[Cites 13, Cited by 0]
Gujarat High Court
Ghanshyambhai Nagjibhai Chothani vs State Of Gujarat on 21 April, 2026
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5237 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
Approved for Reporting Yes No
- √
=======================================================
GHANSHYAMBHAI NAGJIBHAI CHOTHANI & ORS.
Versus
STATE OF GUJARAT & ORS.
=======================================================
Appearance:
MR MEHUL SHARAD SHAH for the Petitioner Nos. 1,2,3,4,5
MR SIDDHARTH DESAI AGP for the Respondent(s) No. 1,2
MR SANDIP M PATEL(5649) for the Respondent(s) No. 4,5
RULE SERVED for the Respondent(s) No. 3
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 21/04/2026
ORAL JUDGMENT
1. By filing present petition under Article 226 of
the Constitution of India, under Section 73AA of
the Gujarat Land Revenue Code, 1879 and under Rule
4 of the Gujarat Land Revenue Rules, the
petitioners have challenged the order dated
31.01.2015 passed by the respondent - Assistant
Collector, Bardoli and thereby prayed for
declaration that the land bearing Survey No.74/1
pk. situated in Village : Mahuva is not subjected
to any restrictions under Section 73AA of the
Gujarat Land Revenue Code, 1979.
2. The brief facts leading to filing of the present
petition are as under,
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
2.1 One Bhanabhai Kikabhai was holding land
bearing Survey Nos.46 & 47 situated in the
sim of Village : Mahuva as a capacity of
tenant, which he was cultivating to run his
livelihood.
2.2 Thereafter in the year 1983, the proceedings
under Section 32(C) came to be initiated,
wherein the said Bhanabhai Kikabhai has been
declared as protected tenant and pursuant
thereto, he had paid purchase price and he
became the absolute owner and occupier of the
land in question and pursuant thereto, Entry
No.1004 came to be mutated in the revenue
record on 15.07.1983 and since then, he was
in occupation of the land in question.
2.3 Thereafter, the said Bhanabhai Kikabhai had
applied for conversion of the land, which was
considered by the revenue authority and
accordingly, the said Bhanabhai Kikabhai had
also paid premium for the same and Entry
No.1604 came to be mutated on 20.03.2006,
which was subsequently certified on
26.06.2006.
2.4 Thereafter on 17.05.2006, the said Bhanabhai
Kikabhai had executed registered sale deed in
favour of Balvantbhai Ranchhodbhai Patel and
others and on the strength of the said
registered sale deed, Entry No.1644 came to
be mutated in the revenue record on
15.01.2007, which was subsequently certified
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
on 18.07.2007.
2.5 Thereafter on 07.07.2011, the said
Balvantbhai Ranchhodbhai Patel and others
have executed registered sale deed in favour
of the petitioners and on the basis of the
registered sale deed, Entry No.1868 came to
be mutated in the revenue record on
03.09.2011 and certified also and since then,
the petitioners are absolute owner and
occupier of the land bearing Survey No.74/1
and their names were also running in the
revenue record.
2.6 Thereafter, the petitioners have applied for
NA permission from the revenue authority by
submitting appropriate application along with
required documents and pursuant thereto,
necessary opinion from the concerned revenue
authorities was called for.
2.7 Pursuant to the same, concerned Mamlatdar had
given opinion that Bahanabhai Kikabhai is
"Adivasi" and included in scheduled tribe,
therefore, the aforesaid land is having
restriction under Section 73AA of the Revenue
Code, therefore, the sale transaction taken
place without prior permission of the
competent authority, therefore, it was opined
to take appropriate action.
2.8 Therefore on the basis of the aforesaid
opinion, the concerned Deputy Collector
issued notice on 14.04.2013 to the
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
petitioners and the respondent nos.3 to 5
herein to show cause as to why the
proceedings should not be initiated against
them for committing breach of Section 73AA of
the Revenue Code and thereby Entry No.1644
dated 15.01.2007 and Entry No.1868 dated
07.01.2011 have been taken into suo motu.
