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Dhulabhai C. Kotwal & Ors. v. Bhikhabhai K. Prajapati & Ors.
Factual and Procedural Background
The petition challenges the judgment and order dated 15.2.1990 passed by the Deputy Secretary (Appeals), Revenue Department, Government of Gujarat in SRD/Con/Sabar/12/89. The Deputy Secretary (Appeals) dismissed a Revision Application filed by respondents nos.1 to 6 but, in doing so, quashed an order passed by the Deputy Collector, Modasa under sec. 9(3) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
The petitioners own land described as Block No.125 in the village Rahiyol, Taluka Modasa, District Sabarkantha. They allege they owned one half of the block but are accused of having sold their share to respondent no.1 and to Ravabhai Hirabhai (whose heirs are respondents nos.2 to 5). The Mamlatdar concluded that the sale violated sec. 31 of the Act and proceedings were initiated (Case No. Con/43/88). The Deputy Collector found that the block had been partitioned (not cultivated jointly), concluded there was violation of the consolidation scheme and sec. 31, declared the sale illegal, fined the original owners Rs.200, and ordered that possession be handed back to the original owners.
Respondents nos.1 to 6 filed a Revision Application before the Additional Chief Secretary (Appeals), who, after hearing, agreed that there was partition and that the sale entry (No.537) was not legal. The Additional Chief Secretary dismissed the Revision Application, confirmed the Deputy Collector's order under secs. 9(1) and 9(2) of the Act, but quashed the Deputy Collector's order under sec. 9(3).
Legal Issues Presented
- Whether the Secretary (Appeals) was correct in quashing the Deputy Collector's order passed under sec. 9(3) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
- Whether the discretion conferred by the word "may" in sec. 9(3) should be read as mandatory ("shall" or "must"), thereby obliging the Collector to summarily evict a person unauthorisedly occupying or wrongfully in possession of land whose transfer or partition is void under the Act.
Arguments of the Parties
Petitioner's Arguments
- The Secretary (Appeals) erred by quashing the Deputy Collector's order under sec. 9(3) due to non-application of mind, resulting in gross injustice to the petitioners.
- The Deputy Collector's order restoring possession to the original owners under sec. 9(3) was consistent with the scheme of the Act and in the interest of justice; there was therefore no reason for the Secretary (Appeals) to quash it.
- Reliance was placed on this Court's decision in Brahmbhatt Ambalal Ashabhai & ors. v. Special Secretary, Revenue Deptt. & ors., 1983 (2) GLR 1091, which held that the word "may" in sec. 9(3) should be read as "shall" or "must", making the Collector bound to summarily evict unauthorised occupants; and on Govindisngh Ramsinghbhai Vaghela v. G. Subbarao (XI GLR 897), in which a similar view was taken by a Division Bench of this Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Brahmbhatt Ambalal Ashabhai & ors. v. Special Secretary, Revenue Deptt. & ors., 1983 (2) GLR 1091 | Holds that the word "may" in sec. 9(3) should be read as "shall" or "must", thereby making the Collector bound to summarily evict an unauthorised or wrongful occupant where the transfer/partition is void under the Act. | The Court relied on this decision to support the proposition that sec. 9(3) requires eviction and to conclude that the Secretary (Appeals) erred in quashing the Deputy Collector's eviction order. |
| Govindisngh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector, Dholka and others (XI GLR 897) | Division Bench decision taking a similar view to Brahmbhatt on the mandatory character of eviction under the relevant provision. | The Court referred to this earlier decision as additional authority supporting the mandatory interpretation and applied it in concluding that the Deputy Collector's order under sec. 9(3) ought not to have been quashed by the Secretary (Appeals). |
Court's Reasoning and Analysis
The Court examined the statutory scheme: under sec. 9(1) a transfer or partition contrary to the Act is to be declared void; under sec. 9(2) the owner who effects such transfer or partition is liable to a fine not exceeding Rs.250; and under sec. 9(3) a person unauthorisedly occupying or wrongfully in possession of land (the transfer/partition of which is void under the Act) "may" be summarily evicted by the Collector.
The Court accepted the petitioners' submission (supported by precedent) that the Deputy Collector's order restoring possession to the original owners was in accordance with the provisions and scheme of the Act. The Court concluded that the Secretary (Appeals) erred in quashing the Deputy Collector's order under sec. 9(3). The Court relied on prior decisions interpreting the word "may" in sec. 9(3) as imposing a duty on the Collector to evict unauthorised occupants in such circumstances, and treated the Deputy Collector's order as consistent with that interpretation and with the Act's objectives.
Because the Deputy Collector had found a partition (i.e., non-joint cultivation) and concluded the sale was illegal under sec. 31 (leading to the declared invalidity of the sale and the order for possession to be returned to original owners), the Court found no basis for the Secretary (Appeals) to interfere with the sec. 9(3) eviction order.
Holding and Implications
HOLDING: The petition is allowed. The order of the Secretary (Appeals) is quashed and set aside to the extent that it quashed the order of the Deputy Collector passed under sec. 9(3) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The rule is made absolute to that extent, with no order as to costs.
Implications:
- The direct effect is that the Secretary (Appeals)'s interference with the Deputy Collector's sec. 9(3) order is undone; the Deputy Collector's order directing restoration of possession to the original owners under sec. 9(3) stands.
- The Court applied existing precedents that interpret sec. 9(3) as requiring eviction where a transfer or partition is void, and did not purport to lay down a novel rule of law beyond those authorities.
