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2022 Supreme(Guj) 882

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sangeeta K.Vishen, J.
Raliyatben Popatbhai Thummar – Appellant
Versus
State Of Gujarat & 7 Others – Respondents
R/Special Civil Application No. 478 of 2016
Decided On : 08-06-2022

Advocates appeared:
P.J.Kanabar, J.K.Shah, Advocates

Headnote:

Constitution of India, 1950 – Article 226 – Hindu Minority and Guardianship Act, 1956 – Appeals – Prayed for quashing and setting aside – By this petition, inter alia, under Article 226 of Constitution of India, petitioner has prayed for quashing and setting aside order passed by Special Secretary, Revenue Department (Appeals) and order passed by Collector –Held, So far as present case is concerned, it is not even case of state Government that land is of a restricted nature – It is nobody's case that transaction was nonest or void ab initio – Transaction was executed by respondent nos.6 to 8 in favour of respondent no.4, an agriculturist and respondent no.5, son – Entries whereof, were posted in revenue record, followed by certification by revenue authorities concerned – It is not that authorities were not aware about execution of sale deed and subsequent posting of entries in revenue record – If at all, authorities were of opinion that transaction is not in conformity with provisions of Act of 1956, it should have promptly taken steps – Orders also deserve to be interfered with on ground of it having passed in violation of principles of natural justice – Petitioner purchased land somewhere in year 1999 vide registered sale deed and entry nos.2751 and 2752 were posted in revenue record and were duly certified – Perceptibly, RTS team has investigated issue and also prepared a proposal – Writ petition allowed.

JUDGMENT :

1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 08.10.2015 passed by the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as "the learned Secretary") and the order dated 27.09.2013 passed by the Collector.

2. The petitioner is aggrieved by the two orders by which, entry nos.1616 and 1617, both dated 27.02.1986, were taken in suo motu revision and have been quashed and set aside.

3. Tersely stated are the facts.

    3.1. The issue revolves around the land bearing survey no.197 paiki. According to the petitioner, respondent nos.7 and 8, being minors, at the relevant point of time, through their guardian Smt.Prabhaben Dhirubhai Nakrani, purchased a piece of agricultural land of Village: Bagasra bearing revenue survey no.197 paiki admeasuring 6 acres and 2 gunthas vide registered sale deed dated 10.03.1981. Similarly, the respondent no.6, the father of the respondent nos.7 and 8, purchased the land admeasuring 7 acres and 39 gunthas of Village: Bagasra. The respondent no.4, subsequently purchased the said land admeasuring 6 acres from the respondent nos.7 and 8 vide registered sale deed dated 22.05.1984. Similarly, respondent no.5, being minor, through his natural guardian and father i.e. respondent no.4, purchased the land admeasuring 7 hectors and 39 gunthas from its owner i.e. respondent no.6 vide registered sale deed dated 22.05.1984.

3.2. The sale transaction in favour of the respondent nos.4 and 5 was entered in the revenue record vide entry nos.1616 and 1617, both dated 27.02.1986. After following due procedure, both the entries were certified on 02.04.1986 of which, there is no dispute.

The petitioner, on 18.05.1999, vide two registered sale deed nos.270/1999 and 271/1999, purchased the land bearing survey no.197, admeasuring Acre-6-00 gunthas and Acre-8-01 gunthas respectively. Entry nos.2752 and 2751 respectively, were posted in the revenue record on 25.05.1999 and were certified on 10.09.1999 (hereinafter referred to as "the land in question").

3.3. Subsequently, according to the petitioner, the respondent no.2 i.e. the Collector, after more than 26 years of certification of the entry nos.1616 and 1617, initiated suo motu proceedings by issuing show-cause notice dated 27.11.2012. By the said show-cause notice, the private respondents were required to show cause as to why, entry nos.1616 and 1617, both dated 02.04.1986, shall not be taken in suo-motu revision. As per the show-cause notice, the private respondents were required to produce on record the evidence in support of they being khedut khatedar. The show-cause notice culminated into passing of the order dated 27.09.2013 by the Collector. The grievance of the petitioner is that everything was available with the Collector; however, the Collector chose not to issue any notice to the petitioner and proceeded to pass the order, cancelling the entry nos.1616 and 1617.

3.4. The petitioner being aggrieved, preferred revision application before the learned Secretary raising various contentions including the contention that the order passed by the Collector is in violation of the principles of natural justice inasmuch as, the petitioner has not been heard and the order has been passed without offering any opportunity to her. The learned Secretary passed the order dated 08.10.2015, rejecting the revision application and confirmed the order dated 27.09.2013 passed by the Collector. Hence, the present writ petition.

4. Mr.P.J. Kanabar, learned advocate for the petitioner has made submissions along the lines of the averments made in the present writ petition. It is submitted that entry nos.1616 and 1617 were posted in the revenue record in the year 1986 and were certified; however, no steps were taken for cancellation of the said entries and it is only after almost a period of 26 years, that the Collector, while exercising the suo motu powers, has can

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