MASRIBHAI DESABHAI vs STATE OF GUJARAT

Court: Gujarat High Court

<div> C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 17999 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/- ======================================================= </div><table><thead><tr><th>Approved for Reporting</th><th>Yes</th><th>No</th></tr></thead><tbody><tr><td></td><td>-</td><td>√</td></tr></tbody></table><div> MASRIBHAI DESABHAI & ORS. Versus STATE OF GUJARAT & ORS. ======================================================= Appearance: MR DHARMESH V SHAH for the Petitioner(s) No. 1.1,1.2 MS HIMANI SHAH AGP for the Respondent(s) No. 1,2,3 ======================================================= </div><table><thead><tr><th>CORAM:</th><th>HONOURABLE MR. JUSTICE DIVYESH A. JOSHI</th></tr></thead><tbody></tbody></table><div> Date : 13/04/2026 ORAL JUDGMENT 1. By filing present petition under Articles 226 and 227 of the Constitution of India and under the provision of the Bombay Land Revenue Code, 1879 (hereinafter referred to as “Revenue Code” for short, the petitioner has challenged the order dated 09.01.2007/27.12.2006 passed by the respondent – Secretary in Revision Application No.JMN/AML/17/2003, the order dated 21.04.2003 passed by the respondent – Collector and the order dated 25.07.2002 passed by the respondent – Deputy Collector. 2. The brief facts leading to filing of the present petition are as under, Page 1 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 3.1 The land bearing Survey No.24 pk. admeasuring 8 Acre 08 Guntha was allotted to one Ranchhodbhai Laxmanbhai by the Assistant Settlement Commissioner on permanent basis on 05.05.1958 on certain terms and conditions and pursuant thereto, entry came to be mutated in favour of the said Ranchhodbhai Laxmanbhai and after taking over possession of the land in question, he was cultivating the said land upto 1980. 3.2 On 12.05.1980, the said Ranchhodbhai Laxmanbhai had executed registered sale deed in favour of the father of the petitioner and since then, the petitioner is in possession of the said land and carrying out agricultural activities and the name of the petitioner was also entered into revenue record. 3.3 However on 21.02.2002, the learned Mamlatdar forwarded proposal to the respondent – Deputy Collector for initiating action against the petitioner and the original land owner for committing breach of the conditions and pursuant thereto, the respondent – Deputy Collector issued notice under Section 68 of the Revenue Code on 01.05.2002, pursuant thereto, the petitioner submitted his detailed reply. 3.4 The respondent – Deputy Collector, by an order dated 25.07.2002, rejected the case of Page 2 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 the petitioner and ordered to confiscate the land in the name of Government. 3.5 Against the aforesaid order, the petitioner preferred Appeal before the respondent – Collector, who by an order dated 21.04.2003, rejected the said Appeal. 3.6 Aforesaid orders of the respondent – Collector as well as the respondent – Deputy Collector were challenged before the respondent – Secretary by filing revision application, however, the respondent – Secretary, by impugned order dated 09.01.2007/ 27.12.2006, rejected the said revision application. 3. Heard learned advocate, Dharmesh Shah for the petitioners and learned AGP Ms. Himani Shah for the respondents. 4. Learned advocate, Mr. Shah referred to the facts of the case and submitted that the petitioner is the bonafide purchase of the land in question by way of executing registered sale deed in favour of the father of the petitioner by the original land owner on payment of entire sale consideration. He submitted that in fact, the land in question has been allotted to the said Ranchhodbhai Laxmanbhai by the Assistant Settlement Commissioner on permanent basis on certain terms and conditions, however, the said land was not granted on santhani basis and after the purchase of the said land, entry came to be mutated in the revenue record on Page 3 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 the strength of the registered sale deed and thus, there was no breach of any of the terms and conditions as alleged but despite the said fact, a proposal was prepared and forwarded by the learned Mamlatdar to the respondent – Deputy Collector, who in turn, without proper application of mind, issued notice upon the petitioner and original land owner under Section 68 of the Revenue Code, which was replied by the petitioner but despite the said fact, the case of the petitioner has been turned down and the land in question is ordered to be vested in the name of the Government and the said order has been confirmed by the respondent – Collector as well as by the respondent – Secretary. 