ISMAILBHAI SULEMANBHAI MEMON vs STATE OF GUJARAT THROUGH THE SECRETARY
- Court
- Gujarat High Court
C/SCA/11994/2018 (GJHC240452652018) CAV JUDGMENT DATED: 08/09/2026
Reserved On : 11/08/2026
Pronounced On : 08/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11994 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 13970 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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ISMAILBHAI SULEMANBHAI MEMON
Versus
STATE OF GUJARAT THROUGH THE SECRETARY & ORS.
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Appearance:
Special Civil Application No.11994/2018-
MR HRIDAY BUCH(2372) for the Petitioner(s) No. 1
MR RAHUL DAVE for the Respondent(s) No. 1
MR J G VAGHELA(3971) for the Respondent(s) No. 6,7
NOTICE SERVED for the Respondent(s) No. 2,3,4,5
Special Civil Application No.13970/2018-
MR JG VAGHELA (3971) for the Petitioner(s) No. 1,2
MR RAHUL DAVE for the Respondent(s) No. 1,3,4,5
MR DINESHKUMAR B MORAKHIA for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Since the issue involved in the present batch of
writ petitions is co-related to each other, both
these writ petition were heard analogously and are
being decided by the present common order.
2. Rule. Learned advocates appearing for the parties
in respective matter waive service of notice of
Rule.
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3. By way of filing Special Civil Application
No.11994/2018 under Articles 226, 227 and 300A of
the Constitution of India as well as under the
provision of the Gujarat Land Revenue Code, 1879,
the petitioner has challenged the order dated
04/19.05.2018 passed by the respondent – SSRD in
Revision Application No.MVV/JMN/PTN/23/2017, the
order dated 24.11.2017 passed by the respondent –
Collector as well as the orders dated 29.04.2013
and 19.11.2013 passed by the respondent – Deputy
Collector and thereby prayed to hold the
proceedings of breach of condition of the land in
question as illegal and unconstitutional.
4. By way of filing Special Civil Application
No.13970/2018 under Article 226 of the
Constitution of India as well as under the
provision of the Gujarat Land Revenue Code, 1879,
the petitioners have challenged the order dated
23.07.2014 and 24.11.2017 passed by the respondent
– Collector, Patan, the order dated 04.05.2018
passed by the respondent – SSRD in Revision
Application No.MVV/JMN/PTN/1/2018 and the order
dated 04.05.2018 passed by the respondent – SSRD
in Revision Application No.MVV/JMN/PTN/23/2017.
5. The brief facts leading to filing of the present
petitions are as under,
5.1 The land bearing Survey No.760 admeasuring 6
Acre – 8 Guntha situated in Village :
Gochnad, Taluka : Sami, District : Patan was
belonging to the State Government, out of
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which, land admeasuring 3 Acre – 4 Guntha was
being cultivated by one Ramji Khetaji
Garasiya, who is father of petitioner no.2 of
Special Civil Application No.13970/2018.
5.2 As the said Ramji Garasiya was cultivating
the said land and was in possession of the
land since long, he applied for grant of the
said land, therefore, the said land was
bifurcated in two parts i.e. land bearing
Survey No.760 pk.1 and land bearing Survey
No.760 pk.2 and out of which, the respondent
– Collector, Mehsana, by an order dated
21.07.1976, allotted land bearing Survey
No.760 pk.2 admeasuring 3 Acre & 4 Guntha in
favour of said Ramji Garasiya on certain
terms and conditions, which was restricted
tenure land i.e. new tenure land and pursuant
to which, Entry No.730 came to be mutated in
the revenue record on 30.06.1977 and,
thereafter, the said Ramji Garasiya had
carried out agricultural activity on the
allotted land.
5.3 After some time, the said Ramji Garasiya had
mortgaged the said land with one Bhagwanbhai
Patel and pursuant thereto, Entry No.786 came
to be mutated in the revenue record in the
year 1980, however, the said entry could not
be certified as the land in question is
restricted tenure land.
5.4 Therefore, the respondent – Mamlatdar opined
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to initiate the proceedings against the said
Ramji Garasiya for committing breach of
condition, however record shows that the said
proceedings had never been initiated by the
revenue authority concerned.
5.5 On sad demise of said Ramji Garasiya, the
name of his successors (i.e. the respondent
nos.6 and 7 of Special Civil Application
No.11994/2018 and the petitioners of Special
Civil Application No.13970/2018) were mutated
in the revenue record and accordingly, Entry
No.980 came to be mutated.
5.6 Thereafter, the petitioners of Special Civil
Application No.13970/2018 had applied for
conversion of the land from new tenure to old
tenure and after considering the facts of the
case and the fact of possession of the land
by the land owners since last more than
fifteen years as also considering the
Circular of the Government in that regard,
the respondent – Mamlatdar, by an order dated
10.06.1998, converted the said land to old
tenure.
5.7 On 17.08.2001, the respondent nos.6 and 7
(i.e. the petitioners of Special Civil
Application No.13970/2018) had sold the land
in question to one Kamabhai Harkhabhai
Chaudhary by way of executing registered sale
deed and on the strength of the said
registered sale deed, Entry No.1110 came to
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be mutated in the revenue record, which was
subsequently certified on 26.10.2001.
