SHRIYANK ARVINDBHAI SHETH vs SPECIAL SECRETARY (APPEALS), REVENUE DEPARTMENT,
- Court
- Gujarat High Court
C/SCA/1926/2018 JUDGMENT DATED: 26/10/2026
(GJHC240065182018)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1926 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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SHRIYANK ARVINDBHAI SHETH & ANR.
Versus
SPECIAL SECRETARY (APPEALS), REVENUE DEPARTMENT, & ORS.
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,2
MR JAY TRIVEDI, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3,4
NOTICE SERVED for the Respondent(s) No. 5
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 26/10/2026
JUDGMENT
1 This petition is filed with the following reliefs:
“24…
(A) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any
other appropriate writ, order or direction for quashing
and setting aside the impugned order dated 29.11.2017
(Annexed herein at ANNEXURE - K) as well the order
dated:19.05.2015 passed by the Ld. Collector as well as
the order dated:28.02.2014 passed by the Ld. Dy.
Collector as well as the order dated:18.08.2011 passed
by the Ld. Circle officer cancelling the mutation entry
No. 2391 and be further pleased to direct the
respondent authorities to restore the entry No. 2391
mutated pursuant to the registered sale deed
dated:11.07.2011 executed in favour of the petitioner
with respect to land bearing survey No./ Block
No.25/2A and 2B of village Bhoyani, Ta. Detroj -
Rampara, Dist. Ahmedabad;
(B) Your Lordship's may further be pleased to hold and
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declare that the view taken by all the revenue
authorities in not certifying the entry No.2391 is ex-
facie illegal, illogical and without jurisdiction.
(C) During the pendency and final disposal of the
present petition YOUR LORDSHIPS may be pleased to
stay the operation / execution / implementation of
impugned order dated 29.11.2017 as well the order
dated:19.05.2015 passed by the Ld. Collector as well as
the order dated:28.02.2014 passed by the Ld. Dy.
Collector as well as the order dated:18.08.2011 passed
by the Ld. Circle officer cancelling the mutation entry
No. 2391 (Annexed herein at ANNEXURE -B) and be
further pleased to direct the respondent authorities to
maintain status-quo till the final disposal of the present
petition;
(D) Pass any such other and/or further orders that may
be thought just and proper, in the facts and
circumstances of the present case:”
2 Though the notice has been issued, no one has
appeared for respondent No.5.
3 Heard the learned advocate Mr. Vimal Purohit for the
petitioners and learned AGP Jay Trivedi for the
respondents-State.
4 Learned advocate Mr. Vimal Purohit submits that,
initially, the entry was mutated in favour of the
petitioners in the village form, which subsequently
came to be cancelled on the ground that a lien of the
Cooperative Society was registered over the disputed
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land. It is submitted that, upon clearing the dues of
the Cooperative Society, the petitioners preferred an
appeal before the Deputy Collector under Section
108 of the Land Revenue Code, being Appeal No. 110
of 2012. The Deputy Collector concluded that, in view
of the clearance of the debt owed to the Cooperative
Society, the lien was required to be removed.
However, the Deputy Collector confirmed the order
passed by the Circle Officer on the ground that there
was a breach of Section 63 of the Bombay Tenancy
and Agricultural Lands Act (hereinafter referred to as
“the Act”), as prior permission had not been
obtained.
5 Challenging the said order, the petitioners preferred
a revision application before the learned Collector.
The learned Collector upheld the orders passed by
both the authorities, additionally holding that there
appeared to be a breach of the provisions of Section
63 of the Act, as the petitioners had not obtained
prior permission under Section 63 of the Act before
entering into the transaction. Accordingly, it was held
that there was no ambiguity in the orders passed by
the Circle Officer and the Deputy Collector, and the
revision application came to be rejected. Challenging
the said order, the petitioners preferred a revision
application before the learned Special Secretary
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(Appeals), Revenue Department (hereinafter referred
to as “the SSRD”), along with an application seeking
stay. It was contended that the learned Collector and
the Deputy Collector had exceeded their jurisdiction
by rejecting the appeal on a new ground that had
never been raised before the Circle Officer, the
Deputy Collector or the Collector. However, by order
dated 31.08.2016, the learned SSRD rejected the
stay application on the ground that the petitioner
Trust had not obtained prior permission for
purchasing the land in question, as required under
the provisions of the Act. It was further held that,
under Section 135D(8) of the Bombay Land Revenue
Code (hereinafter referred to as “the BLRC”), where a
revenue officer has reason to believe that a
transaction involves a breach of the provisions of any
other law, the officer is not required to certify the
mutation entry and must record the reasons for doing
so in writing. The learned SSRD also observed that
the validity of a sale transaction falls within the
jurisdiction of the competent Civil Court and that the
petitioners had not produced any evidence to show
that they had instituted any such civil suit.
