THAKKAR ASHOKKUMAR NATVARLAL vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/6693/2012 JUDGMENT DATED: 25/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6693 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
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THAKKAR ASHOKKUMAR NATVARLAL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR. RAHUL DAVE, LD. ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 25/06/2026
ORAL JUDGMENT
1. By this writ application under Article 226 of the
Constitution of India, the writ applicants have called in
question the legality and validity of the order dated
22.01.2007 passed by the respondent No.3-District Collector,
whereby the entries mutated in the revenue record were
ordered to be cancelled, as well as the order dated 06.03.2012
passed by the respondent No.2-Additional Secretary (Appeals),
Revenue Department, whereby the order passed by the
District Collector dated 22.01.2007 came to be confirmed.
2. Facts, giving rise to the filing of the present application,
may be summarized as under;
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2.1 Late Shri Harakhjibhai Ranchhodbhai Thakkar of village
Kolivada, Taluka: Satalpur, was the old account holder of the
lands at the time of promulgation since 1964, and he was
holding the land bearing Revenue Survey No.495 paiki,
situated at Village: Kolivada, Taluka: Satalpur.
2.2 Said Shri Harakhjibhai Ranchhodbhai Thakkar had two
sons, namely, Amrutbhai and Ganpatbhai and one daughter,
namely, Kamlaben, i.e, the writ applicant No.2 herein.
2.3 Thereafter, one son Amrutbhai had expired, and daughter
Kamlaben got married with one Shri Natvarlal Thakkar of
Village: Chadiyana, Taluka: Satalpur.
2.4 The writ applicant No.3-Ganpatbhai Harakhjibhai Thakkar
purchased the land bearing Survey No.99 paiki in the year
1995 by way of registered Sale Deed, and an entry to that
effect also came to be mutated in the revenue record being
Entry No.332 dated 10.10.1995, which was then certified on
16.11.1995.
2.5 Thereafter, the said Ganpatbhai Harakhjibhai Thakkar got
the name of his sister Kamlaben, i.e, the writ applicant No.2
mutated in the revenue record in respect of the land bearing
Survey No.99 paiki vide Entry No.333 being an account holder
and an agriculturist. Thereafter, the said Ganpatbhai
Harakhjibhai Thakkar relinquished all his rights in favour of his
sister Kamlaben in respect of the aforesaid land, and an entry
to that effect also came to be mutated in the revenue record
being Entry No.338.
2.6 The writ applicant No.2-Kamlaben Harakhjibhai has three
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sons, namely, Ashokbhai, Hasmukbhai and Jagdishbhai, i.e, the
writ applicant Nos.1,4 and 5 respectively, and two daughters,
namely, Premilaben and Bhagwatiben, i.e., the writ applicant
Nos.6 and 7 respectively.
2.7 Thereafter, the writ applicant No.2-Kamlaben purchased
the land bearing Revenue Survey No.157/1 paiki, situated at
Village: Chadiyana, Taluka: Santalpur, by way of registered
sale deed dated 06.02.1996, and an entry to that effect also
came to be mutated in the revenue record vide Entry No.339
on 02.07.1996.
2.8 Thereafter, the writ applicant No.2 also purchased the
land bearing Revenue Survey No.162, situated at Village:
Chadiyana, Taluka: Satalpur in the year 1996 by way of
registered sale deed, and an entry to that effect also came to
be mutated in the Revenue Record vide Entry No.340 on
02.07.1996, which was then certified on 10.08.1996.
2.9 The writ applicant No.2 also purchased the land bearing
Revenue Survey No.136 paiki, situated at Village: Chadiyana,
Taluka: Satalpur in the year 1996, and an entry to that effect
also came to be mutated in the revenue record being Entry
No.342 on 02.07.1996.
2.10 The writ applicant No.2 also purchased the land bearing
Revenue Survey No.109 paiki, situated at Village: Chadiyana,
Taluka: Satalpur in the year 1996, by way of registered sale
deed, and an entry to that effect also came to be mutated in
the Revenue Record being Entry No.341 on 02.07.1996.
