Gujarat High Court
Nai Shankarbhai Rudabhai- Legal Heir Of ... vs State Of Gujarat on 28 November, 2025
NEUTRAL CITATION
C/SCA/16116/2016 ORDER DATED: 28/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16116 of 2016
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NAI SHANKARBHAI RUDABHAI- LEGAL HEIR OF DECEASED GAJU
MAVA HAJAM (NAI) AND OTHERS
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DP KINARIWALA FOR MR RAJESH R DEWAL(1024) for the
Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 6
MR JEET JOTANGIA, AGP for the Respondent(s) No. 1,2,3,4,5
MR VL THAKKAR(2735) for the Respondent(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 28/11/2025
ORAL ORDER
1. By way of preferring present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief/s:
"A. Be pleased to allow this petition.
B. Be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction for quashing and setting aside the order dated 26.04.2016 passed by the respondent No.2 and consequently the order dated 30.10.2012, passed by the present respondent No.3 in Appeal No.1995 of 2012 and the order passed byt eh present respondent no.4 in Condition Breach Case No.74 of 2003 dated 02.11.2004.
C. Pending admission, hearing and final Page 1 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined disposal of this petition, be pleased to stay the execution, operation and implementation of the order dated 26.04.2016 passed by the present respondent No.2 in Revision Application No.20 of 2014.
D. Be pleased to tag this matter with SCA No.11375/2015, in case if it is restored by this Hon'ble Court and then further issue direction to hear and decide both the matters together as the dispute in respect is of the same subject land.
E. Be pleased to issue direction upon the respondent No.1 and 2 to regularize the land in the name of the present petitioner as entitled legal heir in light of circular/order dated 09.10.2013 as mentioned in ground no.F. F. Be pleased to grant any other relief which deems fit and proper in the interest of justice."
2. Heard learned advocate Mr. D. P Kinariwala assisted by learned advocate Mr. Rajesh Dewal for petitioner, learned AGP Mr. Jeet Jotangia for respondent Nos. 1 to 5 and learned advocate Mr. V. L. Thakkar for respondent Nos. 6 and 7.
3. Learned advocate Mr. Kinariwala for the petitioner submits that land bearing survey No.70 of village Sultanpura, Taluka Radhanpur, District Patan was granted to the forefather of the petitioner under the provisions of Bombay Merged Territories Alienation Abolition Act, 1955 and entry No.132 in that regard was also mutated on 18.12.1954. Thereafter, some how, in the year 1982, heirship Page 2 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined entry has been posted in the revenue record vide entry No.411, whereby the names of legal heirs of Madev Magan have been mutated in the revenue record. Thereafter, the said entries were also certified by the competent revenue authority. In the year 2003, the Deputy Collector, Radhanpur had initiated proceedings under Section 79A of the Bombay Land Revenue Code for breach of condition as the land is running in the names other than the original allottee. Therefore, the Deputy Collector, Radhanpur, vide order dated 02.11.2004, vested the land in question in the Government. Being aggrieved and dissatisfied with the said order, petitioner herein preferred an appeal under Section 203 of the BLRC before the learned District Collector. However, the said appeal also came to be dismissed by the learned District Collector vide order dated 30.10.2012. Being aggrieved by and dissatisfied with the said order, petitioner herein preferred revision application under Section 211 of the BLRC before the Special Secretary, Revenue Department (Appeals), which also came to be dismissed by the learned Joint Secretary, Revenue Department (Appeals) vide order dated 21.04.2016. Therefore, petitioner has preferred present petition challenging the concurrent findings of fact recorded by the concerned revenue authorities.
4. Learned advocate Mr. Kinariwala submits that it is an admitted position of fact that the property was Page 3 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined granted in favour of the forefather of the petitioner and entry to that effect being entry No.132 was also mutated on 18.12.1954. He submits that in fact petitioner and his forefathers are resident of village Bhandhwad, Taluka Radhanpur, whereas, respondent Nos. 6 and 7 herein are resident of village Sultanpura and the land in question is situated within the territorial limit of village Sultanpura and therefore being the relatives of the petitioner, respondent nos. 6 and 7 were looking after the said land in the capacity of paid chokidar and labourer on behalf of the petitioner. He submits that somehow behind the back of the petitioner, names of respondent Nos. 6 and 7 have been entered into the revenue record and therefore, in the year 2003, the Deputy Collector had initiated proceedings under Section 79A of the Bombay Land Revenue Code by way of issuing notice to the concerned parties. He has referred the documents and submitted that record reveals that at the time of initiation of the proceedings under the provisions of Section 79A of the BLRC, petitioner has not been joined as party to the said proceedings despite the fact that the said property was granted in favour of the forefather of the petitioner. Thus, the said act and action carried out by the concerned Revenue Authority, prima facie, seems to be erroneous one as principle of natural justice has been violated by not joining the necessary party (present petitioner) in the said proceedings.
