Gujarat High Court
Rana Mahendrasinh Gambhirsinh vs Heirs Of Decd on 27 August, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/102/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 102 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA :
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1 Whether Reporters of Local Papers
may be allowed to see the judgment?
2 To be referred to the Reporter or
not?
3 Whether their Lordships wish to see
the fair copy of the judgment?
4 Whether this case involves a
substantial question of law as to
the interpretation of the
Constitution of India, 1950 or any
order made thereunder?
5 Whether it is to be circulated to
the civil judge?
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RANA MAHENDRASINH GAMBHIRSINH....Petitioner(s)
Versus
HEIRS OF DECD.
RANA TEMUBHA PATHUBHA & 2....Respondent(s)
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Appearance:
(MR SURESHM SHAH) for the Petitioner(s) No. 1
MR MEHUL S SHAH for the Petitioner(s) No. 1
MR BHARAT VYAS AGP for the Respondent(s) No. 2 3
MR H M JADEJA for the Respondent(s) No. 1.1 1.2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 27/08/2014
ORAL JUDGMENT
1. The present petition is filed by the petitioner under Articles 14, 226 and 227 of the Constitution Page 1 of 6 C/SCA/102/2002 JUDGMENT of India as well as under the provisions of the Bombay Prevention of Fragmentation Act for the prayer inter alia that appropriate writ, order or direction may be issued quashing and setting aside the orders at AnnexuresA & B on the grounds stated in the memo of petition.
2. Heard learned advocate, Shri Mehul Shah for the petitioner, learned advocate, Shri H.M. Jadeja for the respondent no.1 and learned AGP Shri Bharat Vyas for the respondent nos.2 and 3.
3. Learned advocate, Shri Shah referred to the papers and submitted that in respect of the land bearing survey no.575/1, which was purchased by the petitioner by registered sale deed dated 10.04.1974, the proceedings have been initiated in the year 1994 on the basis of the report made by the Mamlatdar for the first time. He therefore submitted that such exercise of power beyond reasonable period is not justified and, therefore, such orders cannot be sustained.
4. Learned advocate, Shri Shah further submitted that even the reasonings referred to in both these orders are contrary to the interpretation made by the High Court in a judgment in case of Rathod Page 2 of 6 C/SCA/102/2002 JUDGMENT Nayanatkhan Ahmedkhan Vs. M.K. Dass, reported in 1998 (2) GLH 459. He submitted that the impugned order passed by the Secretary (Appeals) dated 15.11.2000 at AnnexureB refers to the background of the land bearing survey no.575/1, which is adjacent to the land already held by the petitioner bearing survey no.578. He therefore submitted that as the petitioner is the owner of contiguous survey number, the provisions of Section 7 of the Fragmentation Act would not be attracted. In support of his submissions, he pointedly referred to and relied upon the judgment in case of Rathod Nayanatkhan Ahmedkhan (supra), more particularly, para no.7.
5. Learned advocate, Shri Jadeja for the respondent no.1 has stated that appropriate order may be passed as he is the vendor and has no objection.
6. Learned AGP Shri Bharat Vyas referred to the affidavitinreply and provisions of Section 7 of the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947 and made a feeble attempt to submit with regard to the aspect of fragmentation contending that as stated, if the adjoining land is held by the persons as the co Page 3 of 6 C/SCA/102/2002 JUDGMENT owners then, this benefit of contiguous survey number or the adjacent survey number will not be available.
7. In view of these submissions, it is required to be considered whether the provisions of Section 7 of the Fragmentation Act would be attracted or not.
8. As could be seen from the facts, the land bearing survey no.575/1 has been purchased way back in the year 1974 by registered sale deed. The petitioner is already a holder of the adjoining land bearing survey no.578 and, therefore, he is said to be the owner of contiguous survey number. Therefore, limited aspect which is required to be considered is whether the land bearing survey no.585 as the coowner can be considered for the purpose of Fragmentation Act. The High Court in its judgment Rathod Nayanatkhan Ahmedkhan (supra) has clearly observed, Section 7(1) of the Act provides that no person shall transfer any fragment in respect of which a notice has been given under Subsection (2) of Section 6 except to the owner of a contiguous survey number or recognized subdivision of survey number. The question which arises is whether a coowner will also be covered by Page 4 of 6 C/SCA/102/2002 JUDGMENT this exception. At this stage, it is also required to be noted that by introducing Section 8AA the legislature did contemplate coownership of land and, therefore, provided that where two or more persons are entitled to share in an undivided agricultural land and the land has to be partitioned amongst them, no such partition shall be effected so as to create a fragment. However, the legislature did not deny the right to purchase a fragment, which is conferred on the owner of a contiguous survey number, to a coowner of a contiguous survey number. Moreover, purchase of such a fragment by one or more coowners of a contiguous survey number will be more conducive to achievement of the object of the Act to prevent fragmentation and to achieve consolidation of holdings of agricultural lands.
9. Therefore even on merits, in light of this interpretation of the above judgment, the submission made by learned AGP Shri Vyas that the land is held by the petitioner as coowner and, therefore, the provisions of Section 7 of the Fragmentation Act would be attracted, is misconceived. Therefore on merits, as stated above, the provisions of Section 7 of the Fragmentation Act are not attracted and the Page 5 of 6 C/SCA/102/2002 JUDGMENT impugned orders with the reasonings cannot be sustained. Apart from the gross delay in passing the impugned order in exercise of power after 20 years, as the matter deserves to be allowed only on merits, the aspect of delay or reasonable period does not require any further elaboration. Therefore, the present petition deserves to be allowed.
10. In the circumstances, the present petition stands allowed in terms of Para No.6(A). The impugned orders at AnnexuresA & B are hereby quashed and set aside. Rule is made absolute. No order as to costs.
(RAJESH H.SHUKLA, J.) Gautam Page 6 of 6