2.9 On receipt of said notice, the petitioners
submitted their detailed reply on 07.01.2014
and pointed out that the said Bhanabhai
Kikabhai is of Bhavnagari Koli Patel,
therefore, does not belong to scheduled
tribe.
2.10 However without properly considering the
facts of the case and the reply submitted by
the petitioners, the Assistant Collector, by
impugned order dated 31.01.2015, held that
there is breach of Section 73AA(1) of the
Revenue Code and vested the land to the
Government and also imposed three times fine
as provided under sub-section (7) of Section
73AA of the Revenue Code.
3. Heard learned advocate, Mr. Mehul Sharad Shah for
the petitioners and learned AGP Mr. Siddharth
Desaai for the respondent nos.1 and 2. Though
served, no one appears for other respondents.
4. Learned advocate, Mr. Shah referred to the facts
of the case and submitted that the petitioner is
the bonafide purchaser of the land in question
after executing registered sale deed on payment of
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
entire sale consideration and, thereafter, entry
was mutated in the name of the petitioners. He
submitted that at the time of purchase of the land
in question, the petitioners have verified all the
revenue record and even the revenue records do not
reflect about the restricted tenure land. He
submitted that the basis for initiation of suo
motu proceedings against the petitioners and
others was the opinion given by the concerned
Magistrate, wherein it is opined that the said
Bhanabhai Kikabhai is "Adivasi" and falling under
the scheduled tribe and before entering into sale
transaction, prior permission has not been
obtained, therefore, the said transaction is hit
by the provision of Section 73AA of the Revenue
Code. He, however, submitted that the said
Bhnabhai Kikabhai is of Bhavnagari Koli Patel and
is Hindu Parghi and does not belong to scheduled
tribe (Adivasi) and in support of the said
submission, he has relied upon the Government
Circular produced on record. He further took me
through the affidavit of Bhanabhai Kikabhi
produced on record as also the school leaving
certificate of his son and submitted that if the
Hon'ble Court would make cursory glance upon the
said set of documents, in that event, it is found
out that the case of said Bhanabhi Kikabhai is
Hindu Parghi and not Adivasi. He also submitted
that in fact, the said Bhanabhai Kikabhai has not
taken any benefit available for the persons
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
belonging to scheduled tribes. He, therefore,
submitted that only on the assumption and
presumption, suo motu proceedings have been
initiated and there is no justification for the
same. He further submitted that as stated above,
earlier two transactions have been certified by
the very revenue authority, who had initiated suo
motu proceedings, which cannot be permitted in
view of various judicial pronouncements of the
Hon'ble Supreme Court as well as this Hon'ble
Court, otherwise, great prejudice would be cause
to the petitioners.
5. Learned advocate, Mr. Shah, at this stage,
submitted that entry mutated in favour of the
petitioners based on registered sale deed is dated
07.07.2011 and suo motu proceedings were initiated
by issuing show cause notice on 14.04.2013 and
thus, there is delay of more than two years in
initiation of suo motu proceedings, therefore, the
case of the present petitioners is squarely
covered by the well known decision of the Hon'ble
Supreme Court in case of State of Gujarat Vs.
Patel Raghav Natha & Ors., reported in (1969) 2
SCC 187, wherein the Hon'ble Supreme Court has
held that where no time limit for exercise of
powers under a statute is provided, it does not
mean that it can be exercised at any time; and
such powers must be exercised within a reasonable
time. He further submitted that the ratio laid
down in the said decision has been followed in
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
another decisions of the Hon'ble Supreme Court as
well as this Hon'ble Court.
6. Learned advocate, Mr. Shah has also relied upon
the decision of the Division Bench of this Hon'ble
Court in case of Chandulal Gordhandas Ranodriya
Vs. State of Gujarat, reported in 2013 (2) GLR
1788 and submitted that in the said decision also,
the Division Bench of this Hon'ble Court has also
considered the aspect of reasonable period and
observed that the authority will be precluded from
initiating proceedings to annul void transaction
if it is allowed to remain effective for
considerable long time. It is, therefore, urged
that the present petition may be allowed.
