Bombay High Court
Ramkorbai Shreepat Padghan vs The Addl. Commissioner, Amravati ... on 25 August, 2016
Bench: Ravi K. Deshpande
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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.
::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:11 :::
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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
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.
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
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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
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CERTIFICATE
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : P.D. Lanjewar, PS
Uploaded on : 29-8-2016
