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Amberkar (PS)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.8390 OF 2019

Shri. Shahaji Nivrutti Gaikwad .. Petitioner

Versus

Shripati Rangrao Chavan

(since deceased)
Through his heirs and LRs.
1.1 Shushila Shripati Chavan & Ors .. Respondents

WITH
WRIT PETITION NO.8342 OF 2019

Shri. Ramchandra Mahadev Devang .. Petitioner

Versus

Shripati Rangrao Chavan

(since deceased)
Through his heirs and LRs.
1.1 Shushila Shripati Chavan & Ors .. Respondents

WITH
WRIT PETITION NO.8661 OF 2019

Shri. Baburao Ramchandra Toraskar .. Petitioner

Versus

Shripati Rangrao Chavan

(since deceased)
Through his heirs and LRs.
1.1 Shushila Shripati Chavan & Ors .. Respondents

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WITH
WRIT PETITION NO.9519 OF 2019

Shri. Ramchandra Shripati Dhekane

and Anr. .. Petitioners

Versus

Shripati Rangrao Chavan

(since deceased)
Through his heirs and LRs.
1.1 Shushila Shripati Chavan & Ors .. Respondents

WITH
WRIT PETITION (St.) NO.13805 OF 2019

Shri. Sanjay Maruti Patil .. Petitioner

Versus

Shripati Rangrao Chavan

(since deceased)
Through his heirs and LRs.
1.1 Shushila Shripati Chavan & Ors .. Respondents

WITH
WRIT PETITION (St.) NO.13807 OF 2019

Maharashtra Nagri Co-operative .. Petitioner

Patsanstha, Ltd. Kotoli

Versus

Shripati Rangrao Chavan

(since deceased)
Through his heirs and LRs.
1.1 Shushila Shripati Chavan & Ors .. Respondents

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WITH
WRIT PETITION (St.) NO.13810 OF 2019

Shri. Jaydeep Anandrao Naik and Anr. .. Petitioners

Versus

Shripati Rangrao Chavan

(since deceased)
Through his heirs and LRs.
1.1 Shushila Shripati Chavan & Ors .. Respondents

................…

 Mr. Chetan G. Patil a/w. Mr. Ruturaj Pawar and Mr. M.G.
Bagkar, Advocate for Petitioners in all the Writ Petitions.
 Mr. Datta H. Pawar, Advocate for Respondent No.1.1 to
1.3 in all the Writ Petitions.
 Mr. P.P. Pujari, A.G.P. for Respondent Nos.3 & 4 in W.P.
No.8390 of 2019.
 Mr. S.D. Rayrikar, A.G.P. for Respondent Nos.4 & 5 in
W.P. No.8342 of 2019.
 Ms. M.S.Bane, A.G.P. for Respondent Nos.3 & 4 in W.P.
No.8661 of 2019
 Mr. A.R. Metkari, A.G.P. for Respondent Nos.3 & 4 in
W.P. No.9519 of 2019.
 Mr. Y.D. Patil, A.G.P. for Respondent Nos.3 & 4 in W.P.
(St.) No.13805 of 2019.
 Mr. A.B. Kadam, A.G.P. for Respondent Nos.3 & 4 in W.P.
(St.) No. 13807 of 2019.
 Mr. N.C. Walimbe, A.G.P. for Respondent Nos.3 & 4 in
W.P. (St.) No.13810 of 2019.
...................

CORAM : MILIND N. JADHAV, J.

RESERVED ON : 26th February, 2020.
PRONOUNCED ON : 2nd JULY, 2020.

JUDGMENT:

1. Rule.

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2. Rule is made returnable forthwith.

3. Heard finally with consent of the parties.

4. The present judgment will dispose of the

aforesaid seven petitions.

5. Learned counsel appearing for the petitioners in

the aforesaid seven petitions is the same, however, the

petitioners are different persons / entities. The principal

contesting respondent Nos. 1.1 to 1.3 in all the aforesaid

seven petitions are also the same. Original respondent No.

1 Shripati Rangrao Chavan has expired. His legal heirs are

contesting the aforesaid petitions. Learned AGPs as

indicated in the cause title above have appearaed for

respondent No. 3 i.e. Additional Commissioner, Pune

Division, Pune and respondent No. 4 i.e Sub Divisional

Officer, Panhala Sub Division, District Kolhapur

respectively in the aforesaid petitions.