5. Learned advocate, Mr. Shah referred to the revenue records and submitted that admittedly, the said land was not allotted on santhani basis and it was not new tenure and impartible land. He further submitted that if the Hon’ble Court would make cursory glance upon the revenue record, in that event, it is found out that in the pani-patrak, the name of the petitioner is running, which crystallize the position of fact that he is the owner and occupation of the land in question and despite having knowledge about the said fact, proceedings have been initiated against the petitioner under wrong presumption after 22 years. He further submitted that in fact, in view of the numerous decisions of the Hon’ble Supreme Court as Page 4 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 well as this Hon’ble Court, it is settled that as and when the registered document is produced before the revenue authority for mutation of entry, entry has to be mutated but here in the present case, the entry based on registered sale deed has been cancelled and the land in question is ordered to be vested in the name of the Government. He further submitted that there is gross delay in initiation of suo motu proceedings and law is well settled in this regard by the Hon’ble Supreme Court as well as this Hon’ble Court by observing that suo motu proceedings have to be initiated within reasonable time. In support of the above submissions, he has relied upon the decisions of the Hon’ble Supreme Court in case of State of Gujarat Vs. Patel Raghav Natha & Ors., reported in (1969) 2 SCC 187 as well as in case of Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, reported in (1997) 6 SCC 71. 6. Learned advocate, Mr. Shah submitted that in fact, the petitioner is coming from rustic area and is illiterate person, therefore, he does not have legal knowledge of obtaining prior permission from the competent authority before entering into sale transaction. He, however, submitted that the petitioner is in possession and occupation of the land in question since last more than 40 years and is carrying out agricultural activities to run his livelihood and except agricultural activities, there is no other source of income for the Page 5 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 petitioner. He, therefore, submitted that at the time of purchase of the land, some mistake might have been committed by the petitioner but for that, that too, after much period, the petitioner may not be made to suffer for his bonafide mistake and as stated above, after a period of more than 22 years, the proceedings have been initiated. 7. Learned advocate, Mr. Shah, at this stage, has tendered copy of the affidavit filed by the petitioner herein contending inter alia that the petitioners will carry out agricultural activities on the said land for further period of ten years and they will not entered into any sale transaction as except the said land, they are not having any other land and as stated above, it is the source of income for them. He, therefore, submitted that considering the above facts of the case, the present petition may be allowed. 8. On the other hand, learned AGP Ms. Himani Shah has objected the present petition with a vehemence and submitted that because of the breach committed by the petitioner, proceedings have been initiated, therefore, the land in question is ordered to be vested in the name of the Government. He submitted that in fact, the land in question was originally granted to one Ranchhodbhai Laxmanbhai by the Assistant Settlement Commissioner to the erstwhile predecessor in title on santhani basis and it is settled law that the land allotted by the Government on santhani basis would be treated as Page 6 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 new tenure and impartible land and for the purpose of transferring the said land, necessary permission is required to be obtained from the competent authority and here in the present case on hand, it seems that no such permission has been obtained from the office of the Collector, therefore, the said transaction was in contravention of the provision of the law, which resulted into initiation of proceedings and the entry has been cancelled by the revenue authority and the said order is just and legal, therefore, the impugned orders do not require any interference at the hands of this Hon’ble Court. She further submitted that in fact, the petitioners were aware about the breach of the condition, therefore at that relevant point of time, no mutation entry was effected but subsequently, an attempt is being made to mutate the said entry. She submitted that there is no dispute about the reflecting of the name of the petitioners in the pani-patrak but at the relevant point of time, said breach could not be noticed by the revenue authority, however as soon as the said breach had come to the notice of the revenue authority, the proceedings have been initiated. She, therefore, submitted that when the sale transaction was in contravention of the provision of law, this Hon’ble Court may not interfere with the impugned orders and the present petition may be rejected. Page 7 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 9. In view of the rival submissions canvassed by learned advocates for the parties and having considered the documents available on record, it appears that the land in question was originally allotted to one Ranchhodbhai Laxmanbhai by the Assistant Settlement Commissioner on permanent basis on 05.05.1958 on certain terms and conditions and entry to that effect was mutated in the revenue record and till 1980, the said Ranchhodbhai Laxmanbhai was carrying out agricultural activities upon the said land. However on 12.05.1980, the father of the petitioners had purchased the said land from Ranchhodbhai Laxmanbhai by way of executing registered sale deed and since then, the petitioners are in possession of the said land and carrying out agricultural activities and the name of the father of the petitioners was also entered into revenue record (i.e. pani-patrak). On 21.02.2002, the learned Mamlatdar, after having found the above sale transaction in contravention of the provision of law, forwarded proposal to the respondent – Deputy Collector for initiating action against the petitioner and the original land owner for committing breach of the conditions, therefore, notice under Section 68 of the Revenue Code was issued on 01.05.2002, which was replied by the petitioner, however, the respondent – Deputy Collector, by an order dated 25.07.2002, confiscated the land in the name of Page 8 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 Government, against which, the petitioners approached the respondent – Collector and then, the respondent – Secretary but the request of the petitioner has been turned down by impugned orders. 