[Cites 13, Cited by 0]
Gujarat High Court
Kadri Mohmmedhussein Pirmiya vs Collector on 27 February, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6067 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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KADRI MOHMMEDHUSSEIN PIRMIYA
Versus
COLLECTOR, & ORS.
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Appearance:
MR DEV D PATEL(8264) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 27/02/2026
ORAL JUDGMENT
1) By filing the present petition under Article 226 of the
Constitution of India, the petitioner has prayed for the following
reliefs:
(A) Your Lordships may be pleased to admit and allow this
petition.
(B) Your Lordships may be pleased to issued a writ of
certiorari or a writ in the nature of certiorari by quashing and
setting aside the impugned order dated 20/01/2018 in MVV/
HKP/Gir/47/2017 passed by the Special Secretary Revenue
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Department Ahmedabad.
(C) Such other and further relief that is just, fit and
expedient in the facts and circumstances of the case may be
granted.
2) The case of the petitioner can be summarised in a nutshell
as under:
2.1) The original property owner is the owner and occupant of
the land bearing Survery No. 1594(678), Hectare 0-31-36 Are. The
said property is divided into two parts and one portion has been
purchased by the petitioner by way of executing a registered sale
deed. The size of the property purchased by the petitioner is 15
Are 13 Square Meters. Pursuant to execution of a registered sale
deed, an entry was mutated in the revenue record on 04.04.2014
vide Entry No. 24416. The said entry had not been certified by
Mamlatdar, Veraval. The said entry was cancelled by assigning
the reasons that notices under Section 135D of the Bombay Land
Revenue Code were issued to the respective parties. The
transactions had taken place between the parties by way of
execution of a registered sale deed, however, the petitioner
failed to produce a certificate of agricultural status.
2.2) Therefore, being aggrieved by and dissatisfied with the said
decision of the Mamlatdar, an appeal had been filed before the
Deputy Collector. The said appeal had not been entertained by
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assigning the reasons that the petitioner had already produced a
certificate of his status of an agriculturist by way of producing
certain revenue records. However, the record reveals that the
area of the property is less than 18 Gunthas and, therefore, the
said transaction would clearly fall under the category of breach
of the provisions of the Fragmentation Act. Being aggrieved by
and dissatisfied with the said decision, a revision application was
preferred before the Collector and the said view also confirmed
by the Special Secretary (Appeals), Revenue Department in the
appeal proceedings. Hence, the present petition is filed.
3) Heard learned advocate Mr. Dev D. Patel for the petitioner
and learned AGP Ms. Surbhi Bhati for Respondent Nos. 1 to 4.
4) Learned Advocate Mr. Dev D. Patel appearing for the
petitioner submits that it is an admitted position of fact that the
petitioner had become the absolute owner and occupant of the
said property by way of executing a registered sale deed.
Pursuant to the execution of the registered deed, an entry had
been mutated in the revenue record vide Entry No. 24416.
Thereafter, at the time of certification of the said entry, as per
the procedure, notices were issued to the concerned parties
under the provisions of Section 135D of the Bombay Land
Revenue Code. The parties have confirmed the said transaction.
The petitioner failed to produce the agricultural certificate and
therefore, the said entry was not certified.
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4.1) Being aggrieved and dissatisfied with the said decision
delivered by the Mamlatdar, the petitioner preferred an appeal
before the Deputy Collector. Along with the said appeal, the
petitioner had already produced the documents showing his
status as an agriculturist. Upon verifying and scrutinizing all
those documents and materials available on record, the Deputy
Collector formed an opinion that documents placed by the
petitioner are genuine and that the petitioner is an agriculturist
and therefore, entry is required to be certified.
4.2) However, during the scrutiny of the papers, it was found
out that the area of the land is less than 18 Gunthas and the
petitioner had purchased the said property which is situated
within the territorial jurisdiction of Veraval city. Therefore, the
transaction and the actions on the part of the parties would
squarely fall under the category of breach of provisions of the
Fragmentation Act, and hence, the said entry is not required to
be certified. The said view adopted by the Deputy Collector has
been confirmed by the Collector and the Special Secretary
(Appeals), Revenue Department in the revenue proceedings.
4.3) Learned Advocate Mr. Patel submits that, in fact, the
original property admeasures 31 Gunthas and 36 Ares, out of
which 15 Gunthas and 13 Ares have been sold to the petitioner,
whereas the rest of the 16 Gunthas and 23 Square Meters were
sold to one Iqbalhussein Saiyedali by the original property holder
by way of executing registered sale deed. He submits that by way
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of executing a registered sale deed within a limited period of
time to two different individuals, the original property holder has
sold the entire parcel of the land. A copy of the said sale deed
executed between the petitioner and the original property
holder has already been placed on record, which clearly shows
that the sale deed was executed between the parties on
04.04.2014. The concerned revenue authority has also not
certified the entry in favour of Iqbalhussein Saiyedali and
therefore, he has challenged the said action of the Mamlatdar
before the Deputy Collector.
