[Cites 1, Cited by 0]
Gujarat High Court
Legal Heirs Of Kachrabhai Kesharbhai vs State Of Gujarat on 18 December, 2025
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
Reserved On : 26/09/2025
Pronounced On : 18/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16376 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
================================================================
Approved for Reporting Yes No
No
================================================================
LEGAL HEIRS OF KACHRABHAI KESHARBHAI & ORS.
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6
MR JAY BAROT AGP for the Respondent(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
================================================================
CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. The present Special Civil Application is filed praying for the
following reliefs:-
"34(A) Admit and allow the present petition;
(B) Issue a writ of mandamus or a writ in the nature of mandamus or
any other appropriate writ, order or direction, quashing and setting aside
the order passed by the Collector, Bhavnagar dated 13.04.2017 bearing
No. Land-2/Re-grant/5140/2017, and further direct the Collector,
Bhavnagar to grant the land to the petitioner herein, as the petitioner's
father had purchased the land by way of public auction and the
relinquishment of land by one person is contrary to the provisions of the
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
Act and the Rules, for the reasons stated in the Memo of Petition and in the
interest of justice;
(C) Pending admission, hearing and final disposal of the present
Special Civil Application, restrain the officers, servants, employees and
agents from disturbing the possession of the petitioner in respect of the
land bearing Survey No. 36, admeasuring Hectare 4-52-24 sq. mtrs.,
situated at Village: Bhadbhid, Taluka and District: Bhavnagar, for the
reasons stated in the Memo of Petition and in the interest of justice;
(D) Pending admission, hearing and final disposal of the present
Special Civil Application, stay the execution, operation and implementation
of the order passed by the Collector, Bhavnagar dated 13.04.2017 bearing
No. Land-2/Re-grant/5140/2017, for the reasons stated in the Memo of
Petition and in the interest of justice;
(E) Grant ad-interim and interim relief in terms of clauses (C) and (D)
hereinabove, for the reasons stated in the Memo of Petition;
(F) Grant such other and further reliefs as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case;
(G) Award the costs of the present petition."
2. The factual matrix in the present case is that, the
petitioners are belonging to Scheduled Tribe category and are the
legal heirs of late Kachrabhai Kesharbhai, who was granted land
bearing Survey No. 36 admeasuring 12 Acres 26 Gunthas at
Village Bhadbhid, Taluka and District Bhavnagar and whose
pedigree is placed on record. That the said land was originally
recorded as Government fallow land, which was allotted for
agricultural purpose by way of public auction on payment of
Rs.11/-, pursuant to which Entry No. 208 dated 07.07.1959 was
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
mutated in the revenue record and Kachrabhai Kesharbhai's
name came to be recorded in Village Form No. 7/12.
2.1 That the said land is non-irrigated agricultural land and
was meant to be used for cultivation. That upon the demise of
Kachrabhai Kesharbhai, the land devolved upon his legal heirs,
namely his four sons Amarshibhai, Ravjibhai, Talshibhai and
Gabharubhai and, his four daughters Jamnaben, Dholiben,
Laxmiben and Jayuben and his wife Jadiben, who subsequently
expired, though the names of the legal heirs were not mutated in
the revenue records.
2.2 That in the year 1972, one of the heirs, Ravjibhai
Kachrabhai, submitted an application for relinquishment of the
land, which was accepted by the Mamlatdar, Bhavnagar, vide
order dated 27.01.1972 passed in Land/Tu.Se./9/72, pursuant
to which Entry No. 384 dated 06.05.1972 came to be mutated,
showing the land as deducted from the account of the original
holder and registered as Government Khalsa land.
2.3 That after a lapse of about 44 years, the legal heirs of the
original land holder submitted an application dated 20.01.2015
before the Mamlatdar seeking return/re-grant of the land as
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
heirs of the original grantee. That the Mamlatdar initiated
inquiry and called for reports and Panchnamas. Multiple reports
came to be submitted by the Mamlatdar between February 2015
and October 2015 stating that the land was under cultivation,
that there was no encroachment and that there was no objection
granting the land to the petitioners.
2.4 That during the pendency of the re-grant proceedings, the
Mamlatdar and Executive Magistrate, Bhavnagar Rural, by letter
dated 17.03.2016 addressed to the Revenue Commissioner,
Bhavnagar, reported that upon examination of land records from
1959-60 to 2014-15, cultivation of sorghum was shown only
during 1959-60 to 1961-62 in 8 Acres out of the total 12 Acres
26 Gunthas and that from 1962-63 onwards the land was shown
as fallow land in the Pani Patrak and that in 1971-72 the name
of Galru Kesar appeared in the Pani Patrak showing the land as
fallow. That the said letter further recorded that by order No.
