ORAL ORDER
1. The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the order dated 06.02.2008 of the Joint Secretary (Appeals), Revenue department, State of Gujarat, Ahmedabad in Appeal No. 8 of 2007.
2. It is the case of the petitioner that the petitioner is residing at village Langhnaj, Tal. & Dist. Mehsana and is doing agricultural activities along with his family in his field since 1973 on his own land. The petitioner is the owner of the said land bearing Survey No. 1593 of Block No. 1453 at village Langhnaj. The said agricultural activity in the field of the petitioner is the only source of income for the petitioner and his family. The Mamlatdar has ordered for the disposal of the land in question as per Section 32-P(2)C of the Bombay Tenancy & Agricultural Lands Act, 1948 without giving an opportunity of hearing to the petitioner. It is the case of the petitioner that the petitioner was not heard by the Mamlatdar and order was passed without giving any opportunity of hearing to the petitioner. Not only that, the order was not served on the petitioner. The petitioner had received the copy of the Mamlatdar's order only on 24.08.2006 The petitioner thereafter filed appeal before the Joint Secretary (Appeals), revenue department under Section 32-P(9) of the Act challenging the order passed by the Mamlatdar dated 14.06.1999 Since the appeal was filed beyond the period of limitation, the petitioner filed the appeal along with delay condonation application. The Secretary (Appeals) dismissed the application for condonation of delay without considering the merits of the matter and being aggrieved by the said order, the petitioner has filed the present petition before this Court.
3. Mr. Tejas P. Satta, learned advocate appearing for the petitioner has submitted that the petitioner is in possession of the land and the petitioner was not heard nor any order was received by the petitioner till 2006. Only after the receipt of the order in 2006, the appeal was filed. However, merit was not considered by the Secretary (Appeals) and the appeal was dismissed only on the ground of delay.
4. Before the submissions made by the learned advocate are considered, it appears that the Secretary (Appeals) has no jurisdiction to decide the said appeal as the order is passed by the Mamlatdar under Section 32-P(2)(c) of the Act. The said order can be challenged before the Deputy Collector or Gujarat Land Revenue Tribunal. The petitioner is basically challenging the action of the respondent authorities taken under Section 32-G of the Act as tenancy proceedings were initiated and land was vested in the Government in the revenue record. Hence, unless and until those tenancy proceedings are quashed and set aside, no relief can be granted in the proceedings challenging the order passed under Section 32-P(2)(c) of the Act. The Court is, therefore, of the view that the order passed by the Secretary (Appeals) is without jurisdiction and appeal before her cannot be said to be maintainable. Though the appeal was dismissed on the ground that same was barred by law of limitation, the Secretary (Appeals) has rightly observed in the order that one of the contentions raised by the petitioner was that there was no tenant on the disputed land. However, such issue cannot be raised in the present proceedings. The petitioner should have challenged the order passed by the Mamlatdar under Section 84(c) of the Act before the Competent Authority. The impugned order challenged before the Secretary (Appeal) is consequent upon the order passed under Section 84 C of the Act. Unless and until that order is quashed, no relief can be granted in the present proceedings. The only option available to the petitioner is therefore to challenge the action taken under Section 84 C in respect of the land in question before the Deputy Collector under Section 74 and thereafter under Section 76 before the Gujarat Land Revenue Tribunal. The Court, therefore, does not interfere in the matter and disposes of the petition reserving the liberty to the petitioner to challenge the said order and/or action before an appropriate forum raising all issues including the issue regarding limitation, which shall be decided by such authority, in accordance with law.
5. Subject to the aforesaid direction, this petition is accordingly disposed of.