Gujarat High Court
State Of Gujarat vs Chandanben Wd/O Jashvantbhai on 27 September, 2021
Bench: Biren Vaishnav
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 607 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 13731 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 607 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
CHANDANBEN WD/O JASHVANTBHAI
==========================================================
Appearance:
GOVERNMENT PLEADER(1) for the Appellant(s) No. 1,2,3,4,5
MR NV GANDHI(1693) for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 27/09/2021
Page 1 of 25
Downloaded on : Sun Jan 16 18:45:12 IST 2022
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the judgment
and order dated 29.08.2018 passed by the learned
Single Judge in Special Civil Application No.13731 of
of 2016, the State Authorities have preferred this
appeal under Clause 15 of the letters patent.
2. The following facts in nutshell will be necessary to
refer to based upon the record of this appeal. The
respondents-original petitioners are owners and
occupiers of land bearing survey nos.326 paiki 1
gunthas, situated at Mouje-Niyol, Taluka:Palsana,
District-Surat. It is a matter of record that now the
land in question is included in the area of Draft
Town Planning Scheme No.54, (Niyol-Sedhav), Surat
and as per draft Town Planning Scheme, the
respondents-original petitioners have been allotted
final plots and some portion of the land in question
is forming part of the town planning scheme road as
well.
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
3. The land in question was originally owned by one
Kesarlattadevi widow of Madhusudan
Guruvallabhdas and the same was cultivated by one
Shri Ratanji Bhavanji as tenant. The record
indicates that the tenant had deposited an amount of
Rs.72.15 paisa in the name of the land lady and
resultantly, the land in question was granted to the
tenant Ratanji Bhavanji on new and impartable
tenure subject to restrictions under Section 43 of the
Tenancy Act. An entry to the said effect being entry
no.910 came to be mutated on 20.11.1974 which
was duly certified by the competent authority on
10.02.1976. The record further indicates that on
death of Ratnaji Bhavanji, name of Ratanben-widow
of Ratnaji Bhavanji, came to be mutated in the
revenue record as a successor by way of succession
being entry no.1202 dated 03.04.1980. The record
further shows that by way of a family arrangement,
during the lifetime of Ratnaji, name of Ratanben
came to be deleted and name of Jashvantbhai
Jagubhai who happens to be the nephew of
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Ratanben, came to be mutated by entry no.1321
dated 19.01.1982. After following due process of
law as provided under Section 135D of the Gujarat
Land Revenue Code (hereinafter to be referred to as
'the Code' for the same of brevity), same entry came
to be certified on 02.03.1982. The record indicates
that the said entry was rechecked by the learned
Collector and ultimately certified. Right from 1982
onwards, the name of Jashvantbhai Jagubhai came to
be continuously shown as owner of the land in
question. His death certificate on record shows that
Jashvantbhai Jagubhai expired on 21.11.2003 and
hence, names of heirs and legal representatives of
Jashvantbhai Jagubhai came to be mutated vide
entry no.2726 on 15.12.2003 along with other
agricultural lands and the said entry also came to be
certified.
4. Meanwhile, the State Government came out with a
policy on 09.10.2006 whereby, after use of land for a
particular number of years, it can be converted from
new tenure land to old tenure land. As record
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reveals at this stage, the Deputy Collector, Choryasi,
opined that there is some illegality in the mutation
about the said partition and more particularly entry
no.1321 dated 19.01.1982 and hence, referred the
said entry to the District Collector, Surat. The
District Collector, Surat, vide show cause notice
dated 05.01.2007, exercised his suo-motu powers as
provided under Rule 108(6) of Gujarat Land Revenue
rules, 1962, and took the entry no.1321 dated
19.01.1982 in suo-motu revision on alleged breach of
provisions of the Tenancy Act, Hindu Succession Act,
Registration Act, and Transfer of Property Act, and
registered a case against the respondents-original
petitioners being RTS/Suo-Motu/Rev. Case No.1/07.