6. On 24.2.2020, both the parties. viz; the

petitioners and contesting respondents were heard and

arguments were not concluded. Learned counsel

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appearing for the contesting respondents sought time to

obtain appropriate instructions in respect of the status of

the pending appeal from civil suit proceedings and the

status of notice under Section 6(2) of the Maharashtra

Prevention of Fragmentation and Consolidation of Holdings

Act, 1947 (hereinafter referred to as the "said Act"). The

matter was adjourned to 26.2.2020 on which date the

contesting respondents tendered a fresh affidavit placing

on record the status of the pendency of the appeal from

civil suit proceedings between the parties and concluded

the arguments.

7. The facts in respect of all petitions are identical.

For the sake of convenience, the facts in Writ Petition No.

8390 of 2019 are stated herein under.

8. The challenge in the writ petitions is to the

concurrent orders dated 31.1.2018 passed by respondent

No. 4 - Sub Divisional Officer, Panhala Sub Division, Dist.

Kolhapur and order dated 21.2.2019 passed by respondent

No. 3 - Additional Commissioner, Pune Division, Pune in the

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proceedings initiated by respondent No. 2 under the said

Act in respect of various properties. In Writ Petition (st)

No. 13807 of 2019, the order passed by respondent No. 4

is dated 15.2.2018. Save and except this difference and

the areas of the various properties, the rest of the facts

are identical.

9. In writ petition No. 8390 of 2019, the relevant

facts, briefly stated, are as under:-

(a) Respondent No. 2 namely Yeshwant Bapu

Chavan, since deceased and represented by

his legal heirs, vide registered sale deed

dated 21.12.1998 sold and conveyed the

property bearing Gat No. 132 admeasuring

0.02 R situated at Mouje Punal, Taluka

Panhala, Dist. Kolhapur to the petitioner;

(b) Pursuant to the above sale deed, the name of

the petitioner was mutated and entered into

in the revenue records and 7/12 extract

pertaining to the above property;

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(c) After a period of 19 years, respondent No. 1 -

Shripati Rangrao Chavan, since deceased and

represented by his legal heirs namely

respondent Nos. 1.1 to 1.3, filed application

in the year 2017 before Respondent No. 4

under the provisions of Section 31 of the said

Act seeking cancellation of the sale deed as

being illegal and violative of the provisions of

the said Act;

(d) By order dated 31.1.2018, respondent No.4

allowed the original application and declared

the aforesaid sale deed to be illegal in terms

of the provisions of Section 9 of the said Act;

(e) The petitioner, being aggrieved, preferred a

revision application No. 64/2018 under

Section 35 of the said Act before respondent

No. 3;

(f) By order dated 21.2.2019, respondent No. 3

dismissed the revision application and

confirmed the order dated 31.1.2018 passed

by respondent No. 4;

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(g) Both the above orders are under challenge by

the petitioner in the present petition.

10. To complete the facts and narrative in respect of

the other petitions, the details are indicated in the

following chart:-

Sr. WP No. Name of the Property Area Sale Deed Details of proceedings in
No. Petitioner Dated Courts
1. 8390/19 Shahaji Nivrutti Gat No. 132 0.02 R 21.12.1998 Order dated 21.2.2019 in
Gaikwad situated at Revision Application No. 64 of
Mouje Punal, 2018
Taluka Panhala,
Dist. Kolhapur. Order dated 31.1.2018 in
Application No.100 of 2017
2 8342/19 Ramchandra As Above. 0.02 R 03.06.2002 Order dated 21.2.2019 in
Mahadev Devang Revision Application No. 66 of
2018

Order dated 31.1.2018 in

Application No.102 of 2017
3 8661/19 Baburao As Above 0.12 R 04.06.1993 Order dated 21.2.2019 in
Ramchandra Revision Application No. 63 of
Toraskar 2018

Order dated 31.1.2018 in

Application No.107 of 2017
4 9519/19 Ramchandra As Above 0.02 R 15.12.1998 Order dated 21.2.2019 in
Shripati Dhekane Revision Application No. 58 of
& Anr. 2018

Order dated 31.1.2018 in

Application No.101 of 2017
5 (st) Maharashtra As Above 0.02 R 17.03.2003 Order dated 21.2.2019 in
13807/19 Nagri Co-Op. Revision Application No. 118 of
Patsanstha Ltd, 2018
Kotoli
Order dated 15.2.2018 in
Application No.106 of 2017
6 (st) Jaydeep As Above 0.02 R 21.12.1998 Order dated 21.2.2019 in
13810/19 Anandrao Naik Revision Application No. 65 of
2018

Order dated 31.1.2018 in

Application No.105 of 2017
7 (st) Sanjay Maruti As Above 0.02 R 12.12.2001 Order dated 21.2.2019 in
13805/19 Patil Revision Application No. 67 of

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2018

Order dated 31.1.2018 in

Application No.197 of 2017

11. At the outset, it may be stated that respondent

Nos. 1.1 to 1.3 i.e legal heirs of deceased respondent No.