2.11 Thereafter, all the aforesaid lands were distributed
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amongst the legal heirs of said Smt. Kamlaben Harakhjibhai
Thakkar, by way of a family partition on 27.07.1999, and an
entry to that effect also came to be mutated in the revenue
record vide Entry No.347.
2.12 Thereafter, in the year 2006, the Deputy Collector,
Radhanpur, vide its letter dated 07.04.2006, requested the
District Collector to initiate suo motu proceedings and take all
the above referred entries in the revision and to cancel the
said entries, as the lands were purchased by the non-
agriculturist.
2.13 Pursuant to the said letter, the District Collector, Patan
issued show-cause notice to the writ applicants on 27.06.2006,
asking them to give their explanation in respect of the lands
bearing Revenue Survey Nos.170 paiki, 137 paiki, 102 paiki,
169 paiki, 136 paiki and 99 paiki, and to show-cause as to why
entries bearing Nos.381, 339, 341, 342 and 332 mutated in the
revenue records should not be cancelled. It is also alleged in
the said show-cause notice that the writ applicant No.2 has
distributed the land bearing Survey No.342 amongst her legal
heirs and thereby they were made agriculturists.
2.14 The writ applicants gave a detailed reply to the aforesaid
show-cause notice on 29.08.2006, mainly raising an objection
that the proceedings were initiated after the expiry of more
than 10 years.
2.15 Thereafter, the District Collector, Patan vide the
impugned order dated 22.01.2007, ordered to cancel the
entries being Nos.333, 338, 339, 341, 342, 344, 347, 361 and
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381 in respect of the land bearing Revenue Survey Nos.99
paiki, 136 paiki, 137 paiki, 162 paiki, 109 paiki, 170 paiki and
95 paiki sitauted at Village: Chadiyana, Taluka: Satalpur, and
also issued direction to the Mamlatdar & ALT to initiate the
proceedings under Section 84(C) of the Tenancy Act for
violation of the provisions contained in Section 63 of the
Tenancy Act.
2.16 Being aggrieved with the aforesaid order of the District
Collector, Patan dated 22.01.2007, the writ applicants
preferred Revision Application before the respondent No.2-
Additional Secretary (Appeals) being Revision Petition No.07 of
2007, which came to be admitted, and the order passed by the
District Collector, Patan, cancelling the revenue entries was
stayed, however, the direction to initiate proceedings under
Section 84(C) of the Tenancy Act was not stayed.
2.17 Thereafter, the respondent No.2-Additional Secretary
(Appeals), vide the impugned order dated 06.03.2012,
dismissed the revision application filed by the writ applicants.
2.18 Being aggrieved, the writ applicants are here before this
Court with the present writ application.
3. Learned counsel Mr. D.K. Puj appearing for the writ
applicants submits that impugned order passed by the
respondent No.2-Secretary (Appeals), confirming the order of
the Collector, is unjust, arbitrary, perverse, illegal,
unreasonable and contrary to law, and as such, deserves to be
quashed and set aside. Learned counsel for the writ applicants
further submits that the impugned orders are patently
unsustainable in law inasmuch as the suo motu proceedings
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were initiated after an unexplained and inordinate delay of
more than a decade. He further submits that though no
specific period of limitation is prescribed for exercise of
revisional jurisdiction, the same is nonetheless required to be
exercised within a reasonable period, which principle has been
completely overlooked by the learned Collector, and
subsequently, by the SSRD, while affirming the order of the
Collector.
4. Learned counsel Mr. Puj further submits that the learned
Collector failed to record any satisfaction with regard to the
enormous delay in initiating the suo motu proceedings, and
subsequently the SSRD while affirming the view taken by the
Collector. Learned counsel also submits that the impugned
orders have been passed without proper examination of the
relevant revenue record and without recording cogent reasons,
thereby rendering the same arbitrary and unsustainable.