4.4) He has produced a copy of the order passed by the Deputy
Collector in those proceedings. He submits that in fact, at the
time of entertaining the said appeal, the Deputy Collector had
obtained a letter in the form of declaration from him that he
would use and utilize the said property for non-agricultural
purposes after obtaining necessary permission from the
competent authority. The said order was passed on 27.03.2015. A
copy of the said order has also been placed on record along with
the memo of petition. The cause of action as well as involvement
of the parties are based upon the same set of documents.
Despite the fact that the said parcel of land purchased by
Iqbalhussein Saiyedali would also fall within the category of
breach of provisions of the Fragmentation Act, his entry has been
certified by the same officer, whereas the application of the
petitioner has not been entertained.
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4.5) Apparently, in the present case, it appears that
discriminatory treatment had been given to the petitioner by the
revenue authorities on the ground that the petitioner is a non-
agriculturist. He further submits that all these facts were brought
to the notice of the higher authorities, however, they have also
chosen not to take any action and have rejected the application
of the petitioner. He submits that it is a settled proposition of
law that if, during the course of proceedings, the concerned
revenue authority arrives at the conclusion that there is breach
of certain provisions of law, in that event, appropriate action is
required to be initiated under the provisions of law by way of
issuing notice to the parties concerned. Admittedly, based on
such reasoning, R.T.S. proceedings for the breach of provisions of
the Fragmentation Act have been initiated by the Deputy
Collector. Time and again, the Hon'ble Apex Court as well as this
Court have held that in the revenue proceedings, cross-utilization
of powers is not permissible. Although the same officer may have
the authority to decide matters under different enactments and
different provisions of law, but while exercising powers under
one provision of law, he cannot arrive at conclusions or take
action under another enactment. For the purpose of initiation of
the proceedings under the provisions of the Fragmentation Act, a
show-cause notice is required to be issued to the petitioner.
However, in the present case, the petitioner had preferred an
appeal challenging the order passed by the Mamlatdar, but
without granting any opportunity of hearing, the Deputy
Collector straightway took a decision. The view adopted by the
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authority concerned is illegal, perverse and unjust and is against
the settled proposition of law and therefore, the said order is
required to be quashed and set aside.
4.6) He submits that the said property falls within the territorial
jurisdiction of the Town Planning area and, in order to fortify his
submissions, he has produced copy of the correspondence that
took place between the Town Planning Officer and the Collector
in the case of Iqbalhussein Saiyedali. He submits that property of
Iqbalhussein Saiyedali is adjacent to the property of the
petitioner. He submits that it is a settled proposition of law that
time and again, the State of Gujarat has issued resolutions to the
effect that if a property falls within the territorial jurisdiction of
the Town Planning area, then, in that event, non-agriculture
(N.A.) permission is not required to be obtained.
4.7) He further submitted that pursuant to entry certified qua
co-purchaser, Iqbalhussein Saiyedali, he has preferred an
application before the concerned authority seeking to declare
the said property as non-agricultural and to grant sanction for
layout plan before the office of Town Planning Department.
Based upon the said application, the Town Plan Officer,
Junagarh, made correspondence with the office of the Collector
stating that the property is situated within the territorial
jurisdiction of the Town Planning Area of Veraval Taluka and
would fall under the development zone of the residential area of
Veraval City, and therefore, appropriate permission is required to
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be sanctioned. A copy of the said document itself crystallises the
position of fact that the said property is situated within the Town
Planning Area of the Veraval city. It is a settled proposition of law
that time and again, through different resolutions, notifications
and circulars, the State of Gujarat has issued directions to the
concerned authority specifically stating that if the geographical
location of a property is situated within the territorial jurisdiction
of a Town Planning Area, in that event, the said property is
required to be declared as non-agricultural land.
4.8) Considering the above-stated totality of the facts and
circumstances of the matter, the orders passed by the authorities
concerned are required to be quashed and set aside by allowing
the present petition, and the name of the petitioner is required
to be mutated in the revenue record on the basis of the
registered sale deed. Learned advocate for the petitioner further
submits that the petitioner had purchased the said property in
the year 2014 and more than ten years have passed, however, till
date he has not received any notice under the provisions of the
Fragmentation Act from the office of the respondents. In support
of his submissions, he has relied upon the decision of this Court in
case of Gokul Mrugesh Jaykrushna Versus Special Secretary,
Revenue Department (Appeal), reported in 2025 (0) AIJEL-HC
252361 in Special Civil Application No. 13549 of 2018. It is,
therefore, urged that the present petition may be allowed by
quashing and setting aside the impugned order and the
concerned revenue authority may be directed to mutate the
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entry in favour of the petitioner on the basis of the registered
sale deed.