- No broader or new precedent was announced beyond the Court's application of the cited authorities to set aside the Secretary (Appeals)'s quashing of the eviction order.
1. The present petition is filed challenging the judgement and order dated 15.2.1990 passed by the Deputy Secretary (Appeals), Revenue Department, Govt. of Gujarat in SRD/ Con/ Sabar/ 12/89. By the said judgement and order, the Deputy Secretary (Appeals) dismissed the Revision Application filed by respondents nos.1 to 6, but while doing so the Deputy Secretary has also quashed the order passed by the Deputy Collector, Modasa under sec. 9(3) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
2. Short facts giving rise to the present petition are that the petitioners are the owners of the land bearing Block No.125 in the sim of village Rahiyol, Taluka Modasa, District Sabarkantha. It is the case of the petitioners that they are the owners of one half of the land of the said block, which was cultivated by different owners. It is alleged against the petitioners that the petitioners sold their share to respondent no.1 and one Ravabhai Hirabhai, whose heirs are respondents nos.2 to 5 in this petition. According to the Mamlatdar, because of the sale the provisions of sec. 31 of the Act were violated and therefore, the proceedings were initiated by the Deputy Collector, Modasa vide Case No.Con/ 43/ 88. After issuing notices to the parties, the Deputy Collector came to the conclusion that the petitioners sold the land to respondents nos.1 to 6. therefore, there is violation of the consolidation scheme and violation of the provisions of sec. 31 of the Act. After taking evidence of the parties and looking to the documents, the Deputy Collector came to the conclusion that the said block was not being cultivated jointly, but there is a partition of the land. Respondents nos.1 to 6 are cultivating the said block and therefore, there is violation of the provisions of sec. 31 of the Act. Ultimately, the Deputy Collector passed an order that the sale of block no.125 of the petitioners to respondents nos.1 to 6 is illegal as it is in violation of the provisions of sec. 31. Therefore, the original owners, i.e. the petitioners shall pay fine of a sum of Rs.200.00 and the sale is declared to be invalid and possession of the land should be handed over to the original owners.
3. Being aggrieved of that respondents nos.1 to 6 filed a Revision Application before the Additional Chief Secretary (Appeals), Revenue Department, Govt. of Gujarat. After notices were issued and the parties served, the matter was heard by the Additional Chief Secretary and he also came to the conclusion that there is a partition in block and therefore, there is violation of the consolidation scheme and the land was not being cultivated jointly. He also came to the conclusion that entry no.537 by which the sale has been recorded is not legal and that cultivation is not done jointly, but there is a partition of the land. He, therefore, dismissed the Revision Application. While dismissing the Revision Application, he confirmed the order of the Deputy Collector passed under the provisions of sec. 9(1) and (2) of the Act and quashed the order passed under the provisions of sec. 9(3) of the Act.
4. The learned advocate for the petitioner, Shri P.C. Master submitted that the said quashing of the order under sec. 9(3) of the Act is because of non application of mind and that the same has resulted into gross injustice to the petitioners. The learned advocate, Shri Master invited the attention of the Court to the provisions of sec. 9(3) of the Act, which read as under :
"Any person unauthrosiedly occupying or wrongfully in possession of any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector."
When the Deputy Collector had passed an order under sec. 9(3) of the Act to the effect that the possession of the land in question should be handed over back to the original owners, there was no reason for the Secretary (Appeals) to quash that particular order. Said order passed by the Deputy Collector was absolutely in consonance with the scheme of the Act and was also in the interest of justice and by quashing the said order the present petitioners are made to suffer injustice.
5. Shri P.C. Master, learned advocate for the petitioners also relied upon the case of this Court in the matter of Brahmbhatt Ambalal Ashabhai & ors. v. Special Secretary, Revenue Deptt. & ors., 1983 (2) GLR 1091. Shri P.C. Master submitted that this Court has held in the said judgement that the word 'may' occurring in sec. 9(3) of the Act is required to be read as 'shall' or 'must'. Therefore, the Collector was bound to summarily evict the person who was unauthorisedly occupying or who was wrongfully in possession of any land, the transfer of which by operation of law was void under the provisions of the Act. Shri Master, learned advocate submitted that the aforeaid judgement is based on the previous decision of this Court in the matter of Govindisngh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector, Dholka and others, reported in XI GLR 897, wherein also the Division Bench of this Court has taken a similar view.
6. From the facts of the case and the provisions of the Act it is clear that the Secretary (Appeals) has erred in quashing the order of the Deputy Collector under sec. 9(3) of the Act. Looking to the scheme of the Act, under sec. 9(1) of the Act, a transfer or partition of any land contrary to the provisions of the Act is to be declared void. Under the provisions of sec. 9(2) of the Act, the owner of any land, who transfers or partitions the land in violation of the provisions of the Act is to be fined by such an amount which does not exceed Rs.250/-, and under the provisions of sec. 9(3) of the Act a person who is held to be in unauthorised or wrongful possession of the land is required to be summarily evicted by the Collector. In the present case, the Deputy Collector had passed an order that possession of the land in question be restored to the original owners. The order of the Deputy Collector was in accordance with the provisions of the Act, the same was not required to be interfered with by the Secretary (Appeals).
7. In the result, the petition is allowed. The order of the Secretary (Appeals) is hereby quashed and set aside to the extent it quashed the order of the Deputy Collector passed under sec. 9(3) of the Act. The petition stands allowed. Rule is made absolute to the aforesaid extent with no order as to costs.
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