Gujarat High Court
Heirs Of Decd. Becharji Vanaji- Menaben … vs State Of Gujarat on 9 February, 2026
NEUTRAL CITATION
C/SCA/18088/2013 CAV JUDGMENT DATED: 09/02/2026
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Reserved On : 16/10/2025
Pronounced On : 09/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18088 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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Approved for Reporting Yes No
No
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HEIRS OF DECD. BECHARJI VANAJI- MENABEN @ NAYANABEN
GAGAJI @ GANDAJI THAKOR & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Petitioner(s) No. 1,1.1,1.2,2,3
MR JAY BAROT AGP for the Respondent(s) No. 1
MR SHAIVANG D MEHTA(5623) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. The present Special Civil Application is filed praying for the
following reliefs:-
“9A) to issue a writ of certiorari or any other appropriate writ,
order or direction, quashing and setting aside the order dated
8.10.2013 (dispatched on 18.10.13) passed by the learned
Secretary, Revenue Department (Appeals) respondent No.1 herein,
in Revision Application No.10/2010 as as well as the order passed
by the District Collector, Gandhinagar, dated 31.7.2010, in AppealPage 1 of 9
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No.67/2008 and also the order dated 28.2.1991 passed by the Prant
Officer, in Case 0.192/82 and thereby restore the possession of the
petitioners with respect to the land bearing Survey No. 750 (Block
No.723) of village Magodi, Taluka & District: Gandhinagar;
(B) Alternatively, to issue a writ of mandamus or any other
appropriate writ, order or directing the Collector, Gandhinagar to
regrant the land bearing Survey No. 750 (block 723) of village
Magodi to the petitioners on appropriate conditions, as per the
Government Circular, in the interest of justice;
(C) Pending admission, hearing and final disposal of this petition,
Your Lordship may be pleased to stay execution, operation and
implementation of the order dated 8.10.2013 (dispatched on
18.10.13) passed by the learned Secretary, Revenue Department
(Appeals) – respondent No.1 herein, in Revision Application
No.10/2010 as well as the order passed by the District Collector,
Gandhinagar, dated 31.7.2010, in Appeal No.67/2008 and also the
order dated 28.2.1991 passed by the Prant Officer, in Case No.
192/82;
(D) Pending admission, hearing and final disposal of this petition,
Your Lordship may be pleased to direct the parties to the petition to
maintain status quo qua the possession and title of the land bearing
Survey No.750 (Block No.723) of village Magodi, Taluka & District:
Gandhinagar;
(E) to pass such other and further order/s as may be just and
necessary in the circumstances of the case”
2. The factual matrix giving rise to the present writ petition is
that the land bearing Survey No.750 (Block No.723), admeasuring 3
Acres 20 Gunthas, situated at village Magodi, District Gandhinagar,
was mutated in the name of Becharji Vanaji by Entry No.117 in the
year 1952. Upon repeal of the Bombay Inam Act in 1958, Becharji
was granted land as new and restricted tenure. The name of
Shanabhai Manabhai was entered in the revenue record in the
column of “right of cultivation,” without any transfer, sale, or gift by
the petitioners. On the basis of this entry, a breach case being Case
No.192 of 1982 was registered but no notice was issued to the
petitioners up-until the year 1990. A show-cause notice dated
19.11.1990 was issued to petitioner No.3, and thereafter the Prant
Officer passed an ex parte order dated 28.02.1991 holding the land
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to be new tenure land transferred without permission and ordering it
to vest in the Government. That upon coming to know of the said
order in 1999, petitioner No.3 and another heir filed Regular Civil
Suit No.149 of 1999 for declaration and injunction, and also
challenged the Prant Officer’s order before the Gujarat Revenue
Tribunal in Revision No.2 of 2000, which was disposed of on
28.11.2007 for want of jurisdiction with liberty to approach the
competent authority. Thereafter, an appeal was filed before the
District Collector, Gandhinagar, which was rejected on 31.07.2010.
Subsequently, the legal heirs preferred Revision before the
Secretary (Appeals), Revenue Department, which came to be
dismissed by order dated 08.10.2013, giving rise to the present
petition.
3. The learned counsel Mr. Mehul Sharad Shah for the petitioners
submits that the proceedings initiated by the Prant Officer suffer
from gross delay. The alleged breach relates to entries made
between 1952 and 1976 and accordingly case was registered as
Case No.192/82, but no notice was issued to the petitioners up-until
the year 1990. That although names of all the legal heirs were
reflected in the revenue record, the first notice dated 19.11.1990
was issued only to the petitioner No.3. The order vesting the land in
the Government was passed ex parte without affording any
opportunity of hearing to the petitioners. The Prant Officer relied
solely on a panchnama prepared in the absence of the petitioners.