Learned counsel further submits that both the revenue
authorities have not taken into consideration the detailed
Pedigree of the original land owner Smt. Kamlaben Thakkar,
i.e, the writ applicant No.2, from which, it clearly appears that
the writ applicant No.2-Kamlaben Thakkar inherited the status
of an agriculturist from her father, namely, Harakhjibhai
Ranchhodbhai Thakkar, and as such, all the transactions
entered into by her, were completely in accordance with law.
5. Learned counsel Mr. Puj further submits that all the
parcels of lands were purchased by the writ applicant No.2 in
the year 1996, and by virtue of a family partition, the said
lands were distributed amongst her legal heirs in the year
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1999, and the sumo motu proceedings were initiated in the
year 2006, i.e, after more than a decade. Learned counsel Mr.
Puj also submits that the respondent No.2 has also failed to
appreciate the fact that the writ applicant No.2 also filed a
Civil Suit before the Competent Civil Court being Regular Civil
Suit No.34 of 2011 since her name was deleted from the
revenue record, wherein it was prayed that she is entitled to
her share in the land bearing Survey No.495, and accordingly,
her name was directed to be mutated as co-owner. He also
submits that in RTS proceedings, it is not open for the District
Collector to issue direction for initiation of the proceedings
under Section 84(C) of the Tenancy Act for the alleged
violation of Section 63 of the Tenancy Act. He further submits
that both the revenue authorities have proceeded absolutely
on erroneous premises and have taken absolutely unjust and
incorrect view that the writ applicants are not the
agriculturists, and therefore, could not purchase the
agricultural lands. Learned counsel also submits that the
impugned orders passed by both the revenue authorities are
non-speaking orders, since they do not contain any finding as
regards as to why the writ applicants cannot be considered as
agriculturists. He further submits that despite the erroneous
direction issued by the Collector to initiate proceedings under
Section 84(C) of the Act, no such proceedings have been
initiated so far, and the writ applicants are still in possession
of the lands in question, and therefore, the cancellation of
entries mutated way back in 1996 and 1999 could not be
cancelled. Moreover, without there being any adjudication as
to whether the writ applicants are agriculturists or not, the
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entries cannot be cancelled, and it is admitted position of fact
that no proceedings under Section 63 of the Act have ever
been initiated against the writ applicants.
6. To buttress the aforesaid submissions, reliance has been
placed upon the decisions in the case of Labhubhai Valjibhai
Gajera vs. Secretary (Appeals), Revenue Department, Guj.
State, Letters Patent Appeal No.57 of 2010, decided on
28.10.2010; Mohamad Kavi Mohamad Amin vs. Fatmabai
Ibrahim, 1997 (6) SCC 71;
7. In such circumstances, referred to above, learned counsel
Mr. Puj prays that there being merit in the present application,
the same be allowed, and the relief, as prayed for, be granted.
8. On the other hand, the present application has been
vehemently opposed by learned AGP Mr. Rahul Dave
appearing for the State-respondents. He submits that no error,
not to speak of any error of law, could be said to have been
committed by the revenue authorities in passing the impugned
orders. He further submits that none of the fundamental rights
of the writ applicants have been violated because of any action
or inaction on the part of the respondents. Learned AGP also
submits that the writ jurisdiction of this Court cannot be
invoked in matters involving disputed questions of fact,
particularly when the controversy pertains to inheritance and
revenue entries and efficacious alternative remedies are
available under law. Learned AGP also submits that the
mutation in question had been attested fraudulently on the
basis of absolutely bogus status of an agriculturist, thereby
rendering the same illegal and void. According to the learned
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AGP, the concerned authority has, therefore, rightly ordered to
cancel the said mutation entries. Learned AGP further submits
that as soon as the concerned revenue authority acquired
knowledge of the said fraudulent mutation of entries, the suo
motu proceedings were initiated without any undue delay. The
delay, if any, was sufficiently explained as limitation in cases
involving fraud and concealment commences from the date of
knowledge and not from the date of the transaction itself.
Learned AGP also submits that fraud vitiates every solemn
proceeding and no person can be permitted to take advantage
of anything obtained by concealment or fraud.
