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2011 DIGILAW 898 (BOM)

Balwantrao Bhagwantrao Deshmukh v. Mankarnabai Chaituji Gosai

2011-07-27

B.P.DHARMADHIKARI

body2011
JUDGMENT : Heard Shri Ingley, learned counsel for the petitioner, Shri Mohta, learned counsel for respondents No. 1 & 2 and Shri Kankale, learned AGP for respondent No. 3. 2. After hearing respective counsel, it is apparent that availability of a fragment under Section 7 of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, (hereinafter referred to as 1947 Act) is not in dispute. Sale of fragment i.e. Survey No. 71 by Respondent No. 1 to Respondent No. 2 is also not in dispute. 3. Shri Ingley, learned counsel has contended that original Survey No. 7 of village Gaulkhed, Panaj, Tq. Akot, District Akola, was divided into three portions i.e. Survey No. 7/1 of Respondent No. 1, Survey No. 7/1A of petitioner and Survey No. 7/3 of one Badshahi Jumma Masjid Sansthan. Heinvites attention to rough sketch filed as Annexure C to show location of these subdivisions of Survey No. 7 and to show that Survey No. 8 is outside Survey No. 7 and it belongs to Respondent No. 2. He relies upon the provisions of Section 7(1) read with Section 14 of 1947 Act to contend that sale deed executed by Respondent No. 1 in favour of Respondent No. 2 in relation to Survey No. 7/1 on 16.05.1985 is illegal and cannot sustain. According to him, sale has to be to a contiguous owner in the same survey number i.e. Survey No. 7. He argues that Respondent No. 2, who is not an owner of any recognized subdivision of Survey No. 7, therefore, cannot be legally accepted as contiguous owner. If sale in his favour is upheld, the provisions of 1947 Act are defeated. 4. Shri Mohta, learned counsel and learned AGP oppose these arguments. They rely upon express language of Section 7(1) or Section 14 of the 1947 Act and contend that effort to read word “or” in said provisions cannot be supported by law. It is further contended that an adjacent owner is contiguous owner and if he purchased land, there is nothing wrong in it. 5. After hearing respective counsel, I find that there is no debate about dictionary meaning of word “contiguous” between the parties. The owner of Survey No. 8 is situated adjacent to Survey No. 7/1 and their boundaries are common. Thus, being adjacent owner, Survey No. 8 is adjoining to survey No. 7/1. 5. After hearing respective counsel, I find that there is no debate about dictionary meaning of word “contiguous” between the parties. The owner of Survey No. 8 is situated adjacent to Survey No. 7/1 and their boundaries are common. Thus, being adjacent owner, Survey No. 8 is adjoining to survey No. 7/1. The sale of fragment is permitted to an owner of contiguous survey number and also to a recognized subdivision of a survey number. Thus, owner of such recognized subdivision is also entitled to purchase a fragment. The fragment is permitted to be sold to such an owner only because of their location, which is adjacent to that fragment. The fragment, therefore, gets merged with other holdings of such an owner and a bigger/ composite field comes into existence. It may be noted that when it is subdivision of a Survey number, the provisions of Section 7(1) contemplated that it should be a recognized subdivision of a survey number. It is, therefore, obvious that such subdivision of a survey number must be recognized by authorities as an independent subdivision and if it is so recognized only then its owner gets right to purchase. The Legislature has, therefore, taken precaution to see that when such fragment is permitted to be purchased by such an owner, it may cease to be fragment because of its amalgamation with other/ bigger land. 6. Section 7(1) of the 1947 Act when permits both types of owners to purchase or rather obliges owner of fragment to sale it to such type of owners, it uses the word “or” between these two types. This is also so in the scheme of Section 14. The relevant words in both the provisions read “except to the owner of a contiguous survey number “or” recognized subdivision of a survey number”. If this word “or” is read as “of”, it is at once clear that the meaning of the sentence itself becomes obscure. It will be owner of a contiguous survey number of recognized subdivision of survey number. Thus, contiguous survey number will have to be a recognized subdivision of a survey number. That is not in accordance with the scheme of the Act. It will be owner of a contiguous survey number of recognized subdivision of survey number. Thus, contiguous survey number will have to be a recognized subdivision of a survey number. That is not in accordance with the scheme of the Act. It is also to be noted that if such an effort is made, express language of the provision is violated and owner of fragment can be cornered into a situation where he would not be in a position to sale property to anybody else except the other owner in the same survey number in which his fragment is situated. The word “or” therefore, cannot be read as “of” and word “contiguous” used in both the provisions needs to be given its full dictionary meaning showing a common border or touching viz., an adjacent or adjoining owner. When word “or” is read as it is, there is no absurdity and the provision makes complete sense which is in consonance with the object of 1947 Act. The effort to read it as “of” is not warranted and also not permitted legally by settled principles of interpretation. 7. In view of this, I do not find any merit in the petition. The same is rejected. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.