[Cites 6, Cited by 0]
Gujarat High Court
Masribhai Desabhai vs State Of Gujarat on 13 April, 2026
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C/SCA/17999/2007 JUDGMENT DATED: 13/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17999 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
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MASRIBHAI DESABHAI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DHARMESH V SHAH for the Petitioner(s) No. 1.1,1.2
MS HIMANI SHAH AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 13/04/2026
ORAL JUDGMENT
1. By filing present petition under Articles 226 and
227 of the Constitution of India and under the
provision of the Bombay Land Revenue Code, 1879
(hereinafter referred to as "Revenue Code" for
short, the petitioner has challenged the order
dated 09.01.2007/27.12.2006 passed by the
respondent - Secretary in Revision Application
No.JMN/AML/17/2003, the order dated 21.04.2003
passed by the respondent - Collector and the order
dated 25.07.2002 passed by the respondent - Deputy
Collector.
2. The brief facts leading to filing of the present
petition are as under,
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3.1 The land bearing Survey No.24 pk. admeasuring
8 Acre 08 Guntha was allotted to one
Ranchhodbhai Laxmanbhai by the Assistant
Settlement Commissioner on permanent basis on
05.05.1958 on certain terms and conditions
and pursuant thereto, entry came to be
mutated in favour of the said Ranchhodbhai
Laxmanbhai and after taking over possession
of the land in question, he was cultivating
the said land upto 1980.
3.2 On 12.05.1980, the said Ranchhodbhai
Laxmanbhai had executed registered sale deed
in favour of the father of the petitioner and
since then, the petitioner is in possession
of the said land and carrying out
agricultural activities and the name of the
petitioner was also entered into revenue
record.
3.3 However on 21.02.2002, the learned Mamlatdar
forwarded proposal to the respondent - Deputy
Collector for initiating action against the
petitioner and the original land owner for
committing breach of the conditions and
pursuant thereto, the respondent - Deputy
Collector issued notice under Section 68 of
the Revenue Code on 01.05.2002, pursuant
thereto, the petitioner submitted his
detailed reply.
3.4 The respondent - Deputy Collector, by an
order dated 25.07.2002, rejected the case of
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the petitioner and ordered to confiscate the
land in the name of Government.
3.5 Against the aforesaid order, the petitioner
preferred Appeal before the respondent -
Collector, who by an order dated 21.04.2003,
rejected the said Appeal.
3.6 Aforesaid orders of the respondent -
Collector as well as the respondent - Deputy
Collector were challenged before the
respondent - Secretary by filing revision
application, however, the respondent -
Secretary, by impugned order dated
09.01.2007/ 27.12.2006, rejected the said
revision application.
3. Heard learned advocate, Dharmesh Shah for the
petitioners and learned AGP Ms. Himani Shah for
the respondents.
4. Learned advocate, Mr. Shah referred to the facts
of the case and submitted that the petitioner is
the bonafide purchase of the land in question by
way of executing registered sale deed in favour of
the father of the petitioner by the original land
owner on payment of entire sale consideration. He
submitted that in fact, the land in question has
been allotted to the said Ranchhodbhai Laxmanbhai
by the Assistant Settlement Commissioner on
permanent basis on certain terms and conditions,
however, the said land was not granted on santhani
basis and after the purchase of the said land,
entry came to be mutated in the revenue record on
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the strength of the registered sale deed and thus,
there was no breach of any of the terms and
conditions as alleged but despite the said fact, a
proposal was prepared and forwarded by the learned
Mamlatdar to the respondent - Deputy Collector,
who in turn, without proper application of mind,
issued notice upon the petitioner and original
land owner under Section 68 of the Revenue Code,
which was replied by the petitioner but despite
the said fact, the case of the petitioner has been
turned down and the land in question is ordered to
be vested in the name of the Government and the
said order has been confirmed by the respondent -
Collector as well as by the respondent -
Secretary.
5. Learned advocate, Mr. Shah referred to the revenue
records and submitted that admittedly, the said
land was not allotted on santhani basis and it was
not new tenure and impartible land. He further
submitted that if the Hon'ble Court would make
cursory glance upon the revenue record, in that
event, it is found out that in the pani-patrak,
the name of the petitioner is running, which
crystallize the position of fact that he is the
owner and occupation of the land in question and
despite having knowledge about the said fact,
proceedings have been initiated against the
petitioner under wrong presumption after 22 years.