5) Learned A.G.P. Ms. Surbhi Bhati appearing for the
respondent - State has vehemently objected to the present
petition and submitted that all the authorities have passed just,
fair and reasonable orders and therefore, the same are not
required to be interfered with by this Court in the present
proceedings. She has referred to the orders passed by the
authorities and submitted that no error of law or fact can be said
to have been committed by the revenue authorities while
deciding the said application. She has further referred to the
order of the Deputy Collector and submitted that it is an
admitted position of fact that if the deed of area of the property
executed is less than 18 Gunthas, in that event, it would certainly
fall within the category of the breach of provisions of
Fragmentation Act. She submitted that it is an admitted position
of fact that area of the plot, for which deed of document
executed, is less than 18 Gunthas and the said fact is also
fortified by the documents produced by the petitioner himself in
the form of a registered sale deed.
5.1) She further submits that in fact, at the time of mutating the
entry in the revenue record, the concerned Mamlatdar came to
the conclusion that the petitioner had failed to produce an
agricultural certificate and therefore, the said entry was not
certified in the revenue record. The said order was thereafter,
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challenged by the petitioner by preferring an appeal. During the
course of the proceedings, the Deputy Collector came to the
conclusion that the petitioner is an agriculturist and the
documents in that regard had already been produced by him.
However, during the scrutiny of the papers, it came to the notice
of the Deputy Collector that the area of the plot is less than 18
Gunthas and therefore, the act and transaction carried out by the
original property holder and the petitioner would squarely fall
within the category of breach of the provisions of the
Fragmentation Act. Therefore, the said appeal was rightly
rejected by assigning appropriate reasons. It is further submitted
that while challenging the said order before the Collector, the
petitioner placed heavy reliance upon Government notifications
published in Gazette under Sections 5 and 6 of the
Fragmentation Act. However, the said document was not legible
one and therefore, the Collector was unable to read it. These
particular facts have been stated in the operative part in very
categorical terms.
5.2) She further submits that if the land is situated within the
territorial jurisdiction of the Town Planning area, then the
benefit of exemption from obtaining non-agricultural (N.A.)
permission would certainly be available to the petitioner.
However, the petitioner has failed to produce any document to
show that the said property is situated within the territorial
jurisdiction of the Town Planning area and therefore, all the
revenue authorities have passed just, fair and reasonable orders.
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Learned A.G.P. has fairly submitted before this Court that along
with the memo of petition, a copy of the order passed in the case
of another purchaser, namely Iqbalhussein Saiyedali, has been
placed on record, wherein the Deputy Collector has certified
entry in the name of purchaser based upon the declaration
submitted by him stating that he would use the said property for
non-agricultural purposes. The said order was passed on
04.04.2014 and the description of the property is based upon the
same set of documents. Therefore, prima facie, in the present
case, it seems that the authority concerned has wrongly passed
order in the said proceedings. She has submits that she has
received written instructions from the office stating that the
authority concerned intends to initiate proceedings to challenge
the said entry before the appropriate forum. The said
correspondence has been tendered, which is directed to be taken
on record. She further submits that it is a settled proposition of
law that once a mistake has been committed, it cannot be
perpetuated or repeated. It seems that a mistake was committed
by the Deputy Collector in allowing the petition preferred by
Iqbalhussein Saiyedali and therefore, solely on that ground, the
petition preferred by the petitioner cannot be entertained.
6) Heard learned advocates and in view of the rival
submissions canvassed by learned advocates for the respective
parties and having gone through the material available on record
and, at this juncture, I would like to refer to and rely upon the
observations made by this Court in the matter of Lakshmi
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Associates versus Collector, Vadodra reported in 2006 (0)
AIJEL-HC 217053 in Special Civil Application No. 718 of 2006,
more particularly in Paragraph Nos. 3, 4, 5 and 7 held as under:
3. Learned Advocate for the petitioner submitted that the
impugned order dated 21st November, 2005 rejecting the
application preferred by the petitioner under Sec. 65 of the
Bombay Land Revenue Code, 1879 and subsequent orders
during the course of hearing by the petition), are de hors the
facts and law especially Sec. 65 of the Bombay Land Revenue
Code, 1879 and read with the provision of the Bombay
Prevention of Fragmentation and Consolidation of Holding
Act, 1947 (hereinafter referred to as "the Act, 1947).