The respondents-original petitioners filed a detailed
reply opposing the said show cause notice and
thereafter the District Collector, Surat, vide order
dated 03.11.2007, referred and transferred the
proceedings to Mamlatdar and ALT, Choryasi, for
breach of the provisions of the Tenancy Act. On
receipt of the same, after a period of about 5 years
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
i.e. on 11.06.2012, the Mamlatdar and ALT issued
notice show cause notice in Ganot Case
No.84-C/7/2012, wherein, reference was made to
alleged breach of Section 2(6) and 63 of the Tenancy
Act. The order was challenged before the Revenue
Secretary (Appeals) being Revision No.MVV/HKP/ST
No.110 of 2012. Meanwhile, the Mamlatdar and
ALT, Choryasi, was pleased to hold that on account
of mutation entry no.1321 dated 19.01.1982, there is
a breach of Section 43 of the Tenancy Act and
directed the parties to restore the possession of the
subject land within three months from the date of
the order. Being aggrieved by the said order, the
respondents-original petitioners filed an appeal
before the Deputy Collector under Section 74 of the
Tenancy Act. The said appeal was allowed by
Deputy Collector, Kamrej, District:Surat, vide order
dated 16.10.2014.
5. Thereafter, the learned Secretary vide impugned
order dated 15.03.2016, rejected the revision filed
by the respondents-original petitioners and directed
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the Tenancy Authority to expedite the proceedings
preferably within three months. Being aggrieved by
that, the petitioner preferred the writ petition being
Special Civil Application No.13731 of 2016 which
was allowed by the learned Single Judge vide order
dated 29.08.2018.
6. It deserves to be noted that pursuant to the earlier
orders, Mamlatdar and ALT had issued a notice
being proceedings under Section 84C of the Tenancy
Act on 04.06.2016 and ultimately, vide order dated
24.09.2018 passed by Mamlatdar and ALT, after the
impugned order was passed by the learned Single
Judge, suspended the said proceedings under
Section 84C of the Tenancy Act. Being aggrieved by
the order passed by the learned Single Judge, the
State and its authority have preferred this appeal.
7. Heard Mr.Tirthraj Pandya learned AGP for the
appellants and Mr.N.V.Gandhi learned advocate for
the respondent-original petitioners.
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
8. Mr.Tirthraj Pandya learned AGP has taken this Court
through the factual matrix arising out of this appeal
and contended that the learned Single Judge has
failed to appreciate the fact that the act of transfer
by family arrangement itself was not in accordance
with the provisions of Sections 43 and 63 of the
Tenancy Act and as it was void, limitation would not
apply.
9. Mr.Pandya learned AGP further submitted that there
was no blood relation between Ratanben and
Jashvantbhai Jagubhai, the nephew and therefore,
indirectly, the land being transferred without there
being any valid mode of transfer of the same is
voidable. According to Mr.Pandya learned AGP, the
said salient fact has been totally ignored by the
learned Single Judge. Mr.Pandya learned AGP
contended that the learned Single Judge ought to
have considered the merits of the matter but as such
only on the ground of delay, the petition is allowed.
10. It was further contended that as such the land has
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
been illegally and invalidly transferred in the name
of third party by the tenant, knowing fully well that
it was a new tenure land. Mr.Pandya also contended
that the learned Single Judge has also not examined
the fact whether said Jashvantbhai Jagubhai was an
agriculturist or not. It was further contended that
even though specific reasons were stated in the
show cause notice itself, the same has been
completely ignored by the learned Single Judge. On
the aforesaid grounds, it was further contended by
Mr.Pandya learned AGP that the appeal requires
consideration and on merits it was submitted that
the impugned order passed by the learned Single
Judge deserves to be quashed and set aside
confirming the order in original passed by the
Collector as well as the order in revision passed by
the learned Secretary, Revenue (Appeals).
