CHAUDHARI MADHABHAI (MOGHJIBHAIVAHJIBAI) Vs. MULJIBHAI MAGANLAL PARMAR

JUDGEMENT

(1.) The petitioner is aggrieved by orders dated 30.11.1989 and 29.3.1993 passed by the Addl. Chief Secretary and the Revenue Secretary respectively. The proceedings arise out of Bombay Prevention of Fragmentation and Consolidation of Holdings Act (here-in-after to be referred to as "the Fragmentation Act").

(2.) Facts are as under. The petitioner had purchased 1 acre and 8 Gunthas of land bearing survey no.285/1 of village Indrapura, Taluka Vijapur under sale deed dated 13.7.1979 from its erstwhile owners Harijan Haribhai Kalidas and others. An entry in the revenue record to this effect was also made at the relevant time. The Deputy Collector instituted proceedings for breach of the Fragmentation Act. Such proceedings by a reasoned order dated 17.8.1997 were dropped on the ground that the land was irrigated land. One Muljibhai Maganbhai Vankar was shown as an objector in such proceedings though it appears that he was neither the purchaser nor seller of the land. Said Muljibhai filed revision petition before the Additional Chief Secretary (Revenue) against the order of Deputy Collector dated 17.8.1987. Such revision petition was disposed of by an order dated 30.11.1999 in which though he recorded that there was a Well on the land from which irrigation was possible, he was of the opinion that whether irrigation was on the entire land or not, needs to be ascertained, which the Deputy Collector had not done. He therefore, directed the Deputy Collector to take fresh evidence and make a report within 15 days inter-alia on the questions whether after the year 1974-1975, the land was irrigated, the details of the crops taken and if any improvement has taken place on the land after the sale. He however, allowed the revision petition and dismissed the order of the Deputy Collector. In further order dated 29.3.1993, Deputy Secretary(Revenue), referred to earlier order calling for report from the Deputy Collector. He noted that in the said order, order of the Deputy Collector closing the proceedings under the Fragmentation Act was already set aside and therefore, no further order is required to be passed in this respect. He also referred to the report of the Deputy Collector dated 14.10.1992 and further hearing that took place subsequently. He passed the order on 29.3.1993 declaring that there was a breach of section 8 of the Fragmentation Act and that therefore, the sale was declared invalid in terms of section 9 thereof. He also ordered summary eviction of the occupant. Both these orders, the petitioner has challenged in the present petition.

(3.) From the materials on record, it can be seen that the fragmentation proceedings were initiated under the objections of a person who was not the owner of the land. Deputy Collector had dropped the proceedings particularly, on the ground that the land was an irrigated land and that therefore, there was no breach of the Fragmentation Act. On a revision petition by the objector, the Additional Chief Secretary called for further report from the Deputy Collector. Strangely, while doing so in the same order without waiting for a report, he set aside the order of the Deputy Collector. After the report was received from the Deputy Collector, he passed an order declaring breach of the fragmentation Act. The entire procedure and the manner in which the said orders were passed were thus illegal and irregular. Even in the final order dated 29.3.1993, it was observed that the report of the Deputy Collector shows that 2 acres of land is irrigated. However, it is not clear which part of the land is under irrigation. On such surmises and conjectures, declaration of the breach of Fragmentation Act was made.