Gujarat High Court
State Of Gujarat vs Ashwinsinh S/O. Hemendrasinh Sarvaiya on 16 February, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/CA/576/2026 JUDGMENT DATED: 16/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 576 of 2026
In
F/LETTERS PATENT APPEAL/1640/2026
In
R/SPECIAL CIVIL APPLICATION/26801/2022
With
F/LETTERS PATENT APPEAL NO. 1640 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 26801 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026 In F/LETTERS PATENT
APPEAL NO. 1640 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 26801 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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STATE OF GUJARAT & ORS.
Versus
ASHWINSINH S/O. HEMENDRASINH SARVAIYA
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Appearance:
MS. HETAL PATEL, AGP for the Applicant(s) No. 1,2,3
MR.KISHORE PRAJAPATI(6305) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 16/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE D.N.RAY) An additional affidavit in support of the delay condonation application, filed in the Court by Ms.Hetal G.Patel, learned Assistant Government Pleader, is taken on record.
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NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined
1. Heard Ms.Hetal Patel, learned Assistant Government Pleader for the appellants-applicants and Mr.Kishore Prajapati, learned advocate for the respondent.
2. Brief facts leading to the institution of the present appeal, in nuce, are as under:-
2.1 The subject matter of the dispute concerns parcels of land bearing Survey No. 58 admeasuring 11,331 sq. mtrs., Survey No. 59 admeasuring 11,129 sq. mtrs., along with additional land admeasuring 3,035 sq. mtrs., situated at Rajkot. The said land was purchased by the original writ petitioner (hereinafter referred to as "the petitioner") from Ramji Mandir Trust pursuant to permission granted by the Charity Commissioner under Section 36 of the Bombay Public Trusts Act. Thereafter, the petitioner sought non-agricultural permission under Section 65 of the Bombay Land Revenue Code; however, the application came to be rejected by the District Collector, Rajkot, vide order dated 22.07.2015.
2.2 Aggrieved by the aforesaid order, the petitioner preferred Revision Application No. 6 of 2015 before the Page 2 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined Special Secretary (Appeals), Revenue Department. The revisional authority, by order dated 17.04.2017, dismissed the revision application and affirmed the order passed by the Collector.
2.3 Subsequently, the petitioner invoked the writ jurisdiction of this Court by filing Special Civil Application No. 13136 of 2017. The said petition was allowed, whereby the orders passed by the Collector and the revisional authority were quashed and set aside, and the competent authority was directed to reconsider the application under Section 65 in light of the observations made in Tusharbhai Dhanjibhai Ghelani v. State of Gujarat.
2.4 Pursuant to the aforesaid directions, the competent authority reconsidered the application; however, the same was again rejected vide order dated 04.08.2022, upon consideration of the prevailing factual and legal aspects concerning the land in question. Challenging the said order, the petitioner filed Special Civil Application No. 26801 of 2022. By oral order dated 02.01.2025, the learned Single Judge allowed the petition and set aside the order dated Page 3 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined 04.08.2022.
3. Being aggrieved by the aforesaid oral order dated 02.01.2025 passed by the learned Single Judge in Special Civil Application No. 26801 of 2022, the appellant has preferred the present appeal.
4. Having perused the record, it is to be noted that this intra-court appeal is arising out of the judgment and order dated 02.01.2025 passed by the learned Single Judge in allowing the writ petition setting aside the order dated 04.08.2022 passed by the Collector, Rajkot with respect to consolidated Survey Nos.58 and 59, admeasuring 14,366 sq. meters in aggregate, under the provisions of Section 65 of Gujarat Land Revenue Code, 1879.
5. It was argued that the lands in question were originally allotted to the then occupants and later the trust was created with the registration of the trust deed around the year 1963. Subsequently, upon receiving the necessary permission from the Joint Charity Commissioner, Rajkot for sale of the lands, the petitioner purchased the lands by a registered sale deed Page 4 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined dated 23.12.2011, executed by the Trust thereby conveying the land in question to the petitioner.
6. Upon execution of the registered sale deed in favour of the petitioner, Revenue Entry No.2064 came to be recorded in the revenue records on 14.08.2012 which came to be certified on 28.12.2012.
7. The petitioner thereafter moved an application to Mamlatdar, Rajkot Taluka for consolidation of subject lands covered by Survey No.58 and 59. By order dated 04.04.2013, the Mamlatdar, Rajkot Taluka consolidated the land covered by two Survey numbers and gave Survey No.58 admeasuring 14,366 sq. meters to the subject land.
7.1 Pursuant to the consolidation of two parcels of land, entry No. 2112 came to be mutated into the revenue records on 30.04.2013.
7.2 The petitioner thereafter made an application dated 23.06.2013 to the Collector, for grant of NA permission under the provisions of Section 65 of the Gujarat Land Revenue Page 5 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined Code, 1879.
7.3 The above referred application dated 23.06.2013 made by the petitioner came to be rejected by the respondent No. 2 by the communication dated 17.09.2014 stating that the subject land is the land of Thakar Mandir, Bedi and that, only the succession entries can be recorded in respect of such lands.