He further submitted that in fact, in view of the
numerous decisions of the Hon'ble Supreme Court as
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well as this Hon'ble Court, it is settled that as
and when the registered document is produced
before the revenue authority for mutation of
entry, entry has to be mutated but here in the
present case, the entry based on registered sale
deed has been cancelled and the land in question
is ordered to be vested in the name of the
Government. He further submitted that there is
gross delay in initiation of suo motu proceedings
and law is well settled in this regard by the
Hon'ble Supreme Court as well as this Hon'ble
Court by observing that suo motu proceedings have
to be initiated within reasonable time. In support
of the above submissions, he has relied upon the
decisions of the Hon'ble Supreme Court in case of
State of Gujarat Vs. Patel Raghav Natha & Ors.,
reported in (1969) 2 SCC 187 as well as in case of
Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim,
reported in (1997) 6 SCC 71.
6. Learned advocate, Mr. Shah submitted that in fact,
the petitioner is coming from rustic area and is
illiterate person, therefore, he does not have
legal knowledge of obtaining prior permission from
the competent authority before entering into sale
transaction. He, however, submitted that the
petitioner is in possession and occupation of the
land in question since last more than 40 years and
is carrying out agricultural activities to run his
livelihood and except agricultural activities,
there is no other source of income for the
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petitioner. He, therefore, submitted that at the
time of purchase of the land, some mistake might
have been committed by the petitioner but for
that, that too, after much period, the petitioner
may not be made to suffer for his bonafide mistake
and as stated above, after a period of more than
22 years, the proceedings have been initiated.
7. Learned advocate, Mr. Shah, at this stage, has
tendered copy of the affidavit filed by the
petitioner herein contending inter alia that the
petitioners will carry out agricultural activities
on the said land for further period of ten years
and they will not entered into any sale
transaction as except the said land, they are not
having any other land and as stated above, it is
the source of income for them. He, therefore,
submitted that considering the above facts of the
case, the present petition may be allowed.
8. On the other hand, learned AGP Ms. Himani Shah has
objected the present petition with a vehemence and
submitted that because of the breach committed by
the petitioner, proceedings have been initiated,
therefore, the land in question is ordered to be
vested in the name of the Government. He submitted
that in fact, the land in question was originally
granted to one Ranchhodbhai Laxmanbhai by the
Assistant Settlement Commissioner to the erstwhile
predecessor in title on santhani basis and it is
settled law that the land allotted by the
Government on santhani basis would be treated as
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new tenure and impartible land and for the purpose
of transferring the said land, necessary
permission is required to be obtained from the
competent authority and here in the present case
on hand, it seems that no such permission has been
obtained from the office of the Collector,
therefore, the said transaction was in
contravention of the provision of the law, which
resulted into initiation of proceedings and the
entry has been cancelled by the revenue authority
and the said order is just and legal, therefore,
the impugned orders do not require any
interference at the hands of this Hon'ble Court.
She further submitted that in fact, the
petitioners were aware about the breach of the
condition, therefore at that relevant point of
time, no mutation entry was effected but
subsequently, an attempt is being made to mutate
the said entry. She submitted that there is no
dispute about the reflecting of the name of the
petitioners in the pani-patrak but at the relevant
point of time, said breach could not be noticed by
the revenue authority, however as soon as the said
breach had come to the notice of the revenue
authority, the proceedings have been initiated.
She, therefore, submitted that when the sale
transaction was in contravention of the provision
of law, this Hon'ble Court may not interfere with
the impugned orders and the present petition may
be rejected.
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9. In view of the rival submissions canvassed by
learned advocates for the parties and having
considered the documents available on record, it
appears that the land in question was originally
allotted to one Ranchhodbhai Laxmanbhai by the
Assistant Settlement Commissioner on permanent
basis on 05.05.1958 on certain terms and
conditions and entry to that effect was mutated in
the revenue record and till 1980, the said
Ranchhodbhai Laxmanbhai was carrying out
agricultural activities upon the said land.
However on 12.05.1980, the father of the
petitioners had purchased the said land from
Ranchhodbhai Laxmanbhai by way of executing
registered sale deed and since then, the
petitioners are in possession of the said land and
carrying out agricultural activities and the name
of the father of the petitioners was also entered
into revenue record (i.e. pani-patrak). On
21.02.2002, the learned Mamlatdar, after having
found the above sale transaction in contravention
of the provision of law, forwarded proposal to the
respondent - Deputy Collector for initiating
action against the petitioner and the original
land owner for committing breach of the
conditions, therefore, notice under Section 68 of
the Revenue Code was issued on 01.05.2002, which
was replied by the petitioner, however, the
respondent - Deputy Collector, by an order dated
25.07.2002, confiscated the land in the name of
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Government, against which, the petitioners
approached the respondent - Collector and then,
the respondent - Secretary but the request of the
petitioner has been turned down by impugned
orders.
10. Thus from the facts narrated hereinabove, it
appears that the question, the dispute is with
regard to the initiation of proceedings after long
lapse of 22 years as also cancellation of the
entry mutated based on registered sale deed.
However so far as initiation of proceedings after
unreasonable time is concerned, law is very
settled by the Hon'ble Supreme Court as well as
this Hon'ble Court in numerous cases. A useful
reference can be made to the judgment of the
Hon'ble Supreme Court in case of Patel Raghav
Natha (supra), wherein the Hon'ble Supreme Court
has held that where no time limit is prescribed
for exercise of apower under a Statute it does not
mean that it can be exercised at any time; such
power has to be exercised within a reasonable
time. 'Reasonable time' in such cases has to be
held to be not exceeding one year." The
observations made in relevant paragraphs are as
under,
"13. The question arises whether the
Commissioner can revise an order made under
s. 65 at any time. It is true that there is
no period of limitation prescribed under
sSection 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
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and the nature of the order which is being
revised.
14. 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 s. 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
is 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 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.
15. We are also of the opinion that the order of
the Commissioner should be quashed on the
ground that he did not give any reasons for
his conclusions. We have already extracted
the passage above which shows that after
reciting the various contentions he badly
stated his conclusions without disclosing
his reasons. In a matter of this kind the
Commissioner should indicate his reasons,
however, briefly, so that an aggrieved
party may carry the matter further if so
advised."
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11. In a decision in case of Mohamad Kavi Mohamad Amin
(supra), upon which reliance has been placed by
learned advocate for the petitioners, the Hon'ble
Supreme Court in connection with other statutory
provisions and relying upon the case of Patel
Raghav Natha (supra) as well as decision in case
of Ram Chand Vs. Union of India, reported in
(1994) 1 SCC 4 has impressed that where no time-
limit is prescribed for exercise of a power under
a statute it does not mean that it can be
exercised at any time; such power has to be
exercised within a reasonable time.
12. Thus, from the aforesaid observation made by the
Hon'ble Supreme Court in the aforesaid decisions,
it is clear that the validity of the sale
transaction is to be decided under the Bombay
Tenancy Act, whereas correctness of mutation entry
is to be determined under RTS proceedings. So far
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.
13. The submission made by learned AGP Ms. Shah with
regard to the land being new tenure and impartible
land and allotted on santhani basis is also
required to be considered. In this connection, at
this stage, I would like to rely upon the decision
of this Hon'ble Court delivered in Special Civil
Application No.3518/2010 in case of Bhana Teja
Dhila Vs. State of Gujarat & Ors., wherein the
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Coordinate Bench of this Hon'ble Court has
observed as under,
"6. ............................... It is also to be noted that for
smooth implementation of the said
Government Resolution, the Government
Resolution dated July 04, 2008, has been
passed; the English translation of the
relevant portion thereof from vernacular
language reads as under :
"2(a) The new tenure land and the
restricted tenure land under the
Tenancy Act of whose possession is
continued for a period from the date
of grant till the last date of each
month for a period of 15 years or
more, such lands if are admissible for
conversion into old tenure for
agricultural purpose, then by deleting
the entry as "New and restricted
tenure type" in the land records, by
indicating the same as "Admissible for
premium only for Non agricultural
purpose", by passing such orders by
the concerned Taluka Mamlatdar on his
own within a period of 15 days, the
concerned account holder shall be
intimated in writing. Moreover, it
will be the responsibility of the
Mamlatdar to get posted the mutation
entry of such order in the record of
rights as per rules and to certify the
same."
7. It was, thus, incumbent upon the Mamlatdar
concerned at the end of every month that
whichever land used for the agricultural
purpose if the continuous possession for 15
years gets completed, on deleting the
entire new tenure entry, the entry be
posted that the premium to be made only for
the purpose of converting it into non-
agricultural use. Further, in such cases,
the Mamlatdar needs to do it on his own
within a period of 15 days and also needs
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to intimate all the concerned parties about
it. Furthermore, in the concerned village
Form Number, the onus would be of the
Mamlatdar to make an entry and the same
needed to be mutated and certified by him.