4. Learned Advocate for the petitioner submitted that initially
the land in question was restricted tenure land, and
therefore, an application was preferred under Sec. 43 of the
Bombay Tenancy and Agricultural Lands Act, 1948
(hereinafter referred to as "the Act, 1948), where upon the
order dated 18th January, 2005 (Annexure "B" to the memo
of petition) has been passed by Collector, Vadodara, whereby
the restricted tenure land was made transferable. Thus, new
tenure land was converted into old tenure land. Necessary
amount of premium fixed by the Collector, Vadodara under
Sec. 43 of the Act, 1948 has also been paid. Subsequently, an
application was preferred under Sec. 65 of the Bombay Land
Revenue Code, 1879 for getting N.A. permission and the
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impugned order has been passed by the Collector, Vadodara
presuming that there is a breach of provisions of the Act,
1947. Learned Advocate for the petitioner submitted that
when application is preferred under the provisions of Sec. 65
of the Code, 1879, Collector cannot assume and exercise
powers conferred under another Act, 1947. No notice has
ever been issued stating that the sale transaction has been
entered into is violative of the provisions of the Act, 1947. No
opportunity of being heard has been given for the alleged
breach of the Act, 1947, and therefore, the communication
issued by the Collector, Vadodara dated 21st November,
2005 (Annexure "H" to the memo of the petition) as well as
the order dated 7th March, 2006 passed by the Collector,
Vadodara deserves to be quashed and set aside.
5. Learned Advocate for the petitioner has also relied upon a
decision rendered by this Court in the case of Evergreen
Apartment Co-operative Housing Society Ltd. V/s. Special
Secretary (Appeals), Revenue Department, reported in 1991
(1) GLR 113: 1991 (1) GLH 155 and pointed out that the
powers has been exercised by the Collector, Vadodara under
the Bombay Land Revenue Code, 1879 and it is not
permissible as per the aforesaid judgment, and therefore
also, the impugned order (Annexure "H" to the memo of
petition) as well as order dated 7th March, 2006 deserves to
be quashed and set aside.
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7. Having heard the learned Counsel for both the sides and
looking to the facts and circumstances of the case, in my
view, the order dated 21st November, 2005 issued by
Collector, Vadodara as well as order dated 7th March, 2006
passed by the Collector, Vadodara, - which is taken on the
record of the case, upon tendering the same by the petitioner,
deserve to be quashed and set aside for the following facts
and reasons:
(i) It is not appreciated by the Collector, Vadodara that
while exercising powers under Bombay Land Revenue
Code, 1879, he has also exercised the powers under the
provisions of the Act, 1947 for the alleged breach of the
provisions of the Act, 1947.
(ii) Looking to the aforesaid two orders passed by the
the Collector, Vadodara it seems that though, never any
doubt raised by any concerned authority as to the
validity of the sale deed and the transaction entered
into between the petitioner and predecessor-in-title
under the Act, 1947, and therefore, Collector, Vadodara
while exercising the powers under Sec. 65 of the Code,
1879 ought not to have presumed alleged breach of the
(iii) Unless and until adequate opportunity of hearing is
given to the petitioner under Act, 1947 by issuing
necessary notice, the breach as per Sec. 9 of the Act,
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1947 cannot be considered while exercising powers
under Sec. 65 of the Code, 1879. Both Acts namely
Bombay Land Revenue Code, 1879 and the Bombay
Prevention of Fragmentation and Consolidation of
Holding Act, 1947 are distinct and separate the
provisions for making them applicable. The authority
before passing the order under one Act (in the present
case the Code, 1879) some times goes into depth and
tries to search out breach of another Act (in present
case, breach of provisions of Act, 1947), and thereafter,
they all are presuming the breach of another Act (which
is generally without giving any notice under another
Act and is generally without giving any opportunity of
being heard to the applicant), and thereafter, they are
refusing to exercise their power (which is generally
coupled with duty) under the Act under which the
application is preferred. Here in this case, the
application was under Sec. 65 of Bombay Land Revenue
Code, 1879 for getting N.A. use permission and while
deciding that application, Collector, Vadodara, firstly
found out breach of the Act, 1947, and thereafter,
without giving any opportunity, presumed such and
refused to grant N.A. use permission under Sec. 65 of
the Code, 1879. This action of the Collector, Vadodara
is not permissible under the rule of law. He cannot
presume the breach of another law (i.e. The Act, 1947),
without giving notice and without hearing the
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applicant (of application under Sec. 65 of the Code,
1879)..
It is possible that the same officer (here, he is Collector)
can be an authority under several revenue laws. But
that permits not, the usage of powers, in combination
of any revenue laws. Cross-utilisation of power by
revenue officer, under different laws is not permitted.