Without conducting any inquiry as to his identity or capacity, and
without any proof of transfer under the Transfer of Property Act, the
Prant Officer wrongly presumed a breach of condition. It is further
submitted that the authorities failed to appreciate that one Pratapji
Javanji was merely engaged as a daily wage labourer to cultivate
the land due to the ill health of Gabhaji Becharji. It was further
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ignored that the petitioners’ forefather had been holding the land
since 1923-24 as Government Chakariyat land, and under the
prevailing law, continuous holding for more than fifteen years
results in conversion into old tenure land. Consequently, there was
no subsisting condition capable of being breached. That one
Rameshbhai Shanabhai admitted that his name was wrongly
entered in the revenue record and mere reflection of a person’s
name in the “right of cultivation” column does not amount to
transfer of ownership or possession, particularly in the absence of
any legal instrument or mutation entry evidencing transfer. The
Learned counsel for petitioner submits that the dismissal of the
appeal on the ground of limitation is erroneous, as the original order
of the Prant Officer was never communicated to the petitioners. The
prolonged pendency before the Revenue Tribunal occurred due to
incorrect legal advice. Learned counsel for petitioner submits that
the finding of the Secretary (Appeals) that petitioner Nos. 1 and 2
lack locus is wholly unsustainable. Their names are reflected as
legal heirs in the revenue record, and no notice was ever issued to
them. Any order passed without notice to the legal heirs is not
binding upon them and violates settled principles of natural justice.
The entire action under Section 79-A of the Bombay Land Revenue
Code is based solely on assumptions drawn from a panchnama,
without recording statements of neighbouring agriculturists, village
witnesses, or the petitioners, and without verifying the basis on
which third-party names were entered in the 7/12 extract. It is lastly
submitted that in view of the Government Circular dated 09.10.2013
providing for re-grant of land to the original grantee, and
considering the absence of any lawful transfer, the impugned orders
deserve to be quashed and set aside, or alternatively, the land
ought to be re-granted to the petitioners in the interest of justice.
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4. Per Contra, Mr. Jay Barot, learned Assistant Government
Pleader for the respondent state submits that there is no provision
in law for conversion of new tenure land into old tenure merely by
long possession, and the petitioners’ contention to the contrary is
legally untenable. He submits that the record of rights and Village
Form No. 7/12 clearly reflect the name of Shanabhai Manabhai as
cultivator, which is a breach of tenure conditions. Further, the
petitioners have admitted on oath that due to ill health of Gabhaji
Becharji, Pratapji Javanji was engaged for cultivating the land which
is corroborated by the Panch Rojkam dated 18.12.1990. Even such
permissive cultivation by a third person, without prior sanction of
the competent authority, constitutes a breach of restricted tenure
conditions. He further submits that the petitioners’ own pleadings
establish that a show-cause notice dated 19.11.1990 was served
upon Petitioner No.3, thereby demonstrating knowledge of the
proceedings. The plea of non-service or violation of principles of
natural justice is therefore baseless. Having failed to respond
despite notice, the Prant Officer rightly proceeded ex parte. He
submits that the challenge to the Prant Officer’s order was initiated
after a delay of seventeen years. The revision before the Gujarat
Revenue Tribunal was misconceived and filed after nine years, and
therefore no benefit of exclusion of time can be claimed. The
Collector rightly dismissed the appeal on the grounds of limitation
as well as on merits.
5. Heard learned counsels for the parties, perused the
documents and considered the submissions.
6. The Prant Officer, by the order dated 28.02.1991 held that the
subject land was new tenure land granted to Becharji Vanaji subject
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to restricted conditions. Relying mainly on Village Form No. 7/12
entries showing the name of Shanabhai Manabhai as cultivator from
1976-77 to 1990-91 and on a panchnama dated 18.12.1990 stating
that Pratapji Jawanji was in actual cultivation of the subject land for
about four years, the Prant Officer concluded that the land had been
transferred with possession without prior permission, in breach of
Section 79(A) of the Bombay Land Revenue Code. As both the
parties had remained absent despite notices served on them, the
matter was decided on merits, and the land was ordered to be
forfeited to the Government free from all encumbrances, with
directions to the Mamlatdar to take possession after expiry of the
appeal period.
7. By order dated 31.07.2010, the Collector, Gandhinagar upheld
the order dated 28.02.1991 passed by the Prant Officer,
Gandhinagar, holding that the subject land was new tenure land and
that entries in the revenue record and the panchnama dated
18.12.1990 showed possession and cultivation by persons other
than the original grantee, which amounted to unauthorised transfer
with possession without prior permission in breach of tenure
conditions. The Collector further held that the revision was filed
after an inordinate delay of about 17 years without explanation,
found no illegality in the Prant Officer’s conclusions, and therefore
rejected the revision application.
8. By order dated 08.10.2013, the Secretary, Revenue
Department (Disputes), rejected the revision application and upheld
the order dated passed by the Collector, Gandhinagar, holding that
the subject land was new tenure land, that possession had been
parted without prior permission, constituting breach of tenure
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conditions under Section 79A, that the challenge was made after
inordinate and unexplained delay, and that no material was shown
so as to warrant interference with the orders of the subordinate
revenue authorities.