9. Learned AGP further submits that both the revenue
authorities, after examining the material available on record
and considering the submissions of the parties, passed a well-
reasoned orders. Learned AGP also submits that mutation
entries are only fiscal in nature and do not confer title and,
therefore, no vested or indefeasible right can be claimed by
the writ applicants merely on the basis of the mutation entries.
10. In such circumstances, referred to above, learned AGP
prays that the writ application, being devoid of merit, be
dismissed.
11. Heard the learned counsel appearing for the respective
parties, and perused the record.
12. It appears from the record that the impugned mutation
entries came to be attested in the year 1995 and 1996
respectively and remained unassailed for a considerable period
of time. The respondent No.3 instituted suo motu revision
proceedings against the writ applicants somewhere in the year
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2006, i.e., after more than a decade.
13. The main bone of contention on behalf of the writ
applicants is that the revisional authority could not have
initiated the suo motu revision proceedings after such an
inordinate and unexplained delay. It has further been
contended that even no satisfaction regarding the delay has
been recorded by the said revisional authority.
14. Whereas, learned AGP for respondents-State has
submitted that the mutation had been attested fraudulently on
the basis of a bogus status of an agriculturist, and that as soon
as the respondent-authority acquired knowledge thereof,
immediately initiated suo motu proceedings, and therefore, the
impugned orders do not warrant interference in exercise of
writ jurisdiction.
15. It is an admitted position of fact that the mutation entries
in question were attested in the years 1995 and 1996
respectively and remained unchallenged until the year 2006,
when the respondent No.3 instituted suo motu proceedings
after more than a decade.
16. The moot question that arises for consideration is whether
the revisional authority could have initiated suo motu
proceedings after such an inordinate delay in the absence of
any satisfactory explanation for the delay.
17. The issue raised in the present writ application is no more
res integra in catena of decisions passed by this Court as ell as
by the Hon’ble Apex Court, whereby it has been held that even
though there is no limitation period provided in exercising of
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such powers as exercised by the Collector, such powers are to
be invoked within a reasonable time. In the present case, the
Collector has initiated suo motu proceedings after more than a
decade, and vide impugned order dated 22.01.2007 cancelled
the mutation entries in question, with a further direction to the
Mamlatdar & ALT to initiate proceedings under Section 84(C)
of the Act for breach of Section 63 of the Act.
18. Since Rule 108(6) of the Land Revenue Rules is directly
relevant and germane to the controversy at hand, therefore,
the same is reproduced hereunder:
“Rule – 108 (6) The Collector may call for and examine
the record of any enquiry or the proceedings of any
subordinate revenue officer held under rules 106, 107
and sub-rules (1) to (5) of this rule for the purpose of
satisfying himself as to the regularity of such proceedings
and as to the legality or propriety of any decision or order
passed in such proceedings.
If, in any case, it shall appear to the [63][Collector] that
any proceedings so called for or any decision or order
made in such proceeding should be modified, annulled or
reversed, he may pass such order thereon as he deems
fit.”
19. Thus, though no specific period of limitation is prescribed
for exercise of revisional powers under Section 108(6) of the
Land Revenue Act, it is well settled that such powers are
required to be exercised within a reasonable period. There are
catena of judgements of Hon'ble Supreme Court in which it has
been held that even in absence of a prescribed limitation,
revisional powers cannot be exercised after unreasonable
delay.
20. Moreover, the legal position governing the issue at hand
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has been succinctly elucidated by the Hon'ble Supreme Court
in the case of Joint Collector, Ranga Reddy District v. D.
Narsingh Rao, reported as(2015) 3 SCC 695, wherein it has
been held as under:-
"11. To sum up, delayed exercise of revisional jurisdiction
is frowned upon because if actions or transactions were
to remain forever open to challenge, it will mean
avoidable and endless uncertainty in human affairs,
which is not the policy of law. Because, even when there
is no period of limitation prescribed for exercise of such
powers, the intervening delay, may have led to creation
of third party rights, that cannot be trampled by a
belated exercise of a discretionary power especially when
no cogent explanation for the delay is in sight. Rule of
law it is said must run closely with the rule of life. Even in
cases where the orders sought to be revised are
fraudulent, the exercise of power must be within a
reasonable period of the discovery of fraud. Simply
describing an act or transaction to be fraudulent will not
extend the time for its correction to infinity; for otherwise
the exercise of revisional power would itself be
tantamount to a fraud upon the statute that vests such
power in an authority."
