Kamlaben Bhailalbhai Through ... vs State Of Gujarat
2021 Latest Caselaw 13246 Guj

    C/SCA/7040/2008                            JUDGMENT DATED: 02/09/2021




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 7040 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
======================================

1    Whether Reporters of Local Papers may be                      YES
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                       YES

3    Whether their Lordships wish to see the fair                   NO
     copy of the judgment ?

4    Whether this case involves a substantial                       NO
     question of law as to the interpretation of the
     Constitution of India or any order made
     thereunder ?

======================================
   KAMLABEN BHAILALBHAI THROUGH POWER OF ATTORNEY
                          HOLDER
                           Versus
               STATE OF GUJARAT & 4 other(s)
======================================
Appearance:
MR SK PATEL(654) for the Petitioner(s) No. 1
MR SOHAM JOSHI, ASSISTANT GOVERNMENT PLEADER(1) for
the Respondent(s) No. 1
NOTICE ISSUED BY PUBLICATION(77) for the Respondent(s) No.
3,4,5
RULE SERVED(64) for the Respondent(s) No. 2
======================================

CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                       Date : 02/09/2021

                        ORAL JUDGMENT

C/SCA/7040/2008 JUDGMENT DATED: 02/09/2021

1.0 By way of this petition the petitioner - purchaser of the land in dispute challenges the orders passed by the Prant Officer, Gandhinagar dated 29.01.1999 in Fragmentation Case No.33 of 1998 whereby for breach of Section 31(1)(b) of the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as 'the Act') rendered sale deed executed illegal under Section 9(1) of 'the Act', as also the seller was imposed penalty of Rs.250/- and the purchaser was ordered to be removed summarily from possession of the land in dispute, which came to be confirmed by the revisional authority, being Secretary (Appeals) in Revision Application, vide order dated 22.01.2008, filed under Section 35 of 'the Act'.

1.1 The petitioner purchased the land admeasuring 1821 sq meters situated Mouje Village Adalaj Taluka Gandhinagar bearing Block No.244, out of total land being 14670 sq meters of land, vide registered sale deed bearing No.1845 dated 20.05.1997. The copy of the sale deed is annexed with the petition, which reflects that, out of the total 14670 sq meters of land, major chunk of land, being 12849 sq meters of land, came to be acquired by the competent authority for the purpose of public road, and therefore, the said sale deed is for the remaining portion of the land being 1821 sq meters.

1.2 As recorded in the order passed by the Prant Officer, Gandhinagar, concerned Mamlatdar while dealing with the mutation entries in the record of rights based on said sale deed found that since there is division of Block, that too, without

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prior permission, sale could not have been effected, and therefore, he forwarded all the papers alongwith the opinion to the Prant Officer, Gandhinagar for initiating proceedings under 'the Act', and therefore, from the Office of the Prant Officer, Gandhinagar, notice dated 15.12.1998 came to be issued that the sale transaction is in breach of Section 31(1)(b) of 'the Act', and therefore, why it should not be declared illegal. Pursuant to the said notice, Prant Officer, Gandhinagar heard the petitioner, recorded the deposition of the seller and after appreciation of the evidence led and material produced before it passed the impugned order, which came to be confirmed by the revisional authority.

2.0 Mr. S.K. Patel, learned advocate for the petitioner, submitted that the impugned order passed by the Prant Officer, Gandhinagar travels beyond the scope of notice itself. According to his submission, notice under 'the Act' came to be issued to the petitioner not for the transfer of the land but it was issued claiming the land under transfer to be sub-divided, without permission in writing of the Collector. It is further submitted that even the order refers about dividing the land and making boundaries for the purpose of demarcation, in village where consolidation of holding scheme is implemented, and therefore, sub-division of a Block cannot be effected without permission of the Collector, and therefore, he concluded that there is breach of Section 31(1)(b) of 'the Act' and rendered the transaction of sale in the present case liable to be declared illegal under Section 9 of 'the Act'. It is, therefore, submitted that there is no question of sub-division of Block or land under the Block is not sub-divided by transfer of the land as alleged. He has further submitted that out of the

