JAIRAM BADAN MAKODE Vs. BHAGIRATHABAI MITHARAM PATIL

JUDGEMENT

(1.) BY this petition filed under articles 226 and 227 of the Constitution of india, the petitioners - purchasers of agricultural land challenge the order passed by the Sub-Divisional Officer on 13-3-1989 and the subsequent orders passed by the commissioner in Revision on 26-10-1989 and 18-7-1990 ordered the reslovation of land in favour of Respondent No. 1 by invalidating the sale in their favour on the ground that it is a fragment which has been sold to a person who is not owne- of contiguous land. The facts in brif are: on 23-4-1981, one Sitaram Tukaram transferred field Survey No. 27/3 admeasuring 33 gunthas of Mouza Khudawantpur, Tahsil- Akot. District - Akola, in favour of Janglaji ganpat Yeol. Janglaji Ganpat Yeol in turn sold said land to petitioner No. 1 on 14-2-1983. Respondent No. l is the owner of adjacent land and he moved an application before Sub-Divisional Officer, contending that the sale by Sitaram in favour of Janglaji Yeol is in breach of provisions of Bombay Prevention cf Fragmentation and Consolidation of holdings Act (hereinafter referred to as fragmentation Act ). Janglaji is reported to have died during pendency of proceedings and petitioners No. 2 and 3 are his legal heirs. Petitioner No. 2 has expired during pendency of present petition. Her son petitioner No. 3 is already on record. Respondents No. 3 to 7 are legal heirs of deceased Sitaram and respondents No. 3, 4 and 5 have expired during the pendency of this petition. However, as subsequently the property was purchased initially by predecessor of petitioner No. 3 and from him by present petitioner No. 1, the lis now is between petitioner No. l and respondents No. l and 2. Therefore, these subsequent deaths of intermediate holders do not affect the adjudication of writ petition in any manner. The application filed by respondent No. l has been allowed by the sub-Divisional Officer, Akot, on 13-3-1989 by holding that the sales in respect of notified lands effected on 23-4-1981 and 14-2-1983 are in contravention of Section 7 of the fragmentation Act and therefore, he declared those sales as void and imposed fine of rs. 25cv- on purchasers. He also directed that the land vests in State Government as per provisions contained in Section 10 of the fragmentation Act. The said order was challenged in Revision and the Additional commissioner, Amravati Division, Amravati, after narrating the facts has found that the order of Sub-Divisional Officer is correct and therefore, proceeded to uphold the order. Therefore petition No. 1 filed a review before the said authority and the same has been rejected on 18-7-1990 on the ground that there is no provision for review in Fragmentation act and perusal of Section 258 of Maharashtra land Revenue Code is not called for. The present petition has been admitted on 10-6-1991 and status quo was directed which is continuing till today.

(2.) SHRI. Mehadia, learned counsel for the petitioner No. 1 contends that the entire exercise undertaken by the Sub-Divisional officer and the Additional Commissioner is without jurisdiction inasmuch as they have not recorded a finding that the land is notified as fragment as contemplated by Section 6 (2) of the Fragmentation Act. He points out that provisions of Section 7 contains that it is only sale of such land which is prohibited by the act. He also relied upon the judgment in the case of Putalabai Vs. Shiva Dhondi, reported at 1980 Mh. L J. 547 in support of his proposition.

(3.) ON the other hand, Shri. Sohoni, learned counsel appearing on behalf of respondents No. 1 and 2 contends that the land is already recorded fragment in 7/12 extract and that by itself a sufficient notice to everybody. He further states that, therefore, the ruling on which reliance is placed has no application in the facts and circumstances of the present case.