Cases referred :
Putalabai Vs. Shiva Dhondi, 1980 Mh.L.J. 547 [ 2 , 4 ]
Advocates appeared :
Shri. S. C. MEHADIA, Advocate for Petitioner No.1.
Shri. S. V. SOHONI, Advocate for Respondents No.1 & 2.
:- By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioners - purchasers of agricultural land challenge the order passed by the Sub-Divisional Officer on 13-3-1989 and the subsequent orders passed by the Commissioner in Revision on 26-10-1989 and 18-7-1990 ordered the restoration of land in favour of Respondent No.1 by invalidating the sale in their favour on the ground that it is a fragment which has been sold to a person who is not owner of contiguous land. The facts in brief are :
On 23-4-1981, one Sitaram Tukaram transferred field Survey No.27/3 admeasuring 33 gunthas of Mouza Khudawantpur, Tahsil - Akot, District - Akola, in favour of Janglaji Ganpat Yeol. Janglaji Ganpat Yeol in turn sold said land to petitioner No.1 on 14-2-1983. Respondent No.1 is the owner of adjacent land and he moved an application before Sub-Divisional Officer, contending that the sale by Sitaram in favour of Janglaji Yeol is in breach of provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act (hereinafter referred to as Fragmentation Act). Janglaji is reported to have died during pendency of proceedings and petitioners No.2 and 3 are his legal heirs. Petitioner No.2 has expired during pendency of present petition. Her son petitioner No.3 is already on record. Respondents No.3 to 7 are legal heirs of deceased Sitaram and Respondents No.3, 4 and 5 have expired during the pendency of this petition. However, as subsequently the property was purchased initially by predecessor of petitioner No.3 and from him by present petitioner No.1, the lis now is between petitioner No.1 and Respondents No.1 & 2. Therefore, these subsequent deaths of intermediate holders do not affect the adjudication of writ petition in any manner. The application filed by Respondent No.1 has been allowed by the Sub-Divisional Officer, Akot, on 13-3-1989 by holding that the sales in respect of notified lands effected on 23-4-1981 and 14-2-1983 are in contravention of Section 7 of the Fragmentation Act and therefore, he declared those sales as void and imposed fine of Rs.250/- on purchasers. He also directed that the land vests in State Government as per provisions contained in Section 10 of the Fragmentation Act. The said order was challenged in Revision and the Additional Commissioner, Amravati Division, Amravati, after narrating the facts has found that the order of Sub-Divisional Officer is correct and therefore, proceeded to uphold the order. Therefore petition No.1 filed a review before the said authority and the same has been rejected on 18-7-1990 on the ground that there is no provision for review in Fragmentation Act and perusal of Section 258 of Maharashtra Land Revenue Code is not called for. The present petition has been admitted on 10-6-1991 and status quo was directed which is continuing till today.
2. Shri. Mehadia, learned counsel for the petitioner No.1 contends that the entire exercise undertaken by the Sub-Divisional Officer and the Additional Commissioner is without jurisdiction inasmuch as they have not recorded a finding that the land is notified as fragment as contemplated by Section 6(2) of the Fragmentation Act. He points out that provisions of section 7 contains that it is only sale of such land which is prohibited by the Act. He also relied upon the judgment in the case of Putalabai Vs. Shiva Dhondi , reported at 1980 Mh.L.J. 547 in support of his proposition.
3. On the other hand, Shri. Sohoni, learned counsel appearing on behalf of Respondents No.1 & 2 contends that the land is already recorded fragment in 7/12 extract and that by itself a sufficient notice to everybody. He further states that, therefore, the ruling on which reliance is placed has no application in the facts and circumstances of the present case.
4. Perusal of above referred ruling reported in 1980 Mh.L.J. 547 particularly para 9 thereof clearly reveals that the learned Single Judge there was specifically concerned with this issue. After considering Sections 6 and 7 of the Act, the learned Single Judge has reached the finding which is reproduced in para 9 and reads as under :
9. The only other section which prohibits transfer is Section 7(1) of the Fragmentation Act and it runs as follows :
7(1) No person shall transfer any fragment in respect of which a notice has been given under sub-section (2) of Section 6, except to the owner of a contiguous survey number or recognised sub-division of a survey number.
This provision clearly goes to show that this bar is attracted only if a notice is given under sub-section (2) of section 6 of the Fragmentation Act. It is not the contention in this case that such notice was given under sub-section (2) of section 6 of the Fragmentation Act. The mere fact that his land is entered as a Fragment in 7-12 extract does not prohibit the transfer of the land under the Fragmentation Act. I have so far pointed out that there are only two provisions in the Act inhibiting transfer of the Fragments and I have so far pointed out that none of these two provisions are applicable in the instant case and so there can be no bar under the Fragmentation Act for enforcing the agreement of reconveyance.
5. In the thus apparent that until and unless the land is notified as fragment as contemplated by Section 6(2) of the Fragmentation Act, bar under Section 7 cannot be pressed into service. The provisions of sub-section (2) of Section 6 prescribes notice of every entry made under sub-section (1) as given in the manner prescribed for giving notice of entry in the register of Mutation. The said procedure for giving notice of entry in the Mutation register is mentioned in Section 150(2) of Maharashtra Land Revenue Code and it requires a complete copy of entry to be displayed at a conspicuous place in the Chavadi and also written intimation to be given to all persons appearing from the record of rights or register of mutations to be interested in mutation. Thus, it is apparent that here, after holding the land to be a fragment under Section 6(1) of Fragmentation Act, notice thereof ought to have been published in a conspicuous place in the chavdi and also should have been given in writing to at least owners of that land. The Sub-Divisional Officer as also the revisional authority have not recorded any finding in this respect. Until and unless the finding that the land was notified as fragment as contemplated by Section 6(2) of the Fragmentation Act is reached, bar under Section 7(1) could not have been invoked and could not have been utilised by these authorities to set aside the sale deeds. Thus, very jurisdiction fact is found to be missing in these orders. Hence, these orders dated 31-3-1989 and 26-10-1989 passed by the respective authorities are quashed and set aside. The mater is remanded back to the Sub-Divisional Officer, Akot, for taking fresh decision on the application filed by Respondent No.1 before it under Section 7 read with Sections 9 and 10 the Fragmentation Act, after giving due notice to all concerned. Such decision should be taken as early as possible in any case, within a period of six month from the date of receipt of this order.
6. In the result, rule is made absolute in above terms. There shall be no order as to costs.
Petition allowed.
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