9. In the case of Khodaji Mangaji Versus State Of Gujarat
2004 (0) JX(Guj) 229, a similar issue arose for consideration as to
whether mere entries in the revenue record, particularly Village
Form No.7/12 reflecting cultivation by a person other than the
recorded holder, can by themselves constitute sufficient and lawful
proof of transfer of new tenure land so as to justify the extreme
consequence of forfeiture. The relevant paragraph of the judgment
are thus:-
“6. Even if the matter is considered on the substance of the subject
matter also, the net effect would be that as there was cultivation
shown in the revenue record of village Form 7/12 of the land in
question, the Prant Officer proceeded on the basis that the land is
transferred in breach of conditions since it was a new tenure land,
and therefore, the land is ordered to be forfeited. Merely because
the show cause notice has been issued and the owner of the land
could not represent the case would not be a sufficient ground to
hold that the land is transferred to a third party, may be for
cultivation. It is well settled that the village Form 7/12 or revenue
record is relevant only for fiscal purposes and merely mutation or
other aspect of cultivation is recorded in revenue record, no right
which otherwise exists in accordance with law gets altered qua the
property in question. If there is any authenticated record in the
village panchayat or with Talati-cum-Mantri showing those rights are
created by the transfer by the holder of the land in favour of some
other party it may stand on different footing. It appears that there
was no record available for altering the rights, possession and/or
ownership of the land in question before the Prant Officer. In the
absence of such record, the Prant Officer could not have come to
conclusion that the land is transferred in breach of conditions. As
regards the orders of the State Govt in revision are concerned, it
has proceeded on the basis as if the burden is upon the owner of
the land to show that he has not transferred. When a statement is
made or it is the case of the petitioner that the land is not
transferred and is in possession and ownership of the petitioner, it
will be for the authority to consider if there is any authenticatedPage 7 of 9
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record available for transfer. In the absence of any lawful document
for transferring or creating lawful right in the property in question, it
could not be even concluded that the property is transferred in
breach of conditions. It may be recorded that the person who is
alleged to have transferred the land namely Vardhabhai is
represented through respondent Nos 4 and 5, Legal representatives
of deceased Vadhabhai Pranlal. Mr.Goswami, Ld. counsel for
respondent Nos 4 and 5 also confirms the position that no transfer
whatsoever has taken place. It also appears that before the State
Govt in the proceedings of revision the affidavit was also filed for
such purpose. Further, it appears that the orders are passed by the
Prant Officer simply on the basis of noting in Village Form No.7/12 of
the land in question showing that the cultivation is by other person
and not by petitioner and therefore the land is ordered to be
forfeited to State. When it is a matter pertaining to taking away the
property of any citizen mere reliance upon revenue record of village
Form No.7/12 can not be said as sufficient proof for breach of
condition. As such, when such aspect is denied by the holder of the
property, it must be examined as to whether concerned Talati-cum-
Mantri made such entry on the basis of hearsay or on the basis of so
called material which can not be relied upon or on some extraneous
consideration and, if yes, then such entry in village Form No.7/12
can not assume value authorising for concluding the breach and
consequential forfeiture of the property. There must be cogent,
authenticated and lawful material for altering the rights in
immovable properties for such breach. Moreover, even if it is
established that there is a breach, and if the authority is to take
action of forfeiture, then it should also be examined as to whether
the breach was due to circumstances beyond the control of the
holder of the property and, if yes, then in that case, harsh action of
forfeiture of the property would not be required but the authority
will have to consider the matter for imposition of fine/penalty
considering the gravity of the breach, including the period for such
breach. If it is a matter resulting into action of forfeiture of land,
then principles of natural justice to its full extent considering the
facts and circumstances of the case will be required to be followed.
Therefore, only entry in village Form No.7/12 can not be said as
sufficient material attracting the power of authority for forfeiture of
the land to the State Government. Under the circumstances, it is
apparent that the Prant Officer as well as the State Govt have
committed apparent jurisdictional error in exercising power on the
basis of the entry in village Form No.7/12 and holding that there is
breach of conditions of grant of land and holding that the land
deserves to be forfeited to the State Govt.”
The ratio laid down in Khodaji Mangaji (supra) applies squarely
to the facts of the present case.
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10. In the present case also, it is evident that the impugned
orders are based solely on entries made in Village Form No.7/12 and
the panchnama, without there being any cogent material to
establish transfer, lease or parting with possession of the land in
question in breach of the conditions of grant, mere reflection of
cultivation by a third person in the revenue records, in absence of
any registered document or legally admissible evidence of transfer,
the same cannot constitute sufficient proof of breach so as to attract
the extreme consequence of forfeiture of land.
11. Further, the proceedings in the present case initiated under
Section 79-A of the Bombay Land Revenue Code are further vitiated
by gross delay, lack of proper inquiry, and violation of principles of
natural justice.
12. Accordingly, the present Special Civil Application is allowed.
The order dated 28.02.1991 passed by the Prant Officer, the order
dated 31.07.2010 passed by the District Collector, and the order
dated 08.10.2013 passed by the Secretary, Revenue Department
(Appeals) are hereby quashed and set aside.
Rule is made absolute to the aforesaid extent.
No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
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