7.4 Upon receipt of the aforesaid decision, the petitioner made another application dated 21.11.2014 to the respondent No. 2 thereby placing a copy of the order dated 18.2.2011 as also the order dated 18.11.2011 made by the Joint Charity Commissioner granting permission to sell the subject land and the registered sale deed in favour of the petitioner. 7.5. The Collector, upon receipt of the report from the Prant Officer and without supplying a copy thereof to the petitioner, made the impugned order dated 22.07.2015 thereby again rejecting the application for grant of NA permission. While rejecting this application, the Collector relied upon a Government Circular dated 09.04.2010. The Collector also Page 6 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined recorded that the subject land which was given old Survey No. 124 was shown in the name of the temple at Barkhalidar through its trustee Shri Prabhudas Hariram Pujari. 7.6 Being aggrieved by the aforesaid order dated 22.07.2015 made by the respondent No. 2, the petitioner filed the Revision Application No.6/2015 before the respondent No.
1. The petitioner pointed out that the subject land was held by the Trust and was shown as such in the PTR. The Trust is a registered Trust and is governed by the provisions of the Trust Act. The Trust is competent to sell its lands upon permission under Section 36 of the said Act. In the present case, the Trust obtained requisite permission under Section 36 of the Act and by a registered sale deed, sold the subject land in favour of the petitioner. The order made by the Ld. Joint Charity Commissioner has attained finality. There is no violation of the provisions of Saurashtra Barkhali Abolition Act, 1951 (for short 'the Barkhali Act'). It was also submitted that the opinion given by the Prant Officer was ex-parte and was without giving any notice to the petitioner. The Collector also did not give any notice or opportunity of being heard before making the impugned order. The petitioner also Page 7 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined submitted that the respondent Collector was only required to consider the ingredients of Section 65 of the Gujarat Land Revenue Code, 1879, while considering the application for grant of NA permission, whereas the impugned order considers various factors which are extraneous to the true scope and intent of the provision of Section 65 of the Gujarat Land Revenue Code, 1879.
8. The learned Single Judge allowed the writ petition by holding that the order impugned before him being the order dated 04.08.2022 passed by the District Collector, Rajkot, rejecting the respondent's application for grant of NA permission under Section 65(b) of the Gujarat Land Revenue Code, 1879, is illegal and in contravention of the decision of this Court in Tusharbhai Ghelani (Supra). The learned Single Judge passed the further consequential directions as under :-
"12. The petitioner shall move an application for revival of his earlier application and whereas the Collector, Rajkot is directed to once again consider the application of the petitioner for grant of N.A permission within a period of 60 days from the date of receipt of this order, more particularly the Collector, Rajkot shall while considering the application strictly abide by the observations of this Court in case of Tusharbhai Gehlani (supra) and whereas it is further directed that the objections which have been raised in order dated 04.08.2022 preceded by order dated 22.07.2015, shall not be Page 8 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined relied upon by the Collector while considering the application."
9. Ms. Hetal Patel, learned Assistant Government Pleader appearing for the appellants submits that the transaction made by the original occupants recognized under Section 15 of the Abolition Act, 1951, being without the prior permission of the Collector concerned, cannot be said to be valid in the eye of law. It is submitted before us by Ms.Hetal Patel, learned Assistant Government Pleader appearing for the appellants that the Occupancy Certificate would confer right upon the occupants only to cultivate the lands in question but for transfer by the occupant, permission of the Collector concerned is required.
10. Considering the first submission made by the learned Assistant Government Pleader for the State appellants that the transactions of the lands in question made in the year 2012 are hit by the conditions of the occupancy certificate, we posed a pointed query to the learned Assistant Government Pleader to place the provisions of the Abolition Act, 1951, if any, which puts any restriction on the tenure of the Page 9 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined occupants, to whom the lands in question were allotted under Section 15 of the Abolition Act, 1951.
11. It was further pointed out to Ms. Patel as to how the decision of this Court in the case of State of Gujarat & Anr. Vs. Rajnikant Prabhudas Pobaru (Through Partners of Shir Prabhu Sthaptyay) & Ors. reported in 2025 GUJHC:74221-DE will not be binding on the State (Appellants) and consequently the present appeal should not be dismissed?
12. Ms. Hetal Patel fairly submitted that the ratio of the decision in the case of Rajnikant Prabhudas Pobaru (Supra) does appear to squarely bind the appellants. In Rajnikant Prabhudas Pobaru (Supra), this Court has held as under :-
"8. Considering the first submission made by the learned Assistant Government Pleader for the State appellants that the transaction of the lands in question made in the year 2008 and 2009 are hit by the conditions of the occupancy certificate, we posed a pointed query to the learned Assistant Government Pleader to place the provisions of the Abolition Act' 1951, which puts any restriction on the tenure of the occupants, to whom the lands in question were allotted under Section 15 of the Abolition Act' 1951.
9. No such provision could be brought before us.Page 10 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026
NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined The reference to Rule 108 (6) of the Gujarat Land Revenue Rules, 1972 to defend the powers of the Collector to initiate proceedings for cancellation of entry, is wholly a result of misreading of the said provision.