11. Per-contra, Mr.N.V.Gandhi has opposed this appeal.
Mr.Gandhi contended that the learned Single Judge
has rightly allowed the writ petition. Mr.Gandhi
contended that the suo-motu action has been
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resorted to by the District Collector after a lapse of
25 years. Mr.Gandhi further contended that as such
when entry nos.1321 was mutated on 19.01.1982,
the same were again examined by the District
Collector and thereafter the same came to be
certified. According to Mr.Gandhi, the very action
on the part of the District Collector to issue show
cause notice after a lapse of 25 years in the year
2007, amounts to exercising revisional powers for
the second time which is not permissible under the
law. Relying upon the ratio laid down by this Court
in case of Evergreen Apartment Co-operative
Housing Society Limited v. Special Secretary
(Appeals), Revenue Department, reported in
1991 (1) GLH 155, it was contended by Mr.Gandhi
learned counsel appearing for the respondent that
while exercising jurisdiction and power under Rule
108(6) of the Gujarat Land Revenue Rules, 1972, the
Collector had no authority under the law to refer it
to other authorities. Mr.Gandhi further contended
that there is no allegation of fraud and the learned
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Single Judge having examined the record of the case
has rightly come to the conclusion that after a delay
of about 25 years, such revisional powers cannot be
exercised. Mr.Gandhi contended that the land came
to be mutated in the name of Jagabhai as heir
apparent of Ratnaji Bhavanji. Mr.Gandhi contended
that it is not correct that there was no relationship
between both the parties. Mr.Gandhi claimed that
the predecessor of the present respondent Jagabhai
happened to be nephew of Ratanben. Mr.Gandhi
further submitted that Ratanben had no direct heir
and therefore she thought it fit to deown the land in
question in favour of Jagabhai as heir of the
appellant as per the family arrangement. Mr.Gandhi
contended that as such it is not transferred at all but
has come to the share of Jagabhai under the heir-
ship as per the wish of Ratanben. Mr.Gandhi
submitted that all entries have remained for a period
of 25 years and the authorities had full knowledge
about the same and the appellants authorities
cannot be permitted to say that they had no
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knowledge about the same.
12. Mr.Gandhi learned advocate further submitted that
the learned Single Judge has rightly come to the
conclusion that revisional powers have been
exercised after an unreasonable period of 25 years
and has rightly relied upon the binding precedents
of this Court as well as Hon'ble Apex Court and the
learned Single Judge has correctly not entertained
the writ petition filed by the appellants herein.
13. On the aforesaid grounds, Mr.Gandhi submitted that
the appeal is misconceived and the same deserves to
be dismissed. No other or further submissions have
been made.
14. Before reverting to the submissions made by both
the sides, at the outset, it deserves to be noted that
it is not in dispute that entry no.1321 came to be
mutated on 19.01.1982 and after re-verification of
the same by the District Collector, it came to be
certified on 02.03.1982. As the factual matrix is
already discussed herein above, it would be
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appropriate to refer to the show cause notice issued
by the District Collector in exercise of powers under
Rule 108(6) of the Gujarat Land Revenue Rules,
1972. The said notice recites that it is issued under
Rule 108(6) of the Gujarat Land Revenue Rules for
suo-motu revision. It refers to the entry No.1321
dated 19.01.1982 and the reasons also are
mentioned in the said notice being (i) breach of the
provisions of Hindu Succession Act 1956, (ii) breach
of Section 54 of the Transfer of Properties Act, (iii)
breach of Section 17 of the Registration Act and
breach of record of rights.
15. Apart from the fact that the said notice was replied,
the respondents-original petitioner brought to the
notice of the Collector that the entry of question was
rechecked by the Collector, Surat and an
endorsement has been made by the Collector
himself. If the original entry is looked at, it is crystal
clear that the entry came to be mutated after the
procedure as prescribed under Section 135D of the
Code was undertaken by the authorities then. Even
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the subsequent entries by way of succession on
demise of the respective owners also has been
mutated after duly following procedure under
Section 135D of the Gujarat Land Revenue Rules. In
the show cause notice in question dated 05.01.2007,
it is not the case of the District Collector, Surat, that
the respondents-original petitioners have played any
fraud and no such reason is found even in the orders
impugned in the writ petition before the learned
Single Judge. It is thus an admitted position that by
notice dated 05.01.2007, what is sought to be taken
in suo-motu revision is an entry dated 19.01.1982
i.e. after a period of 25 years.