When the application under Bombay Land Revenue
Code is given by the applicant, the revenue officer, has
to decide it after applying provisions of that very Code,
1879, but while deciding die application under B.L.R.
Code, the officer, cannot exercise powers under the Act,
1947, without giving notice under the Act, 1947 and
without giving opportunity of being heard to the
applicant. While exercising the powers under one Act
(in the present case, provisions of Code, 1879), exercise
of powers conferred under another Act (i.e. The Act,
1947) is not permitted.
(iv) It has been held by mis Court in the case of
Evergreen Apartment Co-operative Housing Society Ltd.
V/s. Special Secretary (Appeals), Revenue Department
reported in 1991 (1) GLR 113: 1991 (1) GLH 155
especially in Para 12 thereof, as under :-
"12. There is much substance in the second
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submission of Mr. Hawa also. Ordinarily when a
transfer of property takes place by a registered
account, an entry is.effected in the revenue record
and it is certified by the Mamalatdar after making
necessary inquiries. If there is any dispute regarding
mutation, the dispute has to be entered in the
register of the disputed cases, and then such
disputes are to be disposed of by the Mamlatdar.
Under sub-rule (5) of Rule 108 of the Rules, the
aggrieved party can prefer an appeal within 60
days from the date of the service of the order. The
State Government has power to call for and
examine the record of any enquiry or the
proceedings of any subordinate revenue officer and
to review the same under sub-rule (6) of the rules.
It is to be noted in the present case that no appeal
had been presented within 60 days from the date
of Mamlatdar's order certifying the initial entry.
The Assistant Collector, Surat took the said entry in
suo motu revision, even though, he had no such
power under the provisions of Rule 108. It,
therefore, appears that the additional Chief
Secretary, Revenue Department remanded the
proceeding to the Collector for treating the same
as an appeal. This was done after a period of 4
years after the certification of the entry. It was
only the State Government which had the power to
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call for a record of inquiry of proceeding under sub-
rule (6) of Rule 108. Even the State Government
was empowered to satisfy itself "as to the
regularity of such proceedings and as to the
legality or propriety of any decision or order passed
in such proceedings." So, the entire inquiry and
revisional power has to proceed under the Bombay
Land Revenue Rules and not under any enactments
like the Bombay Tenancy and Agricultural Lands
Act, Under Land (Ceiling And Regulations) Act or
Bombay Prevention of Fragmentation and
Consolidation of Holdings Act. It is quite possible
that an officer of the Revenue Department may be
occupying different capacities under not empower
him to exercise any powers under one enactment
while proceeding under another enactment. So far
as the proceeding under Rule 108 of the Rules,
popularly known as R.T.S. 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. Such mutations
have to follow either the documents of title or the
order passed by competent authority under special
enactments. Independently, the Revenue
authorities, as mentioned in Rule 108 of the Rules,
cannot pass orders of cancelling the entries on an
assumption that the transaction recorded in the
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entry are against the provisions of a particular
enactment. Whether the transaction is valid or not
has to be examined by the competent authority
under the particular enactment by following the
procedure prescribed therein, and by giving an
opportunity of hearing to the concerned parties
likely to be affected by any order that may be
passed. Thus, on this second ground also the orders
of the Collector and the additional Chief Secretary
appear to be beyond their jurisdiction. The
additional Chief Secretary has held that the sale by
auction was not consistent with the provisions of
Sec. 27 of the Urban Land (Ceiling and Regulation)
Act. Section 27 relates to prohibition of transfer of
any urban land with a building thereon. Apart from
legal position that Sec. 27 has been struck down as
ultra vires, it is quite obvious that no such question
of transferring urban lapd with a building thereon.,
has ever arisen in the present case. Thus, the order
of the revisional authority has proceeded on a
misconception of relevant legal provisions also."
In view of the aforesaid decision, powers exercised
by the Collector, Vadodara in the communication
dated 21st November, 2005 read with the order
dated 7th March, 2006 passed by Collector,
Vadodara deserve to be quashed and set aside.
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(v) It is an admitted fact that the Collector has not
issued notice till today under the provision of Act, 1947,
and therefore, the impugned order deserves to be
quashed and set aside, mainly and chiefly for the reason
that while passing the order under B.L.R. Code, 1879,
the Collector has interwoven the breach of the Bombay
Prevention of Fragmentation and Consolidation of
Holdings Act, 1947. Before throwing the petitioner at
the speculation of breach of the Act, 1947, the rule of
law requires, notice for alleged breach under another
Act (be it U.L.C. Act or the Act, 1947 or the Bombay
Tenancy and Agricultural Lands Act, 1948 or the like)
and hearing under that Act. In the facts of the present
case, there is no notice, no hearing for the alleged
breach of Sec. 9 of the Act, 1947 therefore, it cannot be
a reason, as given by the Collector, for refusal of N.A.
use permission under Sec. 65 of the Code, 1879.
