Gujarat High Court
State Of Gujarat vs Jitendrasinh Jagmalsinh Sodha on 2 January, 2023
Bench: Ashutosh J. Shastri
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 546 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21717 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 546 of 2021
With
R/LETTERS PATENT APPEAL NO. 946 of 2021
In SPECIAL CIVIL APPLICATION NO. 21678 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 946 of 2021
In SPECIAL CIVIL APPLICATION NO. 21678 of 2016
=============================================
STATE OF GUJARAT
Versus
JITENDRASINH JAGMALSINH SODHA
=============================================
Appearance:
MR KM ANTANI, AGP for Appellants 1 & 2 in LPA No.546/2021
MR S.K.Patel for Appellants in LPA No.946 of 2021
MR VIMAL PUROHIT for Respondent No.2
MR SHRENIK JASANI for Respondent No.2
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 02/01/2023
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. State as well as petitioners in Special Civil
Application No.21678 of 2016 have preferred these intra-
court appeals by questioning the correctness and legality
of the order dated 17.09.2019 passed in Special Civil
Application No.21678 of 2016 with Special Civil
Application No.21717 of 2016.
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
BRIEF BACKGROUND OF THE CASE :
2. In respect of property bearing Survey No.71/2
admeasuring Hectare 1.24.44 sq.mtrs. mutation entry
Nos.35, 38, 569, 604, 1243 and 1337 were made in the
name of Jitendrasinh Jagmalsinh Sodha originally. The
dispute in the Special Civil Applications is with regard to
Entry Nos.44, 401, 520 and 707 mutated in the revenue
records of village Reladi Moti, Taluka Bhuj, District
Kutch, in respect of Survey No.64 admeasuring 4-Hectare
63-Aare and 67 sq.mtrs. Mutation entry No.401 was made
in revenue records on 02.04.1990 which came to be
certified on 16.06.1990 based on the Sale Deed executed
by Devraj Vira Govind in favour of Rabari Kana Gagoo on
22.03.1990. On the death of Rabari Kana Gagoo, names of
his legal heirs were entered into and the revenue records
was accordingly mutated on 25.01.1993 and certified on
26.05.1993.
3. Petitioners had purchased the said land under
registered Sale Deed dated 08.11.1994. Likewise under
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
registered Sale Deed dated 20.08.1996, Manoharsinh
Mahobatsinh Sodha and his mother purchased portion of
Survey No.64 under registered Sale Deed dated
01.08.1996 resulting in revenue records being mutated
by mutation entry No.707 and certified on 06.11.1996.
4. The Collector, Kutch, initiated suo motu
proceedings under Rule 108(6) of the Gujarat Land
Revenue Rules, 1972 and a show cause notice dated
14.08.2012 came to be issued to the petitioners stating
thereunder that the revenue entries made in respect of
Survey No.71/2 namely mutation entry Nos.35, 38, 569,
604, 1243 and 1337 there is overwriting and has been
tampered with. It was also stated that mutation entry
No.38 name of Ayar Jesang Seja through mutation entry
Nos.569 assigned in the name of his brother namely
Ganga Seja is done illegally. It was also stated that old
Survey No.46 i.e. new Survey Nos.71/1 and 71/2 were in
the name of Government and as such it was held that
revenue entries are illegally made and approved and
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
called upon the writ applicants to show cause why it
should not be set aside. The writ applicants were also
restrained by an order of injunction dated 14.08.2012 by
1st respondent whereby the writ applicants were
restrained from alienating the land in any manner
whatsoever. Said show cause notice was duly replied to
by the petitioners. The District Collector by order dated
21.02.2013 cancelled the aforesaid entries and held that
the land stood vested with the State Government without
any encumbrance.
5. Being aggrieved by the aforesaid order,
Revision Application No.5 of 2014 was filed before the
Special Secretary, Revenue Department. The revisional
authority has dismissed the revision petition by holding
that there are corrections in 7/12 entries and revenue
records were mutated without any order or supporting
evidence. In other words, order of the District Collector
came to be affirmed vide order dated 01.03.2016. Being
aggrieved by the said order, Special Civil Application
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
No.21717 of 2016 came to be filed by the writ applicants
Shri Jitendrasinh Jagmalsinh Sodha and Shri
Bhupendrasinh Mahobatsinh Sodha.
