Jagabhai Raghnathbhai Prajapti vs State Of Gujarat

Gujarat High Court

Jagabhai Raghnathbhai Prajapti vs State Of Gujarat on 19 November, 2025

                                                                                                                      NEUTRAL CITATION




                        29.03.C/SCA/12060/2006                                          JUDGMENT DATED: 19/11/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 12060 of 2006


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                                  Sd/-
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                                    Approved for Reporting                        Yes             No
                                                                                                  
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                                                 JAGABHAI RAGHNATHBHAI PRAJAPTI
                                                              Versus
                                                     STATE OF GUJARAT & ORS.
                      ==========================================================
                      Appearance:
                      MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
                      MR SUDHIR SHAH(2453) for the Petitioner(s) No. 1
                      MR. SIDDHARTH J. DESAI, LD. ASST. GOVERNMENT PLEADER for the
                      Respondent(s) No. 1,2
                      MS TANUJA N KACHCHHI(2483) for the Respondent(s) No. 3
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                                              Date : 19/11/2025

                                                              ORAL JUDGMENT

1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;

"(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to issue an appropriate writ, order or direction by quashing and setting aside the impugned order dated March 2006 / April 4, 2006 passed in Revision No.MVV/HKP/BNS/24/2001 by the learned Joint Secretary (Appeals), Gujarat State, at Annexure 'A" to the petition;

and confirming the order dated May 16, 2001, at Annexure "C", passed by the Collector, Banaskantha.

NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined (C ) Alternatively, the Hon'ble Court may be pleased to remand the matter back to the respondent authority for taking appropriate decision in the matter afresh, after hearing both the parties in the matter.

(D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order dated March 2006 / April 4, 2006 passed in Revision No.MVV/HKP/BNS/24/2001 by the learned Joint Secretary (Appeals), Gujarat State, at Annexure 'A" to the petition.

(E) Your Lordships may be pleased to pass such other and further relief in favour of the petitioners, as deemed just and proper, in the facts and circumstances of the case."

2. Fact, giving rise to the filing of the present application, may be summarized as under;

2.1 The writ applicant is the owner and occupier of part of land bearing Survey No.32 of village Jelana, Taluka: Vav, District: Banaskantha, admeasuring Acre 3-37 Gunthas as well as part of land bearing Survey No.501 of village Jelana, Taluka:

Vav, District: Banaskantha, admeasuring Acre 3-13 Gunthas.

2.2 The subject land belonged to one Kumbhar Karamshi Savana, the predecessor of the petitioners, for which, an entry being Entry No.5 was mutated on 29.04.1974, wherein the fact of partition being taken place amongst the brothers was also mentioned.

2.3 After the lapse of 25 years, i.e. on 18.06.1999, proceedings were initiated by the contesting respondent No.2 under Rule 108(5) of the Gujarat Land Revenue Code, 1972 (for short "the Code") before the Assistant Collector, Tharad, Page 2 of 10 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:06:05 IST 2025 NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined which came to be registered as RTS Appeal No.41 of 1999. In the said proceedings, though the writ applicant was made a party by the respondent No.2, no notice was served upon the writ applicant, which fact was also recorded by the Assistant Collector, Tharad in its order that the notices sent by RPAD were not served upon the petitioner as the addressed was improper.

2.4 However, the Assistant Collector, Tharad, proceeded ex- parte and allowed the said appeal by an order dated 25.01.2000, by quashing and setting aside the Entry No.165 dated 29.04.1974.

2.5 Against the aforesaid order dated 25.01.2000, the writ applicant preferred revision application before the Collector, Banaskantha being Revision Application No.29 of 2000, wherein the Collector, Banaskantha, after hearing both the parties, was pleased to allow the said appeal vide order dated 16.05.2001, whereby the order passed by the Assistant Collector, Tharad dated 25.01.2000, was quashed and set aside.

2.6 Against the aforesaid order dated 16.05.2001, the contesting respondent No.2 preferred revision application before the Joint Secretary (Appeals) being No.MVV/HKP/BNS/24/2001, who without considering the evidence on record, was pleased to allow the said application, whereby the order passed by the Collector, Banaskantha was quashed and set aside and was further pleased to confirm the order passed by the Assistant Collector, Tharad dated 25.01.2000.

NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined 2.7 Being aggrieved, the writ applicant is here before this Court with the present application.

