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1989 DIGILAW 49 (GUJ)

MULUBHA BACHUBHA RATHOD v. STATE

1989-03-15

M.B.SHAH

body1989
M. B. SHAH, J. ( 1 ) BEING aggrieved and dissatisfied by the judgment and order dated 11/01/1988 passed by the Deputy Secretary Revenue Department 4 (Appeal) Gujarat State in revision under Sec. 35 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 hereinafter referred to as the Fragmentation Act the petitioner. Purchaser of the land has filed this Special Civil Application under Art. 226 of the Constitution of India. ( 2 ) THE short question which is required to be considered in this petition is whether the transfer of land admeasuring 1 acre 25 gunthas out of Block No. 189 of village Kudasan Taluka/district Gandhinagar is illegal and void under the provisions of the Fragmentation Act. ( 3 ) RESPONDENT No. 3 - Natverbhai Atmaram was the owner of Block No. 189 admeasuring Hectare 1 Are 31 Sq. Mt. 99 of land of village Kudasan Taluka/district Gandhinagar. By a registered saledeed dated 9/06/1981 half of the land was transferred to the petitioner-Mulubha B. Rathod for a consideration of Rs. 48 0 As the transfer was against the provisions of the Fragmentation Act notice under Sec. 9 of the Act was issued by the Deputy Collector Gandhinagar on 5-6-1984. ( 4 ) AFTER hearing the parties in Fragmentation Case No. 162 of 1982 the Prant Officer Gandhinagar by his judgment and order dated 27/05/1985 declared that the transfer of one-half of the land of Block No. 189 in favour of the petitioner was void as it divided the block into two parts without prior permission from the Collector and therefore there was breach of Sec. 31 (1) (b) of the Fragmentation Act. He declared the sale to be illegal and void and passed an order under Sec. 9 (2) levying fine of Rs. 100. 00 on the transferor and directed that the transferee should be evicted from the land. ( 5 ) AGAINST that judgment and order the petitioner preferred Revision Application No. SRD/com. /93/85 before the Special Secretary Revenue Department under Sec. 35 of the Fragmentation Act. Before the Special Secretary the only contention which was raised was that the provisions of Sec. 31 (b) of the Act were not applicable in the present case because the land was purchased by the Co-operative Housing Society. After considering the relevant resolution that contention was rejected by the Special Secretary. He therefore dismissed the revision application. Before the Special Secretary the only contention which was raised was that the provisions of Sec. 31 (b) of the Act were not applicable in the present case because the land was purchased by the Co-operative Housing Society. After considering the relevant resolution that contention was rejected by the Special Secretary. He therefore dismissed the revision application. ( 6 ) AT the time of hearing of this petition learned Advocate for the petitioner vehemently submitted that the provisions of Sec. 31 were not applicable in the present case because Block No. 189 was not allotted to respondent No. 3 i. e. the original owner under the provisions of the Fragmentation Act. He relied upon the judgment of this Court in the case of Ramjibhai v. Bhaglabhai [1987 (1)] 28 (1) GLR 143 and also the decision of the Bombay High Court in the case of Putalabai v. Shiva AIR 1981 Bombay 9. ( 7 ) IN my view there is no substance in this contention. Section 31 provides that notwithstanding anything contained in any law for the time being in force no holding allotted under this Act nor any part thereof shall be transferred whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrests of land revenue or for sums recoverable as arrears of land revenue) or by way of gift exchange or lease or otherwise except in accordance with such conditions it may be prescribed. Therefore the question would be what is the meaning of the phrase holding allotted under this Act. For gathering the meaning of the phrase holding allotted under this Act it would be necessary to refer to various sections and the Rules. Section 2 (2) provides that consolidation of holdings means the amalgamation and where necessary the re-distribution of holdings or portions of holdings in any village mahal or taluka or any part thereof so as to reduce the number of plots in holdings. ( 8 ) SECTION 15a (1) provides for preparation of scheme and principles to be followed in its preparation. ( 8 ) SECTION 15a (1) provides for preparation of scheme and principles to be followed in its preparation. Sub-section (2) provides that while preparing the scheme the Consolidation Officer shall have regard to the procedure which the State Government may from time to time prescribe in regard to the number of blocks in which the village lands are to be grouped the manner of allotting new plots to each owner the recommendations of the Village committee and such other matters as may be prescribed. Therefore under Sec. 15a of the Fragmentation Act all the lands in the village to which consolidation scheme is made applicable are required to be grouped together are to be divided into different blocks and the manner of allotting new plots to each owner is to be determined after taking into consideration the recommendation of the village committee. Rule 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Rules 1959 provides what the scheme prepared for consolidation of holdings under Sec. 15a (1) of the Act shall contain. Clause (i) of Rule 9 provides for a map of the village showing all the existing survey numbers and their sub-divisions and recognised roads cart-tracks and foot-paths and areas assigned for public purposes such as burial or cremation grounds grazing areas or threshing floor. Clause (ii) provides for another map as to that extent the aforesaid areas will be altered after the consolidation scheme becomes operative. Clause (iv) provides for a statement showing the name of the owners to whom the nonconsolidated holdings are allotted with particulars including Survey No. Hissa No. Rule 10 provides that in preparing a scheme for consolidation of holdings under Sec. 15a the Consolidation Officer shall divide the lands of a village in such number of blocks as he may deem appropriate after taking into consideration the crops grown in the said village the quality of the soil irrigational facility and proximity