[Cites 15, Cited by 0]
Gujarat High Court
Shah Jaswantbhai Somchand vs State Of Gujarat on 27 February, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1793 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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SHAH JASWANTBHAI SOMCHAND & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Petitioner(s) No.
1,2,3
DELETED for the Respondent(s) No. 4
MR JAY TRIVEDI, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
RULE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 27/02/2026
ORAL JUDGMENT
1. By way of preferring present petition under
Article 226 of the Constitution of India, the
petitioners have challenged the legality, validity
and propriety of the order passed by the Prant
Officer, Mahesana in the proceedings initiated under
the provisions of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act, 1947
(it shall hereinafter be referred to as the 'Act' for
short) as well as the order passed by the Secretary,
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Revenue Department (Appeals), whereby, the order of
the Prant Officer, Mahesana has been confirmed.
2. The facts of the case of the petitioner can be
summarized in nutshell as under:
2.1. The petitioners had purchased land bearing
Survey No.300/2, admeasuring 0-14-16 Hectare - Are -
Sq.Mtrs., situated in the sim of village Nagalpar,
Taluka and District Mehsana from respondent No.4
(deleted) by executing a registered sale deed and
paying full amount of sale consideration on
06.07.2000. Pursuant to the execution of registered
sale deed, an index is also issued by the office of
the Sub-Registrar, Mehsana on 21.07.2000.
2.2. Thereafter, on 28.06.2004, the office of Prant
had issued a notice to the petitioners inter alia
alleging infringement of Section 7, 8, 31(1) of the
Act. Thereafter, the Prant Officer, Mehsana passed an
order on 11.08.2004, inter alia, holding the sale to
be illegal and also imposed fine of Rs.250/- upon the
original owner.
2.3. Being aggrieved by and dissatisfied with the
said order, the petitioners herein assailed the said
order by way of preferring revision before the
Secretary, Revenue Department (Appeals). However, the
said revision also came to be dismissed by the SSRD
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vide order dated 30.11.2009. Hence, petitioners have
preferred present petition inter alia praying for
quashing of both the orders passed by the revenue
authorities.
3. Heard learned advocate Mr. Yogendra Thakore for
the petitioner and learned AGP Mr. Jay Trivedi for
the respondents.
4. Learned advocate Mr. Thakore for the petitioner
submits that petitioner herein had purchased land
bearing survey No.300/2, admeasuring 14 Are 16 Sq.
Mtrs. situated at village Nagalpur, Taluka & District
Mehesana from respondent No.4 by way of executing a
registered sale deed on 06.07.2000. A copy of the
index is also issued by the office of Sub Registrar,
Mehesana on 21.07.2000. Pursuant to the execution of
registered sale deed, an entry has been mutated in
the revenue record and subsequently the said entry
has been certified by the competent revenue
authority. After the lapse of some time, an
application is preferred by the petitioner before the
competent revenue authority to convert the said
property from agricultural use to non-agricultural
use and at that relevant point of time, during the
course of scrutiny of the documents and materials,
the Prant Officer concerned has jumped to the
conclusion that since the size of the land is less
than 20 gunthas and it is shown as a fragment land,
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the sale of such land is barred by the provisions of
Sections 7 and 8 of the Act and therefore proceedings
for breach of the provisions of the Act have been
initiated against the petitioners. The petitioners
herein have challenged the said proceedings by way of
submitting a detailed reply. However, those facts
have not been considered by the Prant Officer and it
is held that the provisions of Sections 7, 8 and
31(1) of the Act have been infringed and sale is held
to be illegal. Moreover, fine of Rs.250/- is also
imposed upon the original owner. The petitioners
therefore assailed the said order before the
Secretary, Revenue Department (Appeals), which also
came to be dismissed. Hence, present petition is
filed. Learned advocate Mr. Thakore further submits
that it is an admitted position of fact that
petitioners have purchased the said property from
respondent No.4 - original owner by way of executing
a registered sale deed and paying full amount of sale
consideration in the year 2000. The said facts can be
found out from the registered sale deed as well index
issued by the office of Sub-Registrar, Mehsana. The
Prant Officer had executed the proceedings for breach
of provisions of the Act by issuing notice on
28.06.2004. Therefore, admittedly the proceedings
have been initiated by the revenue authority after
lapse of period of three years.
5. Learned advocate Mr. Thakore further submits
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that in fact no time limit for initiation of action
by the revenue authority concerned for breach of the
provisions of the Act is prescribed in the statute
itself but the Hon'ble Apex Court as well as this
Court have, in numerous case laws, held that where no
time limit is prescribed in the statute for
initiation of action by the concerned revenue
authority, it should be exercised within a reasonable
time and if any action is initiated beyond three
years, the said action cannot be said to be initiated
within the reasonable time. Admittedly, in the case
on hand, the Prant Officer has issued show cause
notice after lapse of period of nearly four years.