8. The present petitioner had purchased the
land from one Gangaben Khumant. It is not
in dispute that she was an heir and legal
representative of her husband, who
continued to hold the said land for more
than 15 years. It is also not in dispute
that on April 16, 2007, a registered sale
deed has been executed in favour of the
present petitioner. It is a matter of
record that once the matter had transferred
to the concerned Mamlatdar at Bhachau, on
June 13, 2009, he passed an order stating
therein that the applicant therein was in
possession of the said land for more than
15 years and, therefore, there is no breach
of any condition. He specified that the
sale is to be effected only to the
agriculturist and at the time of converting
the said land for nonagricultural purpose,
the premium needed to be paid and necessary
entry needed to be mutated in the revenue
record.
9. Thereafter, this very officer passed the
impugned order after hearing the learned
counsel for the Objector and present
petitioner, observing that since the sale
has been effected without obtaining
permission, it is a matter of breach of
condition. Surprisingly, when the
Government Resolution is dated December 20,
2006 and the registered sale deed has been
effected in April 16, 2007, it is after the
policy of the Government in the month of
December, 2006, that the sale deed has been
effected. When there is no dispute with
regard to withholding the possession of
the land continuously for a period of
more than 15 years, there is no question of
breach of any condition. The Mamlatdar
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himself had passed the order saying that
the concerned seller from whom the
petitioner purchased continued to enjoy the
possession over the land for more than 15
years continuously and, therefore, the
Government Resolution dated December 20,
2006, would be applicable in her case.
Assuming that there was any objection to
such sale that had been made to the present
petitioner by the erstwhile owner, it is
inevitable and incomprehensible as to how
the very officer who is in know of the
Government Resolution dated December 20,
2006, can pass an order which is impugned
in this petition. Once having directed an
entry to be made in the wake of the said
Government Resolution and after holding
that the earlier owner continued to be in
possession for more than 15 years, he
himself without any reason changed his own
order and directed a proposal to the Deputy
Collector.
10. This has made the petitioner to approach
this Court in the year 2010 itself. This
appears to be not a clear act of non-
application of mind as alleged, but, a
deliberate action on the part of the
concerned officer. One can understand that
he was oblivious of the policy of the
Government dated December 20, 2006, or that
which had floated in the year 2008, that he
had passed such an order. However, he
himself had held the possession of the
erstwhile owner on the land in question
continuously for a period of 15 years as
valid and directed necessary entry to be in
the revenue record and yet he has chosen to
take a somersault after having an
afterthought for no conceivable reason.
This also appears to be an act of sheer
arbitrariness. In view of aforesaid, the
present petition deserves to be allowed."
14. Thus considering the above judgment, if the facts
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of the present case are examined, in that event,
it is found out that the land was allotted to
Ranchhodbhai Laxmanbhai by the Assistant
Settlement Commissioner on 05.05.1958 and till
1980, he was in possession and during that period,
he was carrying out agricultural activities. Not
only that, the father of the petitioners had
purchased the said land on 12.05.1980 and,
thereafter, till date, he is in possession and is
carrying out agricultural activities and even, his
name is also reflected in the pani-patrak.
Therefore as per the above decision, the name of
the original allottee was there in the revenue
record continuous for a period of 15 years and
even the name of the petitioners are also there in
the pani-patrial continuously for a period of 15
years but no such entry for the type of land from
new tenure to old tenure has been effected. Over
and above that, as submitted by learned advocate
for the petitioners by placing on record a copy of
undertaking/affidavit filed by the petitioners
disclosing that if the impugned order may be
quashed and set aside and entry may be restored,
in that event, they will carry on their
agricultural activities on the said land for a
further period of ten years as except the said
land, they are not having any other land.
Therefore when such an undertaking is given by the
petitioners then, the case of the petitioners
deserves to be considered.
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15. In view of the above discussions, the present
petition stands allowed. The order dated
09.01.2007/27.12.2006 passed by the respondent -
Secretary in Revision Application
No.JMN/AML/17/2003, the order dated 21.04.2003
passed by the respondent - Collector and the order
dated 25.07.2002 passed by the respondent - Deputy
Collector are are hereby quashed and set aside.
The revenue authorities are hereby directed to
mutate the name of the petitioners in the revenue
record as owner and occupier of the land in
question within a period of four weeks. It is,
however, clarified that the said land should be
treated as "new tenure" land for a period of ten
years, therefore, the revenue authority is hereby
directed to make necessary entry in the revenue
record.
16. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI,J.)
Gautam