5.8 However thereafter, the said Kamabhai
Chaudhary had transferred the said land to
his son, Bhagwanbhai Chaudhary in the year
2005 and accordingly, Entry No.1292 came to
be mutated and subsequently certified also.
It is required to be noted that the said
Bhagvanbhai Chaudhary had availed loan from
the bank and at the time of availing the
loan, the land in question was mortgaged,
however the said loan was repaid and the
mortgage was released.
5.9 On 19.01.2010, the petitioner of Special
Civil Application No.11994/2018) entered into
sale transaction for the land in question
with the said Bhagvanbhai Chaudhary by way of
executing registered sale deed on 19.01.2010
and accordingly, Entry No.1787 was mutated in
the revenue record, which was also certified
by the revenue authority on 30.05.2011 and
since then, the petitioner is in possession
and occupation of the land in question.
5.10 On 23.02.2012, the respondent nos.6 and 7 had
submitted an application before the
respondent – Deputy Collector for the grant
of land bearing Survey No.760 pk.1, which is
adjoining land of the petitioner.
5.11 However after a period of almost 23 years,
suo motu proceedings have been initiated at
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the instance of the respondent – Deputy
Collector on the ground that at the time of
entering into mortgaged deed, prior
permission was not obtained and thus, there
is a clear cut incident of breach of the
condition and, thereafter, by an order dated
29.04.2013, the land in question was
forfeited. It is, however, required to be
noted that though the petitioner was in
possession and occupation of the land in
question and his name was running in the
revenue record, he was not joined as party
respondent in the said proceedings and in his
absence, the proceedings were initiated and
ultimately, an order came to be passed.
5.12 On submission of the application by the
respondent nos.6 and 7, the respondent –
Deputy Collector, by an order dated
22.10.2013, granted land bearing Survey
No.760 pk.1 admeasuring 1-25-45 (H-A-G)
Sq.Mtrs., however subsequently, the said
order was modified by the respondent – Deputy
Collector by an order dated 19.11.2013 to the
effect that instead of land bearing Survey
No.760 pk.1, it should be read as land
bearing Survey No.760 pk.2.
5.13 Thereafter on 06.02.2014, the respondent –
Deputy Collector forwarded proposal to the
Collector with a request to take the matter
into suo motu revision and thereby after
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quashing and setting aside the order dated
29.04.2013, 19.11.2013 as well as the order
dated 22.10.2013, the matter may be remanded
back.
5.14 However as soon as the said fact came to the
notice of the petitioner of Special Civil
Application No.11994/2018, he filed Revision
Application before the respondent – Collector
against the orders dated 29.04.2013,
22.10.2013 and 19.11.2013, however, the
respondent – Collector, by an order dated
23.07.2014, rejected the said revision
application and ordered to forfeit the land
in question on the ground of breach of
condition of the allotment of order.
5.15 Against the rejection of the aforesaid
revision application, the petitioner of
Special Civil Application No.11994/2018
preferred Revision Application
No.MVV/HKP/PATAN/56/2014, whereas the
respondent nos.6 and 7 (i.e. the petitioners
of Special Civil Application No.13970/2018)
preferred Revision Application
No.MVV/HKP/PATAN/27/2015 before the
respondent – SSRD and both were clubbed
together and, thereafter by an order dated
02.03.2017, the respondent – SSRD partly
allowed the said revision applications by
quashing and setting aside the order dated
23.07.2014 and remanded back the matter
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before the respondent – Collector for fresh
consideration
5.16 Upon remand, the respondent – Collector took
up the matter and by an order dated
24.11.2017, an order of forfeiture of the
land has been passed.
5.17 Being aggrieved by the said order, the
petitioner of Special Civil Application
No.11994/2018 preferred Revision Application
No.MVV/JMN/PATAN/23/2017 before the
respondent – SSRD, whereas the respondent
nos.6 and 7 (who are the petitioners of
Special Civil Application No.13970/2018)
preferred Revision Application
No.MVV/HKP/PATAN/01/2018 before the
respondent – SSRD, however by an order dated
19.05.2018, both aforesaid revisions
applications have been rejected by the
respondent – SSRD.
5.18 Being aggrieved by the aforesaid order,
aforesaid writ petitions have been preferred
by the respective petitioner/s.
6. Heard learned advocate, Mr. Denish Morakhia for
learned advocate, Mr. Hriday Buch for the
petitioner of Special Civil Application
No.11994/2018 and respondent no.2 of Special
Civil Application No.13970/2018, learned advocate,
Mr. J.G. Vaghela for the petitioners of Special
Civil Application No.13970/2018 and respondent
nos.6 and 7 of Special Civil Application
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No.11994/2018 and learned AGP Mr. Rahul Dave for
the State authorities in both matters.