6. One Mr.Manoharsinh Mahobatsinh Sodha also
being aggrieved by the aforesaid order dated 01.03.2016
passed by the Special Secretary, Revenue Department
and the order of the District Collector dated
20/22.02.2013 had also filed Special Civil Application
No.21678 of 2016 which petitions have been allowed by a
common order dated 17.09.2019. Hence, these two intra-
court appeals.
7. State being aggrieved by the order allowing the
Special Civil Applications has preferred the Letters
Patent Appeal No.546 of 2021. Whereas the legal heirs of
Nagdebai Sonabhai Chavda have preferred Letters Patent
Appeal No.946 of 2021 contending that the appellants are
the original owners and occupants of the land bearing
Survey No.823 admeasuring 22-Acres 14-Gunthas of
village Paddhar which have been measured as Survey
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
No.62 admeasuring 11-Acres 22-Gunthas and Survey
No.64 admeasuring 11-Acres and 11-Gunthas of village
Moti Reladi and same had been examined on comparison
of old and new records and the Deputy Collector by his
order dated 31.07.2006 directed to mutate the name of
the appellants in the revenue records of Survey No.62.
These appellants are claiming and contending that land in
Survey No.64 of village Moti Reladi is the land bearing
old Survey No.823 and as such they support the order of
the Collector setting aside the mutation entry and
contend learned Single Judge ought not to have set aside
the said orders and it would affect their rights. Hence,
they have sought for order of the learned Single Judge
being set aside.
8. We have heard the arguments of Shri K.M.
Antani, learned Assistant Government Pleader appearing
for the appellant State in Letters Patent Appeal No.546 of
2021, Shri S.K.Patel, learned counsel for the appellants in
Letters Patent Appeal No.946 of 2021, Shri Vimal Purohit,
learned counsel appearing for respondent Nos.1 and 2 in
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
Letters Patent Appeal No.546 of 2021 and 6th respondent
in Letters Patent Appeal No.946 of 2021. Perused the
records.
9. It is the contention of Mr.Antani, learned
Assistant Government Pleader appearing for the State
that learned Single Judge committed an error in allowing
the Special Civil Applications without appreciating the
fact that entries which are mutated illegally can be
cancelled at any point of time when fraud has been
noticed and of course by extending an opportunity to the
aggrieved persons which admittedly has been done in the
instant case. Hence, he has contended that non-
consideration of this vital fact had resulted in an
erroneous order being passed. He would submit that
learned Single Judge has set aside the order of the
Collector only on the ground of delay without
appreciating the fact that delay would not come in the
way when prima facie entries made were illegal and this
would take away the legal right of the State Government
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
and that too when fraud has been perpetrated on the
State. Hence, he prays for order of the learned Single
Judge being set aside.
10. Shri Vimal Purohit, learned counsel appearing
for the 6th respondent would support the orders of the
Special Secretary, Revenue Department (SSRD) and the
Collector. He would assail the order of the learned Single
Judge by contending that when appellants in Letters
Patent Appeal No.946 of 2021 are bonafide purchasers
and in the collateral proceedings it has been held that
Survey Nos.64 and 823 are one and the same and
appellants in Letters Patent Appeal No.946 of 2021 being
bonafide purchasers of the subject land, the mutation
entries which had been erroneously made and set aside
by the Collector ought not to have been interfered by the
learned Single Judge. Hence, he prays for dismissal of the
appeal. In support of his submissions, he has relied upon
the following judgments :
(i) Mehta Vrajlal Chhaganlal and others
vs. State of Gujarat and others -
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
order dated 09.03.2022 passed in
Letters Patent Appeal No.2436 of
2017.
(ii) State of Gujarat vs. Gunvatrai
Trambaklal Vadodariya - order dated
10.03.2022 passed in Letters Patent
Appeal No.69 of 2022.
(iii) State of Gujarat vs. Chandanben
wd/o. Jashvantbhai - order dated
27.09.2021 passed in Letters Patent
Appeal No. 607 of 2021.
