The main legal point established in the judgment is that the action initiated by the Show Cause Notice was not within the prescribed period by the statute, nor within a reasonable period, and therefore, deserved to be quashed and set aside on the ground of delay.

JUDGMENT :

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent Nos.1 and 2.

2. This petition under Article-226 of the Constitution of India is filed challenging the order of the Secretary, Revenue Department (Appeals) dated 09/19.02.2018 in Revision Application No.59 of 2016. By the aforesaid order, the Secretary had confirmed the order of the District Collector, Banaskantha in Suo-Motu/Revision Case No.343 of 2015.

3. The issue pertains to Revenue Entry No.560 dated 15-01-1984, which was called in Suo-Motu Revision in exercise of powers under Rule- 108(6) of the Gujarat Land Revenue Rules.

4. Learned Advocate for the petitioners, at the outset, has raised contention of gross delay in issuing Show Cause Notice in the year 2015 in connection with Entry No.560, which was posted in the year 1984. Show Cause Notice had called upon the petitioners to answer that aforesaid entry was posted illegally on the basis of Sale-deed in connection with an agricultural land, where the petitioners were not agriculturist.

5. Learned Advocate for the petitioners also submitted that Entry in question No.560 was made after following due procedure like recording of statement of the concerned persons after issuing notices under Section-135(D) and was thereafter certified. In the said Entry, owner and occupier of Survey No.207 of Village-Dharisana, Taluka-Deesa had applied for entering the name of his real brothers as co-owners and co-occupiers of the aforesaid land. This Entry was questioned in the Show Cause Notice on the ground that Survey No.207 was an agricultural land, which was self-acquired by the eldest brother of the petitioners namely Ishwarlal Dahyalal Soni and therefore, the petitioners, who were not agriculturists, their name could not have mutated.

6. Learned Advocate for the petitioners further submitted that pursuant to Show Cause Notice, when reply came to be filed, the Collector passed an order against the petitioners, wherein the order passed was beyond the scope of Show Cause Notice as the directions were issued to cancel the certificate of agriculturist, if any, is issued in favour of the petitioners anywhere in Gujarat.

7. Learned Advocate for the petitioners step by step took this Court through the Revenue record, which would indicate that eldest brother of the petitioners namely Ishwarlal Dahyalal Soni, who is the respondent No.4 herein, his name was entered at the time of promulgation in the year 1964, recording him to be agriculturist in connection with Survey No.209 of Village-Dharisana. It is submitted that in the year 1981, said Ishwarlal Dahyalal Soni purchased Survey No.207 of Village-Dharisana by registered Sale-deed from the original owner – Mohanji Lakhaji, for which Entry was posted vide Entry No.454 and was also certified in the year 1981. It is thereafter, on account of the fact that the respondent No.4-Ishwarlal Dahyalal Soni being eldest brother in the family, at the time of promulgation, his name was entered in the ancestral land and therefore, had applied for including names of the petitioners, as his real brothers, who were also naturally agriculturist.

8. Learned Advocate for the petitioners submitted that though it was not dispute that land bearing Survey No.209 was ancestral land and nobody had questioned the status of the agricultural land being Survey No.209 as ancestral land, as a result of which, the petitioners, who were real brothers of said Ishwarlal Dahyalal Soni, are also required to be treated as agriculturists. The Collector has proceeded to conclude erroneously, as if the land bearing Survey No.207 is not ancestral land, but self-acquired land. It is submitted that such finding was beyond the scope of the Collector as status of the land being ancestral or self-acquired has not been questioned by anybody.

9. Learned Advocate for the petitioners has relied upon the decision of this Court in support of his submission that the action of issuing impugned