7. On the other hand, learned AGP Mr. Desai has
objected the present petition contending inter
alia that the findings given and conclusion
arrived at by the revenue authorities while
passing impugned orders are just and proper,
therefore, no interference is required in the
impugned order. He submitted that in fact, the
reliance placed by learned advocate for the
petitioners on the Government Circular with regard
to declaration of caste is also justified in view
of the fact that in the said Circular, there is no
mention about the caste of the petitioners i.e.
"Parghi" and in fact, before the revenue
authorities, the petitioners have failed to point
out their defence, therefore after considering and
appreciating the material available on record, the
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
impugned order has been passed, which does not
require interference at the hands of this Hon'ble
Court. In support of the aforesaid submission, he
has also referred to the affidavit in reply filed
in the present proceedings filed by the respondent
no.2 herein. It is, therefore, urged that the
present petition may be rejected. He, therefore,
submitted that the present petition may be
rejected.
8. Having heard learned advocates for the parties and
having considered the documents available on
record, it appears that the dispute pertains to
cancellation of Entry No.1644 dated 15.01.2007 and
Entry No.1868 dated 07.01.2011, that too, after
long period of time.
9. Having considered the documents, it is found out
that the land in question was in possession and in
occupation of one Bhanabhai Kikabhi, who was
cultivating the said land and in the proceedings
instituted under Section 32C of the Tenancy Act,
he was declared deemed tenant and purchase price
for the land in question was fixed, which was paid
by him and accordingly, Entry no.1004 came to be
mutated in the revenue record on 15.07.1983 and
certificate to that effect was also issued by the
concerned revenue authority. Thereafter, the said
land was converted from new tenure to old tenure
and accordingly, Entry No.1604 came to be mutated
in the revenue record on 20.03.2006, which was
also certified on 26.06.2006. Thereafter, the said
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
Bhanabhai Kikabhai had executed registered sale
deed in favour of Blvantbhai Ranchhodbhai Patel
and others on 17.05.2006 and based on said
registered sale deed, Entry No.1644 came to be
mutated in the revenue record on 15.01.2007, which
was also subsequently certified on 18.07.2007.
Thereafter on 07.07.2001, the petitioners entered
into sale transaction for the land in question by
way of executing registered sale deed and on the
basis of the said registered sale deed, Entry
No.1868 came to be mutated in the revenue record
on 07.07.2011, which was also certified on
03.09.2011 and, thereafter, the name of the
petitioners were running in the revenue record as
owner and occupier of the said land. Thereafter,
the petitioners have applied for NA permission by
submitting appropriate application before the
District Collector, Surat, who sought opinion from
the concerned revenue authority and pursuant
thereto, the concerned Mamlatdar had given
negative opinion to the effect that said Bhanabhai
Kikabhai is "Adivasi" and included in scheduled
tribes, therefore, the land possessed by him was
having restriction under Section 73AA of the
Revenue Code, therefore before entering into sale
transaction, prior permission of the competent
authority ought to have been obtained but it has
not been obtained, therefore, the said transaction
is hit by the provision of Section 73AA of the
Revenue Code, therefore, notice was issued taking
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
aforesaid two entries into suo motu proceedings
and without properly considering the reply filed
by the petitioners, those two entries have been
cancelled.
10. Thus from the facts narrated hereinabove, it is
evident that the ground on which the suo motu
proceedings have been initiated is that the said
Bhanabhai Kikabhai was Adivasi and falling under
the category of scheduled tribe, therefore, the
land possessed by him was having restriction under
Section 73AA of the Revenue Code, therefore before
entering into sale transaction, prior permission
from the competent revenue authority ought to have
been taken, which has not been done, therefore,
the said transaction is hit by the provision of
Section 73AA of the Revenue Code. However having
considered the submissions canvassed by learned
advocate, Mr. Shah and having considered the
documents produced on record, it is evident that
the said Bhanabhai Kikabhai is of Bhavnagari Koli
Patel and does not belong to scheduled tribe,
which is supported by the Government Circular
produced on record, which crystallize the
possession of fact that the said Bhanabhai
Kikabhai does not belong to schedule tribe,
therefore, it is an admitted position of fact that
the land in question does not have restriction
under Section 73AA of the Revenue Code as alleged.