7. Learned advocate, Mr. Morakhia appearing for the
petitioner of Special Civil Application
No.11994/2018 referred to the facts of the case as
stated above and submitted that the petitioner
herein is the bonafide purchaser of the land in
question on payment of entire sale consideration,
that too, on the strength of the registered sale
deed executed in his favour and before entering
into sale transaction, the petitioner had verified
revenue record and found all the revenue records
in order, therefore, it can safely be said that
the petitioner had bonafidely entered into
transaction after verifying all the revenue
records, therefore, the petitioner may not be made
to suffer. He submitted that in fact, initiation
of the suo motu proceedings can be said to be
initiated by the authority beyond reasonable
period of time i.e. after a period of 23 years,
therefore, action of the authority is against the
proposition of settled law. He submitted that in
fact, the proceedings for breach of condition were
ordered to be initiated but could not reach to its
logical conclusion and despite the fact that the
petitioner is the owner and occupant of the land
in question and his name was running in the
revenue record, he was not joined as party in the
said proceedings and in his absence, the
proceedings were initiated and on conclusion of
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the same, an order of forfeiture of the land has
been passed, however as soon as the petitioner
came to know about the said fact, he had
challenged it before the respondent – Collector,
who rejected the revision application preferred by
the petitioner, which ultimately led him to file a
revision application before the respondent – SSRD,
who remanded the matter back before the respondent
– Collector for fresh consideration, however
without properly appreciating the facts of the
case, the respondent – Collector turned down the
case of the petitioner, therefore, the petitioner
preferred Revision Application before the
respondent – SSRD, who also rejected it by
impugned order, therefore, the petitioner is
constrained to approach this Hon’ble Court by
filing present petition.
8. Learned advocate, Mr. Morakhia, however, submitted
that in fact, the petitioner has no concerned with
the breach of condition and as stated above, he is
the bonafide purchaser of the land in question on
payment of entire sale consideration to the land
owner. He submitted that not only that, the land
in question has already been converted into non-
agricultural land by an order dated 10.06.1998
passed by the respondent – Mamlatdar, therefore
after conversion of the land, it can safely be
said that the restriction attached to the land in
question had already been lifted from the land in
question. He submitted that in fact, legal heirs
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of the original allottee, Ramji Garasiya had
already sold the land to one Kamabhai Chaudhary
after receiving the sale consideration and,
thereafter, the said Kamabhai Chaudhary
transferred the land in question in favour of his
son, Bhagwanbhai Chaudhary and from whom, the
petitioner has purchased the land in question,
therefore for the breach of condition of the
allotment order, the petitioner has nothing to do.
He further submitted that the sale transaction in
favour of said Kamabhai Chaudhary had never been
disputed by the legal heirs of said Ramji Garasiya
and even the transaction in favour of the
petitioner, therefore, there is no question of
regrant of the land to the respondent nos.6 and 7
at this stage.
9. Learned advocate, Mr. Morakhia, at this stage,
submitted that admittedly there is gross delay in
initiation of suo motu proceedings, therefore in
view of the settled law, suo motu proceedings are
required to be initiated within reasonable period.
In support of this submission, he has relied upon
the well known decision of the Hon’ble Supreme
Court in case of State of Gujarat Vs. Patel Raghav
Natha, reported in (1969) 2 SCC 187 and submitted
that the case of the petitioner is squarely
covered by the said decision. He, therefore,
submitted that the present petition may be allowed
and the petition filed by the respondent nos.6 and
7 may be rejected.
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10. Learned advocate, Mr. Vaghela appearing for the
petitioners of Special Civil Application
No.13970/2018 referred to the facts of the case
and submitted that land bearing Survey No.760
admeasuring 6 Acre & 8 Guntha was Government vest
land, wherein the father of the petitioner no.2
viz., Ramji Garasiya was carrying out agricultural
activities, therefore, he applied for the grant of
land and pursuant thereto, the respondent –
Collector allotted land admeasuring 3 Acre & 4
Guntha and after the allotment, the said Ramji
Garasiya had carried out agricultural activities.
He submitted that as the said land was new and
impartible tenure land, entry was mutated in the
revenue record. He submitted that in fact, the
said Ramji Garasiya had mortgaged the said land by
way of executing mortgage-deed without obtaining
prior permission of the competent authority on
21.06.1980 and an entry to that effect was mutated
in the revenue record, however, it could not be
certified as prior permission was not obtained. He
submitted that it is well within the knowledge of
one and all that land termed as “new tenure” land
always belongs to Government, therefore, such
lands are generally allotted to the marginal
farmers for organic farming, for plantation with
certain conditions, however, allottee of such land
does not get any ownership right over the land
because the said land generally used to be given
to the members of the marginal category of society
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to do agricultural activities upon the said land
and yield profit from the outcome of the
agricultural production, therefore, he cannot
transfer the said land to any third party by way
of executing deed of document without obtaining
prior permission of the competent authority. He
relied upon the decision of this Hon’ble Court in
case of Chhaganbhai Arjanbhai Vegada Vs. State of
Gujarat & Ors., delivered in Special Civil
Application No.16601/2017 by an order dated
18.09.2017, more particularly, Paragraph No.9 of
the said order and submitted that the said
decision is squarely applicable to the facts of
the present case. He submitted that on the
strength of the application preferred by the
petitioner, the revenue authority concerned had
re-granted the said land by passing appropriate
order. He submitted that there was continuous
breach of the condition of the allotment order
when certain transactions had taken place in the
year 1980, 2001 and 2010 without seeking prior
permission of the competent authority, therefore,
the authority concerned has right passed an order
of forfeiture of the land. He submitted that the
land in question has been re-granted in favour of
the petitioners in accordance with law and if the
allottee of the land in question had violated any
of the terms and conditions of the allotment
order, in that event, separate proceedings of
breach can be initiated and ultimately at the end
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of day, the authority concerned comes to a
conclusion that there was express breach of the
condition, in that event, the said land can be
forfeited and vested to the Government and here in
the present case on hand, once the land has been
re-granted in favour of the petitioners then, the
authority concerned cannot cancel the said order
and here in the present case, because of
cancellation of said order, the fundament rights
of the petitioners guaranteed under the
Constitution of India have been violated, which
requires inference of this Hon’ble Court in the
present case. It is, therefore, urged that the
present petition may be allowed as prayed for and
the petition preferred by the respondent no.2
herein may be rejected.