7) I have perused the documents placed on record which
crystallise the position of fact that the co-purchaser Iqbalhussein
Saiyedali, whose property is situated at adjacent to the property
of the present applicant, has preferred an application to obtain
documents from the Town Planning Office and a correspondence
has taken place between the Collector and the Town Planning
Officer, which settles the position of facts that the said property
lies within the territorial jurisdiction of the Town Planning Area.
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At this juncture, I am heavily putting reliance upon the decisions
rendered by this Court in the case of Gokul Mrugesh Jaykrushna
Versus Special Secretary, Revenue Department (Appeal),
reported in 2025 (0) AIJEL-HC 252361 in Special Civil
Application No. 13549 of 2018 Paragraph No. 8, 11 and 12 as
stated herein below:
8. At this stage, learned advocate, Mr. Shah has relied upon
Section 135C of the Revenue Code and submitted that as and
when the registered document is produced before the revenue
authority, the revenue authorities are under an obligation to
mutate entry without any delay and law on this issue has been
cleared by the Hon'ble Supreme Court as well as this Hon'ble
Court in numerous case laws. In support of this submission, he
has relied upon the decision of this Hon'ble Court in case of
Balvantrai Ambaram Patel Vs. State of Gujarat, reported in
2014 (0) AIJEL-HC 232555. It is, therefore, urged that the
present petition may be allowed by quashing and setting aside
the impugned orders and the revenue authorities may be
directed to mutate entry in favour of the petitioner on the
basis of the registered sale deed.
11. On perusal of the impugned orders, as stated above, the
entry has been cancelled only on the ground of violation of
Fragmentation Act and the petitioner is not having status of
an agriculturist. In this regard, it is required to be noted that
the registered sale deed is dated 03.08.2010, based on which,
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Entry No.3054 was mutated in the revenue record on
15.04.2011 and it has been cancelled on 18.06.2011 and
thus, more than 14 years have been elapsed, therefore till
date, no proceedings have been initiated against the
petitioner for alleged violation of the Fragmentation Act. It is
required to be noted that it is settled proposition of law that
it is the competent civil court, who is competent to decide the
title over the land and not by the revenue authority in
exercise of power under the provision of the Revenue Code.
The said aspect is already considered by this Court in the case
of Evergreen Apartment Cooperative Housing Society Vs.
Special Secretary, Revenue Department, Gujarat State,
reported in 1991(1) GLR 113, and also in the case of
Siddharth B. Shah & Ors. Vs. State of Gujarat, reported in
1999 (3) GLR 2527. This Court in the aforesaid two judgments
has considered the scope and ambit of Rule 108 of the
Bombay Land Revenue Rules and the jurisdiction of the
revenue authorities while considering the RTS proceedings
and has held as under;
"So far as the proceedings under Sec. 108 of the Rules
popularly known 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. Such
mutations have to follow either the documents of title or the
orders passed by the competent authorities under special
enactments. Independently the revenue authorities, as
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mentioned in 108 of the Rules, cannot pass orders of
cancelling the entries on an assumption that the transactions
recorded in the entry are against the provisions of a
particular enactment. Whether the transaction is valid or not
has to be examined by the competent authority under the
particular enactment by following the procedure prescribed
therein and by giving an opportunity of hearing to the
concerned parties likely to be affected by any order that may
be passed."
12. Further so far as the petitioner having status of an
agriculturist is concerned, there is no dispute about the fact
that the petitioner had produced revenue record of
Gandhinagar district contending that he is having land over
there and even before this Hon'ble Court also, by way of filing
additional affidavit, certificate of his having status of an
agriculturist has been produced on record. However it is
evident from the record that despite production of such
documents, the revenue authorities have not verified the
status of the petitioner and rejected his request. Be that as it
may, in the facts of the present case, it cannot be said that
the petitioner is not an agriculturist.
8) Heard learned advocates for the respective parties and
having gone through the records and proceedings, it appears
that the issue involved in the case lies within a narrow compass
and certain factual aspects are undisputed. The petitioner herein
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purchased the said property by way of execution of a registered
sale deed on 04.04.2014 after paying the entire amount of the
sale consideration to the original property owner. Pursuant to
the execution of a registered sale deed, an entry was already
mutated in the revenue record. Thereafter, further proceedings
for certification of the said entry were initiated at the ends of the
office of the Mamlatdar and notices were issued under the
provisions of Section 135D of the Bombay Land Revenue Code.
