Bombay High Court
Kishor S/O Gulabchandji Agrawal vs Shri. Vasantrao N. Mehre (Dead) ... on 20 March, 2023
Bench: Avinash G. Gharote
(1) 71wp4673.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4673 OF 2017
Kishor Gulabchandji Agawal__ Vs. ___Vasantrao Narayanrao Mehre thr L.Rs and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. K.B.Zinjarde, Advocate for petitioners
Mr. J.B.Kasat, Advocate for Respondents
Mr. N.R.Patil, AGP for respondent/State
CORAM : AVINASH G. GHAROTE, J.
DATE : 20/03/2023
1] Heard Mr. Zinjarde, learned counsel for
the petitioner and Mr. Kasat, learned counsel for the
respondents.
2] The petition challenges the order of the
Divisional Commissioner, Amravati, dated 30.5.2017
(pg.38), whereby the review has been allowed and
the order of the Additional Commissioner dated
29.8.2011 is maintained. The ground for
maintaining the order dated 29.8.2011 is stated to
be absence of notice to the Respondent No.1A to 5C,
who also claim a right to the land of Gat No. 69,
admeasuring 0.13 HR of Mouza Kandli.
3] Mr. Zinjarde, learned counsel for the
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petitioner by inviting my attention to the 7/12
extract at page 50A submits that since the names of
the aforesaid respondents were not entered in the
7/12 extract, they had no right to any notice
consequent to the sale deed dated 16.6.1999 by
Anant Narayan Mehre in favour of the petitioners.
4] Though Mr. Kasat, learned counsel
appearing for Respondent No. 1B submits that the
property was ancestral and therefore all the
aforesaid respondents had a right therein, relying
upon the mutation entry dated 18.1.90 (pg.49A),
however, the record indicates that the land of Gat
No. 69 admeasuring 0.13 HR was separated and
stood in the name of Ananat Narayan Mehre alone
(pg.50A) and therefore, since the names of the
aforesaid respondents, including the respondent
No.1B do not appear in the 7/12 extract, the
question of issuance any notice to them did not arise
at all. The judgment of the learned Additional
Commissioner which is based upon this position is
clearly untenable.
5] It is further contended by Mr. Zinjarde,
learned counsel for the petitioner that since the
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has no entry that the land is a fragment, the
provisions of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act,
1947, would not be attracted.
6] Though the above proposition is opposed
by Mr. Kasat, learned counsel for respondent no.1B
and Mr. Patil, learned AGP, it would be necessary to
note that the 7/12 extract for the agriculture year
1998-99 indicates that there is no entry of the land
being declared as a fragment. That apart, the entry
in column no. 14 of Form 12 itself indicates that it is
the irrigated land. It is also material to note that
under Section 7 of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act,
1947, the transfer of a fragment is barred, however,
the language indicates that before that there has to
be the existence of the notice under Section 6(2) of
the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947. Admittedly, no
such notice has been placed on record by either of
the respondents to indicate that the provisions of
Section 7 of the said Act would be attracted. That
apart, since the 7/12 extract in respect of Gat no. 69
itself indicates that it is an irrigated land, the
concerned Talathi, considering the notification for
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the standard area and the extent of standard area,
has not taken an entry in the 7/12 extract regarding
the land of Gat no. 69 being a fragment, as the
standard area for the irrigated land is 0.10 HR.
7] That being the position, the sale deed
dated 16.6.1999 in favour of the petitioners or the
mutation entry made in pursuance thereto could not
have been challenged by the respondents on the
above counts. The impugned order dated 30.5.2017
does not consider this position, as a result of which
the same is clearly not tenable and is hereby
quashed and set aside and the order of the
Additional Collector, Amravati dated 10.5.2006 is
restored.
8] The petition is accordingly allowed in
the above terms. No costs.
JUDGE
Rvjalit