Land/9/72 dated 27.05.1972, the land was mutated as
Government land and that thereafter, despite the land being
Government land, a lien entry was found written in the name of
one Jivraj Amara without any supporting mutation entry and
that such name appeared to have been written later by obtaining
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
manual copies of village records with no official entry authorising
the same. That the said letter further stated that despite the
land being treated as Government land, no encroachment
proceedings under Section 61 of the Gujarat Land Revenue
Code, 1879 ["Code" for short] were initiated by the Talati-cum-
Mantri, Circle Officer, or Mamlatdar and that earlier reports by
the Circle Officer, Bhavnagar Rural and Talati-cum-Mantri,
Bhadbhid, recorded that cultivation had been carried out for
approximately 25 years and that if cultivation was in fact being
carried out, action under Section 61 for unauthorised
occupation of Government land was required but had not been
taken. That the said letter also recorded that between 1974-75
and 1985-86, the name of one Jivraj Amara appeared as
cultivator in the revenue record without any traceable entry or
identification of such person and that the land was presently
shown in the possession of "Shri Sarkar" and not in the
possession of the heirs of the original holder and that therefore,
while the land was stated to be not eligible for return as per the
applicant's demand, action under Section 61 of the Code for
unauthorised possession was recommended against the person
shown in possession.
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
2.5 That the Deputy Collector, Bhavnagar by communication
dated 04.07.2015 forwarded the entire record to the Collector
stating that there was no objection to grant the land to the
petitioners, pursuant to which the Collector sought clarifications
regarding earlier revenue entries and the relinquishment order of
1972 and further reports and Panchnamas came to be
submitted. That subsequently, relying upon the original nature
of the land as Government fallow land, the relinquishment entry
of 1972, village records reflecting periods of non-cultivation, the
long lapse of time of about 44 years and by applying the
Government Resolutions and Section 5 of the Limitation Act,
1963, the Collector, Bhavnagar, passed the impugned order
dated 13.04.2017 bearing No. Land-2/Regrant/5140/2017
rejecting the application for re-grant and directing initiation of
action for unauthorised possession.
Aggrieved, the petitioners have filed the present writ
petition.
3. Mr. B.T.Rao, learned counsel for the petitioner submits
that the impugned order passed by the Collector is illegal,
erroneous, arbitrary and contrary to the provisions of law as it
has been passed without following the mandatory procedure
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
prescribed for relinquishment of land. He submits that the
alleged relinquishment application was submitted only by Shri
Ravjibhai and not by all the legal heirs of late Kachrabhai
Kesarbhai, even though the land had devolved upon all the heirs,
and therefore, a single co-sharer had no authority in law to
relinquish the entire land. He submits that the Mamlatdar had
no jurisdiction or authority to accept or act upon such
relinquishment as under the Code and the Rules framed
thereunder, only the Collector, exercising the powers of the
Government can pass orders after conducting a proper inquiry.
He submits that no inquiry as contemplated under Rule 74 and
Rule 74-B was conducted either by the Mamlatdar or by the
Collector and no consent of all joint holders or legal
representatives was obtained, rendering the entire proceedings
void ab-initio. He submits that consistent reports of the Deputy
Collector, Mamlatdar, Circle Officer and Talati-cum-Mantri since
2015 clearly record that the petitioners are in continuous
possession of the subject land and are carrying out agricultural
activities and that the land has never remained fallow or idle. He
submits that the land in question is not Government land as the
petitioner's father had purchased the same by way of public
auction and therefore, the State authorities could not have
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
treated it as Government land or ordered its disposal in the
manner adopted. He submits that reliance placed by the
authorities on the Government Circular dated 18.12.2004 is
wholly misplaced and inapplicable to the facts of the present
case, particularly when the petitioners have been in long, settled
and lawful possession. He submits that the findings of the
Collector that the land could only be disposed of at market value
and that limitation operates against the petitioner are illegal as
limitation cannot validate an order which is void for lack of
jurisdiction and passed without inquiry. He submits that the
petitioner and other heirs are uneducated, unqualified and
belong to the Scheduled Tribe community and it was the
statutory duty of the Mamlatdar and Collector to act with greater
care and to protect their rights, which duty has been completely
ignored. He submits that the petitioner continued to remain in
possession of the land even after the impugned orders and has
never encroached upon the land, which is supported by Village
Form No. 7/12 records showing cultivation for several years. He
submits that the application for re-grant was made only due to
ignorance of law and misunderstanding of legal consequences
and such misunderstanding cannot deprive the petitioner of his
substantive rights over land lawfully acquired by his father. He
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
submits that since all statutory authorities themselves have
consistently recorded the possession and cultivation in favour of
the petitioner, the impugned orders passed by the Mamlatdar
and Collector are unsustainable in law and deserve to be
quashed and set aside. He, therefore, submits that the present
writ petition be allowed.
