(1.) One Barjul Lala owned agricultural land bearing survey No. 303/2 admeasuring about 18 gunthas in village Barumal taluka Dharampur District Valsad. He died leaving behind him five sons namely (1) Mansur (2) Jeram (3) Jeshla (4) Ramji (the petitioner) and (5) Patalia. The first two had separated from the joint family during their life time and have since expired. Their heirs do not claim any share in this property. The land therefore belonged to Jeshla Ramji and Patalia as joint owners or co-owners. Jeshla parted with his undivided share in the land in favour of the petitioner Ramji for Rs. 468.00. It appears from the order of the Deputy Collector Valsad annexure-A that. no registered document has yet been executed in this behalf.
(2.) Respondent No. 1 is the son of Jeshla who transferred his undivided share in the land to the petitioner for Rs. 468.00. He made an application to the Mamlatdar Dharampur complaining that the transfer was in violation of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 (hereinafter called the Act ). The Deputy Collector initiated proceedings and served the petitioner with a show-cause notice to which the petitioner failed. to respond. The Deputy Collector Valsad therefore passed an order dated 27/03/1978 to the effect that the transfer was in violation of sec. 7 of the Act and he also fined the first respondent Rs. 50 under sec. 9(2) and directed that the petitioner should be summarily evicted from the land. Against this order the petitioner approached the State Government under sec. 35 of the Act. The matter was beard by the Joint Secretary Revenue Department State Gujarat on 21/11/1978 The joint Secretary after examining the record came to the conclusion that show-cause notices were served on the petitioner twice but he did not respond nor did he remain present before the Deputy Collector at the hearing of the application and therefore he cannot be heard to say that the order passed by the Deputy Collector was in violation of the principles of natural justice. He then came to the conclusion that the land had been sold to the petitioner Ramjibhai and therefore there was violation of the provisions of the Act. In this view that he took he refused to interfere with the order passed by the Deputy Collector.
(3.) Mr. Shelat the learned advocate for the petitioner stated that the petitioners brother Jeshla had released his undivided share in the land in favour of the petitioner and hence there was no transfer in the strict sense of the term to attract the provisions of the Act. In the alternative be submitted that even if the nature of the transaction is taken to be a conveyance by Jeshla of his undivided share or interest in the land in question in favour of the petitioner for Rs. 468.00 such a transfer was not hit by the provisions of she Act. The document by which the alleged transfer came to be effected is not produced on the record of the case. The Deputy Collector has described it as a conveyance or sale and it would therefore be proper to proceed on that premise in the absence of the document itself. The Act was enacted to prevent fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of better cultivation. The term `fragmentation is defined by sec. 2(4) as a plot of land of less extent than the appropriate standard area determined under the Act. The area of Survey No. 303/2 which is approximately 18 gunthas may be taken as less than the appropriate standard area. To put it differently we may proceed on the premise that Survey No. 303/2 was a fragment within the meaning of sec. 2(4) of the Act. Sec. 2(5) defines the expression `land to mean agricultural land whether alienated or unalienated. Sec. 7 prohibits transfer of any fragment. It reads as under: