Bombay High Court
Meruji Mahadeorao Begekar & 1 vs Raibhan Bhanji Gajbhiye & 4 Others on 7 December, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 3824/2000
1] Meruji S/o Mahadeorao Begekar,
Aged about 56 years, Occ. Agriculturist
2] Anandrao S/o Meruji Begekar,
Aged about 30 years, Occ. Agriculturist,
Both Petitioner Nos. 1 and 2,
Mhasara, To Narkhed,
Dist. Nagpur ..... PETITIONERS
...V E R S U S...
1] Raibhan S/o Bhanji Gajbhiye,
Aged about 64 years, Occ. Agriculturist,
R/o Mhasara, Tq. Narkhed,
Distt. Nagpur
2] Smt. Bhagubai W/o Pundlikrao Dhote,
Aged about 45 years, Occ. Household,
C/o Pundlikrao Dhote (Loco Driver)
Railway Quarter No. JM-57, Near
Railway School, Jal- Mandal, Ajni,
Nagpur
3] Smt. Nagubai W/o Mahadeorao Gajbhe,
Aged about 41 years, Occ. Household,
R/o Chicholi (Badd), Tahsil: Pandhurna,
Dist. Chindwada (M.P.)
4] Sub-Divisional Officer, Katol Tq. Katol,
Dist. Nagpur
5] Additional Commissioner, Nagpur Division,
Nagpur ... RESPONDENTS
=====================================
Shri S.S. Shingane, Advocate for the petitioners
=====================================
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CORAM:- Z.A. HAQ,J.
DATED :- 7 December, 2017
th
ORAL JUDGMENT :-
Heard.
2] The respondent no. 1 had filed an application under
Section 9 of the Maharashtra Prevention of Fragmentation &
Consolidation of Holdings Act, 1947(hereinafter referred to as "the
Act of 1947") alleging that he was the owner of Field Survey
No. 93 (B) area 0.08 hectare, that cousin brother of Janba
Gajbhiye was the owner of adjoining Field Survey No. 92 area
1.15 hectare, that at the time of family partition, Janba Gajbhiye
had agreed that if he intend to sale the field alloted to his share,
he will offer it first to the adjoining owner and then the
respondent no. 1 had also agreed that if he intend to sale his field,
he will offer it first to Janba Gajbhiye. The respondent no. 1
contended that from 1980 till 1984 i.e. till the death of Janba
Gajbhiye, the respondent no. 1 took care of Janba Gajbhiye and
during that period Janba Gajbhiye had expressed his desire to sell
Field Survey No. 92 to the respondent no. 1. The respondent no.
1 contended that present respondent no. 2-Bhagubai Pundlikrao
Dhote and present respondent no. 3-Nagubai Mahadeorao Gajbhe
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(daughters of Janba Gajbhiye) succeeded to the field in question
after the death of Janba Gajbhiye and they had requested the
respondent no. 1 to purchase the field and the respondent no. 1
had agreed to purchase it however, later the respondent nos. 2
and 3 sold Field Survey No. 92 to the present petitioners by two
separate sale-deeds executed on 28/03/1989. The respondent no.
1 contended that because of the execution of sale-deeds, a
fragment was created as the petitioner no. 1 had purchased an
area of 0.33 hectare only and the remaining 0.82 hectare was
purchased by the petitioner no. 2. With these pleadings, the
respondent no. 1 prayed that penalty be imposed for the illegal
transfer, the present petitioner be summarily evicted from Field
Survey No. 92 and the respondent nos. 2 and 3 be directed to
execute the sale-deeds of Field Survey No. 92 in favour of the
respondent no. 1.
3] The Sub-Divisional Officer proceeded with the matter
and by order dated 21/03/1994, concluded that the respondent
no. 1 was entitled to purchase Field Survey No. 92 imposed
penalty of Rs. 250/- on each of the petitioners for purchasing Field
Survey No. 92 in breach of the provisions of the Act of 1947.
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Being aggrieved by the order passed by the Sub-
Divisional Officer, the petitioners had filed appeal before the
Commissioner which is dismissed by the learned Additional
Commissioner by the impugned order.
The petitioners, being aggrieved in the matter, have
filed this petition.
4] I have examined the record with the assistance of the
learned advocate for the petitioners and the learned AGP. I find
that the respondent no. 1 has not been able to show that the
transfer by sale-deeds dated 28/03/1989 were hit by the
provisions of the Act of 1947. The learned AGP has not been able
to point out that the Sub-Divisional Officer had the power to hold
that the respondent no. 1 was entitled to purchase Field Survey
No. 92. The Sub-Divisional Officer has not even framed the issue
as to whether the fragment is created on execution of the sale-
deeds dated 28/03/1989. The learned Additional Commissioner
has also not adverted to the relevant aspects and has mechanically
dismissed the appeal filed by the petitioner by cryptic order. As the
Subordinate Authorities have not adverted to the relevant aspects,
the impugned orders passed by them are unsustainable.
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Hence, the following order is passed:-
O R D E R
1] The impugned orders are set aside.
2] The application filed by the respondent no. 1
under Section 9 of the Maharashtra Prevention of
Fragmentation & Consolidation of Holdings Act, 1947 is
dismissed.
Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
If the amount of penalty as directed by the Sub-
Divisional Officer is deposited by the petitioners, they will be
entitled for refund of it. However, the learned advocate for the
petitioners, on instructions, has submitted that the petitioners
would not like to take refund of it but it should not be considered
that the petitioners are liable to pay the penalty. The statement
made on behalf of the petitioners is accepted.
JUDGE
A n s a r i