11. Having heard learned advocates for the parties and
having gone through the documents produced on
record, the moot question, which has arisen for
consideration of this Court is as to whether there
is breach of the condition of the allotment order
of the land granted to the original grantee, Ramji
Garasiya on the ground that before executing
mortgage deed, prior permission had not been
obtained from the competent revenue authority as
also as to whether the successor of said Ramji
Garasiya is having any legitimate right to claim
for re-grant of the land after having passed an
order of forfeiture by the revenue authority on
the ground of breach of condition, that too, after
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pocketing amount of sale consideration by
executing registered sale deed.
12. Having considered the facts of the case, it is
found out that land bearing Survey No.760
admeasuring 6 Acre – 8 Guntha was belonging to the
State Government, which was new tenure land, out
of which, one Ramji Garasiya, who is father of the
petitioner no.2 of Special Civil Application
No.13970/2018 was allotted land admeasuring 3 Acre
& 4 Guntha (Survey No.760 pk.2) on submission of
application with certain terms and conditions as
he was cultivating the said land and pursuant
thereto, Entry No.730 came to be mutated in the
revenue record on 30.06.1977 and, thereafter, the
said Ramji Garasiya had carried out agricultural
activity on the allotted land. Subsequently, the
said Ramji Garasiya had mortgaged the said land
with one Bhagwanbhai Patel and pursuant thereto,
Entry No.786 came to be mutated in the revenue
record in the year 1980, however, the said entry
could not be certified as the land in question was
restricted tenure land, therefore, the respondent
– Mamlatdar prepared a proposal to initiate the
proceedings for breach of condition against the
said Ramji Garasiya but no further action could
have been taken at the instance of the revenue
authority. Thereafter, said Ramji Garasiya passed
away and on his sad demise, the name of his
successors were mutated in the revenue record, for
which, Entry No.980 came to be mutated.
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Thereafter, the successors of the said Ramji
Garasiya had applied for conversion of the land
from new tenure to old tenure, which was granted
by the respondent – Mamlatdar by an order dated
10.06.1998 and thereby converted the said land to
old tenure. Thereafter, the land in question has
been sold by the legal heirs of the said Ramji
Garasiya to one Kamabhai Harkhabhai Chaudhary by
way of executing registered sale deed and pursuant
thereto, Entry No.1110 came to be mutated in the
revenue record, which was subsequently certified
on 26.10.2001 and, thereafter, the said land was
transferred by Kamabhai Harkhabhai Chaudhary in
the name of his son viz., Bhagwanbhai Chaudhary in
the year 2005, to which, Entry No.1292 came to be
mutated and subsequently certified also.
Thereafter, the petitioner of Special Civil
Application No.11994/2018 had purchased the land
from the said Bhagvanbhai Chaudhary by way of
executing registered sale deed on 19.01.2010 and
accordingly, Entry No.1787 was mutated in the
revenue record, which was also certified by the
revenue authority on 30.05.2011 and since then,
the petitioner is in possession and occupation of
the land in question. However thereafter on
23.02.2012, the petitioners of Special Civil
Application No.13970/2018 submitted an application
before the respondent – Deputy Collector for the
grant of land bearing Survey No.760 pk.1, which is
adjoining land of the petitioner. However after a
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period of more than 23 years, suo motu proceedings
have been initiated at the instance of the
respondent – Deputy Collector on the ground that
while entering into mortgage deed, prior
permission of the competent authority was not
obtained, which has resulted into express breach
of condition, therefore by an order dated
29.04.2013, the land in question was declared to
be vested to the Government by forfeiting it.
Thereafter, the application submitted by the
petitioners of Special Civil Application
No.13970/2018 has been considered and the
respondent – Deputy Collector, by an order dated
22.10.2013, granted land bearing Survey No.760
pk.1 admeasuring 1-25-45 (H-A-G) Sq.Mtrs., however
as there was an error in the said order, modified
order was passed by the respondent – Deputy
Collector on 19.11.2013 clarifying that instead of
land bearing Survey No.760 pk.1, it should be read
as land bearing Survey No.760 pk.2. Subsequently,
the respondent – Deputy Collector, by
communication dated 06.02.2014, forwarded proposal
to the Collector with a request to take the matter
into suo motu revision as a mistake apparent to
the face on record could have been made by the
revenue authority at the time of passing an order,
therefore, the said order requires to be taken
into suo motu revision and thereby after quashing
and setting aside the order dated 29.04.2013,
19.11.2013 as well as the order of regard dated
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22.10.2013, the matter may be remanded back.