16. The learned Single Judge after considering the
factual background has come to the conclusion that
the exercise of revisional powers that too suo-motu
by the District Collector, after 25 years is beyond
the reasonable period. We are conscious about the
fact that what is reasonable period is not provided
under Rule 108(6) but however, even on facts of this
case, exercise of such powers after a period of 25
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
years by no stretch of imagination can be termed
and considered as a reasonable period. The learned
Single Judge has observed thus;
"6. In view of the rival submissions and
having regard to the background of the
facts as recorded hereinabove, it is not in
dispute that there is exercise of power
after 25 years. As it is evident from the
notice dated 05.01.2007 issued by the
Collector, Surat, that such notice was
issued in exercise of power under Section
108(6) of the Gujarat Land Revenue Rules,
1972, for examining the entry made on
19.01.1982, on the ground that it was
illegal or irregular. Thus, the entry no.1312
made in the year 1982 is sought to be
scrutinized by such notice, which was
issued on 05.01.2007. Not only that the
Collector while passing the order dated
03.11.2007 has recorded the fact that
Ratanaben by executing a document has
mutated the name of nephew by family
arrangement. Therefore, the moot question
is whether it would attract the so called
breach of the Tenancy Act. Moreover, the
exercise of powers are made under the
Land Revenue Code and the matter is
referred to Mamlatdar under the Tenancy
Act. Therefore, the Collector has only
referred the matter and not exercised the
power, but he has referred the matter to
the Mamlatdar & ALT for verification at
belated stage.
7. It is in these circumstances, the moot
question is whether the exercise of suo-
motu powers could be justified after lapse
of 25 years even if the transaction is said to
be void or if there are some breach of the
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conditions of the Tenancy Act. The Hon'ble
Division Bench of this Court (Coram:
Hon'ble Mr. Bhaskar Bhaskar
Bhattacharya, Chief Justice &
J.B.Pardiwala,J.) in a judgment in case of
Chandulal Gordhandas Ranodriya & Ors. V/
s. State of Gujarat & Ors., reported in 2013
(2) GLR 1788 has referred to this aspect
and has clearly observed as follows:
"...even if transaction is void if it is
allowed to remain effective for
considerable long period authority will
be precluded from initiating proceedings
to annual."
While examining this aspect, the Hon'ble
Division Bench has considered the broad
guidelines and the earlier judgment of the
Hon'ble Apex Court in case of State of
Gujarat V/s. Patil Raghav Natha, reported
in 1969 (2) SCC 187. Further, what could
be said to be a reasonable time has also
been considered and referring to the
earlier judgments including the
observations made in the judgment in case
of Joseph Severance V/s. Benny Mathew,
reported in 2005 (7) SCC 667 that:
"The expression "reasonable time"
means so much time as is necessary
under the circumstances to do
conveniently what the contract or duty
requires should be done in a particular
case"
Again, this Court in a judgment reported in
case of Bharatkumar C. Jinwala V/s. State
of Gujarat, reported in 2015 (1) GLR 576
dealing with the same issue and exercise
suo-motu powers under Section 211 relying
upon the aforesaid judgment of the Hon'ble
Division Bench in case of Chandulal
Gordhandas Ranodriya & Ors. (supra) has
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made the observations that:
"Considering the propriety and equity
and also the interest of justice such
exercise of power,such exercise of power
beyond reasonable period cannot be
permitted"
Further, in the judgment of this Court in
case of Bharatkumar C. Jinwala (supra) has
made following observation:
"19.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 provisions 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"
8. Therefore, having regard to the
background of the facts, the impugned
order cannot be sustained and deserves to
be quashed and set aside. Even if learned
advocate AGP has submitted that the
Collector, Surat, exercising suo-motu
powers under the Land Revenue Code has
referred it to the competent authority
under the Tenancy Act and it could be
examined by the competent authority, is
also misconceived. In the facts of the case,
assuming that it has been referred to the
competent authority and it is allowed to
proceed further, it cannot be permitted to
scrutinize at such belated stage after 25
years. Therefore, it would be unfair
exercise of power generating further
litigation and also prejudice to the
petitioner."