Subsequently, the Mamlatdar came to the conclusion that the
entry could not be certified on the ground that the land was
agricultural in nature and the petitioner had failed to produce an
agriculturalist certificate. The said order was challenged by the
petitioner by preferring an appeal before the Deputy Collector.
Along with the appeal, the petitioner produced documents
pertaining to his status as agriculturalist. After verifying the said
documents, the Deputy Collector held that the petitioner is an
agriculturist and that the documents in that regard had been duly
produced. The record further reveals that the area of the plot is
less than 18 Gunthas and as per the statutory provisions of law,
the said property would squarely fall within the category of a
fragment. In fact, the petitioner has purchased half portion of the
original property. As per the revenue record, the said Survey No.
admeasures 31 Are and 36 Square Meters, out of which the
petitioner purchased 15 Are and 13 Square Meters. Therefore, by
entering into the said transactions and execution of the
registered sale deed, the said property came to be divided into
two parts.
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8.1) The Deputy Collector came to the conclusion that by way of
entering into the transactions, the property had been converted
into a fragment parcel of land and therefore, the said entry was
not required to be certified. It is a settled proposition of law that
at the time of passing the order under the provisions of a
particular enactment, if during the course of scrutiny of the
record, the authority comes to the conclusion that there is an
apparent breach of the provisions of another enactment, then it
is not permissible for the incumbent officer to straightway
declare such breach without initiating proceedings under the
relevant provisions of that enactment. In other words, merely on
the basis of the documents and materials available on record, the
authority cannot, without initiating proceedings under the
concerned statute, record a finding that there is breach of
provisions of another enactment and refuse to certify the entry
on that ground.
8.2) The principle of law enunciated in the above-stated
judgment is squarely applicable to the facts of the present case.
It is an admitted position of fact that pursuant to the purchase of
the property by way of execution of registered sale deed, the
petitioner preferred application and an entry to that effect has
also been mutated in the revenue record. Thereafter, the said
entry was not certified by the Mamlatdar solely on the ground
that the petitioner had failed to produce an agricultural
certificate. Therefore, being aggrieved by the said order of the
Mamlatdar, the petitioner preferred an R.T.S. appeal before the
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Deputy Collector. At that relevant point of time, the petitioner
produced documents and materials to establish that he is an
agriculturist and that the competent revenue authority had
issued certificates/documents in that regard. Therefore, at the
time of deciding the fate of the appeal, the Deputy Collector was
required to take a decision in accordance with statutory
provisions of law mentioned in the Bombay Land Revenue Code.
However, in the present case, at the time of dismissing the
appeal, the Deputy Collector came to the conclusion that there
was an apparent breach of the provisions of Consolidation of
Holdings and Prevention of Fragmentation Act, 1948. Thus, while
deciding the R.T.S. proceedings, the Deputy Collector recorded
findings regarding breach of the provisions of another enactment
without initiating proceedings under the said Act. The view
adopted by the Deputy Collector is therefore, contrary to the
settled proposition of law and the said is unjust, illegal, perverse
and against the settled proposition of law and hence, deserves to
be quashed and set aside.
8.3) For the sake of arguments, even if during the course of
scrutiny of the record, the revenue authority jumps to the
conclusion that by way of executing certain documents, the
parties have committed a breach of certain provisions of law, in
that event, appropriate legal proceedings are required to be
initiated under the relevant provisions of the said enactment.
The Deputy Collector was required to issue a show-cause notice
to the petitioner under Section 7 of the provisions of
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Fragmentation Act. Admittedly, no such actions has been taken
at the ends of the Deputy Collector and therefore, there is merit
in the present petition, hence, requires to be considered.
8.4) The second limb of argument canvassed by the learned
advocate of the petitioner is that, at the time of execution of the
registered sale deed, the original property holder had sold the
property to two different individuals. Pursuant to the execution
of sale deeds, entries were mutated in the revenue record.
However, the said entries were subsequently not certified by the
Mamlatdar by assigning specific reasons that the property is
agricultural land and that without obtaining prior permission
from the competent authority, the land could not have been sold
to non-agriculturists. Record reveals that petitioner and other
purchaser were non-agriculturists. The record reveals that both
the petitioner and the other purchaser failed to produce
documents/materials to show that they are agriculturists and
therefore, the entries were not certified. Both the parties
challenged the said decision of the Mamlatdar by way of
preferring appeals. He further submitted that, pursuant to the
entry certified qua co-purchaser Iqbalhussein Saiyedali, an
application was preferred before the concerned authority to
declare the said property as non-agricultural land and to grant
sanction for the layout plan before the Town Planning
Department. Based upon the said application, the Town Planning
Officer, Junagarh, addressed a communication to the Collector
stating that the property falls within the territorial jurisdiction of
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the Town Planning Area of Veraval Taluka and within the
development zone of Veraval City, and therefore appropriate
permission is required. The said document crystallises the
position of fact that the property is situated within the Town
Planning Area of Veraval City. It is a settled proposition of law
that, through various resolutions, notifications and circulars, the
State of Gujarat has directed that if a property falls within the
territorial jurisdiction of a Town Planning Area, it is required to
be declared as non-agricultural land.