10. Thus from the facts narrated hereinabove, it appears that the question, the dispute is with regard to the initiation of proceedings after long lapse of 22 years as also cancellation of the entry mutated based on registered sale deed. However so far as initiation of proceedings after unreasonable time is concerned, law is very settled by the Hon’ble Supreme Court as well as this Hon’ble Court in numerous cases. A useful reference can be made to the judgment of the Hon’ble Supreme Court in case of Patel Raghav Natha (supra), wherein the Hon’ble Supreme Court has held that where no time limit is prescribed for exercise of apower under a Statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. 'Reasonable time' in such cases has to be held to be not exceeding one year." The observations made in relevant paragraphs are as under, “13. The question arises whether the Commissioner can revise an order made under s. 65 at any time. It is true that there is no period of limitation prescribed under sSection 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case Page 9 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 and the nature of the order which is being revised. 14. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under s. 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the 'Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late. 15. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he badly stated his conclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however, briefly, so that an aggrieved party may carry the matter further if so advised.” Page 10 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 11. In a decision in case of Mohamad Kavi Mohamad Amin (supra), upon which reliance has been placed by learned advocate for the petitioners, the Hon’ble Supreme Court in connection with other statutory provisions and relying upon the case of Patel Raghav Natha (supra) as well as decision in case of Ram Chand Vs. Union of India, reported in (1994) 1 SCC 4 has impressed that where no time- limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. 12. Thus, from the aforesaid observation made by the Hon’ble Supreme Court in the aforesaid decisions, it is clear that the validity of the sale transaction is to be decided under the Bombay Tenancy Act, whereas correctness of mutation entry is to be determined under RTS proceedings. So far 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. 13. The submission made by learned AGP Ms. Shah with regard to the land being new tenure and impartible land and allotted on santhani basis is also required to be considered. In this connection, at this stage, I would like to rely upon the decision of this Hon’ble Court delivered in Special Civil Application No.3518/2010 in case of Bhana Teja Dhila Vs. State of Gujarat & Ors., wherein the Page 11 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 Coordinate Bench of this Hon’ble Court has observed as under, “6. …………………………. It is also to be noted that for smooth implementation of the said Government Resolution, the Government Resolution dated July 04, 2008, has been passed; the English translation of the relevant portion thereof from vernacular language reads as under : “2(a) The new tenure land and the restricted tenure land under the Tenancy Act of whose possession is continued for a period from the date of grant till the last date of each month for a period of 15 years or more, such lands if are admissible for conversion into old tenure for agricultural purpose, then by deleting the entry as “New and restricted tenure type” in the land records, by indicating the same as “Admissible for premium only for Non agricultural purpose”, by passing such orders by the concerned Taluka Mamlatdar on his own within a period of 15 days, the concerned account holder shall be intimated in writing. Moreover, it will be the responsibility of the Mamlatdar to get posted the mutation entry of such order in the record of rights as per rules and to certify the same.” 7. It was, thus, incumbent upon the Mamlatdar concerned at the end of every month that whichever land used for the agricultural purpose if the continuous possession for 15 years gets completed, on deleting the entire new tenure entry, the entry be posted that the premium to be made only for the purpose of converting it into non- agricultural use. Further, in such cases, the Mamlatdar needs to do it on his own within a period of 15 days and also needs Page 12 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 to intimate all the concerned parties about it. Furthermore, in the concerned village Form Number, the onus would be of the Mamlatdar to make an entry and the same needed to be mutated and certified by him. 8. The present petitioner had purchased the land from one Gangaben Khumant. It is not in dispute that she was an heir and legal representative of her husband, who continued to hold the said land for more than 15 years. It is also not in dispute that on April 16, 2007, a registered sale deed has been executed in favour of the present petitioner. It is a matter of record that once the matter had transferred to the concerned Mamlatdar at Bhachau, on June 13, 2009, he passed an order stating therein that the applicant therein was in possession of the said land for more than 15 years and, therefore, there is no breach of any condition. He specified that the sale is to be effected only to the agriculturist and at the time of converting the said land for nonagricultural purpose, the premium needed to be paid and necessary entry needed to be mutated in the revenue record. 