State Of Gujarat vs Janaben Lakhabhai Bharvad
2021 Latest Caselaw 8031 Guj

    C/SCA/6755/2021                              ORDER DATED: 08/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6755 of 2021

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                           STATE OF GUJARAT
                                 Versus
                      JANABEN LAKHABHAI BHARVAD
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Appearance:
MR ROHAN SHAH, AGP (1) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 08/07/2021

                             ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed by the State with a prayer(s) as under:-

"7(A) Your Lordship may be pleased to admit and allow this writ petition.

(B) Your Lordship may be pleased to issue a writ, order or direction in the nature of certiorari and/or any other appropriate writ in the nature of certiorari to quash and set aside the order dated 31.12.2019 passed by the respondent no.3 in Revision Application No.42 of 2018.

(C) Pending admission, hearing and final disposal of the petition, Your Lordship may be pleased to stay implementation, operation and execution of the order dated 31.12.2019 passed by the respondent no.3 in Revision Application No.42 of 2018.

(D) ........"

2. Learned AGP submitted that the order by the Collector was

C/SCA/6755/2021 ORDER DATED: 08/07/2021

passed on the strength of revenue record by holding that the private respondent was not an agriculturist. Such finding was given on the basis of revenue record available and also the revenue record which was produced before it. The entire exercise is taken after granting an opportunity of hearing and following the procedure prescribed. Therefore, there was no scope for Special Secretary to intervene despite the revision application is allowed against the State.

3. Heard learned AGP and perused the documents on record. From the record, it transpires that Jesabhai Rahabhai- respondent no.2 herein was the holder of the land situated in Revenue Survey No.145/1 of Keriya village, Ta-Ranpur admeasuring 02-02-34 H.R.A. The said land was sold to Mr. Janaben Lakhabhai Bharvad-respondent no.1 herein-the land holder of the land of account No.448- revenue survey No.155 situated in Nagadaka village of Sayala Taluka of Surendranagar district vide registered sale deed No.369/2012 and the entry No.1404 thereof has been certified by the competent authority on 25/07/2012. The purchaser Janaben Lakhabhai Bharvad has been holding the land of account No.448, revenue survey No.115 through heirship vide entry No.2958. Her father Lakhabhai Chhaganbhai had purchased this land vide Entry No.615 dated: 11/03/65. Hence, the purchaser of the land of entry No.1404, dated: 25/07/2012 is not farmer account holder by birth. That means, her father purchased that land. The entry No.1404 dated: 25/07/2012 has been certified by the competent authority which has been registered against the record of rights and other legal provisions. Therefore, the team of Register of rights has taken suo-moto cognizance of the said entry of the Register of rights by way of revision under Gujarat Land Revenue Code-1879 and rule-108(6) of Gujarat Land Revenue Rules-1972

C/SCA/6755/2021 ORDER DATED: 08/07/2021

and requested the Collector, Botad to take the necessary action. Hence, the present litigation has arisen.

4. In this connection, the revisional authority has taken into consideration the revenue record and came to the conclusion that:-

4.1 The applicant has purchased the disputed land through registered sale deed and the entry No.1404, dated: 25/07/2012 thereof has been certified by the competent authority. In this regard, as said entry was taken into suo-moto revision by the team of Register of rights and they requested the Collector, Botad to take the necessary action, the Collector, Botad vide order dated: 17/11/2018, directed the Mamlatdar, Ranpur to confiscate the disputed land without encumbrance and compensation and to takeover the possession of this land within 30 days. Considering that order, the impugned sale entry No.1404 was taken into revision by team of Register of Rights and the Collector, Botad conducted the trial of Revision and held that, the entry No.1404 is not proper as per Register of Rights and the transfer entry in this land has been made in the capacity of non-farmer holder. Thus, the entry No.1404 has been taken into suo-moto revision by showing the ground of about 55 years old entry that, the father of the applicant purchased the land in 1965, which prima-facie appears to be against the established legal provisions. Because, Hon'ble Supreme Court and Hon'ble Gujarat High Court have clearly held in many judgments in this regard that, the competent authority should take suo-moto revision within reasonable time-limit. Thus, the Collector, Botad and the team of Register of Rights have not considered the provisions of The Limitation Act at the time of making decisions.

4.2 The Collector, Botad has stated in his findings that, the

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present applicant Janaben Lakhabhai Bharvad has been holding the land of account No.448, revenue survey No.115 through heirship vide entry No.2958 and the said entry has been certified on 18/10/2008 and the said heirship entry No.2958 has not been cancelled yet. It is also not found on record that, any revision proceedings is pending in this heirship entry No.2958. Thus, the heirship entry No.2958 is certified since 11 (eleven) years. Thus, it clearly appears that, the name of the present applicant has been continued in the 7/12 revenue record for the last 11(eleven) years. Hence, it does not appear that, the applicant is non-farmer.

4.3 The Collector, Botad has stated in his findings that, the father of the present applicant purchased the land of Nagadaka village of Sayala Taluka of Surendranagar district in the year- 1965 therefore the applicant is not farmer by birth. But, looking to the revenue record, it appears that, the father of the applicant purchased the land in 1965 and its entry No.614 and 615 have been made in the village record of Nagadaka, Taluka-Sayala, District: Surendranagar. As the father of the applicant died, the present applicant has been continued as farmer in survey No.149 and 155 of Nagadaka village of Sayala taluka of Surendranagar district as his heir. Considering the sale entry No.615, the said entry number has remained certified till today since 1965. Despite that, the Collector, Botad has not considered the impugned entry No.1404 as valid which was certified on 25/07/2012 as per record of rights by presuming that, the applicant is not the farmer holder by birth though the father of the applicant purchased the land and therefore his daughter i.e. the present applicant was holding the land through heirship right. The Collector, Botad has considered the

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applicant's father's entry No.615 of 1965 and he has presumed upon that entry that, the father of the applicant purchased the land. Thus, instead of doing this, the Collector, Botad should have verified from the Mamlatdar, Sayala through the Collector, Surendranagar as to whether the father of the applicant was a farmer at that time or not. But, looking to the record, it does not appear that, the Collector, Botad has made such verification.

4.4 The impugned entry No.615 was certified in 1965, and 55 years have elapsed since it was certified, and the said entry is certified till today. It does not appear on record that, the said entry has been taken in the Revision. In the revenue record of 7/12, the name of the applicant and her heirs is continued at present. Thus, until the entry No.615 is cancelled or rejected from the revenue record, all its subsequent entry exist on record. The heirship entry of the present applicant also exists on record. Therefore also, it clearly appears that, the applicant is the daughter of farmer.

5. The finding given and the conclusion arrived at by the Special Secretary (Appeals), Ahmedabad in its impugned order dated 31.12.2019 is well reasoned and well founded orders, wherein the exercise undertaken by the Collector was not only belated, but also contrary to the revenue record. Therefore, no interference is called for by this Court. Hence, the present petition stands dismissed.

(A.Y. KOGJE, J) GIRISH