Brahman Dalpatbhai ... vs State Of Gujarat

       C/SCA/18828/2019                               ORDER DATED: 13/02/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18828 of 2019

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                   BRAHMAN DALPATBHAI DEVSHANKARBHAI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
RUTVIK H MODI(8236) for the Petitioner(s) No. 1
UTSAV P PARIKH(8223) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2,3,4
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 13/02/2023
                                 ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule for the respondent-State.

2. Since a short issue is involved in the writ petition, the same is taken up for hearing.

3. By this writ petition, the petitioner has assailed the impugned orders dated 13.06.2017, 09.10.2017, 30.11.2018 and 13.06.2019.

4. The brief facts of the case are as under:-

4.1. It is the case of the petitioner that the petitioner along with his mother Mrs. Anandiben Devshankar are the legal owners and possessors of land bearing revenue survey no.57/2 lying and situated in the sim of Village: Nani Pimpli, Taluka: Radhanpur, District: Patan. The petitioner has asserted that the subject land was originally owned and possessed by his predecessors in title namely deceased Shri Brahman Kuber Trikam and Devshankar Trikam.

C/SCA/18828/2019 ORDER DATED: 13/02/2023 4.2. In the year 1971, respondent no.2 initiated inquiry under section 37(2) of the Gujarat Land Revenue Code, 1879 (for short "the Code") against the predecessor in title of the petitioner and after that the respondent no.2, after holding an inquiry under section 37(2) of the Code, vide order dated 31.12.1971 declared that the subject land belongs to the predecessors in title of the petitioner i.e. namely deceased Shri Brahman Kuber Trikam and Devshankar Trikam and declared the subject land as a gherkhed land and the effect of the said order has been mutated in the revenue record vide Revenue Entry No. 309 into the Village register on 02.10.1974, which was certified on 22.11.1974. It appears that, thereafter on 12.05.1975, Revenue Entry No. 316 came to be mutated in the revenue records, whereby the second charge over the subject land of the Seva Sahakari Mandali Nani Pimpli has been registered against the loan facility extended by it.

4.3. On 12.04.1976, the predecessors in title of the petitioner have divided the lands owned and possessed by them amongst themselves and accordingly, as per such consensus between the predecessors in title of the petitioner, the subject land has become the sole ownership of the father of the petitioner and the revenue entry no.338 came to be mutated in the revenue records.

4.4. Thereafter, the predecessor in title of the petitioner again obtained loan facility from the Nanipimpli Group Seva Sahakari Mandali over subject land to the tune of Rs.11,900/- and entry to that effect has been made in the revenue register vide Entry No.455 dated 29.04.1987. It is also stated that name of the petitioner along with Mrs.Ananadiben Page 2 of 5 Downloaded on : Mon Feb 20 20:30:54 IST 2023 C/SCA/18828/2019 ORDER DATED: 13/02/2023 Devshankar came to be mutated in the revenue records as the owners of the subject land vide entry No. 471 dated 22.11.1984. Thereafter, again a loan was obtained from the facility of Nanipimpli Seva Sahakari Mandali Ltd. over subject land to the tune of Rs.2,30,000/- and entry to that effect has been made in the revenue register vide Entry No.497 dated 18.10.1991. After the said loan was discharged, again Entry no.644 dated 25.09.2000 has been mutated. It appears that, thereafter there are various loans obtained against the said land.

4.5. Thereafter, the petitioner and Mrs. Anandiben Devshankar had sold and conveyed the subject land to one Shri Suthar Sureshbhai Amrutlal vide registered sale deed dated 18.04.2017 bearing No.809 of 2017. Entry no.1329 came to be mutated in the revenue records in the name of one Shri Suthar Sureshbhai Amrutlal to give effect to the above-mentioned registered sale deed, however, respondent no.1 rejected the said revenue entry.

5. Learned advocate Mr.C.B.Upadhyay appearing for the petitioner has submitted that the respondent authorities, after a period of 48 years, have questioned Entry No.309, which has been mutated in the year 1974. It is submitted that at no point of time till the subject land has been finally sold to Shri Suthar Sureshbhai Amrutlal, any objections have been raised by any of the authorities. It is submitted that it is well settled proposition of law that the authorities cannot question the entries after a considerable period of time and in the present case, the entry, which was recorded in the year 1974, is sought to be taken in suo motu revision by the respondent authorities. Hence, the impugned orders may be set aside. In support of his submissions, he has placed reliance on the judgment of the Page 3 of 5 Downloaded on : Mon Feb 20 20:30:54 IST 2023 C/SCA/18828/2019 ORDER DATED: 13/02/2023 Division Bench in the case of Bharatbhai Naranbhai Vegda vs. State of Gujarat, 2016 (2) GLR 1021 and on the judgment dated 26.02.2016 passed in Special Civil Application No.758 of 1997 in the case of Dudhiben Muljibhai Patel vs. State of Gujarat, as well as on the judgment of the Supreme Court in the case of The State of Gujarat vs. Patil Raghav Natha & Ors., 1969 (2) SCC 187. Thus, he has submitted that the impugned orders may be set aside.

6. Per contra, learned AGP, while supporting the impugned orders, has submitted that the impugned orders do not require any interference since when it was noticed by the authorities that the order dated 02.10.1975 with regard to the posting of mutation entry no.309 was not found, the necessary exercise was undertaken.

7. The aforenoted facts are not in dispute. The respondent authorities have questioned the entry no.309, which has been mutated in the revenue records in view of the order dated 02.10.1974, which has been passed under the provisions of Section 37(2) of the Code. For the period of 48 years, the aforesaid entry has not been questioned by any of the authorities and only in the year 2017 when one Shri Suthar Sureshbhai Amrutlal, who purchased the land in question and approached for mutation of entry of his registered sale deed, an objection apropos mutating the Revenue Entry No.309 raised by the authorities.

8. It is well settled proposition of law as declared in the aforenoted judgments that the authorities cannot exercise or question the entries, which are certified in the revenue records, beyond a reasonable period and the bar of delay and laches operates against the authority in initiation Page 4 of 5 Downloaded on : Mon Feb 20 20:30:54 IST 2023 C/SCA/18828/2019 ORDER DATED: 13/02/2023 of action. Hence, it was not open for the respondent authorities to question the entry, which has been mutated in the year 1974 after a lapse of more than 45 years and hence, the impugned orders are hereby quashed and set aside since the same are against the well settled proposition of law, as enunciated in the aforementioned judgments.

9. The writ petition succeeds. Rule is made absolute.

(A. S. SUPEHIA, J) ABHISHEK/36 Page 5 of 5 Downloaded on : Mon Feb 20 20:30:54 IST 2023