However at the relevant point of time, when the
order was passed against the petitioner, neither
he was made party in the said proceedings nor he
was aware about the same, therefore, as soon as
the said fact came to the notice of the petitioner
of Special Civil Application No.11994/2018, he
filed Revision Application before the respondent –
Collector but the said revision application
rejected by the respondent – Collector, by an
order dated 23.07.2014, therefore, revision
application was preferred before the respondent –
SSRD by the petitioners of both petitions and the
matters were remanded back before the respondent –
Collector but on remand also, the order of
forfeiture has been confirmed, against which, two
separate revision applications were preferred
before the respondent – SSRD as stated above,
which have been rejected by impugned orders.
Therefore, Special Civil Application No.11994/2018
has been preferred by the petitioner as the land,
which has been purchased by him by way of
executing registered sale deed, has been
forfeited, whereas Special Civil Application
No.13970/2018 has been preferred by the
petitioners for the re-grant of the land in
question after having passed an order of
forfeiture.
13. Thus having considered the above facts of the
case, if the facts of the petitioner of Special
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Civil Application No.11994/2018 are examined, in
that event, it is the specific case of the
petitioner that he is the bonafide purchaser of
the land in question after paying the entire
amount of sale consideration, that too, after
executing registered sale deed and there is gross
delay in initiation of suo motu proceedings on the
ground of breach of condition. Admittedly, there
is no dispute about the fact that the petitioner
is the bonafide purchaser of the land in question
from the land owner and Entry No.786 mutated in
the revenue record on 21.06.1980 has been taken
into suo motu in the year 2013 i.e. after a period
of 23 years. Therefore in view of the settled
legal position, suo motu proceedings cannot be
initiated after reasonable period and from time to
time, the Hon’ble Supreme Court as well as this
Hon’ble Court has considered such issue and also
observed that it has to be initiated within
reasonable time. Therefore by catena of judicial
pronouncements, it is clear 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.
Therefore, the case of the petitioner of Special
Civil Application No.11994/2018 is squarely
covered by the decision of the Hon'ble Supreme
Court in case of Raghav Natha (supra), upon which,
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reliance has been placed by learned advocate for
the petitioner.
14. At this stage, I would like to reproduce relevant
observations made by the Hon’ble Supreme Court in
case of Raghav Natha (supra) 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 Section 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 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
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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.”
15. This Hon’ble Court in a decision in case of
Ravjibhai Mavji Jogani Vs. State of Gujarat,
reported in 2000 JX (Guj) 2630, has observed in
Paras 13 and 14 as under,
“13. Recently, the Apex Court has also considered
the power which has been exercised by
respondent authorities under section 84-C
under suo motu inquiry by Mamlatdar should be
initiated within reasonable time. Sale of land
taking place in December, 1972, the suo motu
inquiry started in September, 1973, it was
held that suo motu power under section 84-C,
not exercised within reasonable time.
14. In all the decisions which have been cited by
the learned advocate Mr. Hathi of this Court
as well as of Apex Court, the question of
exercise of powers by the authorities within
reasonable period or not has been examined in
light of the facts hat when no period of
limitation has been specified under the
statutory provisions. In case of MOHAMAD KAVI
MOHAMAD AMIN V/s. FATMABAI IBRAHIM (1997) 6
SCC 71, even more than 1 year delay has been
considered by the Apex Court unreasonable
while exercising the suo motu powers under
section 84-C of the Bombay Tenancy and
Agricultural Lands Act, 1976 and, therefore,
considering this decision of the Apex Court
and the facts of the present case, wherein at
least more than 29 years period have been
passed for initiating the proceedings under
Rule 108(6) of the Bombay Land Revenue Rules.
In the light of these judicial pronouncements,
the transaction of sale deed and necessary
entries which were made pursuant to the sale
deed during the period from 1965 to 1991 which
has been taken into revision by exercising the
suo motu powers under Rule 108(6) of the
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Bombay Land Revenue Rules by issuing the show
cause notice dated 13th July, 1994. The show
cause notice was issued to the petitioner
under the provisions of Rule 108(6) of the
Land Revenue Rules, as to why the revenue
record entry certified during the period from
1965 to 1991 should not be revived, therefore,
there is a delay of about 29 years for
initiating the proceedings under Rule 108(6).
In such situation, it must be presumed that
meanwhile the land in question remained with
the petitioners and according to the
petitioners many subsequent transaction has
been executed between the parties and during
this period, the interest and equity in favour
of third party has also created on the basis
of various transactions in respect of lands in
question executed by the respective parties.
Meanwhile, the petitioner and third party has
also created interest and equity in their
favour and the possession of the lands in
question which has been remained with the
third party since many years and, therefore,
considering all facts which are on record
totally unreasonable exercise of powers after
about more than 29 years by the respondents -
authorities. According to my opinion,
considering the various decisions of this
court as well as Apex Court as referred to
above, I hold that the action under the Act
which was taken by the respondent authorities
after undue and unreasonable delay of more
than 29 years which requires to be set aside.”
