PRAVINKUMAR GIRDHARLAL vs COLLECTOR & SUBORDINATE OFFICER
- Court
- Gujarat High Court
C/SCA/10830/2008 JUDGMENT DATED: 04/11/2026
(GJHC240408782008)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10830 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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PRAVINKUMAR GIRDHARLAL
Versus
COLLECTOR & SUBORDINATE OFFICER & ORS.
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Appearance:
M/S.VYAS ASSOCIATES(1559) for the Petitioner(s) No. 1
MR DA SANKHESARA(5955) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 2,2.1,2.2
MS BHUMI GANDHI, AGP for Respondent No.1.
YAGNESHKUMAR S JOSHI(8074) for the Respondent(s) No. 2.1,2.2
RULE SERVED BY DS for the Respondent(s) No. 1,3
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/11/2026
ORAL JUDGMENT
1. Present petition is filed under Articles 226 and 227 of the
Constitution of India and under the provisions of Bombay Land
Revenue Code challenging order dated 08.08.2008 passed by
learned Special Secretary, Revenue Department in Revision
Application No.MVV/HKP/JNDH/16/08 as well as order dated
23.06.2008 passed by the Collector, Junagadh, in Application
No.Land/R,R.T.Revision/08/07-08.
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Factual matrix :-
2. The disputed land was originally owned by one Bhikha
Kasam, who was belonging to the tribal class, who sold the
land to Hardas Vejanand in the year 1966 by executing the
registered Sale Deed. In the year 1991, the petitioner has
purchased the said land from Hardas Vejanand by executing
the registered Sale Deed. Since 1991, the petitioner is in actual
possession of the land and cultivating the same and has also
made expenditure for betterment of the land. Thereafter, by
way of internal arrangement, the petitioner has executed the
agreement in favour of Hemkunvarben Jamnadas, who is one
of the family member of the petitioner. Entry No.2411 with
regard to Sale Deed was mutated in the revenue record on
07.01.1991, which was certified on 22.03.1991. Respondent
No.2, who is the seller, has filed an application for cancelling
entry No.2411, which is mutated on 07.01.1991, on the ground
that the transaction is restricted under Section 73AA of the
Bombay Land Revenue. On the basis of the said application,
the Collector has taken said entry into the revision in the year
2008, which was resulted against the present petitioner,
whereby entry bearing no.2411 dated 07.01.1991 was
cancelled. Challenging the same, the petitioner has filed
revision before learned SSRD, which was also rejected vide
order dated 08.08.2008, which is subject matter of challenge in
this petition.
3. Heard Mr.D.A.Sankhesara, learned advocate for the
petitioner, learned AGP, Ms.Bhumi Gandhi for respondent no.1
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and learned advocate Mr.S.P.Majmudar for the respondent
nos.2, 2.1 and 2.2.
4. It is submitted by Mr.D.A.Sankhesara, learned advocate
for the petitioner that respondent No.2 is the daughter of the
seller, who filed an application for cancellation of entry
no.2411 in the capacity of surviving member of original owner.
It is contended that her brother is lunatic and after the delay of
40 years from the date of first transfer and after the delay of
16 years from the date of second transfer, such application
came to be filed. It is submitted that, except respondent No. 2,
who is the daughter, no other family member, including the
wife and brother of the original owner, has challenged the
entry. It is submitted that Village Form No.6 for the year 1971
to 1976 shows the name of Bhikha Kasam. From 07.06.1977,
name of Hardas Vejanand has been shown in the land records.
It is submitted that said Hardas Vejanand was also non-tribal
and though restriction under Section 73AA came into force by
way of amendment in the year 1981, the retrospective effect
was given by both the authorities while cancelling the entry. It
is submitted that, at the time of mutation of the entry of Shri
Hardas Vejanand, notice under Section 135-D of the Code was
duly served to all concerned, however, no one has raised any
objection at that point of time.
4.1 It is further submitted that learned authorities have held
that transfer is of the year 1991, which is in violation of Section
73AA of the Land Revenue Code, without considering the fact
that initial transfer from tribal to non-tribal was of the year
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1961, i.e. much prior to amendment of Section 73AA. In that
background also, impugned orders suffers from illegality and,
therefore, the same are required to be quashed by allowing the
present petition.