Over and above that, as contended by learned
advocate, Mr. Shah, school leaving certificate of
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
son of said Bhanabhai Kikabhai is produced on
record, which clearly goes on to show that his
caste is Hindu Parghi and not Adivasi. Not only
that, copies of sale deeds are produced on record
and the recitals of the said sale deeds do not
mention about the land having restriction under
Section 73AA of the Revenue Code or the said
Bhanabhai Kikabhai is belonging to Adivasi and
even in the revenue records also, there is no
mention about the land having restricted tenure
land. Further as contended by learned advocate for
the petitioners, the said Bhanabhai Kikabhai has
not taken any benefits under the scheduled caste
till date. It is required to be noted at this
stage, when the notice was issued upon the
petitioners for taking above entries into suo
motu, detailed reply was submitted along with the
affidavit, wherein it has been categorically
stated that the said Bhanabhai Kikabhai is of
Bhavnagari Koli Patel, however despite the said
fact, the said set of documents have not been
considered by the authority concerned and by
impugned order, entries have been cancelled.
Further, here in the present case, two different
revenue entries have been taken into suo motu i.e.
one is dated 15.01.2007 and another is dated
07.01.2011, that too, after the certification of
those two entries, which itself suggests about
total non-application of mind on the part of the
revenue authorities and it is taken into suo motu
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
on wrong assumption and presumption without any
supporting documents and though correct facts have
been pointed out by the petitioners by submitting
their detailed reply, it has not been considered
and entries have been cancelled. It must be fairly
said that if the statute does not prescribe time
limit for exercise of revisional powers, it does
not mean that such powers can be exercised at any
point of time even if there is a breach of Section
73AA of the Revenue Code rather it should be
exercised within a reasonable period of time. 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 provision 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. Thus admittedly, there is
gross delay in initiation of suo motu proceedings,
therefore, the case of the petitioners is squarely
covered by the decision of the Hon'ble Supreme
Court in case of Raghav Natha (supra).
11. In the aforesaid context, a law is well settled by
the Hon'ble Supreme Court in case of Raghav Natha
(supra), wherein the Hon'ble Supreme Supreme Court
has observed in Paragraph Nos.13, 14 and 15 as
under,
"13. The question arises whether the
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
Commissioner can revise an order made under
s. 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.
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
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
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."
12. In case of Mohamad Kavi Mohamad Amin Vs. Fatmabai
Ibrahim, reported in (1997) 6 SCC 71, the Hon'ble
Supreme Court in connection with other statutory
provisions, and relying upon the decision in case
of Raghav Natha (supra) and in the 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.
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
13. In the decision of this Hon'ble Court in case of
Ravjibhai Mavji Jogani Vs. State of Gujarat,
reported in 2000 JX (Guj) 2630, it has been
observed in Paras 13 and 14 that:
"13. Recently, the Apex Court has also
considered the power which has been
exercised by respondent authorities under
section 84-C under suo motu inquiry by
Mamlatdar should be initiated within
reasonable time. Sale of land taking place
in December, 1972, the suo motu inquiry
started in September, 1973, it was held
that suo motu power under section 84-C, not
exercised within reasonable time.
14. In all the decisions which have been cited
by the learned advocate Mr. Hathi of this
Court as well as of Apex Court, the
question of exercise of powers by the
authorities within reasonable period or not
has been examined in light of the facts hat
when no period of limitation has been
specified under the statutory provisions.
In case of MOHAMAD KAVI MOHAMAD AMIN V/s.