Thus, solely on the ground of delay, the impugned
orders passed by the Prant Officer as well as SSRD
are required to be quashed and set aside. In support
of his submission, learned advocate Mr. Thakore has
put reliance upon the decision of Division Bench of
this Court in the case of Labhubhai Valjibhai Gajera
v. Secretary (Appeals) Revenue Department, reported
in (2011) 1 GLR 279. He submits that in fact the
contention of delay in initiation of proceedings by
the Prant Officer has not been canvassed before the
Secretary, Revenue Department (Appeals) but the
question of law of limitation being a pure legal
question can be permitted to be raised at any stage
of the proceedings. In support of his submission,
learned advocate Mr. Thakore has relied upon the
decision of Hon'ble Apex Court in the case of
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National Textile Corporation Ltd. v. Nareshkumar
Badrikumar Jagad & Ors., reported in (2011) 12 SCC
695 and submitted that in the aforesaid decision, the
Hon'ble Apex Court has observed that there is no
quarrel to the settled lgal proposition that a new
plea cannot be taken in respect of any factual
controversy whatsoever, however, a new ground raising
a pure legal issue for which no inquiry/proof is
required can be permitted to be raised by the Court
at any stage of the proceedings. The ratio laid down
in the aforesaid decision is no longer res integra
and it has been reiterated by the Hon'ble Apex Court
in number of decisions. He submits that considering
the aforesaid totality of the facts of the matter,
solely on the count that proceedings have been
initiated by the authority concerned belatedly after
lapse of four years, the orders passed by the
authority concerned are required to be quashed and
set aside. Learned advocate Mr. Thakore further
submits that in fact the case of the petitioners is
meritorious and petitioners have also produced
various materials and documents before the concerned
revenue authorities, however, those documents and
materials have not been considered and appreciated by
the revenue authorities in true perspective. He
further submits that petitioners have also raised a
contention before the Secretary (Appeals), Revenue
Department to the effect that the subject land is
included in Mehsana Nagarpalika area and therefore in
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view of the Notification of the Urban Development and
Urban Housing Department, the provisions of the Act
would not be applicable to the subject land. However,
the Secretary (Appeals), Revenue Department has
observed that since the sale of the subject land is
prior to issuance of the Notification by the Urban
Development and Urban Housing Department, the said
contention of the petitioners cannot be entertained.
Thus, the view adopted by the revenue authorities is
not just, proper and legal and in consonance with the
settled proposition of law and therefore petition is
required to be allowed by quashing and setting aside
the orders passed by the revenue authorities.
6. On the other hand, learned AGP Mr. Jay Trivedi
appearing for the respondents has objected present
petition with vehemence and submitted that the ground
of delay in initiation of proceedings for breach of
the provisions of the Act at the instance of Prant
Officer has not been raised before the Secretary
(Appeals), Revenue Department and if the said ground
has been raised before the said authority, in that
event, the resultant effect might have been
different. He submits that the contentions raised in
the present petition were never raised before the
revenue authority and therefore it can safely be said
that the concerned revenue authority has not got any
opportunity to deal with the said contentions and
therefore solely on that count, the impugned orders
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cannot be quashed and set aside. However, learned
AGP Mr. Trivedi has fairly conceded before this Court
that as per the decision of the Hon'ble Apex Court in
the case of National Textile Corporation Ltd.
(supra), the pure legal issue can be permitted to be
raised at any stage.
7. Learned AGP Mr. Trivedi further submits that
petitioners have heavily put reliance upon certain
documents and materials placed before the revenue
authority and made submissions before this Court,
however, in fact all those materials and documents
have been considered and appreciated by the Secretary
(Appeals), Revenue Department and thereafter passed
the order by assigning detailed reasons. He submits
that the revenue authorities have rightly passed the
impugned orders and the scope of interference of this
Court in the matter of concurrent findings of fact
recorded by the revenue authorities is very limited.
He further submits that the Secretary (Appeals),
Revenue Department has rightly discarded the
submission made by the petitioners that the subject
land is included in Mehsana Nagarpalika area and
therefore in view of the Notification of the Urban
Development and Urban Housing Department, the
provisions of the Act would not be applicable to the
subject land on the premise that the sale of the
subject land has taken place prior to issuance of the
Notification by the Urban Development and Urban
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Housing Department, whereby, the area where the
subject land is situated is included in Mehsana
Nagarpalika. Learned AGP Mr. Trivedi further submits
that the learned SSRD has assigned adequate reasons
on the merits of the case of the petitioners and
therefore it cannot be said that the said order is
non-speaking order. However, he has fairly conceded
that the Prant Officer has initiated the proceedings
after lapse of period of nearly four years and
therefore appropriate order may be passed.