16. At this stage, it would be apposite to refer to
the observations made by Division Bench in the
judgment dated 02.01.2023 passed in Letters Patent
Appeal No.546 of 2021 and allied matter in the
case of State of Gujarat Vs. Jitendrasinh
Jagmalsinh Sodha, wherein the Division Bench of
this Hon’ble Court has considered the decision in
case of Chandulal Gordhandas Ranodriya Vs. State
of Gujarat, reported in 2013 (2) GLR 1788. In the
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said decision, the Division Bench has observed as
under,
"14. The statutory authorities exercising suo motu
powers would be required to exercise the same
within a reasonable time and exercise of such
powers beyond reasonable time would not
justify their act and render the exercise
arbitrary. Where a statutory provision for
exercise of suo motu power of revision does
not prescribe any limitation, it is trite law
that such power should be exercised within a
reasonable period of time even in case of
transaction which can be termed as void
transaction.
15. The Hon'ble Apex Court in the case of Joint
Collector Ranga Reddy District and another vs.
D. Narsing Rao and others (supra) had held
that exercise of the revisional powers after
delay would tantamount to fraud upon statute.
It has been further held :-
"31. 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.
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32. In the case at hand, while the entry
sought to be corrected is described as
fraudulent, there is nothing in the
notice impugned before the High Court as
to when was the alleged fraud discovered
by the State. A specific statement in
that regard was essential for it was a
jurisdictional fact, which ought to be
clearly asserted in the notice issued to
the respondents. The attempt of the
appellant State to demonstrate that the
notice was issued within a reasonable
period of the discovery of the alleged
fraud is, therefore, futile. At any rate,
when the Government allowed the land in
question for housing sites to be given to
Government employees in the year 1991, it
must be presumed to have known about the
record and the revenue entries concerning
the parcel of land made in the ordinary
course of official business. In as much
as, the notice was issued as late as on
31st December, 2004, it was delayed by
nearly 13 years. No explanation has been
offered even for this delay assuming that
the same ought to be counted only from
the year 1991. Judged from any angle the
notice seeking to reverse the entries
made half a century ago, was clearly
beyond reasonable time and was rightly
quashed."
17. In the case of Chandulal Gordhandas Ranodriya
(supra), the Division Bench has held thus :-
"19. 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
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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."
18. The Division Bench has thus observed that law does
not expect a settled thing to be unsettled after a
long lapse of time and the powers have to be
exercised within a reasonable period even if the
transaction is void. Here in the present case, the
land has been converted from new tenure to old
tenure and even thereafter, it has been converted
into NA land and also hands have already been
changed with the passage of time, which can be
evident from the facts narrated hereinabove.
19. Over and above that, as stated above, the
petitioner has purchased the land in question by
way of executing registered sale deed on
19.01.2010 and based on it, Entry No.1787 came to
be mutated in the revenue record on 03.02.2011,
which was subsequently certified also on
30.05.2011 and thus, the name of the petitioner
was mutated in the revenue record. However when
the suo motu proceedings were initiated, the
petitioner was not served with any notice and even
he was not joined as party in the suo motu
proceedings and in his absence, an order of
forfeiture has been passed, therefore, the
petitioner being aggrieved person had challenged
it and pointed out all above facts but despite the
said fact, the case of the petitioner has been
turned down. In this connection, a useful
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reference can be made to the decision of the
Hon’ble Supreme Court in case of D.K. Yadav Vs.
J.M.A. Industries Ltd., reported in (1993) 3 SCC
259, wherein the Hon’ble Supreme Court has
enumerated the cardinal principle of reasonable
opportunity of being heard. The Hon’ble Supreme
Court has stated that the major advantage of this
principle is the prevention of an arbitrary action
on behalf of the authority while adjudicating a
case. The Hon’ble Supreme Court discussed the
principles of reasonableness, non-arbitrariness
and natural justice under Article 14 of the
Constitution of India, 1950 observing that:
"8. The cardinal point that has to be borne in
mind, in every case, is whether the person
concerned should have a reasonable opportunity
of presenting his case and the authority
should act fairly, justly, reasonably and
impartially. It is not so much to act
judicially but is to act fairly, namely, the
procedure adopted must be just, fair and
reasonable in the particular circumstances of
the case. In other words application of the
principles of natural justice that no man
should be condemned unheard intends to prevent
the authority from acting arbitrarily
affecting the rights of the concerned person.
9. It is a fundamental rule of law that no
decision must be taken which will affect the
right of any person without first being
informed of the case and giving him/her an
opportunity of putting forward his/her case.
An order involving civil consequences must be
made consistently with the rules of natural
justice. In Mohinder Singh Gill v. Chief
Election Commissioner [(1978) 1 SCC 405 :
(1978) 2 SCR 272, 308-F] the Constitution
Bench held that „civil consequences covers ‟
infraction of not merely property or personal
right but of civil liberties, material
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deprivations and non-pecuniary damages. In its
comprehensive connotation everything that
affects a citizen in his civil life inflicts a
civil consequence. Black's Law Dictionary, 4th
edn., page 1487 defined civil rights are such
as belong to every citizen of the state or
country ... they include ... rights capable of
being enforced or redressed in a civil
action.... In State of Orissa v. (Miss)
Binapani Dei [(1967) 2 SCR 625 : AIR 1967 SC
1269 : (1967) 2 LLJ 266] this Court held that
even an administrative order which involves
civil consequences must be made consistently
with the rules of natural justice. The person
concerned must be informed of the case, the
evidence in support thereof supplied and must
be given a fair opportunity to meet the case
before an adverse decision is taken. Since no
such opportunity was given it was held that
superannuation was in violation of principles
of natural justice.
