Shanabhai Kidiyabhai and Others vs State of Gujarat and Others

C.K. Buch, J.—The present is preferred by the petitioners invoking jurisdiction of this Court under Article 226 read with Article 227 of the

Constitution of India and the petitioners have challenged the legality, validity and sustainability of the order dated 21st July 1984 passed by

respondent No. 2-Assistant Collector and the order dated 15th February 1986 passed by respondent No. 1-Special Secretary (Appeals)

produced by the petitioner at Annexures-G and I respectively, in pursuance of the provisions of the Bombay Prevention of Fragmentation and

Consolidation of Holdings Act, 1947 (hereinafter referred to as ''the Act'') in respect of the land bearing Survey No. 169 situated at village Vadela,

Taluka Limkheda, District Panchmahals (hereinafter referred to as ''the land in question'').

According to the petitioners, they are the owners and occupiers of the land in question and the orders under challenge, therefore, may not be

executed. It is the say of the petitioners that there was a transaction for the land in question and the same land is admeasuring 8 Acres and 13

Gunthas. It is alleged that the said land bearing Survey No. 169, owned and possessed by the petitioners after remeasurement and reconstitution of

divisions, is admeasuring 8 Acres and 13 Gunthas; and in stricto senso they have been shown as different parcels of lands by giving them sub-

survey numbers as Survey Nos. 169/1, 169/2, 169/3, 169/4, 169/5, 169/6, 169/7 and 169/8. When the land was purchased by the father of

petitioner Nos. 1 to 4 who is also the grandfather of petitioner No. 5, it was in four parts and the Survey Numbers were shown to be Survey Nos.

169/1 to 169/4. The measurement of the land remained the same. This land initially was being cultivated by four different tenants and first mutation

entry for the land bearing Survey No. 169 was entered in the name of the said four tenants, viz. Late Parsing Punabhai Patel, Late Hirabhai

Lakhabhai Patel, Sona Lemba and one Bai Vesti widow of Gamji Lakha. This entry No. 1 was entered into village Form No. 6 of village Vadela

and the same was certified and the persons shown in Entry No. 1 were made owners as tenants of Jagirdar Shri R.K. Vijaysinhji. On

implementation of Jagirdar Abolition Act, 1954, the said tenants-agriculturists viz. Parsing Punabhai Patel, Late Hirabhai Lakhabhai Patel, Sona

Lemba and the said Bai Vesti widow of Gamji Lakha, were made owners and the relevant Entry No. 231 was entered in the record of rights i.e. in

the Village Form No. 6. Parsing Punabhai Patel was the owner and occupier of the land bearing Survey No. 169/1 and was also holding the land

bearing Survey No. 169/4 jointly with Hira Lakha and Sona Lemba. The said Sona Lemba and Hira Lakha were also holding the land bearing

Survey Nos. 169/3 and 169/2 respectively. The said entries were mutated in the year 1955. It is the say of the petitioners that all these original

owners and occupants reflected in Entry No. 231 of Village Form No. 6 sold the entire parcel of land to one person i.e. father of petitioner Nos. 1

to 4, who is also the grandfather of petitioner No. 5 and the relevant entry as to the sale of entire parcel of land admeasuring 8 Acres and 13

Gunthas was entered in the name of the petitioners in the year 1958. A copy of the said entry is produced with the petition at Annexure-C and the

same is Entry No. 274 in Village Form No. 6. In the year 1963, fresh assessments were made of the land in question and the entire parcel of land

was shown in different parcels. Though it is the say of the petitioners that they are in possession and enjoying the land in question, the Revenue

Authorities entered the entire parcel of land as the land divided in various fragments mentioned in Entry No. 428 dated 16th May 1967. No steps

were taken by the respondents after the alleged entry mutated in the year 1967, but the parties were served with the notice u/s 7 of the Act and

they were also asked as to why the steps u/s 9 of the said Act should not be taken against them. It was the say of petitioners to the officer who had

issued notice that they are enjoying and cultivating the entire parcel of land and they have incurred huge expenditure after development of the land

in question and their said uninterrupted enjoyment is for more than 20 years. However, respondent No. 2-Assistant Collector passed order against

the petitioners and held that the heirs of Parsing Punabhai Patel are directed to pay a fine of Rs. 250/- and further directed the petitioners herein to

hand over the possession of the aforesaid lands to the heirs of Parsing Punabhai Patel. The said order of respondent No. 2 was challenged by way

of preferring Revision Application before respondent No. 1, but respondent No. 1 upheld the order passed by respondent No. 2.