4. Mr. Jay Barot, learned Assistant Government Pleader for
the respondents submits that the application for re-grant of land
was rightly rejected by the Collector, Bhavnagar as the land in
question was originally Government fallow land, which stood
validly reverted to Government Khalsa land pursuant to the
voluntary relinquishment made by Ravjibhai Kachrabhai in the
year 1972 and accepted by the competent authority, followed by
mutation of Entry No. 384 dated 06.05.1972. He submits that
the petitioner or their predecessors did not challenge the said
relinquishment or revenue entry for more than four decades and
therefore, the claim raised in the year 2015 is grossly delayed
and barred by limitation. He submits that village records also
reflect periods of non-cultivation and absence of lawful title with
the petitioners. He submits that mere possession, if any, does
not confer any legal right for re-grant and that the Collector has
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
correctly applied the relevant Government Resolutions, revenue
provisions and Section 5 of the Limitation Act, 1963 and after
due inquiry and consideration of the record, has lawfully rejected
the request for re-grant and ordered action against unauthorised
occupation. He submits that the impugned order dated
13.04.2017 is legal and proper. He, therefore, submits that the
present writ petition be dismissed.
5. Heard learned counsels for the parties, perused the documents
and considered the submissions.
6. The facts in the present case reveal that the subject land in
question came to be relinquished in the year 1972 by the legal
heir - Ravjibhai Kachrabhai, which came to be accepted by the
learned Mamlatdar, Bhavnagar vide order dated 27.01.1972
passed in Land/Tu.Se./9/72 pursuant to which Entry No.384
came to be mutated showing the land as a Government land.
After a period of about 44 years, the legal heirs of the original
grantee - late Kachrabhai Kesharbhai are now seeking re-
possession of the same on the ground that the order of
relinquishment is bad in law and without following any
mandatory procedure. The revenue records in the present case
in respect of the subject land show that the said land was
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
Government fallow land and after relinquishment, the same has
not been mutated back as Government land. Further, after the
relinquishment, there are no clear records in respect of the
cultivation of the land in question. Further, the petitioners as
they claim to be in possession of the subject land, cannot be said
to have a legal title to the same.
7. The learned Collector, Bhavnagar after going through the
revenue records by the order dated 13.04.2017 has come to the
conclusion that the subject land was not granted to the
predecessor of the petitioners by way of Santhni in accordance
with law. Further, the learned Collector, Bhavnagar has
observed that after a period of 44 years, the petitioners are
seeking re-grant of the land after gross delay. It is observed that
the subject land prices have increased substantially in the last
44 years. Further, it has non-agricultural potential now for the
commercial development and that the subject land will have to
be disposed of in terms of the present prevalent Rules and
Circulars of the State Government. On the issue of comparative
hardship, the learned Collector, Bhavnagar has held that after a
period of 44 years, no hardship can be said to have been caused
to the petitioners if the application is rejected on the basis of
NEUTRAL CITATION
C/SCA/16376/2017 CAV JUDGMENT DATED: 18/12/2025
undefined
gross delay of about 44 years. Further, it is observed that the
land records show that the subject land was cultivated from
1962-1963 to 1992-1993 and thereafter, the subject land is
Government fallow land. It is observed that the subject land as of
today is an open land. Even if the petitioners claim possession
over the said land, the said possession is illegal and the
petitioners have no title to the same as the subject land is a
Government land as per the revenue records.
8. The aforesaid observations made by the learned Collector,
Bhavnagar are based on the revenue records placed before him.
The learned Collector, Bhavnagar has given cogent reasons for
rejecting the application of the petitioners for re-grant of the
subject land. No interference is called for. The present Special
Civil Application is devoid of merits and is, accordingly,
dismissed. Rule is discharged. No order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
