Sheikh Mehboob Sheikh Mohd vs The Addl. Commissioner & 3 Ors
2017 Latest Caselaw 3223 Bom

   lpa344.07                                                                 1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

              LETTERS PATENT APPEAL NO. 344  OF  2007
                                IN
                 WRIT PETITION  NO.  5713  OF  2006


  Sheikh Mehboob Sheikh Mohammed
  (since deceased) through LRs

  1. Abdul Azim s/o Sheikh Mehboob,
     aged about 40 years.

  2. Abdul Zabir s/o Sheikh Mehboob,
     aged about 35 years.

  3. Abdul Shakir s/o Sheikh Mehboob,
     aged about 32 years.

  All residents of Saoli (Datura) Tq.
  Achalpur, District - Amravati.            ...   APPELLANTS

                    Versus

  1. The Additional Commissioner,
     Amravati Division, Amravati.

  2. The Sub Divisional Officer,
     Achalpur, District - Amravati.

  3. Mr. Abdul Naseem Sk. Mohammed,
     Aged - Major, r/o Saoli, Tahsil -
     Achalpur, District - Amravati.

  4. Mr. Abdul Hameed Sk. Mohammed,
     aged - Major, r/o Saoli, Tahsil -
     Achalpur, District - Amravati.         ...   RESPONDENTS


  Shri N.R. Saboo, Advocate for the appellants.
  Shri A.A. Madiwale, AGP for respondent Nos. 1 & 2.




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    lpa344.07                                                                           2



  Shri C.A. Babrekar, Advocate for respondent No. 4.
                          .....

                                        CORAM : B.P. DHARMADHIKARI &
                                                  ROHIT B. DEO, JJ.

JUNE 15, 2017.

ORAL JUDGMENT : (PER ROHIT B. DEO, J.)

Heard Shri N.R. Saboo, learned counsel for the

appellants, Shri A.A. Madiwale, learned AGP for respondent

Nos. 1 & 2 and Shri Babrekar, learned counsel for respondent

No. 4.

2. The present Letters Patent Appeal arises out of

proceedings under the Bombay Prevention of Fragmentation

and Consolidation of Holdings Act, 1947 (hereinafter referred

to as the Act for short). The crux of the controversy is, whether

subject land is irrigated land or dry crop land ?

3. The genesis of the controversy lies in an application

under Section 7 of the Act instituted before the Sub Divisional

Officer, Achalpur, by one Abdul Naseem Sk. Mohammed -

Respondent No. 3 herein, inter alia seeking a declaration that

the agreement of Sale deed dated 20.09.2004 executed

between Abdul Hameed Sk. Mohammed and Sk. Mehboob Sk.

Mohammed is void ab initio, being contrary to the provisions of

the Act.

4. In the said application under Section 7 of the Act,

Abdul Naseem Sk. Mohammed contended that he and his real

brother Abdul Hameed Sk. Mohammed owned 58 R land each

from Gat No. 8, ad measuring 1 Hectare and 16 R situated in

Mz. Saoli (Datura) Tq. Achalpur, District Amravati. He further

contended in the said application that his brother Abdul

Hameed Sk. Mohammed had entered into an agreement dated

20.09.2004 to sell his aforesaid share of 58 R in favour of said

Sk. Mehboob Sk. Mohammed and that such an agreement is

contrary to the provisions of the Act. The said contention is

founded on the premise that the land is dry crop land and,

therefore, any area less than 2 Acres would be a fragment.

5. We may note that the said application came to be

dismissed in default on 22.11.2004 and was restored only on

19.04.2005. In the interregnum the agreement to sell fructified

into a registered sale deed executed on 23.11.2004.

6. The Sub Divisional Officer was pleased to reject the

application under Section 7 of the Act by order dated

22.06.2005, inter-alia holding that the land was irrigated land

and that since the area of 0.58 Hectare is less than the fragment

area for irrigated land, there is no contravention of the

provisions of the Act. In reaching the aforesaid conclusion, the

learned SDO inter-alia relied on the recitals in 7/12 extracts of

the subject land which referred to the existence of orange trees.

The learned SDO further referred to and relied upon the

recitals in the sale deed which made a reference to the

existence of a motor pump on well. The learned SDO, inter-alia

relied on the aforesaid material and held that the subject land

was not dry crop and was irrigated.

7. The order of SDO was challenged before the

Additional Commissioner, Amravati Division, Amravati, in

Revision under Section 35 of the Act. The said revision came to

be decided by the learned Additional Commissioner on

16.10.2006. By and under said order dated 16.10.2006, the

Revisional Authority allowed the Revision and declared that the

sale deed executed by Abdul Hameed Sk. Mohammed in favour

Sk. Mehboob Sk. Mohammed is null and void being in

contravention of the provisions of the Act. The Revisional

Authority noted the contents of 7/12 extracts and in particular

the contents of column 14 which made a reference to the

availability of water from well situated in Gat 9. However, the

learned Revisional Authority went on to observe that the

availability of water from well situated in Gat 9 is only a

privilege and is at the mercy of the owner of Gat 9. The

learned Revisional Authority held that notwithstanding the

standing orange trees in the field, in the absence of a right of

assured water supply, it cannot be held that the land is

irrigated.