10. While dealing with the submissions of the learned counsels for the parties, the learned Single Judge in the judgment impugned has framed a question "Whether an occupant of a land received under the Barkhali Abolition Act is required to take prior approval of the State authorities before transacting the land in question". While answering the said issue no.2, the learned Single Judge has extensively discussed the concept of "Barkhali" under the Barkhali Abolition Act, 1951 in paragraphs '14' to '27' of the judgment impugned.
11. It was noted by the learned Single Judge that from a perusal of the Abolition Act' 1951, it would appear that the Act contemplates Barkhalidar to be occupant and the occupancy being subject to the conditions mentioned in the occupancy certificate. Relevant Section 15 of the Abolition Act' 1951 has been noted to record that the only condition that could be imposed in the occupancy certificate is in accordance with the provisions of clause (a) of sub-section (2) of Section 8, where the right of occupancy has been given subject to the right of preemption for a period of 10 years for lease or sale at a price to be determined by the Mamlatdar under the Rules made under the Act.
12. It is noted by the learned Single Judge that the occupancy certificate issued under Section 15 neither lays down that the lands are of restricted tenure nor contains any condition for permission of the State for the sale of the lands mentioned therein.
13. Further, the Rules 57 to 61 as contained in Chapter III of the Saurashtra Barkhali Abolition Rules, 1951 made under the Act, have been placed before us by Mr. Mihir Thakore, the learned Senior counsel for the respondents/original petitioners to demonstrate that for issuance of occupancy certificate to the Barkhalidar, the Mamlatdar was required to make an inquiry so as to satisfy himself regarding the right of the applicant to the Gharkhed comprised in the State Page 11 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined and the land allotted to him in accordance with Sections 6 to 9 of the Abolition Act' 1951.
14. The Rules further speak of issuance of occupancy certificate to the Barkhalidar subject to any conditions that may be imposed in accordance with the provisions of clause (a) of sub-section (2) of Section 8, were applicable. Rule 61 provides that the occupancy certificate is to be issued in Form X prescribed under the Rule. The form of occupancy certificate under Section 15 has been extracted by the learned Single Judge in the judgment impugned.
15. It is noted in paragraph '23' of the judgement impugned that from the scheme of the Act or the Rules, it would appear that they do not lay down any restriction on transaction of the land, such as prior permission of the State authorities. Rather, the Act empowers the Barkhalidar or the tenant to even sell the land albeit after following the procedure prescribed as laid down in Chapter 5.
16. It is further noted by the learned Single Judge that Chapter 5 of the Rules' 1951 could be invoked only for enforcing rights of preemption by the Barkhalidar or the tenant. It was further noted by the learned Single Judge that the record does not indicate that in the lands in question had any existing right of preemption. It was, thus, concluded that the Barkhalidar was empowered to sell the land without any reference to the State authorities.
17. It is further noted by the learned Single Judge that, insofar as, the proceedings with regard to the sale of the lands in question under the Abolition Act' 1951, the Collector is empowered to take out proceedings only if the mutual right of preemption is breached, i.e. if the procedure under Chapter V of the Rules' 1951 is not followed. The result is that the Collector is not empowered to undertake any proceedings under the Abolition Act '1951 read with Rules made thereunder with regard to a sale where there is no breach of provisions of Chapter V of the Rules.
18. Considering the above, we do not find any good ground to entertain the present appeals filed by the State on the premise that the lands in question were Page 12 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026 NEUTRAL CITATION C/CA/576/2026 JUDGMENT DATED: 16/02/2026 undefined restricted tenure land or the rights conferred upon the occupants of the lands in question by issuance of the occupancy certificate under Section 15, had any restriction on the sale of the lands in question. The copy of the occupancy certificate is appended at page '110' of the paper book. The conditions in the occupancy certificate at page '111' do not substantiate the case of the State appellants about any restriction on the lands in question except as provided in Section 8(2)(a) read with Rule 59 in Chapter III of the Rules' 1951 made under the Abolition Act' 1951."
13. On a further query as to what good ground has been pleaded by the appellants to even condone the massive delay of 350 days in filing the present appeal, upon perusal of the contents of the Civil Application for condonation of delay as well the additional affidavit dated 16.02.2026 regarding the explanation for delay, we are thoroughly dissatisfied with the grounds on which the delay is sought to be explained by the appellants. We are of the certain opinion that the manner in which the present appeal has been filed is in transgression of the litigation policy of the State and therefore, the present petition deserves to be dismissed solely on the ground of delay. Therefore, we unhesitatingly dismiss the Civil Application No. 576 of 2026. Besides, as held hereinabove, we are satisfied, even on merits, that the appellants have no case whatsoever and therefore the present appeal deserves to be dismissed even on merits.
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14. The Civil Application No. 576 of 2026 as well as present appeal stands dismissed, accordingly. No order as to costs.
Connected Civil Applications would not survive and shall stand disposed of.
(SUNITA AGARWAL, CJ ) (D.N.RAY,J) BINA SHAH Page 14 of 14 Uploaded by BINA SHAH(HC00353) on Sat Feb 21 2026 Downloaded on : Sat Mar 14 01:25:57 IST 2026