3. Learned advocate Mr. Satyam Chhaya appearing for the writ applicant submits that the subject land originally belonged to Kumbhar Karamshi Savana, the predecessor of the writ applicant, for which Entry No.5 was mutated, and the subject land is an ancestral property. He further submits that as per the tradition, the subject land was divided amongst the brothers, for which, an entry being No.165 was mutated in the revenue record, clearly mentioning therein about such partition being taken place amongst the brothers. Learned advocate Mr. Chhaya also submits that after a delay of more than 25 years, the contesting respondent No.2 herein have challenged the mutation entry No.165 effected in favour of the writ applicant and was also certified on 29.04.1975. He submits that the said appeal came to be allowed by the learned Assistant Collector vide ex-parte order on the ground that the mutation entry No.165 was effected only on the basis of the notice under Section 135(D), and except the same there is no document on record, justifying mutation of entry No.165, and that Entry No.165 suffers from procedural lapses. Learned advocate Mr. Chhaya further submits that the Joint Secretary (Appeals) has failed to appreciate the fact that the Assistant Collector, Tharad had passed the order ex-parte, without hearing the writ applicant, and therefore, solely on this ground, the present application deserves to be allowed by quashing and setting aside the impugned order passed by the Secretary (Appeals). He also submits that the Assistant Collector, Tharad, did not consider the issue of gross delay in challenging Page 4 of 10 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:06:05 IST 2025 NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined the mutation entry No.165 dated 29.04.1974. He also submits that it was imperative on behalf of the revenue authority to deal with the issue of delay. He further submits that in the revenue proceedings, the appeal could not have been entertained on merits without the aspect of delay being adjudicated. He also submits that in the revenue proceedings, none of the authorities have rendered any finding on the issue of delay of 25 years. In this regard, learned advocate Mr. Chhaya has drawn the attention of this Court to the relevant provisions of the Bombay Land Revenue Code and submits that as per the said provision, the period to challenge the mutation entry is 60 days from the date of its mutation, and if any application is being preferred beyond the prescribed period of 60 days, then the same has to be filed with a delay condonation application under Section 5 of the Limitation Act. However, in the case on hand, despite sincere efforts being made by the writ applicant, he has not been able to find out any such delay condonation application being filed by the contesting respondent No.2 while filing an appeal before the Assistant Collector, Tharad or any order passed thereunder.

4. Learned advocate Mr. Chhaya further submits that if the operative part of the order passed by the Assistant Collector is to be seen, then it appears that no notice whatsoever was served to the writ applicant, and without hearing the writ applicant, the Assistant Collector, Tharad proceeded to pass an ex-parte order, which was then confirmed by the Joint Secretary vide the impugned order, and as such, the orders passed by both the revenue authorities are illegal, arbitrary, unreasonable and deserves to be quashed and set aside.

NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined Learned advocate Mr. Chhaya further submits that the learned Joint Secretary had no authority to decide the title, and it had exceeded its jurisdiction while passing the impugned order, and therefore also, the impugned order is required to be quashed and set aside being bad and illegal. He further submits that the present application is filed mainly on two grounds viz. (i) no notice was served to the writ applicant, and without providing an opportunity of hearing to the writ applicant, straightway an ex-parte order was passed by the Assistant Collector and (ii) there is a huge delay of 25 years in challenging the mutation entry No.165, and no separate application for condonation of delay was preferred along with the said appeal. He further submits that the appeal preferred by the contesting respondent No.2 against the certification of Mutation Entry No.165 way back in the year 1974, was beyond the prescribed period of limitation, and that too, without there being any application for condonation of delay, and therefore, the impugned order be set aside only on the ground of gross delay. The learned advocate finally submits that in case of family partition by oral agreement, there are relevant circulars issued by the State Government to record such oral transactions and that such revenue entries have presumptive value. He, therefore, submits that the impugned order be set aside and the Special Civil Application be allowed. To buttress his submissions, learned advocate Mr. Chhaya has put reliance upon the following decisions;

(i) In the case of Ragho Singh vs. Mohan Singh & Ors., (2001) 9 SCC 717;

NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined

(ii) In the case of The State of Gujarat & Ors. vs. Hussainbhai Satarbhai Meman, reported in 2024 (4) GLH 410;

5. Per contra, learned AGP Mr. Desai appearing for the respondent-State has fairly conceded before this Court that he has verified the proceedings, but he has not been able to find out any document pertaining to any separate delay condonation application preferred by the respondent No.2 while filing an appeal before the Assistant Collector, and in absence of the same, he is not in a position to make any submission with regard to the same. Moreover, from the record, it appears that the writ applicant was not served with the notice, and that without providing an opportunity of hearing to the writ applicant, an ex-parte order was passed by the Assistant Collector, which was then confirmed by the Joint Secretary, and as such, taking into consideration all these aspects, without going into the merits of the matter, learned he prays that appropriate order may be passed.