8. Having heard learned advocates appearing for
both the parties and having considered the materials
placed on record, it transpires that petitioners
herein have purchased the subject land from its
original owner by executing a registered sale deed
and paying full amount of consideration in the year
2000. Thereafter, in the year 2004, the Prant
Officer, Mehsana has issued a notice for initiation
of proceedings for breach of provisions of the Act to
the petitioners. Admittedly, the Prant Officer has
initiated the said proceedings after lapse of period
of nearly four years. Pursuant to the said notice,
petitioners have filed their reply and submitted
various documents and materials. After considering
and appreciating the documents and materials
available on record, the Prant Officer has passed the
impugned order, whereby, the sale of the subject land
is held to be invalid and in breach of provisions of
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the Act. Being aggrieve by the said decision,
petitioners herein have preferred revision before the
SSRD. However, the said revision also came to be
dismissed by the SSRD. Hence, present petition is
filed.
9. At this juncture, I would like to refer to and
rely upon the decision of Division Bench of this
Court in the case of Labhubhai Valjibhai Gajera
(supra), wherein, following observations are made:
"7. The appeal can be disposed of on short
ground viz. delay in initiating the proceedings
under the Act. Before proceeding to address the
said issue, we must note that so far as other
contentions of the appellant and the conclusions
by the learned Single Judge are concerned, we
agree with and we do not see any error or
infirmity in the the findings recorded by the
learned Single Judge and/or in the reasons in
support of the conclusions. Since we agree with
the reasons as well as the findings of the
learned Single Judge in respect of the other
contentions of the appellant, we have not
discussed the said aspects at length and/or
recorded our separate views and conclusions.
7.1 The appellant has, inter-alia, contended
that the impugned proceedings and the impugned
order are vitiated by delay in initiating the
proceedings and in exercising the power inasmuch
as the disputed transaction was entered into and
executed in February-2002 whereas the
proceedings came to be initiated, for the first
time, by virtue of notice issued in 2005 i.e.
after more than about three years and that
therefore, the impugned order is vitiated due to
delay. So as to support the said submission, the
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learned counsel for the petitioner relied upon
the judgment in the case between Ranchhodbhai
Lallubhai Patel vs. State of Gujarat [1984(2)
GLR 1225].
8. The power conferred under the statute should
be exercised within prescribed limitation and if
the statute does not prescribe any time limit
then within reasonable time except the cases
involving fraud and/or suppression of material
facts i.e. the cases in which the petitioner is
alleged to have caused fraud and/or suppressed
material facts. This plea is thus not available
to him who himself is guilty of fraud or
suppression of facts. This is too well settled
position of law to need reiteration.
9. In this context, reference may be made to the
judgment in the case between Bhanabhai Morarbhai
Solanki vs. State of Gujarat [1994(1) GLR 822],
wherein while considering the proceedings under
Section 84-C of the Bombay Tenancy &
Agricultural Lands Act, 1948, the Hon'ble Court
has observed:
"5. Besides, sale of a parcel or
agricultural land if made in contravention
of any provision of the Act can be declared
invalid in view of Sec. 83(a) of the Act and
the necessary proceedings can be initiated
under Sec. 84C thereof. In its ruling in the
case of Bhaniben Makanbhai Tandel v. State
of Gujarat, reported in AIR 1991 Guj. 184,
this Court has held that the initiation of
the proceedings under Sec.84C of the Act has
to be made within reasonable time and if
such proceedings are taken after five years
or so they cannot be said to be taken within
reasonable time. In that case, the
proceedings under Sec. 84C of the Act were
found to have been initiated after lapse of
more than five years from the date the entry
in the revenue records with respect thereto
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was certified. If initiation of the
proceedings under Sec. 84C of the Act cannot
be taken beyond any reasonable time, by
analogy the proceedings for cancellation of
any mutation entry cannot be taken beyond
any reasonable time."