8. The order of the Revisional Authority was put to

challenge by said Sk. Mehboob Sk. Mohammed in Writ Petition

No. 5713 of 2006. The learned Single Judge dismissed the

petition in limine by order and judgment dated 26.10.2007.

The learned Single Judge appears to have been persuaded to

record a finding that the land is not irrigated inter alia in view

of the recitals in the sale deed dated 23.11.2004, which makes

a reference to the land as dry crop land. The learned Single

Judge was further pleased to approve the view of the Revisional

Authority that the supply of water from well situated in Gat 9 is

at best supply at the mercy of Gat 9 and that for the purposes of

the Act, the subject land cannot be treated as irrigated land. It

is this order and judgment of the learned Single Judge which is

assailed in the present appeal.

9. We have already observed that the fate of the

appeal hinges on the factual determination of the nature of

land. If the land is irrigated and not dry crop, it is obvious that

the sale deed does not suffer from any infirmity much less

infringement of the provisions of the law.

10. The term "irrigated land" is not defined under the

provisions of the Act. It would be, therefore, apposite to take a

note of the definition of irrigated land under the provisions of

the Maharashtra Agricultural Lands (Consolidation of Holdings)

Act, 1961. Section 2(5) of the said enactment defines class of

land means land falling under any of the categories specified

therein. It would be useful to reproduce the aforesaid provision

verbatim.

"(5) "class of land" means land falling under any one of the following categories, that is to say :- [(a) land with an assured supply of water for irrigation and capable of yielding at least two crops in a year, that is to say, -

(i) land irrigated seasonally as well as perennially by flow irrigation from any source constructed or maintained by the State Government or by any Zilla Parishad or from any other natural source of water; or

(ii) land irrigated perennially by a Government owned and managed lift from any source constructed or maintained by the State Government or by any Zilla Parishad or from any other natural source of water; or

(b) land [other than land falling in clause (c)] which has no assured perennial supply of water for irrigation, but has an assured supply of water for

only one crop in a year, this is to say, land irrigated -

(i) seasonally by flow irrigation from any source constructed or maintained by the State Government or by any Zilla Parishad or from any other natural source of water; or

(ii) perennially by a life [other than a lift referred to in item (ii) of clause (a)] from any source constructed or maintained by the State Government or by any Zilla Parishad or from any other natural source of water; or

(iii) perennially from a privately-owned well situated on land within the irrigable command of any irrigation project, or in the bed of a river, stream or natural collection of water or drainage channel (being a river, stream, natural collection of water or drainage channel which is a perennial source of water);

(c) land irrigated seasonally by flow irrigation from any source constructed or maintained by the State Government or by any Zilla Parishad or from any other natural source of water with unassured water supply, that is, where supply is given under water sanctions, which are temporary, or where such sanctions are regulated on the basis of availability of water in the storage;

(d) dry crop land, that is to say, land other than

land falling under sub-clause (a), (b) or (c) of this clause situated in the Bombay Suburban District and Districts of Thane, Kolaba, Ratnagiri and Bhandara and in the Brahmapuri, Gadhiroli and Sironcha Talukas of the Chandrapur District and which is under paddy cultivation for a continuous period of three years immediately preceding the commencement date;

(e) dry crop land, that is to say, land other than land falling under sub-clause (a), (b), (c) or (d) of this clause.

Explanation - For the purpose of this clause, - (1) land situated within the irrigable command of an irrigation project, means all lands which are irrigated or are capable of being irrigated from such project:

(2) land which is irrigated from any source of irrigation specified in sub-clause (a), (b) or (c) and which was used for horticulture (other than the land used for growing of coconut, arecanut, bananas, guava or for vineyards) on or before the 26th day of September, 1970 shall be deemed to be land falling under sub-clause (e) until the 4th day of August, 1979;

(3) land which is irrigated from any source of irrigation specified in sub-clause (c) shall not be

deemed to be land falling under the said sub-clause

(b) if the irrigation is provided by a private lift irrigation work operated by diesel or electric power or operated by both methods and constructed after the 15th day of August, 1972;] [3A) "Code" means the Maharashtra Land Revenue Code, 1966, (Mah. XLI of 1966);"

11. The import and implication of the definition of

"irrigated land" in the cognate legislation may have to be

considered while interpreting the term "irrigated" in the

Bombay Prevention of Fragmentation and Consolidation of

Holdings Act, 1947. We, however, prima facie, are of the view

that assured water supply would be a characterstick of irrigated

land. In view of the course which we have adopted, we do not

express any final opinion on the import and implication of the

term "irrigated land" as is employed in the Act.