21. Here in the case at hand also, there is a delay of almost
11 years in initiating the suo motu proceedings by the
Collector, after the mutation of the names of the writ
applicants in the revenue record. Thus, when the question of
delay comes, then all the other issues including breach of any
of the provisions would not have much relevance in view of the
judgment of the Hon’ble Apex Court in the case of State of
Gujarat vs. Patel Raghav Natha, reported in 1969(2) SCC 187.
Similarly, in a judgment reported in the case of Santoshkumar
Shivgonda Patil & Ors. v. Balasaheb Tukaram Shevale & Ors.,
reported in (2009) 9 SCC 353; 2009 AIR SCW 6305, it has been
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observed that such power cannot be exercised beyond a
reasonable period. It has been observed thus;
“...Having regard to the fact that the proceedings came
to be initiated after delay of more than about three years
and that the petitioner is not guilty of fraud or
suppression, the impugned proceedings and order cannot
be said to have been initiated within reasonable time
inasmuch as undisputedly the notice under the Act was
issued in 2005. The proceedings and the order are hit by
the vice of delay…”
22. Further, the Hon’ble Division Bench of this Court in a
judgment reported in 2013(2) GLR 1788 in the case of
Chandulal Gordhandas Ranodriya and Ors. v. State of Gujarat
& Ors. had considered this aspect with reference to the delay
in exercise of such powers and the reasonable period. It has
been observed as under;
“It must be fairly said that if the statute does not
prescribe time- limit for exercise of revisional powers, it
does not mean that such powers can be exercised at any
point of time even if there is a breach of Section 43 of the
Act, which is a provision which relates to a new tenure
land, rather it should be exercised within a reasonable
period of time. It is so because the law does not expect a
settled thing to be unsettled after a long lapse of time. It
is clear from various judgments of the Supreme Court
that where a statutory provision for exercise of any suo
motu powers of revision does not prescribe any
limitation, the powers must be exercised within a
reasonable period of time even in the case of transaction
which would be termed as void transaction."
23. Thus, the moot question is what could be considered to
be “reasonable time” when the statute does not provide for
any time-limit for exercise of such powers. The Division Bench
of the High Court in the aforesaid judgment in the case of
Chandulal Gordhandas Ranodriya (supra) has observed in para
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38 referring to an earlier judgment reported
in (2003) 4 SCC 488,
“As observed in Veerayee Ammal v. Seeni Ammal,
2002(1) SCC 134, it is “looking at all the circumstances of
the case, a “reasonable time” under ordinary
circumstances; as soon as circumstances will permit; so
much time as it is necessary under the circumstances,
conveniently to do what the contract requires should be
done; some more protracted space than ‘directly; such
length of time as may fairly, and properly, and
reasonable be allowed or required, having regard to the
nature of the act or duty and to the attending
circumstances; all these convey more or less the same
idea”.
Further, it has been observed,
“That is a reasonable time that preserves to each party
the rights and advantages he possesses and protects
each party from losses that he ought not to suffer
(Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn.,
2005”
24. Tested on the touchstone of the law laid down in the
afore-quoted decisions, the impugned orders cannot be
sustained. The exercise of revisional jurisdiction in the present
matter has the effect of reopening a concluded mutation after
an extraordinary lapse of time, without demonstrating any
compelling or legally tenable basis for such intervention. The
material on record suggests that the mutation entries in
question remained in operation over a long period, during
which the rights emanating therefrom stood recognized in the
revenue record and were acted upon.
25. Insofar as the arguments of learned AGP that the entries
got mutated fraudulently is concerned, the Hon'ble Supreme
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Court, in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v.