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whole Block, substantial portion of the land has been acquired as reflected from the sale deed itself for the purpose of public road i.e. Gandhinagar - Sarkhej Highway, and therefore, the remaining portion of the land, being 1821 sq meters, cannot be said to be a sub-division, that too, by the act of the party, which requires permission of the Collector under 'the Act'. He has submitted that since there is no sub-division, as alleged, under Section 31(1)(b) of 'the Act' in purchasing the remaining land, after substantial portion is acquired by the competent authority for the purpose of road, from the original owners, the orders impugned, which is passed for breach of Section 31(1)

(b) of 'the Act' is not sustainable.

2.1 He has further submitted that while hearing the Revision Application, though the revisional authority has noticed the mutation entry dated 17.07.1999 pursuant to the Durasti Patrak No.24 whereby it is recorded that for the purpose of Gandhinagar - Sarkhej Highway, Special Land Acquisition Officer acquired the substantial portion of the aforesaid land, it has been intimated on 05.03.1982. The said mutation entry is at page 32 of the compilation. Despite that, even the revisional authority has said that the remaining land is a fragment itself, which is not correct, and therefore, the order passed by the Prant Officer, Gandhinagar confirmed by the revisional authority is without applying the mind to the fact that notice came to be issued only under Section 31(1)(b) of 'the Act' alleging sub-division by the voluntary act of the parties.

3.0 As against that, Mr. Soham Joshi, learned Assistant Government Pleader, submitted that the order passed by the

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Prant Officer, Gandhinagar as also confirmed by the revisional authority are in consonance with the provisions of 'the Act'. He has further submitted that if the transaction between the parties itself is without permission of the Collector as provided under 'the Act', it has to be held illegal, and therefore, there is no error committed by either of the authorities while determining the issue, and therefore, he has submitted that the present petition be rejected.

4.0 Considering the submissions made by the learned advocates for the appearing parties as also going through the record of the present petition, it is clear that substantial portion of land, out of the very Block, came to be acquired by the competent authority under the Land Acquisition Act. Though the land remaining with the original owners is reduced to less than minimum standard area, it can never be said to be a fragment. What is prohibited under Section 31(1)(b) of 'the Act' for which notice is issued by the Prant Officer, Gandhinagar is the sub-division of holding without permission in writing of the Collector.

4.1 There is no notice issued by the Prant Officer, Gandhinagar for effecting transfer of the remaining land, being 1821 sq meters, after remaining land of Block is compulsorily acquired for laying down public road. For transfer of holding allotted under 'the Act' or part thereof, there is a different provision under 'the Act' to initiate proceedings thereunder. The purpose of issuing notice is to put noticee on guard that on a particular set of facts and law proceedings are intended to be initiated under 'the Act', and therefore, notice must be very specific for initiation of proceedings under 'the Act' and which

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is specific so far as the present case is concerned as authority intended to initiate action for sub-division of holding allotted to a person. As such, there is no sub-division of the land admeasuring 1821 sq meters in between the present petitioner and the original owners. If one may have to look at the provision itself, even substantial portion of the land from the Block could not have been acquired, without the permission in writing of the Collector and if it is acquired and the original owners were divested of the land, it can safely be concluded that the said acquisition of substantial portion of land is permitted to be acquired and division from a Block is with the permission of the Collector. The said exercise appears to have been carried out much prior to issuance of notice under 'the Act' effecting correction in the area and mutation was informed by the Land Acquisition Officer by his communication dated 05.03.1982, and therefore the acquisition of the land was much prior to 1982. Therefore, it can safely be concluded that the present notice is not issued for the so called sub-division of holding because of acquisition initiated in the year 1982.