12. Shri Saboo, learned counsel appearing for the

appellant urges that there was ample material before the

authorities below and the learned Single Judge to indicate that

the subject land had assured supply of water from well situated

in Gat 9. Shri Saboo, learned counsel urges that in view of the

assured supply of water from Gat 9, the land would have to be

classified as irrigated and not as dry crop land. He invites our

attention to 7/12 extract of both Gat 8 and Gat 9 which are

placed on record in the present appeal. He further invites our

attention to the fact that in 7/12 extract of Gat 8 there is a

reference to a right to obtain water from the well situated in

Gat 9 and that correspondingly in 7/12 extract of Gat 9, the

obligation to permit the owner of Gat 8 to obtain water from

the well situated in Gat 9 is recorded. The learned counsel for

the appellants further invites our attention to the fact that the

sale deed which made a reference to dry crop land is

subsequently rectified by a deed of rectification dated

06.11.2007. The learned counsel further points out that a

portion of the land owned by the original applicant/

complainant was acquired under the provisions of the Land

Acquisition Act, 1894, and that the award indicates the

existence of orange trees for which compensation has been

determined by the authority and received by the original

applicant before the Sub Divisional Officer and his brother.

13. Shri Babrekar, learned counsel appearing for

respondent No. 4 urges that the LPA is not maintainable. He

contends that taking into consideration the nature of the

controversy and the substance of the order impugned, the

learned Single Judge has essentially exercised jurisdiction

under Article 227 of the Constitution of India and that LPA

would, therefore, not lie against the order impugned. The

submission is recorded only to be rejected.

14. The cause title of the petition reveals that the

petitioner invoked both Articles 226 and 227 of the

Constitution of India. The prayer clause reveals that a writ of

certiorari or any other writ or direction was sought and the

orders impugned were sought to be quashed and set aside.

15. We have given our anxious consideration to the

nature of controversy and the substance of the order impugned

and in view of law laid down by the Full Bench judgment of

this Court in the case of M/s. Advani Oerlikon Ltd. vs.

Machindra Govind Makasare & Ors., reported at 2011 (2) Mh.

L.J. 917 , we have no hesitation in holding that the jurisdiction

exercised by the learned Single Judge was essentially under

Article 226 of the Constitution of India. Therefore, there is no

substance in the contention that the LPA is not maintainable.

We may further note that the learned Single Judge observed in

the order impugned that there is no case made out for

exercising writ jurisdiction.

16. Shri Babrekar, learned counsel further urges that

the findings recorded by the Revisional Authority and the

learned Single Judge are essentially findings of the fact on the

basis of available material. Shri Babrekar, learned counsel

urges that in view of the findings of fact recorded, which

cannot be said to be perverse or based on no evidence, we

should refrain from interfering with the order impugned.

17. We have given our anxious consideration to the

rival contentions. The rectification of the sale deed is an event

subsequent to the judgment impugned. The Revisional

Authority and the learned Single Judge have both recorded a

finding that the supply of water from well situated in Gat 9 is at

the mercy of the owner of Gat No. 9. On the said premise, both

the Revisional Authority and the learned Single Judge have

held that such supply cannot be equated with assured supply of

water and, therefore, it cannot be said that the land is irrigated.

We, however, find, with due respect, that neither the Revisional

Authority nor the learned Single Judge, have considered and

appreciated the effect and implication of entries in 7/12

extracts which, at least prima facie, make a reference to a right

to obtain water from Gat 9 and an obligation imposed on the

owner of Gat 9 to permit the owner of Gat 8 to obtain such

water. Obviously, the rectification of the recital in the sale

deed could not have been looked into as the rectification is an

event subsequent to the judgment judgment. The appellants

have produced on record certified copy of 7/12 extracts of Gat

8, apparently obtained in 2015-16.

18. We have already made a reference to 7/12 extracts

of Gat 8 and Gat 9 which are on record at page Nos. 66 to 69 of

the LPA. Since the fate of the controversy hinges on the nature

of the land, we find it appropriate that the first fact finding

authority i.e. the Sub Divisional Authority ought to have looked

into the various documents placed on record before this Court

in addition to the documents which were available in the

proceedings under the Act and thereafter determined the

nature of land.

19. We are of the view of that the fact finding authority

under the Act, should minutely and objectively assess and

analyses the material on record and any other material which

the rival parties may desire to rely upon and after giving an

opportunity of hearing to the parties, decide the matter afresh.

The learned Sub Divisional Officer shall have to determine the

nature of land, whether the land is irrigated or dry crop and on

the basis of such determination to dispose of the application

under Section 7 of the Act.

20. We, therefore, allow the present Letters Patent

Appeal. The order of the learned Single Judge dated

26.10.2007, order of the Additional Commissioner dated

16.10.2006 and the order of the Sub-Divisional Officer dated

22.06.2005 are, therefore, quashed and set aside. The matter is

remitted to the learned SDO for fresh adjudication in

accordance with law, which shall be done within six months

from the date of appearance of the parties. The parties shall

appear before the SDO on 10.07.2017.

21. Letters Patent Appeal is disposed of accordingly.

However, there shall be no order as to costs.

           JUDGE                                                       JUDGE
                                               ******

  *GS.