(iv) Jt.Collector Ranga Reddy Dist. Vs. D.
Narsing Rao and others reported in
2015 (3) SCC 695.
(v) M/s.Air Contidioning Specialists
(Private) Ltd. vs. Union of India
reported in 1996 (2) GLR 448.
11. Shri S.K.Patel, learned advocate appearing for
appellant in Letters Patent Appeal No.946 of 2021 would
support the arguments canvassed by Mr.Vimal Purohit
and contends learned Single Judge ought not to have
allowed the Special Civil Applications. He would also
contend that there was serious identity crisis of the land
of writ applicants and after conducting a detailed enquiry
the Deputy Collector, Bhuj by his order dated 31.07.2006
had ordered to mutate the name of the appellants (in
Letters Patent Appeal No.946 of 2021) in respect of
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
Survey No.62 which was relating to old Survey No.823.
Hence, he prays for Letters Patent Appeal No.946 of 2021
being allowed.
12. Having heard the learned advocates appearing
for the parties and on perusal of records as well as order
of the learned Single Judge, it would clearly emerge
therefrom that proceedings initiated against writ
applicants under Section 108(6) of the Gujarat Land
Revenue Rules, was for setting aside the mutation entries
made in respect of Survey No.71/2 namely Mutation
Entry Nos.35, 38, 569, 604, 1243 and 1337 which
undisputedly had been carried out way back in the year
1990. It is no doubt true that there is no limitation
prescribed for exercising the suo motu powers.
13. The Hon'ble Apex Court in the case of State of
Gujarat vs. Patel Raghav Natha reported in (1969) 2
SCC 187 has held that Commissioner exercising the
power under Sections 65 and 211 of the Bombay Land
Revenue Code, 1879, had not exercised the revisional
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
powers within few months from the date of the order of
the Collector and as such it was bad in law. It has been
further held :
"11. The question arises whether the
Commissioner can revise an order made
under Section 65 at any time. It is true that
there is no period of limitation prescribed
under Section 211, but it seems to us plain
that this power must be exercised in
reasonable time and the length of the
reasonable time must be determined by the
facts of the case and the nature of the order
which is being revised.
12. It seems to us that Section 65 itself
indicates the length of the reasonable time
within which the Commissioner must act
under Section 211. Under Section 65 of the
Code if the Collector does not inform the
applicant of his decision on the application
within a period of three months the
permission applied for shall be deemed to
have been granted. This section shows that
a period of three months is considered
ample for the Collector to make up his mind
and beyond that the Legislature thinks that
the matter is so urgent that permission shall
be deemed to have been granted. Reading
Sections 211 and 65 together it seems to us
that the Commissioner must exercise his
revisional powers within a few months of
the order of the Collector. This reasonable
time because after the grant of the
permission for building purposes the
occupant is likely to spend money on
starting building operations at least within a
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
few months from the date of the permission.
In this case the Commissioner set aside the
order of the Collector on October 12, 1961,
i.e. more than a year after the order and it
seems to us that this order was passed too
late."
14. The statutory authorities exercising suo motu
powers would be required to exercise the same within a
reasonable time and exercise of such powers beyond
reasonable time would not justify their act and render the
exercise arbitrary. Where a statutory provision for
exercise of suo motu power of revision does not prescribe
any limitation, it is trite law that such power should be
exercised within a reasonable period of time even in case
of transaction which can be termed as void transaction.
15. The Hon'ble Apex Court in the case of Joint
Collector Ranga Reddy District and another vs. D.
Narsing Rao and others (supra) had held that exercise
of the revisional powers after delay would tantamount to
fraud upon statute. It has been further held :
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
"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 vests such power in an
authority.