4.2 A very specific mention is made about the transfer of land by execution of sale deed by the petitioner with the original owners in breach of Section 31(1)(b) of 'the Act'. As such, the total land remaining with the original owners have come to be transferred to the petitioner, and therefore, out of the holding, at the relevant time there is no sub-division at all. The said factum is fortified by the finding recorded by the Prant Officer, Gandhinagar when he records that in the land in question parties have divided it creating boundaries in between and thereby sub-divided the Block. If the Prant Officer had taken little pain to look into the documents,

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revenue record or the documents forwarded by the Mamlatdar, he would have known that there is no sub-division of the holding by the original owners but it is because of acquisition of land, that too, years prior to the present transfer of the remaining land in favour of the petitioner. Therefore, in no case, out of the remaining holding with the original owners, it can be said that there is any sub-division.

4.3 The Prant Officer is very clear in his mind when he issued notice for initiating action under 'the Act' for breach of Section 31(1)(b) of 'the Act'. Even if he might have intended action under any other different provisions of the very Act, notice has to be issued to the concerned parties for initiating that action under different provisions of 'the Act'. At any rate, the Prant Officer could not have travelled beyond his notice for alleged sub-division of holding to declare the transfer effected illegal under 'the Act'. A person must be put to clear notice of intended action so that the party may be aware about the breach of provision and the case to be put forth by him to such notice. If because of acquisition of the substantial part of the land sub-division of land is to presumed, even acquiring authority is supposed to be issued notice of intended action if it is without permission in writing of the Collector.

4.4 If the Prant Officer intended to initiate action against the petitioner for the purchase of the remaining holding of the original owners he should have issued clear notice, that too, under different provisions of 'the Act' that such transfer /purchase is illegal /void.

4.5 There is yet another reason for issuance of proper

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notice of an intended action under 'the Act' as even void transactions /orders /actions are required to be avoided within the period of limitation. By the notice and the impugned order passed by the Prant Officer, Gandhinagar he intended to take action against the petitioner and even the seller for the alleged sub-division of holding, which is not at all there as the total holding in the hands of the seller came to be transferred to the petitioner, and therefore, there is no question of any sub- division of a holding, and therefore, no order could have been passed by the Prant Officer, Gandhinagar for breach of Section 31(1)(b) of 'the Act' initiating action declaring the transaction to be void. Therefore, the order passed by the Prant Officer, Gandhinagar and confirmed by the Secretary (Appeals) suffers from clear non application of mind while dealing with the proceedings initiated against the petitioner, and therefore, the orders, which are travelling beyond the scope of notice intending action under the particular provision of 'the Act' are required to be quashed and set aside for the total non application of mind and it is hereby so declared.

4.6 Even the order passed by the Secretary (Appeals) confirming the order of the Prant Officer, Gandhinagar also travells beyond the scope of challenge before it. Even after noticing the mutation entry with regard to acquisition of substantial portion of land, it went on recording that remaining portion is a fragment. As such, substantial portion of land is acquired from the holding of a person, that is always presumed to be complying with all the provisions of law, including 'the Act', and therefore, it is not by voluntary act of the seller thereof. Thus, the remaining portion of the land with the original seller, after the substantial portion of land is acquired,

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cannot be treated to be a fragment. Even if it is so, proceedings before the Prant Officer, Gandhinagar was not in respect of sale /transfer of a fragment. It was very specific on the ground of sub-division of a holding. Therefore, the order passed by the revisional authority confirming the order of the Prant Officer, Gandhinagar also suffers from total non- application of mind and travells beyond not only the scope of notice issued by the Prant Officer, Gandhinagar but the order passed by the Prant Officer, Gandhinagar.

4.7 Therefore, the order impugned passed by the Prant Officer, Gandhinagar dated 29.01.1999 passed in Fragmentation Case No.33 of 1998 confirmed by the Secretary (Appeals) dated 22.01.2008 rendered in Revision Application preferred by the petitioner under Section 35 of 'the Act' against the order of Prant Officer, Gandhinagar are hereby quashed and set aside.

5.0 The present petition is allowed. Rule is made absolute.

(UMESH A. TRIVEDI, J.) siji