K. Suresh Reddy reported as (2003) 7 SCC 667 has
authoritatively held that even in cases where allegations of
fraud are raised, the exercise of revisional jurisdiction is not
unbridled and must necessarily be undertaken within a
reasonable period. The Court emphasised that the plea of
fraud does not dispense with the requirement of timeliness,
and that stale claims cannot be permitted to be agitated under
the guise of revisional powers. For better understanding, the
relevant observations of the judgment is reproduced as under:
"In cases of fraud, this power could be exercised within a
reasonable time from the date of detection or discovery of
fraud. While exercising such power, several factors need to
be kept in mind such as effect on the rights of the third
parties over the immovable property due to passage of
considerable time, change of hands by subsequent bona
fide transfers, the orders attaining finality under the
provisions of other Acts (such as the Land Ceiling Act)."
26. Apart from the above, there are also a catena of
judgments of this Court as well as the Hon’ble Supreme Court,
wherein it has been consistently held and reiterated that the
exercise of revisional jurisdiction is subject to the law of
limitation and must be undertaken within a reasonable period.
The creation of third party interest in the case, the passage of
considerable time, from the date of the attestation of the
mutations, change of hands by subsequent bona fide transfers
are the factors to be taken into consideration and had to be
given due weightage while exercising the revisional powers.
27. In the instant case, the revisional authority has
interfered with the mutation entries attested in the years
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1995 and 1996 respectively, after an inordinate lapse of more
than a decade. Such a delay, by no stretch of imagination, can
be regarded as reasonable. The impugned orders do not
disclose any compelling circumstances justifying the exercise
of jurisdiction after such a prolonged period, nor do it reflect
any consideration of the effect of passage of time.
28. In light of the settled legal position emerging from the
judgments of the Hon'ble Supreme Court as well as this Court,
it is manifest that the absence of a prescribed period of
limitation for the exercise of revisional jurisdiction does not
confer unfettered or indefinite sovereignty upon the
concerned authority. Such powers are inherently
circumscribed by the requirement of being exercised within a
reasonable time, which must be determined in the context of
the statutory framework, the nature of rights involved, and
the surrounding circumstances of each case.
29. So far as the issue with regard to the status of the writ
applicants whether they are agriculturists or not, is concerned,
the Revenue authorities, exercising powers merely for
mutation/Record of Rights (RTS proceedings) under Section
108(6) do not possess the jurisdiction to independently cancel
the mutation entries based on an assumption that a purchaser
was not an agriculturist. The fact whether a person is an
agriculturist or not, can only be determined by the appropriate
authority by initiating appropriate proceedings under the
relevant tenancy laws, and not under the RTS proceedings.
30. Further, it appears that sufficient materials have been
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placed by the writ applicants for holding them to be the
agriculturists. The entries were mutated in the years 1995 and
1996 respectively, and remained unchallenged till 2006, when
the authority concerned woke up from the slumber and
initiated suo motu proceedings. The writ applicants were
holding the status of agriculturists for more than a decade,
and during that period, entered into number of transactions as
an agriculturist, however, none of the authorities concerned
raised any objection or noted any manipulation, while
affirming those transactions.
31. I must observe that, I have come across number of
cases while holding the present roster, where suo moto
proceedings have been initiated after an inordinate and
unexplained lapse of time. The said practice should be
deprecated. The revenue authority concerned must follow the
established procedure as well as the dictum of law as laid
down by the Hon’ble Apex Court as well as by various High
Courts, when it intends to initiate suo motu proceedings for
deciding the fate of a mutation entry.
32. Moreover, in the present case, suo motu proceedings
were initiated by the Collector under the provisions of Rule
108(6) of the Rules, 1972 alleging breach of Section 63 of the
Gujarat Tenancy and Agricultural Lands Act, and it is a settled
legal proposition that the cross utilization of powers by the
revenue authority under different enactment is not
permissible. It has been held by this Court in Evergreen
Apartment Co Operative Housing Society Limited versus
Special Secretary (Appeals), Revenue Department Special Civil
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Application No. 5505 of 1990, decided on 16.08.1990, more
particularly, in para-12 thereof, as under;
“12. There is much substance in the second submission
of Mr. Hawa also. Ordinarily when a transfer of property
takes place by a registered account an entry is effected
in the revenue record and it is certified by the
mamlatdar after making necessary inquiries. If there is
any dispute regarding mutation, the dispute has to be
entered in the register of the disputed cases and then
such disputes are to be disposed of by the Mamlatdar.