32. In the case at hand, while the entry
sought to be corrected is described as
fraudulent, there is nothing in the notice
impugned before the High Court as to
when was the alleged fraud discovered by
the State. A specific statement in that
regard was essential for it was a
jurisdictional fact, which ought to be
clearly asserted in the notice issued to the
respondents. The attempt of the appellant-
State to demonstrate that the notice was
issued within a reasonable period of the
discovery of the alleged fraud is, therefore,
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
futile. At any rate, when the Government
allowed the land in question for housing
sites to be given to Government employees
in the year 1991, it must be presumed to
have known about the record and the
revenue entries concerning the parcel of
land made in the ordinary course of official
business. In as much as, the notice was
issued as late as on 31st December, 2004,
it was delayed by nearly 13 years. No
explanation has been offered even for this
delay assuming that the same ought to be
counted only from the year 1991. Judged
from any angle the notice seeking to
reverse the entries made half a century
ago, was clearly beyond reasonable time
and was rightly quashed."
16. Keeping these authoritative principles in mind
when the facts on hand are looked into at the cost of
repetition it is to be held that the suo motu power is
sought to be exercised by the Collector for setting aside
the mutation entries made in the year 1990 by issuing the
show cause notice in the year 2012 i.e. on 14.08.2012 i.e.
after a period of 22 years. The reason for exercising such
suo motu power is on the ground of revenue entries
having been made by overwriting. As to when said
overwriting was detected or how the subsequent entries
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
were allowed to be made and certified and yet no action
was taken is not forthcoming from the said show cause
notice. Though it has been stated in the show cause
notice that entries were illegally made, as to what is the
illegality that had taken place while carrying out such
entries is not forthcoming from the show cause notice as
well as from the order passed by the Collector on
20.02.2013. On the other hand, disputed entries would
reflect that land came to be allotted at an undisputed
point of time by recognizing the allottee as a tenant. If
the records are not forthcoming to prove the grant of
tenancy, that by itself would not be a ground on which
the entries made in the revenue record would lose its
presumptive value nor any inference can be drawn
doubting the tenancy. The person who alleges the entries
to be bad on account of any illegality having been
committed has to necessarily prove the same and in the
absence of any proof being led in this regard, the order of
the Collector as confirmed by the Special Secretary,
Revenue Department, could not have been sustained.
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
Hence, learned Single Judge was correct and justified in
setting aside the impugned orders and allowing the
Special Civil Applications which cannot be found fault
with. We do not find any infirmity either on facts or in law
to interfere with the well-reasoned order passed by the
learned Single Judge.
17. Mr.S.K.Patel, learned counsel appearing for the
appellants in Letters Patent Appeal No.946 of 2021 has
made valiant attempt to defend the order of the Collector
as well as the Special Secretary, Revenue Department,
who had set aside the mutation entries and confirmed the
same by contending that the said land is owned by the
appellants and they are lawful owners. The issue of intra-
party rights cannot be gone into in Special Civil
Applications and at no point of time the appellants in
Letters Patent Appeal No.946 of 2021 had agitated their
claim before the revenue authority which had resulted in
the impugned orders being passed. However, based on
orders passed in collateral proceedings, they have now
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
sought to assail the order of the learned Single Judge and
sustain the impugned orders which is impermissible in
the present proceedings. It is needless to state that
appellants in Letters Patent Appeal No.946 of 2021 would
be at liberty to work out their rights, if any, over the land
bearing Survey No.64 which is said to be part of old
Survey No.823 by initiating appropriate proceedings
before the jurisdictional Civil Court and we make it clear
that observations made by us hereinabove are restricted
or limited only for the purpose of examining the
correctness of the order of the learned Single Judge and
same would not be construed as an opinion having been
expressed with regard to title over the subject property
over which appellants in Letters Patent Appeal No.946 of
2021 are claiming right, title and interest. Hence,
contentions of both parties with reference to the title are
kept open to be urged in appropriate proceedings before
the jurisdictional Civil Court.
C/LPA/546/2021 CAV JUDGMENT DATED: 02/01/2023
18. For the reasons aforestated, we proceed to pass
the following :
ORDER
(i) Letters Patent Appeal Nos.546 of 2021 and
946 of 2021 are hereby dismissed.
(ii) The order of the learned Single Judge dated
17.09.2019 passed in Special Civil
Application Nos.21678 of 2016 and 21717
of 2016 stands affirmed subject to
observations made hereinabove.
(iii) No orders as to costs.
(ARAVIND KUMAR, CJ)
(ASHUTOSH J. SHASTRI, J)
GAURAV J THAKER