Page 4 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined
5. Learned advocate Mr. Kinariwala further submits that as soon as the said fact has come to the notice of the petitioner, immediately he approached to the concerned authority by way of preferring an appeal under Section 203 of the BLRC. However, the said appeal has not been entertained by the concerned authority. Therefore, petitioner assailed the said order before the Special Secretary, Revenue Department (Appeals) by way of preferring revision application under Section 211 of the BLRC, which also came to be dismissed. He submits that in fact at the time of deciding the proceedings initiated under Section 79A of the BLRC, the concerned revenue authority has recorded statements of number of persons and prepared Panchnama of the property in question. The said fact is clearly found out from the operative part of the order wherein the concerned authority has observed that as per the statement of the Talati and after verifying and scrutinizing all the materials available on record, it is found out that no transaction took place between the respondent Nos. 6 and 7 and present petitioner.
6. Learned advocate Mr. Kinariwala emphatically submitted that there are flaws in the initiation of proceedings itself as the legal heir of original grantee has not been joined as party in the said proceedings. Secondly, the petitioner and his forefathers have not sold and/or alienate the said property to the respondent Nos. 6 and 7 by way of Page 5 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined executing any sale document and they have created third party rights. He, therefore, submits that there is no breach of condition. After completion of the proceedings, the Deputy Collector has passed specific order forfeiting the land in the Government without any encumbrance. He has referred the provisions of Section 79A of the BLRC and submitted that as per the said statutory provision, if the authority concerned is of the opinion that the concerned person is an unauthorized occupant of the concerned property, in that event, at the most, the order of eviction of the said persons can be passed. However, the authority concerned has no power to pass an order of forfeiture of the land in question and for that purpose the authority concerned has to initiate separate proceedings under Section 61 of the BLRC. However, in the instant case, the mechanism of the BLRC has not been followed by the authority concerned and straight way the land in question is forfeited and vested in the Government without any encumbrance. He has put reliance upon the decision of the Division Bench of this Court rendered in the case of Sharadaben W/o. Govindbhai Kodipatel D/o. Mathurbhai Gafurbhai v. State of Gujarat through the Secretary, reported in 2022 JX (Guj) 966 and submitted that after going through the provisions of Section 79A, the Division Bench of this Court has held that, 'apart from reading of this provision it would indicate that this provision is attracted it would not empower even if the authority to resume or forfeit the land with the Page 6 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined Government, as no power of forfeiture is provided under this provision and as such, learned Assistant Government Pleader has also rightly and fairly conceded to this fact and has submitted that resumption of the land is impermissible'. Thus, the order passed by the learned Deputy Collector under Section 79A of the Code, whereby, the land in question has been straight way vested in the Government is absolutely illegal one and therefore only on this count, the impugned order is required to be quashed and set aside and matter is required to be remanded back to the said authority for deciding the issue afresh.
7. Learned advocate Mr. Kinariwala further submits that as per the Government record, since the year 1982, petitioner herein is in possession and occupation of the property in question and he is cultivating the said land and said fact is well within the knowledge of the authority concerned, despite that, the proceedings under Section 79A of the Code have been initiated in the year 2003. Thus, there is gross delay on the part of the concerned authority to initiate the proceedings under Section 79A of the Code, therefore, only on this count, the orders passed by the concerned authorities are required to be quashed and set aside. Learned advocate Mr. Kinariwala further submits that being legal heir of original allottee, petitioner is required to be heard before passing any order and Page 7 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined therefore all the orders impugned passed by the concerned revenue authorities are against the settled principle of law and therefore they are required to be quashed and set aside by allowing present petition and thereby matter is required to be remanded back to the Deputy Collector for deciding the issue afresh by affording full opportunity of hearing to all the parties including present petitioner.