5.1 Challenging the said order, the petitioners filed
Special Civil Application No. 21395 of 2016 before
this Court. By order dated 28.12.2016, this Court
was pleased to grant interim relief in terms of
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paragraph 20(C), staying the operation,
implementation and execution of the order dated
31.08.2016 and directing the parties to maintain
status quo until the final disposal of the revision
application. The said interim order has continued
to remain in operation till date. Thereafter, the
learned SSRD took up the matter for final hearing
and confirmed the orders passed by the learned
Collector, the Deputy Collector and the Circle
Officer. The said order is the subject matter of
challenge before this Court.
6 At the outset, it is submitted that, though respondent
No. 5 is a private party, being the seller of the
property in question, he is merely a formal party,
whereas the State is the main contesting party.
7 Heard the learned advocate Mr. Vimal Purohit for the
petitioners and learned AGP Mr. Trivedi for the
respondent-State.
8 It is submitted by learned advocate Mr. Vimal Purohit,
appearing for the petitioners, that the orders passed
by all the authorities are bad in law. Initially, the
entry was rejected only on the ground that a lien of
the Cooperative Society existed over the land in
question. Thereafter, vide Entry No. 2395, the lien
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came to be cleared, and the land was freed from
such encumbrances. However, when the said order
was challenged before the higher authorities by filing
an appeal and a revision application, the higher
authorities rejected the same on a new ground,
namely, that the petitioners had not obtained prior
permission under Section 63 of the Act, and
consequently held that there was a breach of Section
63 of the Act, as well as an ambiguity in terms of
Section 135D(8) of the BLRC.
8.1 It is submitted by the learned advocate Mr.
Purohit that the authorities were bound to follow
the bare minimum requirements of the principles
of natural justice by affording an opportunity of
hearing to the petitioners. However, in the present
case, no such opportunity was afforded, nor were
the petitioners issued any show-cause notice with
regard to the applicability of Section 63 of the Act.
It is further submitted that the entry was initially
rejected on an entirely different ground, whereas
the appellate authority rejected the appeal on a
completely different ground, which is
impermissible in law.
8.2 It is further submitted that the respondent
authorities observed that the petitioners had not
instituted any civil suit seeking a declaration that
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the sale transaction entered into by them was
valid, despite the fact that the validity of the
petitioners' sale transaction had never been
challenged. In that background, such an
observation is vague and devoid of merit. It is
submitted that Section 135D(8) of the BLRC would
not be applicable in the present case, as the Circle
Officer had initially rejected the entry neither on
the ground that the petitioners were not
agriculturists nor on the ground that prior
permission under Section 63 of the Act had not
been obtained. Therefore, under Section 135D(8)
of the BLRC, the authorities had no power or
entitlement to take cognizance of an alleged
breach of the provisions of a different enactment
at different stages of the proceedings.
8.3 It is further submitted by the learned advocate
Mr. Purohit that the petitioner Trust has been
holding agricultural land for several decades and
has the status of an agriculturist. Therefore, the
entry was not rejected by the Circle Officer on that
ground. It is also submitted that, while exercising
powers under Section 108(6) of the BLRC, the
learned District Collector took cognizance of an
alleged breach of Section 63 of the Act, despite the
fact that a specific mechanism is provided under
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Section 84C of the Act to deal with such a breach.
Accordingly, the exercise of such powers by the
learned District Collector is without jurisdiction. In
the aforesaid circumstances, it is prayed that the
present petition be allowed and the impugned
orders be quashed and set aside.
9 Learned AGP Mr. Trivedi has supported the impugned
orders and submitted that the petitioners had not
produced any permission obtained in compliance
with Section 63 of the Act. In the aforesaid
circumstances, no error has been committed by any
of the authorities, and the present petition deserves
to be dismissed.
10 Considering the submissions made by the learned
advocates for the respective parties, the moot
question that arises for consideration before this
Court is whether the learned Deputy Collector was
justified in rejecting the appeal on a new ground
which had never been raised before the Circle
Officer, by relying upon the provisions of Section
135D(8) of the BLRC and holding that there was a
breach of Section 63 of the Act, which finding came
to be upheld by the learned Special Secretary,
Revenue Department.
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11 To determine the aforesaid question, if one would
like to re-examine the facts of the present case, it
emerges that the land bearing Survey Nos. 25/2A and
2B, situated at Village Bhoyni, Taluka Detroj, Village
Rampura, District Ahmedabad, was originally owned
by respondent No. 1. The said land was sold to the
petitioners by executing a sale deed dated
11.07.2011, for a sale consideration of Rs. 5,60,000/-.
The said registered sale deed was registered before
the Sub-Registrar, Detroj, vide Entry No. 759. At the
relevant point of time, there was a lien of the
Cooperative Society over the land, which respondent
No. 1 had undertaken to clear. However, on account
of the subsisting lien, the mutation entry came to be
cancelled on 18.08.2011. The petitioners acquired
knowledge regarding the cancellation of the entry on
27.03.2012 and, thereafter, preferred RTS Appeal No.
