 6

months the petition has remained pending before this

Court. Further, the order dated 8.7.2021 is an

interim order whereby the ad-interim relief is

granted in favour of respondent No.5 and hence the

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same is not a final order. It appears from the record

that the petitioner has not yet filed reply to the

revision application, and therefore, the interest of

justice would be served if the directions are issued

to the Secretary (Appeals) to hear and decide the

revision application being Revision Applicant No.MVV/

JMN/GIR/11/2021 is directed to be heard and decided

expeditiously. Hence, the parties are directed to

complete the pleadings latest by 31.7.2022, the

arguments of the parties shall be completed by

15.9.2022 and the learned Secretary (Appeals) is

directed to pronounce the order latest by 31.10.2022.

Further all the parties are directed to cooperate in

the pending proceedings before the SSRD and are

directed not to resort to unnecessary adjournments

unless there are compelling circumstances.

10.30 It is made clear that this Court has not

entered into the merit of the matter and all the

observations made by this Court in this order are

prima facie and tentative in nature and the Secretary

(Appeals), Revenue Department is directed to hear and

decide the revision application pending before it on

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its own merit on the basis of material that may be

made available before him without being influenced by

the observations made in this order.

11 In view of the aforesaid discussion, this

Court is of the view that while passing the order

dated 8.7.2021 and 30.9.2021, respondent No.1 has not

committed any error or illegality. Further, this

Court is of the view that at the application for

leave to appeal by respondent No.5 before the

respondent No.1 is maintainable and hence the

petition fails and the same is required to be

dismissed. Accordingly, the petition is dismissed.

Rule discharged. Interim relief granted earlier

stands vacated. However, there shall be no order as

to costs.

Sd/-

(NIRZAR S. DESAI,J) P. SUBRAHMANYAM