(Emphasis supplied)
10. In the judgment, in the case between Mohamad
Amin vs. Fatmabai Ibrahim [1997(6) SCC 71] where
the sale of agricultural land was effected in
favour of the non-agriculturists and the suo
motu proceedings under Sec.84C of the Bombay
Tenancy & Agricultural Lands Act, 1948 were
commenced, the Hon'ble Apex Court, while
referring to the judgment in the case between
Ram Chand v. Union of India, 1994 (1) SCC 44,
set aside the orders passed in the proceedings
initiated after delay of three years holding,
inter-alia, that suo motu powers under Sec.84C
was not exercised by the Mamlatdar within
reasonable time. The Hon'ble Apex Court, in
para-2 of the said judgment, observed as
follows:
"2. Although Mr. Bhasme, learned counsel
appearing for the appellant took a stand
that under Section 63 of the Act aforesaid,
t here should not be any discrimination
amongst the agriculturists with reference to
the State to which such agriculturist
belongs. But according to him even without
going into that question the impugned order
can be set aside on the ground that suo motu
power has not been exercised within a
reasonable time. Section 84(C) of the Act
does not prescribe any time for initiation
of the proceeding. But in view of the
settled position by several judgments of
this Court that wherever a power is vested
in a statutory authority without prescribing
any time limit, such power should be
exercised within a reasonable time. In the
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present case the transfer took place as
early as in the year 1972 and suo motu
enquiry was started by the Mamlatdar in
September 1973. If sale deeds are declared
to be invalid the appellant is likely to
suffer irreperable injury, because he has
made investments after the aforesaid
purchase. In this connection, on behalf of
the appellant reliance was placed on a
judgment of Justice S.B. Majmudar (as he
then was in the High Court of Gujarat) in
State of Gujarat V/s. Jethmal Bhagwandas
Shah disposed of on 1-3-1990, where in
connection with Section 84(C) itself it was
said that the power under the aforesaid
section should be exercised within a
reasonable time. This Court in connection
with other statutory provisions, in the case
of State of Gujarat V/s. Patil Raghav Natha
and in the case of Ram Chand V/s. Union of
India has impressed that where no time-limit
is prescribed for exercise at any time; such
power has to be exercises within a
reasonable time. We are satisfied that in
the facts and circumstances of the present
case, the suo-motu power under Section 84(C)
of the Act was not exercised by the
Mamlatdar within a reasonable time.
Accordingly, the appeal is allowed. The
impugned orders are set aside. No costs."
(Emphasis supplied).
11. In the judgment in the case between Gujarat
Khet Kamdar Union vs. State of Gujarat [1999(3)
GLR 2044], the Division Bench of this Court has,
while dealing with the issue of initiation of
proceedings in exercise of suo motu powers under
Section 84(C) observed, while holding that when
the statue does not prescribe any period of
limitation for exercise of the statutory power
then such power must be exercised within
reasonable period subject to the exception that
such a plea would not be available to a person
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who is himself guilty of fraud or has suppressed
material facts, observed in para-12 of the
judgment that:
"12. Having heard the learned Counsel for
the parties we are of the view that there is
considerable force in the submissions made
on behalf of the petitioner - Union as well
as the State Government. As per the settled
legal position, when the statute does not
provide for any period of limitation for
exercising a particular power, such power
must be exercised within a reasonable
period, subject to the exception that such a
plea is not available to a person who is
himself guilty of fraud or who has
suppressed material facts, but it is equally
well settled that what is reasonable period
during which a particular statutory power is
to be exercised would depend on the facts
and circumstances of each case and also on
the nature of the order to be
passed.............. It is, therefore, not
possible to accept the contention urged on
behalf of the purchasers that the period of
limitation stipulated in Section 76A of the
Act should be taken into consideration for
the purpose of explaining the scope and
ambit of "reasonable period" within which
the proceedings under Section 84C of the Act
must be initiated to avoid the risk of being
set aside on the ground of delay..........."
(Emphasis supplied).
xxx xxx xxx
17. In view of the legal position emerging from
the above referred judgments, particularly the
judgment by the Hon'ble Apex Court in the case
of Mahamad Amin (supra) the impugned proceedings
and the orders are vitiated by vice of delay,
hence they are unsustainable and deserve to be
set aside."
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10. Admittedly, in the instant case also, the Prant
Officer has initiated the proceedings for breach of
provisions of the Act by issuing notice to the
petitioners after lapse of period of nearly four
years from the date when the petitioners have
purchased the subject land from the original owner.
Learned AGP Mr. Trivedi has submitted that the
contention of delay in initiation of proceeding by
the Prant Officer has not been raised before the SSRD
and the said contention has been raised for the first
time before this Court and therefore merely on that
count, the orders impugned are not required to be set
aside. It is true that the question of limitation is
a mixed question of law and facts. It is pertinent to
note that a plea of limitation can be raised for the
first time in an appellate or second appellate Court,
provided no further inquiry into the facts is
required.
11. In view of the aforesaid discussion, the
petition requires consideration. Hence, petition is
allowed. The impugned orders passed by the revenue
authorities are hereby quashed and set aside. Rule is
made absolute.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
