GOVINDBHAI MANILAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is directed against the order dated 12.7.2000 passed the learned Single Judge of this Court in Special Civil Application No.7738 of 2000; whereby, the learned Single Judge, for the reasons recorded in the order, has dismissed the petition of the appellants / original petitioners.

(2.) The brief facts are that the forefathers of the appellants herein was holding the agricultural land bearing Survey No.121, Block No.158, ad-measuring 0 Acre and 8 Gunthas. The said property was sold to respondent No.2 herein by executing the sale-deed, after having received the sale consideration. The revenue entry was also mutated in the revenue record vide entry No.4315 dated 17th August, 1994. After the revenue entry was mutated for sale of the land by the original owner in favour of respondent No.2 herein, it appears that proceedings came to be initiated under Section 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (herein after referred to as the Act) by issuance of the show cause notice dated 7.6.1995. The appellant as well as the purchaser, respondent No.2 herein, appeared before the District Collector and contended that there is no power to issue the notice and the land in question was not covered by the Act since it was not fragmented and it was submitted that before recording the entry No.827 for fragment, no notice was served to the original owner and not only that but the provisions of Section 7 of the Act would not be applicable. It was also contended that the land has been transferred for construction and the land is also converted for non agricultural use and all surrounding lands are also converted for non agricultural uses and hence, the notice shall be treated as invalid and the notice be withdrawn. The Deputy Collector considered the matter under the Act and found that notice was not issued for the revenue entry No.827;whereby, the land was treated as fragment and therefore, it was found that, if the entry was mutated without issuing the notice to the owner, it cannot be treated as fragment and therefore, there is no breach of Section 7 of the Act and consequently, no proceedings under Section 9 of the Act are called for and therefore, vide order dated 19.10.1995, he withdrew the notice and dropped the proceedings.

(3.) Surprisingly, the appellant herein, original petitioner though represented before the Deputy Collector that there is no breach of the provisions of the Act and the sale cannot be said as illegal by taking the same stand as it was taken by the purchaser, preferred revision before the State Government against the order of the Deputy Collector under Section 35 of the Act. The State Government did initiate the proceedings and ultimately, found that the entry No.827, for treating the land in question, as fragment, was mutated, without recording that notices were given and further the land was converted as non agricultural land and hence, no useful purpose would be served and therefore, dismissed the revision and the order of the Deputy Collector was confirmed.