Under subrule (5) of Rule 108 of the Rules, the aggrieved
party can prefer an appeal within 60 days from the date
of the service of the order. The State Government has
power to call for and examine the record of any enquiry
or the proceedings of any subordinate revenue officer
and to review the same under sub-rule (6) of the rules. It
is to be noted in the present case that no appeal had
been presented within 60 days from the date of
Mamlatdar's order certifying the initial entry. the
Assistant Collector, Surat took the said entry in suo motu
revision, even though he had no such power under the
provisions of Rule 108. It, therefore, appears that the
Additional Chief Secretary, Revenue Department
remanded the proceeding to the Collector for treating
the same as an appeal. This was done after a period of 4
years after certification of the entry. It was only the
State Government which had the power to call for a
record of inquiry or proceeding under sub-rule (6) of Rule
108. Even the State Government was empowered to
satisfy itself "as to the regularity of such proceedings
and as to the legality or propriety of any decision or
order passed in such proceedings". So the entire inquiry
and revisional power has to proceed under the Bombay
Land Revenue Rules and not under any enactments like
the Bombay Tenancy and Agricultural Lands Act, Urban
Land (Ceiling and Regulation) Act or Bombay Prevention
of Fragmentation and Consolidation of Holdings Act. It is
quite possible that an officer of the Revenue Department
may be occupying different capacities under different
enactments. That, however, would not empower him to
exercise any powers under one enactment while
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proceeding under another enactment. So far as the
proceedings under Rule 108 of the Rules, popularly
known as RTS proceedings, are concerned, it is well
settled that the entries made in the revenue records
have primarily a fiscal value and they do not create any
title. Such mutations have to follow either the
documents of title or the orders passed by competent
authorities under special enactments. Independently the
Revenue Authorities, as mentioned in Rule 108 of the
Rules, cannot pass orders of cancelling the entries on an
assumption that the transaction recorded in the entry
are against the provisions of a particular enactment.
Whether the transaction is valid or not has to be
examined by the competent authority under the
particular enactment by following the procedure
prescribed therein and by giving an opportunity of
hearing to the concerned parties likely to be affected by
any order that may be passed. Thus on this second
ground also the orders of the Collector and the
Additional Chief Secretary appear to be beyond their
jurisdiction. The Additional Chief Secretary has held that
the sale by auction was not consistent with the
provisions of Section 27 of the Urban Land (Ceiling and
Regulation) Act. Section 27 relates to prohibition of
transfer of any urban land with a building thereon. Apart
from the legal position that Section 27 has been struck
down as ultra vires, it is quite obvious that no such
question of transferring urban land with a building
thereon has ever arisen in the present case. Thus, the
order of the Revisional authority has proceeded on a
misconception of relevant legal provisions also. “
33. That apart, the principles laid down in the judgments
relied upon by the learned counsel appearing for the writ
applicants also apply to the facts of the present case on all
fours.
34. The conjoint effect of the aforesaid proposition of law
and in view of the analysis of the material on record in the
context of submissions made by both the learned advocates
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appearing for the respective sides, I am of the clear opinion
that the impugned orders suffer from legal as well as
procedural improprieties, warranting interference by this
Court in exercise of its writ jurisdiction.
35. For all the foregoing reasons, and having regard to the
aforesaid settled position of law, the present writ application
deserves to be allowed and accordingly stands allowed. The
impugned orders dated 22.01.2007 passed by the respondent
No.3-District Collector, as well as the order dated 06.03.2012
passed by the respondent No.2-Additional Secretary (Appeals),
Revenue Department, are hereby quashed and set aside. All
the Mutation Entries in question shall stand restored. Rule is
made absolute to the aforesaid extent.
(DIVYESH A. JOSHI,J)
VAHID
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