10. In State of W.B. v. Anwar Ali Sarkar [(1952) 1
SCC 1 : 1952 SCR 284 : AIR 1952 SC 75 : 1952
Cri LJ 510] per majority, a seven-Judge Bench
held that the rule of procedure laid down by
law comes as much within the purview of
Article 14 of the Constitution as any rule of
substantive law. In Maneka Gandhi v. Union of
India [(1978) 1 SCC 248 : (1978) 2 SCR 621]
another Bench of seven Judges held that the
substantive and procedural laws and action
taken under them will have to pass the test
under Article 14. The test of reason and
justice cannot be abstract. They cannot be
divorced from the needs of the nation. The
tests have to be pragmatic otherwise they
would cease to be reasonable. The procedure
prescribed must be just, fair and reasonable
even though there is no specific provision in
a statute or rules made thereunder for showing
cause against action proposed to be taken
against an individual, which affects the right
of that individual. The duty to give
reasonable opportunity to be heard will be
implied from the nature of the function to be
performed by the authority which has the power
to take punitive or damaging action. Even
executive authorities which take
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administrative action involving any
deprivation of or restriction on inherent
fundamental rights of citizens, must take care
to see that justice is not only done but
manifestly appears to be done. They have a
duty to proceed in a way which is free from
even the appearance of arbitrariness,
unreasonableness or unfairness. They have to
act in a manner which is patently impartial
and meets the requirements of natural
justice."
20. Thus in view of the above proposition of law, if
the facts of the present case are examined, in
that event, it is evident that despite the name of
the petitioner was running in the revenue record,
he was not issued any notice and order of
forfeiture has been passed in his presence and
thus, his rights are adversely affected. If the
petitioner would have been granted opportunity to
represent his case, in that event, scenario would
have been different. Not only that, the petitioner
is the bonafide purchaser of the land in question
on the strength of the registered sale deed and he
is the second purchaser of the land in question
and thus, the hands of the land has been changed
from time to time. Be that as it may, admittedly
there is gross delay and in view of the settled
law as discussed above, the suo motu proceedings
initiated at the instance of the revenue
authorities is barred by law of limitation.
21. Now so far as the case of the petitioners of
Special Civil Application No.13970/2018 is
concerned, it is averred that their successor is
the original land owners, who has been granted
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land, therefore, when the land in question has
been vested in the Government, they may be re-
granted the said land instead of granting the land
to the petitioner of Special Civil Application
No.11994/2018. In this regard, if the facts of the
present case are considered, in that event, there
is no dispute about the fact that the present
petitioners had already sold out the land to one
Chaudhary, who in turn had sold the land to the
petitioner of Special Civil Application
No.11994/2018 and thus, not only the present
petitioners but also said Chaudhary both have
pocketed entire sale consideration but here the
said Chaudhary is not before this Court seeking
any right, title or interest. But as can be seen
from the facts of the case, taking advantage of
the situation about the forfeiture of the land in
the Government, a claim is raised for the re-grant
of the land. It is also evident from the facts
narrated hereinabove that the reason for
initiation of suo motu proceedings and forfeiture
of the land is on the ground of breach of
condition but having considered the facts of the
case along with the documents produced on record,
I am of the prima facie opinion that there cannot
be said to be any breach in view of the fact that
when the land was allotted, it was new tenure,
however subsequently, it has been converted into
old tenure by an order dated 10.06.1998 passed by
the respondent – Mamlatdar, therefore, the
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restrictions were removed, therefore after the
removal of the restriction, if any transaction
could have been carried out, in that event, in no
uncertain terms, the said transaction could be
said to have been made in violation of any terms
and conditions. It can safely be said that as soon
as the tenure of the land is converted from new
tenure to old tenure, in that event, all the
restrictions attached to the said property have
already been lifted and/or in other words, it can
be said that there is no restriction attached to
the said land, meaning thereby, the land is free
from all restrictions. Therefore, it cannot be
said to be breach as alleged by the revenue
authority.
22. Over and above that, as stated above, the legal
heirs of the original allottee, Ramji Garasiya had
already sold out the land and pocketed entire sale
consideration, therefore after pocketing sale
consideration, he cannot have any right, title or
interest in the land in question in view of the
settled law enunciated by the Hon’ble Supreme
Court and followed by this Hon’ble Court. At this
stage, I would like to refer to and rely upon the
decision of this Hon’le Court in the case of
Rabari Gokalbhai Jaksibhai since Decd. Through
Legal Vs. State of Gujarat rendered in Special
Civil Application No.8328 of 2006 dated 12.1.2023,
where it has been observed in Paragraph No.11 as
under :-
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"11. Thus, it is held by this Court that after
having pocketed the money, it was not open for
the sellers to raise objections against the
land in question. If the sale transaction was
against any statute, the State authority could
have initiated suo motu action, however, the
authorities under the statute have not doubted
the status of the petitioners as
agriculturists. Similar view has been taken by
this Court in the case of Rinki Shahikant
Gandhi Vs. Mamlatdar, Vadodara Taluka, [2012
(2) GLR 1275]. It is held that a vendor of
land who is a willing party and who has
pocketed the sale consideration is not an
aggrieved party and he cannot be permitted to
take any advantage of his own wrong. Under the
circumstances, the Tribunal should have
restricted itself in setting aside the
concurrent findings of Mamltdar and the Deputy
Collector in wake of the fact that the private
respondents have questioned the status of the
petitioners after a period of 8 years that too
after pocketing money of the sale transaction.