8. Learned advocate Mr. V. L. Thakkar appearing on behalf of respondent Nos. 6 and 7 has objected present petition with vehemence and forcefully submitted that in fact this is the second round of litigation and at an earlier point of time, respondent Nos. 6 and 7 had instituted proceedings based upon the similar set of facts, wherein, the respondent Nos. 6 and 7 have challenged the impugned orders passed by the concerned revenue authorities up to this Hon'ble Court. He further submits that in fact since last more than 73 years, the property in question is in possession of the respondent Nos. 6 and 7 and their forefathers and they are cultivating the said land since last many years. He further submits that in the year 1982 the land was running in the names of respondent No.6 and one Madev Magan and as Madev Magan expired, in the year 1982, entry No.411 came to be mutated, whereby, the names of legal heirs of Madev Magan have been mutated in the revenue record and thereafter the said entry has been Page 8 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined certified and therefore it can safely be said that since 1982, the said fact is well within the knowledge of the revenue authorities that respondent Nos. 6 and 7 are in possession and occupation of the disputed property. He further submits that if the Hon'ble Court would make cursory glance upon the proceedings initiated by the learned Deputy Collector under the provisions of Section 79A of the Code, in that event, it would have been found out that notices were issued to the respondent Nos. 6 and 7 and petitioner herein has not been joined as party to the said proceedings. for breach of condition as the land is running in the names other than the original allottee. The Deputy Collector, Radhanpur, vide order dated 02.11.2004, vested the land in question in the Government. Being aggrieved and dissatisfied with the said order, respondent Nos. 6 and 7 had preferred an appeal under Section 203 of the BLRC before the learned District Collector by raising manyfold grounds. However, the said appeal also came to be disposed of by the learned District Collector. Therefore revision application has been preferred before the Special Secretary, Revenue Department (Appeals) and said revision application has also been disposed of by the learned SSRD. Being aggrieved and dissatisfied with the said decision, the respondent Nos. 6 and 7 have preferred petition before this Hon'ble Court and said writ petition has also been disposed of by this Hon'ble Court. Therefore, the Page 9 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined issue involved in the present petition has already attained finality and therefore once again this Court need not have to enter into the arena of the dispute involved in the matter and rule of estopple is squarely applicable to the facts of the present case. Therefore, solely on this count, the petition preferred by the petitioner is required to be rejected.
9. Learned advocate Mr. Thakkar further submits that at the time of disposing of the petition filed by the respondent Nos. 6 and 7, this Hon'ble Court has reserved liberty in favour of the respondent Nos. 6 and 7 to prefer an application before the concerned revenue authority to regularize the land in question in favour of respondent Nos. 6 and 7 by way of paying premium. Learned advocate Mr. Thakkar has made statement that since last more than 73 years, the forefathers of respondent Nos. 6 and 7 are using, utilizing and cultivating the said land and as of now the land is still in their possession, in that event, the land is required to be regularized in favour of respondent Nos. 6 and 7 and respondent Nos. 6 and 7 are ready and agreeable to pay the amount of premium to the concerned revenue authority. He further submits that based upon the decision rendered by this Court, they have already filed representation and the said representation is pending for consideration before the concerned revenue authority. He further Page 10 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined submits that the parties herein are not directly and/or indirectly connected and/or associated with the disputed property. He submits that on the strength of the aforesaid sequence of events of incident occurred uptil now, the petition is required to be dismissed.
10. Learned AGP Mr. Jeet Jotangia appearing on behalf of respondent Nos. 1 to 5 has submitted that the Deputy Collector had initiated proceedings under Section 79A of the BLRC and as part of the said proceedings, necessary statements have been recorded and Panchnama has been carried out and those particular facts have been found out from the operative part of the order impugned. He further submits that it is found out from the record that the land in question is in possession and cultivation of the respondent Nos. 6 and 7 since last more than 25 years and their names were there in the revenue record and therefore at the time of initiation of proceedings under Section 79A of the BLRC, rightfully, notices have been issued to the persons who were in possession and whose names were there in the revenue record. He further submits that during the course of proceedings those particular facts have also come on surface that since last number of years, petitioner is also not residing in the same village. The petitioner has never initiated any proceedings to challenge the entry whereby the names of respondent Page 11 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined Nos. 6 and 7 came to be mutated in the revenue record pertaining to the land in question. He further submits that even as per the claim raised by the respondent Nos. 6 and 7, since last more than 73 years, they are in possession of the disputed land, despite the said fact, petitioner has not filed any civil suit to get back the possession of the disputed land. Therefore, legally and legitimately petitioner has not got any right whatsoever upon the disputed land. He further submits that even the respondent Nos. 6 and 7 have challenged the orders impugned up to this Hon'ble Court and those orders have already been confirmed by this Hon'ble Court in earlier round of litigation. The copies of the said orders are placed on record. Thus, the factual aspects involved in the present case crystallize the position of fact that under the guise of not providing appropriate opportunity of hearing and on the basis of violation of principle of natural justice, the petitioner has preferred present petition with a sole intention to destabilize the revenue proceedings initiated by the revenue authorities in rightful manner. He, therefore, submits that petition may be dismissed with exemplary cost.
11. However, learned AGP Mr. Jotangia has fairly conceded before this Court that as per the ratio laid down by the Division Bench of this Court in the case of Sharadaben W/o. Govindbhai Kodipatel D/o.
