SHANABHAI KIDIYABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present is preferred by the petitioners invoking jurisdiction of this Court under Article 226 read with Article 227 of the Constitution of India and the petitioners have challenged the legality, validity and sustainability of the order dated 21st July 1984 passed by respondent no. 2-Assistant Collector and the order dated 15th February 1986 passed by respondent no. l-Special Secretary (Appeals) produced by the petitioner at Annexures-G and I respectively, in pursuance of the provisions of the bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as 'the Act') in respect of the land bearing survey No. 169 situated at village Vadela, Taluka Limkheda, District panchmahals (hereinafter referred to as 'the land in question' ).

(2.) ACCORDING to the petitioners, they are the owners and occupiers of the land in question and the orders under challenge, therefore, may not be executed. It is the say of the petitioners that there was a transaction for the land in question and the same land is admeasuring 8 acres and 13 Gunthas. It is alleged that the said land bearing Survey no. 169, owned and possessed by the petitioners after remeasurement and reconstitution of divisions, is admeasuring 8 Acres and 13 Gunthas; and in stricto senso they have been shown as different parcels of lands by giving them sub-survey numbers as Survey Nos. 169/1, 169/2, 169/3, 169/4, 169/5, 169/6, 169/7 and 169/8. When the land was purchased by the father of petitioner nos. l to 4 who is also the grandfather of petitioner no. 5, it was in four parts and the Survey Numbers were shown to be survey Nos. 169/1 to 169/4. The measurement of the land remained the same. This land initially was being cultivated by four different tenants and first mutation entry for the land bearing Survey No. 169 was entered in the name of the said four tenants, viz. Late Parsing Punabhai Patel, late Hirabhai Lakhabhai Patel, Sona Lemba and one Bai Vesti widow of Gamji Lakha. This entry no. l was entered into village Form No. 6 of village Vadela and the same was certified and the persons shown in entry No. l were made owners as tenants of Jagirdar Shri R. K. Vijaysinhji. On implementation of Jagirdar Abolition Act, 1954, the said tenants-agriculturists viz. Parsing Punabhai Patel, Late Hirabhai lakhabhai Patel, Sona Lemba and the said Bai Vesti widow of Gamji lakha, were made owners and the relevant Entry No. 231 was entered in the record of rights i. e. in the Village Form No. 6. Parsing Punabhai patel was the owner and occupier of the land bearing Survey No. 169/1 and was also holding the land bearing Survey No. 169/4 jointly with Hira lakha and Sona Lemba. The said Sona Lemba and Hira Lakha were also holding the land bearing Survey Nos. 169/3 and 169/2 respectively. The said entries were mutated in the year 1955. It is the say of the petitioners that all these original owners and occupants reflected in Entry no. 231 of Village Form No. 6 sold the entire parcel of land to one person i. e. father of petitioner nos. 1 to 4, who is also the grandfather of petitioner no. 5 and the relevant entry as to the sale of entire parcel of land admeasuring 8 Acres and 13 Gunthas was entered in the name of the petitioners in the year 1958. A copy of the said entry is produced with the petition at Annexure-C and the same is Entry No. 274 in Village form No. 6. In the year 1963, fresh assessments were made of the land in question and the entire parcel of land was shown in different parcels. Though it is the say of the petitioners that they are in possession and enjoying the land in question, the Revenue Authorities entered the entire parcel of land as the land divided in various fragments mentioned in entry No. 428 dated 16th May 1967. No steps were taken by the respondents after the alleged entry mutated in the year 1967, but the parties were served with the notice under Section 7 of the Act and they were also asked as to why the steps under Section 9 of the said Act should not be taken against them. It was the say of petitioners to the officer who had issued notice that they are enjoying and cultivating the entire parcel of land and they have incurred huge expenditure after development of the land in question and their said uninterrupted enjoyment is for more than 20 years. However, respondent no. 2-Assistant collector passed order against the petitioners and held that the heirs of parsing Punabhai Patel are directed to pay a fine of Rs. 250/- and further directed the petitioners herein to hand over the possession of the aforesaid lands to the heirs of Parsing Punabhai Patel. The said order of respondent no. 2 was challenged by way of preferring Revision Application before respondent no. l, but respondent no. l upheld the order passed by respondent no. 2.

(3.) IT is pertinent to note that neither respondent-State nor private parties, which are joined as parties being proper parties to the petition, has filed any formal affidavit of resistance till date. So the material relevant fact that the aspect that the father of petitioner nos. l to 4, who is also the grandfather of petitioner no. 5, purchased the land in the year 1954 and latest by 1958, has remained unchallenged. The fact of sale of land in question by the original occupants and owners remained unchallenged and as such no controversy qua this fact is emerging from the orders under challenge. Only one plea was taken before the revenue authorities that no formal deed of registration is produced on record, but the peaceful enjoyment and cultivation by the petitioners was not assailed and it appears that only on that count, the notices under the provisions of the Act were served to the petitioners by respondent no. 2.