1. Heard Mr.S.P.Majmudar, learned advocate for the petitioner. He has made the following submissions:
(1)The petitioner purchased land from respondent No.5 on 01-12-1995 by a registered sale deed and Entry No.8823 was mutated in the revenue records with respect to the aforesaid transaction.
(2)After four years, proceedings were initiated by respondent No.3 under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, HC-NIC Page 1 of 6 Created On Wed Aug 16 18:08:39 IST 2017 SCA/17160/2011 2/6 ORDER 1947 ('the Fragmentation Act' for short). (3)By order dated 22-10-2002 respondent No.3 held that the transaction in favour of the petitioner was hit by the provisions of Fragmentation Act and a fine of Rs.250/- was imposed upon the petitioner. It was also directed that the land in question be returned to the original owner. (4)The petition preferred a Revision Application being Revision Application No.8 of 2003 before respondent No.2 against this order. (5)Simultaneously, Entry No.7155 was mutated in the revenue records on 16-05-2003, giving effect to the impugned order of respondent No.3 dated 22- 10-2002.
(6)The petitioner preferred RTS proceedings with regard to cancellation of this entry. (7)Respondent No.3 passed an order dated 30-01-2010, which was quashed and set aside by the District HC-NIC Page 2 of 6 Created On Wed Aug 16 18:08:39 IST 2017 SCA/17160/2011 3/6 ORDER Collector vide order dated 29-12-2010. By the said order of the District Collector, Entry No.8823 in favour of the petitioner has been set aside. Being aggrieved by this order, the petitioner preferred a Revision Application being Revision Application No.1 of 2011. Both Revision Applications were heard together and disposed of by a common judgment dated 21/28-09-2011 passed by respondent No.2,that is impugned in the present case.
(8)It is submitted that the aspect that the land of the petitioner is irrigated land, as mentioned in the sale deed, had not been taken into consideration by the revenue authorities. The extract of Village Form No.7-12 fortifies the case of the petitioner that the land is irrigated land, therefore, there is no violation of the provisions of the Fragmentation Act. (9)That the proceedings have been initiated by the revenue authorities after considerable delay which is not permissible as per judicial pronouncements in the case of Jiviben v. State HC-NIC Page 3 of 6 Created On Wed Aug 16 18:08:39 IST 2017 SCA/17160/2011 4/6 ORDER of Gujarat, 1998(3) GLR 2567 and Labhubhai Valjibhai Gajera v. Secretary (Appeals), 2011(1) GLR 279.
(10)That there Secretary has concluded that Entry No.8823 could not have been mutated in favour of the petitioner because the transaction has been declared to be bad in law by the Deputy Collector vide order dated 22-10-2002. However, the revisional authority has lost sight of the fact that it is this very order of the Collector that was challenged before him, therefore, this order could not have been made the basis of the findings by the Secretary.
(11)That the revenue authorities have not stated any reasons how the transaction of sale, in favour of the petitioner, is hit by the provisions of Fragmentation Act.
(12)The detailed grounds raised by the petitioner in the Revision Applications have neither been discussed, nor dealt with by the revisional authority.
(13)That there is no mutation in the revenue record to the effect that the land is fragment land and notice under Section 6(2) of the Fragmentation Act has not been given to the petitioner.
2. Per contra, Mr.Pranav S.Dave, learned Assistant Government Pleader has submitted that as per Section 8 of the Fragmentation Act, no land in any local area shall be transferred or partitioned so as to create a fragment. It is submitted that in the present case a fragment has been created by the sale transaction, therefore, there is no question of giving notice. It is further submitted that Entry No.6044 dated 01-10- 1996 was entered in the revenue record that was cancelled on 08-11-96. The cancellation of this entry has not been challenged by the petitioner and has attained finality, therefore, the order passed by the revenue authorities below are just and proper.
3. Mr.Jitendra Malkan, learned counsel for respondent No.5, has submitted that there is no delay in initiation of the proceedings as the petitioner reported the transaction to the revenue authorities on HC-NIC Page 5 of 6 Created On Wed Aug 16 18:08:39 IST 2017 SCA/17160/2011 6/6 ORDER 22-08-2009, therefore, the prayers made by the petitioner be not accepted.
4. Having heard the learned counsel for the respective parties at great length and having considered the submissions made at the Bar, the following order is passed:
5. Rule, returnable on 14-06-2012. The status-quo order granted earlier is confirmed and shall continue, till the final decision of the petition.
(Smt.Abhilasha Kumari,J) arg HC-NIC Page 6 of 6 Created On Wed Aug 16 18:08:39 IST 2017