DHULABHAI C KOTWAL Vs. BHIKHABHAI K PRAJAPTI

JUDGEMENT

(1.) : The present petition is filed challenging the judgement and order dated 15.2.1990 passed by the Deputy Secretary (Appeals), Revenue Department, Govt. of Gujarat in SRD/ Con/ Sabar/ 12/89. By the said judgement and order, the Deputy Secretary (Appeals) dismissed the Revision Application filed by respondents nos.1 to 6, but while doing so the Deputy Secretary has also quashed the order passed by the Deputy Collector, Modasa under sec.9(3) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

(2.) Short facts giving rise to the present petition are that the petitioners are the owners of the land bearing Block No.125 in the sim of village Rahiyol, Taluka Modasa, District Sabarkantha. It is the case of the petitioners that they are the owners of one half of the land of the said block, which was cultivated by different owners. It is alleged against the petitioners that the petitioners sold their share to respondent no.1 and one Ravabhai Hirabhai, whose heirs are respondents nos.2 to 5 in this petition. According to the Mamlatdar, because of the sale the provisions of sec.31 of the Act were violated and therefore, the proceedings were initiated by the Deputy Collector, Modasa vide Case No.Con/ 43/ 88. After issuing notices to the parties, the Deputy Collector came to the conclusion that the petitioners sold the land to respondents nos.1 to 6. therefore, there is violation of the consolidation scheme and violation of the provisions of sec.31 of the Act. After taking evidence of the parties and looking to the documents, the Deputy Collector came to the conclusion that the said block was not being cultivated jointly, but there is a partition of the land. Respondents nos.1 to 6 are cultivating the said block and therefore, there is violation of the provisions of sec.31 of the Act. Ultimately, the Deputy Collector passed an order that the sale of block no.125 of the petitioners to respondents nos.1 to 6 is illegal as it is in violation of the provisions of sec.31. Therefore, the original owners, i.e. the petitioners shall pay fine of a sum of Rs.200.00 and the sale is declared to be invalid and possession of the land should be handed over to the original owners.

(3.) Being aggrieved of that respondents nos.1 to 6 filed a Revision Application before the Additional Chief Secretary (Appeals), Revenue Department, Govt. of Gujarat. After notices were issued and the parties served, the matter was heard by the Additional Chief Secretary and he also came to the conclusion that there is a partition in block and therefore, there is violation of the consolidation scheme and the land was not being cultivated jointly. He also came to the conclusion that entry no.537 by which the sale has been recorded is not legal and that cultivation is not done jointly, but there is a partition of the land. He, therefore, dismissed the Revision Application. While dismissing the Revision Application, he confirmed the order of the Deputy Collector passed under the provisions of sec.9(1) and (2) of the Act and quashed the order passed under the provisions of sec.9(3) of the Act.