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17. At this stage, it would also be appropriate to refer to
the later judgment of the Apex Court in the case of
Telangana Housing Board v. Azamunnisa
Begam (DIED) through legal representatives
and others reported in (2018) 7 SCC 346,
wherein, while considering the claim filed by the
respondent under the provisions of Section 87 of
Andhrapradesh Telangana Land Revenue 1370, the
Hon'ble Apex Court has observed thus;
"58. We are also not satisfied with the delay by
the respondents in making a claim
under Section 87 of the Act. The contention of
the respondents is that since there is no time
limit specified for filing a claim petition, they
could have made a claim at any point of time,
particularly for correcting a clerical error.
59. It is now well settled that where no time-
limit is specified, whatever is required to be
done should be within a reasonable period. In
Collector v. P. Mangamma7it was held in
paragraphs 5 and 6 as follows:
"5. A reasonable period would depend upon
the factual circumstances of the case
concerned. There cannot be any empirical
formula to determine that question. The
court/authority considering the question
whether the period is reasonable or not has
to take into account the surrounding
circumstances and relevant factors to decide
that question.
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6. In State of Gujarat v. Patel Raghav
Natha8 it was observed that when even no
period of limitation was prescribed, the
power is to be exercised within a reasonable
time and the limit of the reasonable time
must be determined by the facts of the case
and the nature of the order which was sought
to be varied.........". Reasonable, being a
relative term is essentially what is rational
according to the dictates of reason and not
excessive or immoderate on the facts and
circumstances of the particular case."
60. Similarly, in Joint Collector Ranga Reddy
District v. D. Narsing Rao 9 the exercise of
revisional jurisdiction where no time-limit is
specified was considered and it was held in
paragraph 31 of the Report as follows:
"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
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vests such power in an authority."
61. Finally in Basanti Prasad v. Chairman,
Bihar School Examination Board 10 it was
pointed out where third party rights are likely
to be affected, the courts decline to interfere
but if there is a necessity to interfere then the
aggrieved person should be heard on merits.
62. Insofar as the facts of the present case are
concerned, the claim made under Section 87 of
the Act was after a period of at least 25 years.
This can hardly be described as a reasonable
period. There is no explanation for the
inordinate delay and to make matters worse,
third party interests have been created through
a Housing Scheme developed on the land in
dispute or in any event on the surrounding
land. After a further lapse of 25 years it is not
possible to put the clock back, even if there is
any reason to do so, which reason we cannot
even visualise in this case."
18. We are in total agreement with the observations and
the view expressed by the learned Single judge that
the exercise of suo-motu powers by the Collector
after a period of 25 years is beyond reasonable
period and cannot be sustained in the eye of law. We
are in total agreement with the view expressed by
the learned Single Judge and such exercise of
revisional powers after a period of 25 years would
amount to unfair exercise of powers generating
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further litigation. Though the revenue entries are
fiscal in nature, the same are based on some
documents and on an order of competent Courts. In
the case of entry No.1321 dated 19.01.1982 came to
be mutated and certified later on 02.03.1982, it after
following due process of law as provided under
Section 135D of the Gujarat Land Revenue Code.
The appellant authorities were well aware about the
entry made in the year 1982 as the same was
certified by the District Collector himself.
19. Even the second limb of argument is examined, Rule
108(6) of the Gujarat Land Revenue Rules provides
thus;
108 (6) The [Collector] may call for and
examine the record of any enquiry or the
proceedings of any subordinate revenue officer
held under rules 106, 107 and sub-rules (1) to
(5) of this rule for the purpose of satisfying
himself as to the regularity of such proceedings
and as to the legality or propriety of any
decision or order passed in such proceedings.
If, in any case, it shall appear to the [Collector]
that any proceedings so called for or any
decision or order made in such proceedings
should be modified, annulled or reversed, he
may pass such order thereon as he deems fit.
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[(6A)The State Government may call for and
examine the record of proceedings in respect of
any order passed by the Collector under sub-
rule (5) or sub-rule (6) for the purpose of
satisfying itself as to the regularity and or such
proceedings as to the legality or proprietary of
any decision or order passed in such
proceedings. If, in any case, it appears to the
State Government that any proceedings so
called for or any decision or order made in such
proceedings should be modified, annulled or
reversed, it may pass, such order thereon as it
deems fit.]
20. The bare reading of the said sub-rule (6) provides
that the Collector while exercising powers under
Rule 108(6) exercises powers as a revenue officer
and therefore, to pass an order only under the
jurisdiction which is otherwise vested in him under
the said rule. We also found that while passing the
impugned orders, the learned District Collector as
well as learned Secretary, Revenue (Appeals), have
acted beyond their jurisdiction.
21. We are fortified in our opinion by the judgment of
this Court in the case of Evergreen Apartment Co-
operative Housing Society Limited (supra),
wherein, the learned Single Judge of this Court
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while examining the jurisdiction and scope and
ambit of inquiry under Rule 108(6) of the very rules,
has observed thus;
"(12.) There is much substance in the second
submission of Mr. Hawa also. Ordinarily when
a transfer of property takes place by a
registered document, an entry is effected in the
revenue record and it is certified by the
Mamlatdar after making necessary inquiries. If
there is any dispute regarding mutation, the
dispute has to be entered in the register of the
disputed cases and then such disputes are to be
disposed of by the Mamlatdar. Under sub-rule
(5) of Rule 108 of the Rules, the aggrieved
party can prefer an appeal within 60 days from
the date of the service of the order. The State
Government has power to call for and examine
the record of any enquiry of the proceedings of
any subordinate Revenue Officer and to review
the same under sub-rule (6) of the Rules. It is
to be noted in the present case that no appeal
had been presented within 60 days from the
date of Mamlatdars order certifying the initial
entry. The Assistant Collector, Surat took the
said entry in suo motu revision, even though he
had no such power under the provisions of Rule
108. It, therefore, appears that the Additional
Chief Secretary, Revenue Department
remanded the proceeding to the Collector for
treating the same as an appeal. This was done
after a period of 4 years after the certification
of the entry. It was only the State Government
which had the power to call for a record of
inquiry or proceeding under sub-rule (6) of
Rule 108. Even the State Government was
empowered to satisfy "as to the regularity of
such proceedings and as to the legality or
property of any decision or order passed in
such proceedings". So the entire inquiry and
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revisional power has to proceed under the
Bombay Land Revenue Rules and not under any
enactments like the Bombay Tenancy and
Agricultural Lands Act, Urban Land (Ceiling
and Regulation) Act or Bombay Prevention of
Fragmentation and Consolidation of Holdings
Act. It is quite possible that an officer of the
Revenue Department may be occupying
different capacities under different enactments.
That, however, would not empower him to
exercise any powers under one enactment
while proceeding under another enactment. So
far as the proceedings under Rule 108 of the
Rules, popularly known as RTS proceedings,
are concerned, it is well settled that the entries
made in the revenue records have primarily a
fiscal value and they do not create any title.
Such mutations have to follow either the
documents of title or the orders passed by
competent authorities under special
enactments. Independently the Revenue
Authorities, as mentioned in Rule 108 of the
Rules, cannot pass orders of cancelling the
entries on an assumption that the transaction
recorded in the entry are against the provisions
of a particular enactment. Whether the
transaction is valid or not has to be examined
by the competent authority under the
particular enactment by following the
procedure prescribed therein and by giving an
opportunity of hearing to the concerned parties
likely to be affected by any order that may be
passed. Thus on this second ground also the
orders of the Collector and the Additional Chief
Secretary appear to be beyond their
jurisdiction. The Additional Chief Secretary has
held that the sale by auction was not consistent
with the provisions of Sec. 27 of the Urban
Land (Ceiling Land Regulation) Act. Section 27
relates to prohibition of transfer of any Urban
land with a building thereon. Apart from legal
position that Sec. 27 has been struck down as
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
ultra vires, it is quite obvious that no such
question of transferring urban land with a
building thereon has ever arisen in the present
case. Thus, the order of the revisional authority
has proceeded on a misconception of relevant
legal provisions also."
22. On that ground also, the orders impugned in the writ
petition are beyond jurisdiction. In totality of facts,
therefore, none of the grounds as raised by the
appellants deserves consideration.
23. Resultantly, the appeal deserves to be dismissed and
the same is hereby dismissed. However, there shall
be no order as to costs.
24. As the appeal is dismissed, the connected Civil
Application, if any, also stands dismissed.
(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J)
(BIREN VAISHNAV, J)
ANKIT SHAH