FATMABAI IBRAHIM (1997) 6 SCC 71, even more
than 1 year delay has been considered by
the Apex Court unreasonable while
exercising the suo motu powers under
section 84-C of the Bombay Tenancy and
Agricultural Lands Act, 1976 and,
therefore, considering this decision of the
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
Apex Court and the facts of the present
case, wherein at least more than 29 years
period have been passed for initiating the
proceedings under Rule 108(6) of the Bombay
Land Revenue Rules. In the light of these
judicial pronouncements, the transaction of
sale deed and necessary entries which were
made pursuant to the sale deed during the
period from 1965 to 1991 which has been
taken into revision by exercising the suo
motu powers under Rule 108(6) of the Bombay
Land Revenue Rules by issuing the show
cause notice dated 13th July, 1994. The
show cause notice was issued to the
petitioner under the provisions of Rule
108(6) of the Land Revenue Rules, as to why
the revenue record entry certified during
the period from 1965 to 1991 should not be
revived, therefore, there is a delay of
about 29 years for initiating the
proceedings under Rule 108(6). In such
situation, it must be presumed that
meanwhile the land in question remained
with the petitioners and according to the
petitioners many subsequent transaction has
been executed between the parties and
during this period, the interest and equity
in favour of third party has also created
on the basis of various transactions in
respect of lands in question executed by
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
the respective parties. Meanwhile, the
petitioner and third party has also created
interest and equity in their favour and the
possession of the lands in question which
has been remained with the third party
since many years and, therefore,
considering all facts which are on record
totally unreasonable exercise of powers
after about more than 29 years by the
respondents - authorities. According to my
opinion, considering the various decisions
of this court as well as Apex Court as
referred to above, I hold that the action
under the Act which was taken by the
respondent authorities after undue and
unreasonable delay of more than 29 years
which requires to be set aside."
14. At this stage, it would be apposite to refer to
the observations made by Division Bench in the
judgment dated 02.01.2023 passed in Letters Patent
Appeal No.546 of 2021 and allied matter in the
case of State of Gujarat Vs. Jitendrasinh
Jagmalsinh Sodha, wherein the Division Bench of
this Hon'ble Court has considered the decision in
case of Chandulal Gordhandas Ranodriy (supra),
upon which reliance has been placed by learned
advocate, Mr. Shah. In the said decision, the
Division Bench has observed as under,
"14. The statutory authorities exercising suo
motu powers would be required to exercise
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
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 :-
"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
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
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, futile. At any rate, when
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
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."
15. In the case of Chandulal Gordhandas Ranodriya
(supra), the Division Bench has held thus :-
"19. It must be fairly said that if the statute
does not prescribe time limit for exercise
of revisional powers, it does not mean that
such powers can be exercised at any point
of time even if there is a breach of
Section 43 of the Act, which is a provision
which relates to a new tenure land, rather
it should be exercised within a reasonable
period of time. It is so because the law
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
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 provision 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."
16. The Division Bench has thus observed that law does
not expect a settled thing to be unsettled after a
long lapse of time and the powers have to be
exercised within a reasonable period even if the
transaction is void. Thus, the Collector was
supposed to process the application of the
petitioners seeking NA permission in wake of the
fact that the entries mutated in year 2007 and
2011 are not doubted, in any manner.
17. It is required to be noted at this stage that
before this Hon'ble Court, the order of the
Assistant Collector has been directly challenged
before this Hon'ble Court on the ground of
violation of principle of natural justice. However
considering the facts of the case, as stated
above, I am of the prima facie opinion that the
revenue authority has exceeded their jurisdiction
while passing impugned order because the facts of
the case as pointed out by the petitioners before
the respondent no.2 along with the reply
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
accompanying with documents have not been properly
considered and ignoring the same, the impugned
order has been passed, therefore, fundamental
rights of the petitioner guaranteed under the
Constitution of India have been violated. The
exceptions to the "rule of alternate remedy" are
well laid out in terms of judicial precedents and
would include situations where the statutory
authority has not acted in accordance with the
provisions of law or acted in defiance of the
fundamental principles of judicial procedure; or
where an order has been passed in violation of the
principles of natural justice.
18. The exceptions to the 'rule of alternate remedy'
were considered in the case of Whirlpool
Corporation Vs. Registrar of Trade Marks, reported
in (1998) 8 SCC 1, wherein it was observed as
follows :-
"14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary
in nature and is not limited by any other
provision of the Constitution. This power
can be exercised by the High Court not only
for issuing writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto
and certiorari for the enforcement of any
of the Fundamental Rights contained in Part
III of the Constitution but also for "any
other purpose".