Page 12 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined Mathurbhai Gafurbhai (supra), at the time of initiation of proceedings under Section 79A of the BLRC, the authority concerned can pass order evicting the concerned unauthorized occupants only and for forfeiture of the land, separate proceedings are required to be initiated subsequently after the completion of proceedings under Section 79A of the BLRC. He submits that it seems that at the time of initiation of proceedings, some technical error and minor mistakes might have been committed by the authority concerned and as per the provisions of Section 79A of the BLRC, after the concerned unauthorized occupant of the land in question is evicted, separate proceedings under Section 61 of the BLRC are required to be initiated subsequently, however, as per his instructions, uptil now the land in question is still lying in the custody of respondent Nos. 6 and 7 herein and they have also applied for regularization/re-grant of the said land and the said proceedings are still pending for consideration before the competent authority. He, therefore, submits that present petition may be dismissed.
12. Having heard the learned advocates appearing for the parties and having gone through the materials placed on record, it is found out that the land in question is granted in favour of forefather of present petitioner and entry to that effect is also Page 13 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined mutated in the revenue record on 18.12.1954. The said land is new and impartible tenure (restricted) land. Thereafter, some how, on 01.08.1982, heirship entry has been mutated in the revenue record vide entry No.411, whereby the names of legal heirs of deceased Madev Magan have been mutated in the revenue record, insofar as the land in question is concerned. The said entry shows and suggests that the land was running in the joint head of Nai Lala Kala (deceased respondent No.6 herein) and one Madev Magan and as the said Madev Magan expired, the names of his legal heirs came to be mutated through the said entry. Thus, the Deputy Collector initiated proceedings under Section 79A of the BLRC and passed the impugned order, whereby, the land in question is vested in the Government without any encumbrance. The sole basis of initiation of the proceedings is that the land in question is running in the names other than the original allottee and/or his legal heirs and therefore on account of breach of condition of order of allotment, the land is required to be forfeited and vested in the Government. It is the case of the petitioner that respondent Nos. 6 and 7 are resident of village Sultanpura where the land in question is situated and therefore petitioner appointed them as chowkidar. However, behind the back of the petitioner respondent No.6 had mutated his name in the revenue record. However, it is pertinent to note that the entry No.411, whereby, the names of legal heirs of Page 14 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined deceased Madev Magan have been mutated in the revenue record, is posted on 01.08.1982 and till date petitioner has not challenged the said entry by way of initiating any revenue proceedings. Moreover, petitioner has also not filed any civil suit challenging the proceedings whereby the land in question is transferred in the name of deceased respondent No.6 and deceased Madev Magan. It is also pertinent to note that the petitioner has also challenged the impugned order passed by the Deputy Collector by way of preferring appeal before the District Collector after about 7 years. Moreover, it is also found out from the record that since last many decades, private respondents are in possession and occupation of the land in question and they are cultivating the said land for their livelihood. They also challenged the impugned orders passed by the concerned revenue authorities up to this Court. The petition preferred by them came to be dismissed by the Coordinate Bench of Court, however, on request being made by the learned counsel for respondent nos. 6 and 7 to file an application before the concerned authority for regularization, the Coordinate Bench of this Court observed that if the petitioners (respondent Nos. 6 and 7 herein) intend to file any such application, they may do so. Learned advocate Mr. Thakkar for respondent Nos. 6 and 7 has submitted that pursuant to the aforesaid observations made by the Coordinate Bench of this Court, an application is Page 15 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined preferred by the respondent No.7 before the competent revenue authority for regularization and it is still pending.
13. It is well settled that at the time of deciding the proceedings initiated under Section 79A of the BLRC, the authority concerned can pass the order of summarily evection of the unauthorized occupants of the land but straight way the said authority is not empowered and/or authorized to forfeit the land with the Government and for the purpose of forfeiture of the land, separate proceedings are required to be initiated after completion of proceedings under Section 79A of the Code. Be that as it may, the fact remains that respondent Nos. 6 and 7, who are not the legal heirs of the original allottee, are in possession and occupation of the land in question and when the District Collector had initiated proceedings, the land was running in their name and therefore, prima facie, the condition of allotment order is breached by the forefathers of the petitioner and petitioner, who is alleged to be a descendant of original allottee. It is also pertinent to note that the Coordinate Bench of this Court has already decided the issue involved in the present matter while dismissing the petition preferred by the respondent Nos. 6 and 7 herein.
15. In view of the aforesaid observations, the Page 16 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025 NEUTRAL CITATION C/SCA/16116/2016 ORDER DATED: 28/11/2025 undefined petition being devoid of merits is required to be dismissed and accordingly it is dismissed. Notice discharged.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 17 of 17 Uploaded by LAVKUMAR J JANI(HC00210) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:55:00 IST 2025