6. Learned advocate Ms. Tanuja Kachchi appearing for the contesting respondent No.3 has supported the impugned order passed by the Joint Secretary, confirming the order passed by the Assistant Collector, canceling mutation entry No.165. She submits that though there are concurrent findings recorded by the two authorities below, yet if the writ applicant is raising a strong grievance that no opportunity of hearing was provided to him by the Assistant Collector before proceeding to pass an ex-parte order, then she has no objection if the matter is remanded back to the concerned authority for fresh consideration. She submits that since the proceedings are Page 7 of 10 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:06:05 IST 2025 NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined quite old, appropriate direction may be issued to the concerned authority to decide the application afresh within some prescribed time limit.

7. Heard the learned counsel appearing for the respective parties, and perused the documents available on record.

8. In the present case, the dispute pertains to mutation of Entry No.165 effected in the name of the writ applicant on 29.04.1974. It is not in dispute that the subject land was originally belonged to Kumbhar Karamshi Savana whose named was running vide entry No.05. Thereafter, as the land was an ancestral land, the partition took place, and part of the land came into the share of the writ applicant, pursuant to which, Entry No.165 came to be mutated in the year 1974, whereby the name of the writ applicant was entered. The said entry was challenged by the respondent No.3 in the year 1999 by filing an appeal No.41 of 1999, wherein vide ex-parte order dated 25.01.2000, the said entry was quashed by the learned Assistant Collector, which order was then challenged before the Collector, Banaskantha, who vide order dated 16.05.2001 quashed and set aside the order dated 25.01.2000 passed by the Assistant Collector. The said order dated 16.05.2001 was then carried further in revision before the Joint Secretary (Appeals), and the Joint Secretary (Appeals), vide the impugned order dated 29.03.2006/04.04.2006, quashed and set aside the order passed by the Collector, Banaskantha and confirmed the order passed by the Assistant Collector, Tharad, which is under challenged in the present application. However, the main grievance of the writ applicant is that while initiating proceedings before the Assistant Collector after a lapse of 25 Page 8 of 10 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:06:05 IST 2025 NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined years, no separate application for condonation of delay was filed by the contesting respondent No.3, and the learned Assistant Collector also, without considering and appreciating this vital aspect, decided to proceed with the appeal, and passed an ex-parte order. Not only that, it is also the grievance of the writ applicant that while passing the said order, no opportunity of hearing was provided to the writ applicant, and he was not even served with the notice.

9. It seems that the present application is filed mainly on two grounds, first that no separate application for condonation of delay had been filed and secondly, no opportunity of hearing was provided to the writ applicant while passing the order by the Assistant Collector, Tharad. It is an admitted position of fact that there is a huge delay of 25 years in challenging the Mutation Entry No.165, and neither this Court nor the learned counsel for the respective parties have been able to find out from the materials on record any such application for condonation of delay or any order passed thereunder, nor was there any averment made in the memo of the application, explaining any sufficient cause for such a huge delay in preferring the said application, and even the Assistant Collector also seems to be failed in suo motu dealing with the said delay aspect, which the Assistant Collector was expected to be. It is well settled that, if any application and/or appeal is preferred after a lapse of certain period, then the same has to be filed with an application, seeking condonation of such delay, which the Assistant Collector failed to consider while passing the order, canceling mutation Entry No.165.

NEUTRAL CITATION 29.03.C/SCA/12060/2006 JUDGMENT DATED: 19/11/2025 undefined

10. Be that as it may. Considering the averments made in the writ application as well as the arguments canvassed by learned advocate Mr. Chhaya for the writ applicant, as also no strong resistance from the rival side if the matter is remanded back, without going into the merits or de-merits of the matter, this Court deems it proper to remand the matter back to the concerned revenue authority for deciding it afresh.

11. In view of the above, the impugned order dated 29.03.2006/04.04.2006 passed by the Joint Secretary (Appeals), Gujarat State in Revision No.MVV/HKP/BNS/24/2001 is quashed and set aside.

12. The matter is remanded back to the Deputy Collector, Banaskantha for deciding the issue afresh, after providing adequate opportunity of hearing to all the parties concerned, and is further directed to decide the said application by not only recording submissions of both the sides, but also by assigning reasons, within a period of six months from the date of receipt of copy of this order.

13. For the foregoing reasons, the present application is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

14. It is clarified that this Court has not gone into merits of the matter and rights and contentions of both the parties are kept open.

(DIVYESH A. JOSHI,J) VAHID Page 10 of 10 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:06:05 IST 2025