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1993 DIGILAW 457 (GUJ)

ABDUL RAZZAQ YOUSUFBHAI MOTORWALA v. ADDITIONAL CHIEF SECRETARY REVENUE DEPARTMENT,STATE OF GUJARAT

1993-09-24

R.K.ABICHANDANI

body1993
R. K. ABICHANDANI, J. ( 1 ) BOTH these petitions raise common questions and are heard together and being disposed of by this common Judgment. In both these petitions the petitioners have challenged the orders made by the Revisional authority on 1-12-89 partly allowing the Revision Application filed by the respondent No. 2 and setting aside the orders of the Deputy Collector which were made on 14-9-87 and declaring the entry made pursuant to that order as illegal. The Deputy Collector by his orders dated 14-9-87 had rejected the applications of the respondent No. 2 of both these petitions holding that the transactions of the lands in dispute were not hit by the provisions of Section 27 (b) of the Bombay Prevention of Fragmentation and Consolidations of Holdings Act 1947 ( 2 ) IN Special Civil Application No. 5329 of 1990 the land bearing Survey No. 4 admeasuring 9 acres and 35 gunthas of village Unn was sold under the registered deed for a sum of Rs. 35 505 on 1 by the respondent No. 2 to the petitioners. The possession was handed over earlier on 19-11-74 when agreement to sell was executed. Pursuant to the sale Entry No. 873 was mutated on 6-3-76 and certified on 20th April 1976. Thereafter on 11 the respondent No. 2 vendor made an application under Section 9 of the said Act alleging that the sale transaction was violative of Section 27 (b) thereof. The Deputy Collector found that the said survey number was not a fragment nor was it sub-divided. The Deputy Collector also found that there was no violation of provisions of Section 27 (b) of the Act by the sale transaction and there was no provision which prevented the transfer of such land. The Deputy Collector also held that the respondent No. 2 was not entitled to get the land as claimed by him and that the decision of the Gujarat High Court reported in 25 G. L. R. 1225 was attracted in the present case. ( 3 ) IN Special Civil Application No. 5330 of 1990 the land which was sold was of Survey No. 63 in the same village and it admeasured 2 acres 24 gunthas. The dates of agreement to sell sale deed mutation application made by the respondent No. 2 vendor and the orders made are the same in both the matters. ( 3 ) IN Special Civil Application No. 5330 of 1990 the land which was sold was of Survey No. 63 in the same village and it admeasured 2 acres 24 gunthas. The dates of agreement to sell sale deed mutation application made by the respondent No. 2 vendor and the orders made are the same in both the matters. The Deputy Collector passed similar orders as he had done in respect of Survey No. 64. ( 4 ) THE respondent No. 2 had filed two Revision Applications against these orders of the Deputy Collector. The Revisional Authority is the State Government under Section 35 of the Act. It was tried to be contended on behalf of the petitioners that the Revisional authority could not have exercised the powers under Section 35 on the basis of the applications made by the respondent No. 2. It was argued that revisional power under Section 35 of the Act could be exercised only suo motu and not on the basis of any revision application. The provisions of Section 35 do not confine the exercise of revisional powers to any particular mode. The provision is wide enough to enable the State Government to exercise its revisional powers not only suo motu but also at the instance of the aggrieved party. Therefore the contention of the learned Counsel for the petitioner in this regard cannot be accepted. ( 5 ) IN the impugned orders made by the revisional authority which are identical in both the matters the revisional authority has held that in view of the provisions of Section 27 (b) of the Act no transfer could have taken place of the land in question when notification was issued under Section 15 of the Act. It was found that consolidation proceedings were completed after the sale deed on 3-5-77. It was held that the petitioners were therefore liable to be summarily evicted under Section 9 (3) of the Act. On the question of delay it was held that where transaction was void it cannot get validated by passage of time. The Revisional authority however did not summarily evict the petitioners but directed that the entries made pursuant to the sale transactions be deleted as illegal. It was directed that if any allotment was made on the basis of those entries in the consolidation proceedings that should be modified as per his order. The Revisional authority however did not summarily evict the petitioners but directed that the entries made pursuant to the sale transactions be deleted as illegal. It was directed that if any allotment was made on the basis of those entries in the consolidation proceedings that should be modified as per his order. ( 6 ) THE provisions of Section 27 (b) on the basis of which the Revisional Authority seems to have proceeded were unamended provisions while the Deputy Collector whose order was being challenged before the Revisional Authority seems to have had in his view the provisions of Section 27 (b) as amended by Gujarat Act 25 of 1982. By the said amendment Act Clause (b) of Section 27 was substituted and the amended clause reads as under : 27 When a Consolidation Officer proceeds to prepare a scheme under Section 15 during the continuance of the consolidation proceedings - (a) xxx xxx xxx (b) no person shall transfer any land in respect of which a notice has been given under sub-Section (1) of Section 15a to the land owner concerned except with the previous permission in writing given by the Consolidation Officer in such circumstances and subject to such conditions as may be prescribed. Thus under the amended provisions the transfer of land is prohibited only when the notice is given under sub-Section (1) of Section 15a of the Act to the owner of the land. The amendment appears to be of curative nature since the provisions of unamended Clause (b) of Clause 27 might have had effect even on transfer of lands which were not to be affected by the provisions of the Act. Therefore when the Deputy Collector held that there was no embargo on the transfer of land he had the amended provisions of Clause (9) of Section 27 in mind. The Revisional Authority has not taken into consideration this aspect of the matter. Therefore when the Deputy Collector held that there was no embargo on the transfer of land he had the amended provisions of Clause (9) of Section 27 in mind. The Revisional Authority has not taken into consideration this aspect of the matter. ( 7 ) IT would also be significant to note that restriction on alienation and sub-division of consolidated holdings under Section 31 (1) of the Act will not apply to a transfer of holding allotted under the Act made after 19-2-68 but before the date of commencement of the Bombay Prevention of Fragmentation and Consolidation of Holdings (Gujarat Amendment) Act 1979 where such transfer was of entire holding not involving any sub-division thereof and the transferee or his successor in interest was occupying or was in possession of the holding so transferred immediately before such date as provided in sub-Section 2 (b) of Section 31 of the Act. It is specifically provided therein that such transfer shall not be and shall be deemed never to have been void on the ground that it was contrary to the provisions of Section 31 (1) Thus there would be no scope for exercise of power under Section 9 or (3) of the Act in case of the transfers covered by Section 31 (2) (b) of the Act. ( 8 ) IN both these petitions the case of the petitioners is that there was a transfer of the entire holdings which were allotted as block Nos. 110 and 111 in the consolidation proceedings. The provision of Section 31 (2) (b) has also not been kept in mind by the Revisional Authority while deciding the Revision Application in both these matters. It would therefore be appropriate to remand the matters to the Revisional Authority to consider them afresh in light of the observations made in this judgment and decide the same in accordance with law. Both these petitions are allowed and the impugned orders of the Revisional Authority at Annexure C in both these petitions are hereby set aside with direction that the Revisional Authority may consider the matter afresh in accordance with law and in light of the observations made in this judgment Rule is made absolute accordingly in both these matters with no order as to costs. .