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wp2228.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.2228 of 2008
Ramkorbai w/o Shreepat Padghan,
Aged about 63 years,
Occupation - Agriculturist,
R/o at Village Borgaon Kakde,
Tah. Chikhli,
District Buldhana. ... Petitioner
Versus
1. The Additional Commissioner,
Amravati Division, Amravati.
2. The Sub-Divisional Officer, Buldhana,
Near State Bank of India Square,
Buldhana.
3. Jayatai w/o Rajesh Telgote,
Aged about 38 years,
Occupation - Household,
R/o Plot No.A-73, Sector 12,
Kharghar, Navi Mumbai,
Tah. and Dist. Raigad.
4. Shreepat s/o Ashru Padghan,
Occupation - Agriculturist,
Aged about 70 years,
R/o at Village Borgaon Kakde,
Tah. Chikhli, Dist. Buldhana. ... Respondents
Shri N.B. Kalwaghe, Advocate for Petitioner.
Ms Geeta Tiwari, AGP for Respondent Nos.1 and 2.
Shri R.B. Dhore, Advocate for Respondent No.3.
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wp2228.08.odt
Coram : R.K. Deshpande, J.
Dated : 25th August, 2016 Oral Judgment :
1. By the sale-deed dated 15-12-2001, the respondent No.4 transferred Survey No.117, admeasuring 55 R of land. This was the subject-matter of the proceedings under Sections 7, 8 and 9 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The Sub-Divisional Officer, by his order dated 9-11-2006, held that such a transfer is hit by the provision of Section 7 of the said Act, and hence declared the sale to be null and void. The Additional Commissioner, in appeal, has passed an order dated 23-5-2007, setting aside the order of the Sub-Divisional Officer on the ground that the entire Survey No.117 consists of 57 R of land, and hence there was no question of fragmentation.
2. The Additional Commissioner, in the order impugned, has not recorded any finding as to the correctness of the finding recorded by the Sub-Divisional Officer that the respondent No.3 is not the owner of any contiguous Survey Number. This is required to be verified. The learned counsels appearing for the parties also do not ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:11 ::: 3 wp2228.08.odt dispute that Section 7 of the said Act would be attracted only if the notice of entry, as contemplated by sub-section (2) of Section 6, has been given in the manner prescribed. The reliance is placed upon the decision of this Court in the case of Jairam Baban Makode & Ors. v.
Bhagirathabai Mitharam Patil & Ors., reported in 2005(2) ALL MR 360. Para 5 of the said decision being relevant, is reproduced below :
"5.
In the thus apparent that until and unless the land is notified as fragment as contemplated by Section 6(2) of the Fragmentation Act, bar under Section 7 cannot be pressed into service. The provisions of sub-section (2) of Section 6 prescribes notice of every entry made under sub-section (1) as given in the manner prescribed for giving notice of entry in the register of Mutation. The said procedure for giving notice of entry in the Mutation register is mentioned in Section 150(2) of Maharashtra Land Revenue Code and it requires a complete copy of entry to be displayed at a conspicuous place in the Chavadi and also written intimation to be given to all persons appearing from the record of rights or register of mutations to be interested in mutation. Thus, it is apparent that here, after holding the land to be a fragment under Section 6(1) of Fragmentation Act, notice thereof ought to have been published in a conspicuous place in the chavdi and also should have been given in writing to at least owners of that land.::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:11 ::: 4
wp2228.08.odt The Sub-Divisional Officer as also the revisional authority have not recorded any finding in this respect. Until and unless the finding that the land was notified as fragment as contemplated by Section 6(2) of the Fragmentation Act is reached, bar under Section 7(1) could not have been invoked and could not have been utilised by these authorities to set aside the sale deeds. Thus, very jurisdiction fact is found to be missing in these orders. Hence, these orders dated 31-3-1989 and 26-10-1989 passed by the respective authorities are quashed and set aside. The matter is remanded back to the Sub-Divisional Officer, Akot, for taking fresh decision on the application filed by Respondent No.1 before it under Section 7 read with Sections 9 and 10 of the Fragmentation Act, after giving due notice to all concerned. Such decision should be taken as early as possible in any case, within a period of six months from the date of receipt of this order."
In view of the aforesaid decision of this Court, it is also required to be verified as to whether the procedure for declaration of fragment, as held by this Court, has been followed or not. The matter will have, therefore, to be remanded back to the Sub-Divisional Officer by setting aside the orders passed by the authorities below.
3. In the result, the petition is allowed. The order ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:11 ::: 5 wp2228.08.odt dated 23-5-2007 passed by the Additional Commissioner, Amravati Division, Amravati, in Revision Petition No.34/PFG/2006, of Borgaon Kakade, Tq. Chikhali, Distt. Buldhana, as also the order dated 9-11-2006 passed by the Sub-Divisional Officer, Buldhana, are hereby quashed and set aside. The matter is remanded back to the Sub-Divisional Officer, Buldhana, to decide it afresh keeping in view the observations made by this Court. The parties to appear before the Sub-Divisional Officer on 26-9-2016. The Sub-Divisional Officer to decide the matter within a period of eight months thereafter. Pending the proceedings, none of the parties shall deal with the property in any manner.
5. Rule is made absolute in above terms. No order as to costs.
JUDGE.
Lanjewar ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:11 ::: 6 wp2228.08.odt CERTIFICATE "I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."
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