15. Under Article 226 of the Constitution, the
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
High Court, having regard to the facts of
the case, has a discretion to entertain or
not to entertain a writ petition. But the
High Court has imposed upon itself certain
restrictions one of which is that if an
effective and efficacious remedy is
available, the High Court would not
normally exercise its jurisdiction. But the
alternative remedy has been consistently
held by this Court not to operate as a bar
in at least three contingencies, namely,
where the writ petition has been filed for
the enforcement of any of the Fundamental
Rights or where there has been a violation
of the principle of natural justice or
where the order or proceedings are wholly
without jurisdiction or the vires of an Act
is challenged. There is a plethora of case-
law on this point but to cut down this
circle of forensic whirlpool, we would rely
on some old decisions of the evolutionary
era of the constitutional law as they still
hold the field."
19. Following the aforesaid decision, the Hon'ble
Supreme Court in another decision in case of
Harbanslal Sahnia Vs. Indian Oil Corporation Ltd.,
reported in (2003) 2 SCC 107 has observed as
under,
"7. So far as the view taken by the High Court
that the remedy by way of recourse to
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
arbitration clause was available to the
appellants and therefore the writ petition
filed by the appellants was liable to be
dismissed is concerned, suffice it to
observe that the rule of exclusion of writ
jurisdiction by availability of an
alternative remedy is a rule of discretion
and not one of compulsion. In an
appropriate case, in spite of availability
of the alternative remedy, the High Court
may still exercise its writ jurisdiction in
at least three contingencies : (i) where
the writ petition seeks enforcement of any
of the fundamental rights; (ii) where there
is failure of principles of natural
justice; or (iii) where the orders or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. (See
Whirlpool Corpn. v. Registrar of Trade
Marks, (1998) 8 SCC 1. The present case
attracts applicability of the first two
contingencies. Moreover, as noted, the
petitioners' dealership, which is their
bread and butter, came to be terminated for
an irrelevant and non-existent cause. In
such circumstances, we feel that the
appellants should have been allowed relief
by the High Court itself instead of driving
them to the need of initiating arbitration
proceedings."
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
20. The 'rule of alternate remedy' in the context of
maintainability of a writ petition under Article
226 has been examined in a recent decision in the
case of Radha Krishan Industries vs. State of
Himachal Pradesh & Ors., reported in (2021) 6 SCC
771 and it has been held that since the power
under Article 226 to issue writs can be exercised
not only for enforcement of fundamental rights but
for any other purpose as well, the High Court has
the discretion not to entertain a writ petition
and one of the restrictions placed on the power of
the High Court is where an effective alternate
remedy is available to the aggrieved person.
21. So far as proceedings under Section 108(6) of the
Bombay Land Revenue Rules, 1972 are concerned, the
same are after a period of more than 7 years from
the date of mutation of first entry and it is a
settled law as held by the Hon'ble Supreme Court
as well as various High Courts that unexplained
and inordinate delay in invoking such power would
itself tantamount to fraud upon statute apart from
being arbitrary and opposed to rule of law.
22. Therefore, having regard to the facts and
circumstances as well as the judicial
pronouncements including the judgment of the
Hon'ble Supreme Court regarding the word
'reasonable period' for exercise of such powers,
it is evident that it cannot be said that the
powers have been exercised within a reasonable
period and therefore it could not be justified.
NEUTRAL CITATION
C/SCA/5237/2015 JUDGMENT DATED: 21/04/2026
undefined
Moreover, if such powers are permitted to be
exercised at such a belated stage as sought to be
canvassed by learned AGP, then it would amount to
allowing unsettling the settled position after the
long lapse of period which may cause prejudice as
the parties may have altered their position. The
transaction which may have taken place, may have
led to further transaction and the rights of the
third party may have been created which would be
affected and again they may not be before the
court or the authority in the proceedings.
Further, the persons, who have purchased the land
and / or have altered their position pursuant to
such transaction may have incurred further
expenses for the development of the land.
Therefore, it would not justify exercise of such
powers at belated stage.
23. In the result, the present petition stands
allowed. The impugned order dated 31.01.2015
passed by the respondent - Assistant Collector,
Bardoli is hereby quashed and set aside. As a
corollary effect, Entry No.1644 dated 15.01.2007
and Entry No.1868 dated 07.01.2011 are hereby
restored to the revenue records.
24. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
