MALLU TATYA SURYAVANSHI Vs. SHRIPATI RAMA GONDHALI

JUDGEMENT

(1.) THE property in dispute is an agricultural land bearing Gat Nos. 1550 and 1551, admeasuring 0. 51 Ares, situate in Village Erandole, Taluka Miraj, District Sangli. Under a sale-deed dated May 12, 1980, the petitioner has purchased the same from respondent No. 2. The said land is a fragment within the definition of the term "fragment" under sub-section (4) of section 2 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to for the sake of brevity as "the Act" ). The petitioner not being an owner of a contiguous survey number, the validity of the transaction under section 7 (1) of the Act falls for our consideration in the present writ petition.

(2.) A further question that has fallen for our consideration in the present writ petition is in respect of the vires of section 7 of the Act. The question has been raised by the earlier Division Bench, which seized of the matter (Coram : A. M. Bhattacharjee, C. J. and V. P. Tipnis, J.), who by order passed on June 28, 1994 raised the following issue and issued notice to the learned Advocate-General to answer the question of the vires and validity of section 7 (1) of the Act. The Division Bench observed

(3.) AS already noted, the land in question is an agricultural land. It admeasures 0. 51 Aeres. It is, undisputedly, a fragment and is recorded as such in the record of rights. The said land originally belonged to and stood in the name of original respondent No. 2 Shri Narayan Maruti Gondhali, who expired during the pendency of the proceedings leaving behind him respondents Nos. 2 (a) and 2 (b) as his heirs and legal representatives. Narayan during his lifetime on May 12, 1980 conveyed the property to the petitioner for a sum of Rs. 18,000/ -. Respondent No. 1 is the owner of an adjoining survey number; whereas the petitioner is not. Respondent No. 1, therefore, filed an application under section 9 of the Act for declaration that the transfer in favour of the petitioner is void as the same is in contravention of section 7 (1) of the Act. Respondent No. 1 claimed a right to purchase in preference to the petitioner. By a judgment and order passed on September 8, 1981, the Sub-Divisional Officer, Miraj Division, Miraj, before whom the application was filed, was pleased to hold that the sale-deed was not void under section 7 of the Act as the same was in respect of an entire Gat number. According to the Sub-Divisional Officer, the transaction was covered by section 31 (3) (iii) and the same was not hit by section 7 of the Act. Consequent upon his findings, the Sub-Divisional Officer declined to cancel the sale-deed executed in favour of the petitioner. Taking exception to the above order, respondent No. 1 carried the matter in revision before the Additional Commissioner, Pune Division, who, by his judgment and order passed on February 3, 1984, found that the provisions of section 31 (3) (iii) of the Act were not attracted and the sale-deed was hit under section 7 of the Act. He, therefore, set aside the order passed by the Sub-Divisional Officer. The order passed by the Additional Commissioner, Pune Division is impugned in the present writ petition.