5. Mr.S.P.Majmudar, learned advocate appearing for
respondent No.2, 2.1 and 2.2 has submitted that though the
petitioner has purchased the land by executing Sale Deed on
19.04.1991 and, with regard to said transaction, entry was
mutated in the revenue record being entry no.2411. It is
submitted that by inserting the Section 73AA with effect from
01.02.1981, legislature has imposed restriction on transfer of
occupancy of tribal to tribal or non-tribal. It is submitted that,
admittedly, the petitioner belongs to non-tribal class and,
therefore, the transaction without previous sanction of the
Collector is barred. It is submitted that, even otherwise also,
brother of the respondent is lunatic, therefore, respondent
no.2, who is the daughter of the seller, has raised an objection
with regard to mutation of entry no.2411. It is submitted that
after affording reasonable opportunity to parties, both the
authorities have passed orders cancelling entry bearing
no.2411, therefore, no interference is required and petition is
required to be dismissed.
6. Having considered the submissions made by learned
advocates for the respective parties, it emerges from record
that land bearing Survey No.142/3 situated at Village-
Madhupur, Taluka-Talala, District-Junagadh, was owned by one
Sidi Bhikha Kasam. On 21.06.1966, by executing the registered
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Sale Deed, land was transferred in favour of Shri Hardas
Vejanand. In the year 1966, Bhikha Kasam expired and on
07.01.1991, entry bearing No.2411 was mutated in revenue
record, recording the sale transaction under the document
dated 21.06.1966 in favour of Shri Hardas Vejanand,which was
certified on 22.03.1991. On 07.01.1991, notice under Section
135-D of the Bombay Land Revenue Code was issued, which
was served to Smt.Hasina Bhikha Kasam. The record further
reveals that public notice was also issued on 07.01.1991 in
respect of entry bearing No.2411. Thereafter, on 19.01.1991,
by executing Sale Deed, the petitioner purchased the land from
Shri Hardas Vejanand, and entry bearing no.2442 was mutated
on 17.06.1991 with respect to the sale transaction of the
petitioner. Thereafter, on 03.09.2002, entry bearing No.3112
was mutated, recording the partition took place between the
petitioner and his sister, Smt.Hemkunvarben Jamnadas
Kodinariya, thereby Hemkunvarben got the subject land, and
the petitioner got the land bearing Survey No.64/2. On
01.05.2007, the deed of exchange was executed between
Hemkunvarben and one Shri Bhagwanjibhai Dhanjibhai
Siddhpara, wherein Hemkunvarben had exchanged the subject
land with said Bhagwanjibhai in return of land bearing Survey
No.203/1/paiki1. An entry with regard to the said transaction
was mutated on 30.10.2007, bearing entry No.3582. In the
year 2008, respondent No.2 challenged the entry bearing
No.2411, dated 07.01.1991, by preferring the revision being
Revision Application No.Land/R, R.T.Revision/08/07-08 before
the learned Collector, Junagadh. The ground raised before the
learned Collector, Junagadh is that said entry, reflecting the
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transactions from tribal to non-tribal is restricted under Section
73AA of the Code. Indisputably, said section was inserted on
01.02.1981, which restricts the transfer of occupancy of tribal
to non-tribal.
7. On referring to sub-section (4) of Section 73AA of
Bombay Land Revenue Code, it reveals that where tribal, in
contravention of sub-section (1) of the Section 73A or any
other applicable law, transfers his occupancy to any person
other than tribal at any time on or after the date of
commencement of Bombay Land Revenue Code (Gujarat
Second Amendment) Act 1980, such transaction would be
invalid, without previous sanction of the Collector under
Section 73A. In the instant case, as the transfer is made in the
year 1966, which is challenged by respondent No.2, it would
not fall under Section 73AA, as on the day when the
transaction was carried out, restriction of Section 73AA was not
in force. Additionally, respondent No.2 would not be entitled to
challenge the same without establishing its right and getting
any prohibitory order before the Civil Court with regard to such
transfer. The respondent No.2, who is daughter of the seller,
would not have any locus in absence of any prohibitory order
passed in her favour or taking any recourse before the Civil
Court.
8. There is one more ground for interference in the
impugned order that the entry which is mutated in the year
1966 was sought to be revised by learned Collector in the year
2008, which is after a period of 40 years from the first transfer
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and 16 years from second transfer. As the entry remained
unchallenged for a period of more than 40 years, and as the
notice under Section 135-D had been served to the wife of the
deceased in the year 1991, and after issuing the public notice,
the petitioner has purchased the land, in that background also,
impugned orders are not sustainable.
9. For the foregoing reasons, this petition is allowed. The
impugned order dated 08.08.2008 passed by learned Special
Secretary, Revenue Department in Revision Application
No.MVV/HKP/JNDH/16/08 as well as the order dated 23.06.2008
passed by the Collector, Junagadh, in Application No.Land/R,
R.T.Revision/08/07-08 are hereby quashed. Rule is made
absolute accordingly. No order as to costs.
(M. K. THAKKER,J)
R.S. MALEK
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