to village site or other residential area in the village or hamlet of it. Rule 11 provides for the manner of allotment of new plots to owners. It prescribes that the Consolidation Officer shall allot new plots to each owner in the manner prescribed therein. Rule 11 provides for the manner of allotment of new plots to owners. It prescribes that the Consolidation Officer shall allot new plots to each owner in the manner prescribed therein. Rule 11 is as under:"11 The Consolidation Officer shall new Plots to each owner in the following manner namely: (A) The owners who mutually agree to exchange their lands with a view to consolidating their holdings may be allotted the lands agreed to be exchanged provided such agreement is given to the Consolidation Officer in consultation with the Village Committee is satisfied that no coercion of any kind has been brought on the owners concerned to secure such agreement; (B) Every owner shall as far as may be feasible be allotted land In the blocks where he: (I) holds the largest and principal part of his holdings; or (ii) has his residential house or (iii) holds land in which he has made improvement of a permanent nature. (C) In allotting new plot of land to any owner in lieu of a plot of land taken away from him the Consolidation Officer shall as far as may be feasible allot land of a similar kind as the one which is taken away from him". From this Rule it is apparent that each owner of the Survey number in the village is to be allotted new plots as prescribed in the said Rule. Sub-rule (c) in terms provides that the Consolidation Officer shall as far as may be feasible allot land of a similar kind as the one which is taken away from the owner. Therefore if some land is allotted to the owner that would also mean holding allotted under this Act. Once the consolidation scheme comes into operation the land is required to be re-allotted as per the scheme. Allotment of the land may be of the same plot yet it would be allotment under the Act. Section 16 provides that the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. Section 19 provides for publication of a draft scheme. Section 19 provides for publication of a draft scheme. After consideration of the draft scheme under Sec. 20 the Settlement Commissioner is required to confirm the scheme. Section 21 provides that upon the confirmation of the scheme under sub-secs. (1) (3) or (4) of Sec. 20 a notification stating that the scheme has been confirmed is required to be published. It further provides that if two-thirds or more of the owners affected by such scheme agree to enter into possession of the holdings allotted to them thereunder the Consolidation Officer may allow all the owners to enter into such possession forthwith or from such date as may be specified by him. Sub-section (2) provides that if two-thirds or more of such owners do not agree to enter into possession under sub-sec. (1) all the owners shall be entitled to possession of the holdings allotted to them under the scheme from the commencement of the agricultural year next following the date of publication of the notification in the Official Gazette under sub-sec. (1 ). Section 22 provides that as soon the persons entitled to possession of holdings under the Act have entered into possession of the holdings respectively allotted to them the scheme shall be deemed to have come into force. Section 24 (1) provides for grant of certificate by the Consolidation Officer to every owner to whom a holding has been allotted in pursuance of a scheme of consolidation. Therefore looking to the aforesaid provisions it is abundantly clear that as soon as consolidation of the holdings under the Act is effected and the land is re-distributed as per the provisions of the Act then it would mean that the holding is allotted under the Act. Allotment of the holding may be of the same land on same area; may be of different land and different area; in some cases same land but less area; in some cases it may be same land plus additional area. Therefore the phrase holding allotted under the Act would mean any land allotted under the consolidation scheme. Hence once the consolidation scheme is prepared and subsequently the blocks are allotted to the holders it would mean that the land is allotted under the Act. In this view of the matter there is no substance in the aforesaid contention. Therefore the phrase holding allotted under the Act would mean any land allotted under the consolidation scheme. Hence once the consolidation scheme is prepared and subsequently the blocks are allotted to the holders it would mean that the land is allotted under the Act. In this view of the matter there is no substance in the aforesaid contention. ( 9 ) FURTHER reliance placed upon the judgment of this Court in Ramjibhai case (supra) is of no assistance to the petitioner because in that case the Court considered the provision of Sec. 7 of the Act which prohibits the transfer of any fragment in respect of which notice has been given under sub-sec. (2) of Sec. 6 except to the owner of contiguous survey number or recognised sub-division of a survey number. The Court arrived at the conclusion that the transfer of fragment was in favour of owner of a contiguous survey number and would therefore not be hit by Sec. 7 of the Act. The Court further held that by transfer of interest by the co-sharer in the land no fragment was created on the contrary the move was in the direction of consolidation. The Court further observed that it was not a case of violation of Sec. 31 because it was not shown that the holding was allotted to the owner and his brothers under the provisions of the Act Therefore in that case there was no evidence that consolidation scheme was implemented in that village. This would be clear from the fact that the Court considered that the land bearing Survey No. 303/2 admeasuring 18 gunthas was involved in that case meaning thereby no block number was given to that survey number. the same is the position in Putalabais case (supra) decided by the Bombay High Court. ( 10 ) HENCE there is no substance in this petition and it is therefore rejected. Notice discharged. Ad interim relief stands vacated. However at the request of the learned Advocate for the petitioner ad interim relief to continue for a period of two months from today. Rule discharged. .