It is pertinent to note that neither respondent-State nor private parties, which are joined as parties being proper parties to the petition, has filed

any formal affidavit of resistance till date. So the material relevant fact that the aspect that the father of petitioner Nos. 1 to 4, who is also the

grandfather of petitioner No. 5, purchased the land in the year 1954 and latest by 1958, has remained unchallenged. The fact of sale of land in

question by the original occupants and owners remained unchallenged and as such no controversy qua this fact is emerging from the orders under

challenge. Only one plea was taken before the revenue authorities that no formal deed of registration is produced on record, but the peaceful

enjoyment and cultivation by the petitioners was not assailed and it appears that only on that count, the notices under the provisions of the Act

were served to the petitioners by respondent No. 2.

Pending present petition, petitioner Nos. 1 and 2 expired, but as the heirs of the said deceased petitioners had failed in joining themselves as

party petitioners to the present petition in time, the learned Single Judge of this Court had taken a view that the petition qua petitioner Nos. 1 and 2

be treated as abated. It was observed by the learned Single Judge that the heirs of petitioner No. 3 were permitted to join as party petitioners and

necessary correction has been made in the cause-title of the present petition. The said order dated 24th July 1997 passed the learned Single Judge

was assailed by the heirs and legal representatives of the deceased petitioner Nos. 1 and 2 by way of an intra-court appeal i.e. Letters Patent

Appeal No. 1072 of 1997. While dealing with the said Letters Patent Appeal, the Division Bench of this Court (Coram : C.K. Thakkar and R.M.

Doshit, JJ) has allowed the appeal and the application, preferred by the heirs and legal representatives of deceased petitioner Nos. 1 and 2; and

further directed the learned Single Judge to hear the Special Civil Application on merit and it was also ordered that the present petition be disposed

of in accordance with law.

After a lapse of about more than 11 years, this petition has come upon the Board for final hearing. Necessary correction ought to have been

made in the cause-title by the Registry keeping in mind the order passed by the Division Bench. So the Registry is hereby directed to firstly amend

the cause-title accordingly as if the Civil Application preferred by the heirs and legal representatives of the deceased petitioner Nos. 1 and 2 is

allowed.

It is rightly argued by Shri Yogesh Thakkar, learned Counsel appearing for the heirs and legal representatives of petitioner No. 3, that the ratio

of the decision in the case of Ranchhodbhai Lallubhai Patel v. State of Gujarat and Ors. reported in 1984(2) GLR 1225 : 25 GLR 1225, would

help the petitioners. The grievance of Shri Yogesh Thakkar is that this very decision was cited by the petitioners before the respondent No. 1-

Authority during the course of hearing of the Revision Application. However, he has ignored the said ratio.

There is enough force in the statement made by Shri Yogesh Thakkar that respondent No. 1 or respondent No. 2 while dealing with the notice

to show cause have failed in considering the basic purpose of the Act. Technically speaking, this entire parcel of land is one consolidated parcel of

land bearing Survey No. 169. For family convenience if small boundaries are created to avoid the conflict between the family members, it cannot

be considered as fragments because the land remains one parcel of land. Basically, the land in question was divided into four different parcels and

the measurement of all these four parcels was exceeding the limit of a fragment. The situation of the land seen by the Revenue Officer in the year

1967 was totally irrelevant. The land when purchased was in four small parcels, that too, on one Survey Number adjacent to one another and they

were purchased by one person i.e. father of petitioner Nos. 1 to 4, who is also the grandfather of petitioner No. 5. So the respondent-authorities

ought to have held that there is no scope for attraction of provisions of Section 7 read with Section 9 of the Act. In the above cited case of

Ranchhodbhai (supra), this Court was dealing with the transfer of a fragment of land without prior permission of the Collector. The Collector

decided to impose fine and also for summary eviction after about seven years. The petitioner in the cited decision in the meanwhile had constructed

a house on the land and had also incurred expenditure. This Court has held that exercise of powers u/s 9 in such situation can be said to be grossly

belated and such exercise of powers is unjust, illegal and unreasonable. Here the case of the petitioners is consistent from beginning that they are

cultivating the land from beginning as one family and they have incurred huge expenses in the land in question. Further, no notices were served to

the petitioners immediately after the alleged Entry No. 428 was mutated in the year 1967. It is not possible for the Court to believe that the Talati-

cum-Mantri would mutate a post-dated entry in the Village Form No. 6 showing mutation in the year 1958, mentioning that the parcel of land was

sold by the original owners to the father of petitioner Nos. 1 to 4, who is grandfather of petitioner No. 5. This argument which was advanced

before respondent No. 1 ought to have been thrown by respondent No. 1. Thus, in view of the same, the present petition is required to be

allowed.

In view of aforesaid observations and discussion, the present petition is hereby allowed. The order dated 21st July 1984 passed by respondent

No. 2-Assistant Collector and the order dated 15th February 1986 passed by respondent No. 1-Special Secretary (Appeals) produced by the

petitioner at Annexures-G and I respectively, are hereby quashed and set aside. The respondents are directed not to execute or implement the

both the aforesaid orders.

Rule is made absolute accordingly.