PREMBHAI GOVANBHAI Vs. DIYARBHAI RAMBHAI

JUDGEMENT

(1.) The petitioner filed Regular Civil Suit No. 4 of in the Court of the Civil Judge (Junior Division) Olpad for a declaration of his share in the suit property consisting of Survey No. 71/1 and for partition. There was a compromise and preliminary decree in terms thereof was passed by the Court. It was declared that the peti- tioner has 1/4th share and other three co-sharers have 3 share therein. Since separation of the share of the petitioner would have created a fragment the case was referred to the Assistant Collector Olpad Prant Surat for effecting a partition under Section 8AA of the Bombay Prevention of Fragmentation and Consolidation of Hold- ings Act 1947 (hereafter referred to as the Act). The petitioner as well as respondents Nos. 1 to 5 were re- presented before the Assistant Collector by their learned advocates. Before the Assistant Collectors the petitioner had stated that he did not want the land to be partitioned and that entire land should be auctioned and the sale pro- ceeds thereof be divided amongst all the four co-sharers. As against that respondents Nos. 1 to 5 stated that they did not want to get their shares partitioned and they desired to hold their shares jointly as before. Separation of the share of the petitioner would have created a fragment; and therefore the Assistant Collector directed that the petitioner be compensated in terms of money in lieu of his share in the land. He also directed that compensation should be determined in accordance with the provisions of Section 23 of the Land Acquisition Act. That order was challenged by the petitioner by way of an appeal before the Collector Surat. The Collector also came to the conclusion that this was a case falling under Section 8AA (2) (a) of the Act; and in view of the facts and circum- stances of the case the order passed by the Assistant Collector was quite fair and proper. He therefore dismissed the appeal. Against that order the petitioner filed a revision application under Section 211 of the Bombay Land Revenue Code before the Special Secretary Revenue Department. He also agreed with the orders passed by the authorities below and dismissed the revision application. The petitioner has therefore filed this petition chal- lenging the order of the Assistant Collector as confirmed by the Collector and the Special Secretary.

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(3.) What is urged by the learned advocate for the petitioner is that the orders passed by the authorities below are illegal as they had not followed the procedure prescribed by Rule 6 of the Bombay Prevention of Fragmenta- tion and Consolidation of Holdings Rules 1959 (hereafter referred to as the Rules). He further urged that no notice was given to the petitioner by the Collector before effecting the partition. It is difficult to appreciate this latter submission of Mr. Shethna. The petitioner was a party to the proceedings before the Assistant Collector and he was represented by a lawyer. The order was passed by the Assistant Colector after hearing all the parties- in cluding the petitioner. Therefore unless Mr. Shethna refers to the notice required to be given by Rule 6 of the Rules the contention raised by him becomes unintelligible.