9. Thereafter, this very officer passed the impugned order after hearing the learned counsel for the Objector and present petitioner, observing that since the sale has been effected without obtaining permission, it is a matter of breach of condition. Surprisingly, when the Government Resolution is dated December 20, 2006 and the registered sale deed has been effected in April 16, 2007, it is after the policy of the Government in the month of December, 2006, that the sale deed has been effected. When there is no dispute with regard to withholding the possession of the land continuously for a period of more than 15 years, there is no question of breach of any condition. The Mamlatdar Page 13 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 himself had passed the order saying that the concerned seller from whom the petitioner purchased continued to enjoy the possession over the land for more than 15 years continuously and, therefore, the Government Resolution dated December 20, 2006, would be applicable in her case. Assuming that there was any objection to such sale that had been made to the present petitioner by the erstwhile owner, it is inevitable and incomprehensible as to how the very officer who is in know of the Government Resolution dated December 20, 2006, can pass an order which is impugned in this petition. Once having directed an entry to be made in the wake of the said Government Resolution and after holding that the earlier owner continued to be in possession for more than 15 years, he himself without any reason changed his own order and directed a proposal to the Deputy Collector. 10. This has made the petitioner to approach this Court in the year 2010 itself. This appears to be not a clear act of non- application of mind as alleged, but, a deliberate action on the part of the concerned officer. One can understand that he was oblivious of the policy of the Government dated December 20, 2006, or that which had floated in the year 2008, that he had passed such an order. However, he himself had held the possession of the erstwhile owner on the land in question continuously for a period of 15 years as valid and directed necessary entry to be in the revenue record and yet he has chosen to take a somersault after having an afterthought for no conceivable reason. This also appears to be an act of sheer arbitrariness. In view of aforesaid, the present petition deserves to be allowed.” 14. Thus considering the above judgment, if the facts Page 14 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 of the present case are examined, in that event, it is found out that the land was allotted to Ranchhodbhai Laxmanbhai by the Assistant Settlement Commissioner on 05.05.1958 and till 1980, he was in possession and during that period, he was carrying out agricultural activities. Not only that, the father of the petitioners had purchased the said land on 12.05.1980 and, thereafter, till date, he is in possession and is carrying out agricultural activities and even, his name is also reflected in the pani-patrak. Therefore as per the above decision, the name of the original allottee was there in the revenue record continuous for a period of 15 years and even the name of the petitioners are also there in the pani-patrial continuously for a period of 15 years but no such entry for the type of land from new tenure to old tenure has been effected. Over and above that, as submitted by learned advocate for the petitioners by placing on record a copy of undertaking/affidavit filed by the petitioners disclosing that if the impugned order may be quashed and set aside and entry may be restored, in that event, they will carry on their agricultural activities on the said land for a further period of ten years as except the said land, they are not having any other land. Therefore when such an undertaking is given by the petitioners then, the case of the petitioners deserves to be considered. Page 15 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026 C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026 15. In view of the above discussions, the present petition stands allowed. The order dated 09.01.2007/27.12.2006 passed by the respondent – Secretary in Revision Application No.JMN/AML/17/2003, the order dated 21.04.2003 passed by the respondent – Collector and the order dated 25.07.2002 passed by the respondent – Deputy Collector are are hereby quashed and set aside. The revenue authorities are hereby directed to mutate the name of the petitioners in the revenue record as owner and occupier of the land in question within a period of four weeks. It is, however, clarified that the said land should be treated as “new tenure” land for a period of ten years, therefore, the revenue authority is hereby directed to make necessary entry in the revenue record. 16. Rule is made absolute to the aforesaid extent. Direct service is permitted. Sd/- (DIVYESH A. JOSHI,J.) Gautam Page 16 of 16 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 18:37:23 IST 2026</div>