Even otherwise, the criminal proceedings
initiated by them against the petitioners of
alleging fraud have resulted in their
acquittal. Hence. the impugned order dated
06.12.2005 passed by the Gujarat Revenue
Tribunal, Ahmedabad in Revision Application
No.TEN.BA.14 of 1995, is hereby quashed and
set aside."
23. So far as the reliance placed by learned advocate,
Mr. Vaghela upon the decision of this Hon’ble
Court in case of Chhaganbhai Arjanbhai Vegada
(supra) is concerned, the said decision is not
helpful to him in view of the fact that the case
of the present case is different than the case of
said case. In the said case, the land has been
allotted on Santhani basis and, thereafter, breach
has been committed, however in the present case,
the land has been allotted to Ramji Garasiya by
the Government, however thereafter, the land has
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been converted from new tenure to old tenure and
then, sale transaction had taken place and after
that, the petitioner of Special Civil Application
No.11994/2018 had purchased the said land and
after having purchased land, that too, after a
period of about 33 years, suo motu proceedings
have been initiated. However as stated above, the
said Ramji Garasiya, who is successor of the
petitioners of Special Civil Application
No.13970/2018, has already pocketed entire sale
consideration and when the order of forfeiture has
been passed, they have tried to take advantage of
it, which in my considered opinion, may not be
available for them. At this stage, a useful
reference can be made to the decision of this
Hon’ble Court in case of Navuji Lalji Vaghela Vs.
State of Gujarat, reported in 2011(4) GLR 3636,
wherein the Division Bench of this Court has
observed in Paragraph No.4 as under,
"4. We are of the view that the position of law is
very clear. Firstly, to maintain a petition
under Article 226 or 227 of the Constitution
of India, the party aggrieved must show that
any of his fundamental rights or any other
legal rights have been infringed and thereby
the party is aggrieved by such infringement.
Who can be said to be "a person aggrieved"?
One of the meanings is that "a person will be
held to be aggrieved by a decision", if that
decision is materially adverse to him.
Normally, one is required to establish that
one has been denied or deprived of something
to which one is legally entitled in order to
make one "a person aggrieved". Again a person
is aggrieved, if a legal burden is imposed
upon him. Can it be said that the appellants
would fall within the words "person aggrieved"
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or "a person who has a genuine grievance
because an order has been made which
prejudicially affects his interest". On the
contrary, this is an appeal by persons who are
trying to take advantage of their own wrong.
The maxim: "Nulluys commondum capere potest de
injuria sua propria" (No man can take
advantage of his own wrong) is very much
applicable in the facts and circumstances of
the present case. The maxim:
"Nullus commondum capere potest de injuria sua
propria" (No man can take advantage of his own
wrong) is one of the salient tenets of equity.
The appellants cannot secure the assistance of
a court of law for enjoying the fruit of their
own wrong."
24. Thus in view of above, the cumulative effect of
the above-stated factual aspects irresistibly
demonstrates that the petitioner of Special Civil
Application No.11994/2018 is the bonafide
purchaser of the land in question on payment of
entire sale consideration, that too, after
executing registered sale deed and entry to that
effect has also been mutated, however after a
period of 33 years, suo motu proceedings have been
initiated, which resulted into forfeiture of the
land in the State Government and though the
petitioners of Special Civil Application
No.13970/2018 have nothing to do with the land in
question, taking advantage of the situation, they
have claimed the said land. However in view of the
principles of law laid down by the Hon’ble Supreme
Court as well as this Hon’ble Court in numerous
case law, in my considered opinion, it is well
settled that even a void transaction if is allowed
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to remain effective for considerable long period,
the authority named therein will be precluded from
initiating proceedings to annul it. Therefore the
petition filed by the subsequent purchaser
deserves to be allowed, whereas the petition filed
by the petitioners of Special Civil Application
No.13970/2018, who are the successor of the
original grantee deserves to be rejected.
25. In the circumstances, Special Civil Application
No.11994/2018 stands allowed. The impugned order
dated 04/19.05.2018 passed by the respondent –
SSRD in Revision Application
No.MVV/JMN/PTN/23/2017, the order dated 24.11.2017
passed by the respondent – Collector as well as
the orders dated 29.04.2013 and 19.11.2013 passed
by the respondent – Deputy Collector are hereby
quashed and set aside and Entry No.1787 dated
03.02.2011 based on registered sale deed dated
19.01.2010 executed in favour of the petitioner
shall stand restored. Rule is made absolute to the
aforesaid extent. Direct service is permitted.
26. In the circumstances, Special Civil Application
No.13970/2018 being devoid of merits, is hereby
rejected. Rule is discharged.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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