Bai Jiviben vs Sakhia Somsinh Mohansinh and Others

In this petition under Art. 227 of the Constitution of India, the petitioner who purchased a fragment of agricultural land from respondents Nos. 1 to 4 on 15-5-1971 has challenged the order passed by the Deputy Collector, Baroda, u/s 9(1) and Section 9(3) of the Prevention of Fragmentation and Consolidation of Holdings Act, 1947, as confirmed by the Joint Secretary to the Government of Gujarat (Revenue Department) in revision.

It appears from the impugned orders that the land admeasuring 1 Acre and 33 gunthas of survey No. 1067 situated in the outskirts of Karjan in Baroda District, was sold for Rs. 7,000/- to the petitioner Jiviben Motibhai on 15-5-1971 by the respondents Nos. 1 to 4. When the corresponding entry was made in the revenue record, it was not confirmed and proceeding was taken up under the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as the ''Act''). After issuing the necessary notices to the parties, the Deputy Collector, Baroda, passed an order Annexure-A dated 13-3-1979 declaring that the sale of survey No. 1067 in favour of the petitioner was void, and imposed a fine of Rs. 250/ - on the transfer or under S. 9(2) of the Act. A further order was passed for summary eviction of the transferee and restoration of the land to the transferor.

The petitioner Jiviben approached the Government in revision under S. 35 of the Act. The revisional authority also confirmed the aforesaid order of the Deputy Collector, by concurring with him, so far as the findings of facts were concerned:

It is these orders which are being challenged by the petitioner under Art . 227 of the Constitution of India.

Mr. R. M. Vin, learned Counsel for the petitioner has made the submission that the orders of both the authorities were erroneous in view of the following facts:

(i) Survey No. 1067 which was sold to the petitioner was not agricultural land;

(ii) The said land was situated in the limits of Karjan Municipality, and, therefore, exempted from the rigorous provisions of the Act;

(iii) There is no proof that the standard area was determined by following the procedure prescribed under sections 4 & 5 of the Act;

(iv) The Deputy Collector did not record the evidence as per the requirement of the Bombay Land Revenue Code;

(v) The evidence of Talati was incompletely recorded;

(vi) No express show cause notice was issued regarding the order to be passed u/s 9(3) of the Act;

(vii) The land was wrongly shown to be a fragment in the revenue record;

(viii) The plot which was sold is of irregular shape and so exemption should have been granted;

So far as the above contentions at Sr. Nos. 1 to 7 are concerned, both the authorities namely the Deputy Collector and the Joint Secretary, have rendered concurrent findings of facts which cannot be disturbed. So far as the contention No. 8 is concerned, it was never submitted for consideration of the Deputy Collector or the Joint Secretary. It does not find its place in the petition also. Hence the above contentions are referred to in order only to be rejected.

Mr. Vin, however, submitted that subsection (3) of S. 9 of the Act gives discretion to the Collector either to pass an order of eviction or not to pass such an order in view of the facts and circumstances of the cases. Sub-section (3) of Section 9 reads as under:

"(3) Any person unauthorisedly 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."

This point is squarely covered by the decision of the Division Bench of this Court in Govindsingh Ramsinghbhai Vaghela v. G: Subbarao, Asstt. Collector Dholka 11 Guj LR 897: (AIR 1971 Guj 131) to which my attention has been drawn by Mr. P. C. Master, learned Counsel appearing for respondents Nos. 1 to 4. Referring to the word used in S. 9, sub-section (3), the Division Bench observed (at p. 141 of AIR):

"The Collector is given the power to summarily evict a person when it is found that by reason of the transfer being void, he is unathorizedly in occupation or wrongfully in possession of the land. And this power is obviously conferred upon the Collector to secure enforcement of the salutary and beneficient provisions of the Act. If transfer has been made contrary to the provisions of the Act, it must not have any effect at all and the status quo ante must be restored, for otherwise the object of the Act would be frustrated. Even after the transfer is declared void, the transferor may not take action to recover possession of the land, for then he would have to return the purchase price received by him which he may not want to do and in that event the land would continue to remain in possession of the transferee and the object of the legislation would be defeated. The Legislature, therefore, did not leave it to the transferor to adopt proceedings for recovering possession of the land but provided that the Collector may summarily evict the transferee or any other person who is unauthorisedly in occupation or wrongfully in possession of it, so that possession could be restored to the transferor and the effect of the transfer obliterated. "

This Division Bench Judgment has been followed by a learned single Judge of this Court in Govindsingh Ramsinghbhai Vaghela Vs. C. Subbarav and Others, . The above view pronounced by the Division Bench of this Court is binding on me and I cannot take a different view.

In the result, Rule is discharged.

It is, however, hoped that the respondents Nos. 1 to 4 will repay the amount of consideration received from the petitioner at the time of execution of the sale deed, after the land is restored to them by the competent authority.

As per general law of the land, when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract, is bound to restore it, to the person from whom he received it (vide Section 65 of the Contract Act 1872). Moreover, a person to whom money has been paid or anything delivered by mistake or under coercion, must repay or return it as per S. 72 of the Contract Act. It becomes an obligation for the respondents Nos. 1 to 4 to repay the amount of consideration in view of the order passed by the authorities for summary eviction and restoration, which is now being confirmed by me. If this obligation is not discharged, it may be open for the petitioner to take such legal action, as may be permissible under the law.

In the facts and circumstances of the case, there will be no order as to costs.

Rule discharged.