110 of 2012 before the Deputy Collector, Viramgam,
contending that the lien had been cleared and that
an entry in that regard had also been mutated in the
Village Form No. 6. On 14.07.2011, Entry No. 2395
came to be mutated, which was also certified. The
Deputy Collector, while observing that the lien had
been released by the Cooperative Society, rejected
the appeal on a new ground, namely, that there was
a breach of Section 63 of the Act. It appears that the
said ground had never been raised before the Circle
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Officer, nor were the petitioners afforded an
opportunity to explain their position with regard to
the same. The order rejecting the appeal on such
ground is otherwise silent on this aspect, and the
only observation made therein is that the petitioners
had not produced any evidence to establish that they
were agriculturists.
11.1 Challenging the said order, the petitioners
preferred a revision application before the
Collector, Ahmedabad, which also came to be
rejected on the ground that the land in question
was agricultural land and that the petitioner Trust
had not obtained prior permission under Section
63 of the Bombay Tenancy and Agricultural Lands
Act. It was, therefore, observed that the Deputy
Collector was justified in rejecting the mutation
entry by invoking Section 135D(8) of the BLRC.
The matter was thereafter carried further before
the learned SSRD, who, vide order dated
29.11.2017, upheld the orders passed by the
authorities below and rejected the revision
application preferred by the petitioners.
11.2 At this stage, it would be apposite to refer to
Section 135D(8) of the BLRC, which reads as
under:
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“135D(8): Where the certitying officer has a reason to
believe that such mutation entryviolates or contravenes
any of the provisions of the Act or any other Act, he
shall not certify such entry and shall intimate the same
with reasons in writing to the person concerned.”
12 On a plain reading of the aforesaid provision, it
appears that, by virtue of the said provision, the
Mamlatdar is empowered to refuse to certify a
mutation entry if he has reason to believe that such
entry violates or contravenes any of the provisions of
the Code or any other law. A mutation entry would
violate any provision of law if the acquisition of the
right sought to be recorded by way of such entry is
contrary to the provisions of law. In other words, if
the Mamlatdar finds that there is a breach of any law
which would render the transaction itself illegal or
unlawful, thereby resulting in the mutation entry
violating the provisions of the Code or any other
enactment, recourse can be taken to sub-section (8)
of Section 135D of the BLRC.
13 In the instant case, undisputedly, the reason which
weighed with the Circle Officer for not certifying the
mutation entry was the subsisting charge of the
Cooperative Society over the land in question. It was
never the case before the Circle Officer that the entry
was liable to be cancelled on account of any breach
of Section 63 of the Act. On referring to the Village
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Form No. 6 (Village Rights Register), wherein Entry
No. 2391 came to be cancelled on 11.07.2011, it
appears that the only reason which weighed with the
Circle Officer (Mamlatdar) was the aforesaid charge
of the Cooperative Society. Thereafter, it appears that
the dues of the Cooperative Society were paid and an
entry to that effect came to be mutated vide Entry
No. 2395 in Village Form No. 6, which fact has also
been noticed by the Deputy Collector.
14 So far as the contention regarding the breach of
Section 63 of the Act is concerned, in the opinion of
this Court, when the original rejection was not based
on such a ground, the higher authorities, while
rejecting the appeal and the revision application on
that ground, have exceeded their jurisdiction. Even
otherwise, the Bombay Tenancy and Agricultural
Lands Act is a self-contained enactment, wherein the
Mamlatdar is empowered and authorised under
Section 70 thereof to examine whether a person is an
agriculturist or not. Therefore, on this ground also,
the orders passed by the Deputy Collector, the
Collector and the Special Secretary, Revenue
Department, are bad in law.
15 Considering the overall circumstances, and since the
lien has already been removed and an entry to that
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effect has been mutated in the Village Form No. 6
(Village Rights Register), the order passed by the
Circle Officer, as well as the impugned orders passed
by the Deputy Collector, the Collector and the Special
Secretary, Revenue Department, deserve to be
quashed and set aside, being bad in law.
16 In view of the foregoing discussion, the present
petition is allowed. The impugned order dated
29.11.2017 passed by the Special Secretary,
Revenue Department, the order dated 19.05.2015
passed by the Collector, the order dated 28.02.2014
passed by the Deputy Collector and the order dated
18.08.2011 passed by the Circle Officer cancelling
the mutation entry No.2391 are hereby quashed and
set aside. The respondent authorities are directed to
restore mutation entry No.2391 made pursuant to
the registered sale deed dated 11.07.2011 in favour
of the petitioners in respect of the land bearing
Survey No./Block No.25/2A and 25/2B situated at
Village Bhoyani, Taluka Detroj-Rampara, District
Ahmedabad.
(M. K. THAKKER,J)
M.M.MIRZA
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