8.5) The appeal preferred by the present petitioner came to be
dismissed by the Deputy Collector by assigning specific reasons
that there was a clear-cut breach of the provisions of the
Fragmentation Act and therefore, the order passed by the
Mamlatdar is confirmed and the entry could not be certified.
However, so far as the case of other co-purchaser is concerned,
his appeal came to be allowed. A copy of the said order has been
placed on record. At the time of entertaining the appeal of the
other purchaser, the Deputy Collector obtained a document in
the form of declaration from him stating that he would use the
said property for non-agricultural purposes. On the strength of
the said declaration, the said appeal preferred by the said
purchaser came to be allowed. Despite the fact, that the appeals
were based upon the same set of documents, material and facts,
the appeal of the petitioner came to be dismissed by assigning
altogether different reasons. Therefore, prima facie, from the
documents placed on record, it appears that discriminatory
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treatment has been given to the petitioner by the revenue
authorities. These facts have also been candidly conceded by the
learned A.G.P. subsequently stating that due to oversight,
inadvertent mistake might have been committed by the
concerned officer, and the said order came to be passed by the
concerned officer, recently, the said fact has come to the notice
of the office and a decision has been taken to challenge the said
order passed by the Deputy Collector. A copy of the said
correspondence, in that event, has been tendered and the same
is taken on record.
8.6) I have verified the record and proceedings and it is found
out from the record that from the very beginning the petitioner
has been subjected to discriminatory treatment by the Deputy
Collector by not entertaining his appeal, despite the fact that all
the relevant documents had already been produced by the
petitioner before the concerned revenue authority while
challenging the order before the Collector. Therefore, the stand
taken before this Court, at this juncture, does not appear to be
convincing, tenable and digestible. This Court is of the firm
opinion that these facts had already been brought to the notice
of the higher authorities at that relevant point of time. However,
while deciding the matter, the Collector and the Special
Secretary, Revenue Department did not pay due heed to the said
documents placed on record along with the appeal memo as well
as the revision application. It is also an admitted position of fact
that if revenue authority arrives at a conclusion that there is
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express breach of the provisions any enactment/statute, in that
event, appropriate proceedings under the said provisions of law
are required to be initiated immediately. However, till date, no
such action has been taken by the concerned authorities.
Considering the above-stated totality of the facts of the matter,
this Court is of the opinion that there is merit in the present
petition and therefore, the application preferred by the applicant
is required to be entertained at this juncture.
8.7) Another facet of argument canvassed by the learned
advocate for the petitioner is that the petitioner had produced a
notification downloaded from the official website of the
Government, which clearly indicates that the location of the land
falls within the peripheral area of Veraval City and within the
territorial jurisdiction of the Town Planning Office. It is further
submitted that, as per the resolutions, notifications and circulars
issued by the Government of Gujarat time and again, if a property
falls within the periphery of a town planning area, in that event,
such property is required to be treated as an old tenure land and
as non-agricultural land. Consequently, for carrying out any non-
agricultural activities, prior permission of the competent
authority is not required to be obtained. However, the copy of
the said document downloaded from the website of the Gujarat
Government was not legible and therefore, the officer concerned
did not give due weightage to the contents of the said document
due to non-availability of the original record. The revenue
authority, being the highest authority at the district level, was
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required to verify the contents of the said notification by calling
for the original record from the concerned department. Merely
because the copy of the document produced by the petitioner
was not legible, it cannot be said that such notification or
circular is not in existence.
Thus in view of the facts of the case and the aforesaid ratio
laid down in the aforesaid decisions, I am of the considered
opinion that cancellation of the entry based on registered sale
deed ought to have been mutated by the revenue authority.
Therefore, the present petition deserves to be allowed.
9) In view of the above facts of the matter, the petition is
allowed. The impugned order dated 20.01.2018 in MVV/HKP/Gir/
47/2017 passed by Special Secretary (Appeals), Revenue
Department, Ahmedabad is hereby quashed and set aside. The
concerned revenue authority is directed to mutate the entry in
favour of the petitioner based on registered sale deed.
10) With the above observation and direction, the present
petition stands disposed of.
(DIVYESH A. JOSHI,J)
GARVITA