1 filed civil suit bearing RCS No. 41/2017 for seeking

partition and possession of original Gat No. 132 against

the petitioner and others after a period of almost 19 years

from the date of execution of registered sale deed dated

21.12.1998. This suit came to be dismissed by the Civil

Court on 20.9.2017. The appeal in RCA No. 313/2017

against the judgment of dismissal of the suit is pending

before the District Judge, Kolhapur.

12. Mr. Patil, learned counsel appearing on behalf of

the petitioners submitted that due to the dismissal of the

civil suit by the Civil Court, respondent Nos. 1.1 to 1.3 filed

the original application after almost 19 years before

respondent No. 4 under the provisions of Section 31 of the

said Act for cancellation of the sale deed. He submitted

that respondent No. 4 ought not to have entertained the

original application as the same was not made within a

reasonable period and there was gross delay of 19 years

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after the date of execution of the registered sale deed. He

submitted that in allowing the revision application and

upholding the revision application, respondent No. 3 had

acted contrary to his order dated 26.11.2018 passed in

another similarly placed revision application No. 59/2018.

He submitted that in revision application No. 59/2018,

there was a delay of 12 years in filing the revision

application and the same came to be dismissed on the

ground that application under Section 31 of the said Act

could not be entertained after a lapse of 12 years. He

submitted that the Presiding Officer i.e respondent No. 3 in

revision application No. 59/2018 and in the present case,

was the same and thus, a contrary stand was adopted by

respondent No. 3 in the present case without appropriate

reasons for condoning the delay and laches. He submitted

that restrictions on alienation of the property as

contemplated under Section 31 of the said Act are

applicable only when the property which is alienated is a

"holding" allotted under the provisions of the said Act. He

submitted that the subject property in question which was

sold and conveyed by respondent No. 2 to the petitioner

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has not been classified as a "fragment" or "holding"

allotted to respondent No. 2 under the provisions of the

said Act and hence, restriction as contemplated under

Section 31 cannot be attracted to the present case. He

submitted that the provisions of the said Act contemplated

determination of the standard area and issuance of notice

under Section 6 of the said Act to the holder. He

submitted that the original application was devoid of

material evidence of the subject property being a "holding"

as contemplated under Section 6 of the said Act and as to

the description of the standard area in the subject

property under the said Act. He submitted that jurisdiction

to decide the legality and validity of the registered sale

deed of conveyance falls within the exclusive jurisdiction

of the civil court and in such a case, if the subject property

has not been classified as a "fragment" or "holding" under

Section 6 of the said Act, the revenue authorities, viz;

respondent Nos. 3 and 4 lacked jurisdiction to cancel the

registered sale deed. In support of his submissions,

learned counsel for the petitioners referred to and relied

upon the following decisions:-

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1. Putalabai Lakhu Pawar Vs.

Shiva Dhondi Pawar1;
2. Valjibhai Jagjivanbhai Vs.
State of Gujarat2;
3. Order of Civil Judge, J.D. Kheriwade
(unreported case);
4. Order of Civil Judge, J.D. ; Kheriwade,
Panhala (unreported case).

12.1 In the case of Putalabai Lakhu Pawar (supra),

the proposition before the Court was with respect to

attracting the bar of Section 31 of the said Act in a given

case. Learned counsel for the petitioners submitted that

there were only two provisions in the said Act inhibiting

transfer of the land under the Fragmentation Act in order

to attract the bar of Section 31 of the said Act, viz; Section

31(1) which states that such a transfer so as to create a

fragment cannot take place without the previous sanction

of the Collector and Section 7(1) which states that no

person shall transfer any fragment in respect of which a

notice has been given under sub-section (2) of Section 6

except to the owner of contiguous survey number or

recognized sub-division of a survey number. He submitted

that the above provisions clearly envisaged that the bar of

Section 31 was attracted only if a notice is given under

1 1980 Mh.L.J. 547
2 1852 G.L.R. 2005(3)

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sub-section (2) of Section 6 of the said Act. He, therefore,

submitted that if the respondents are in a position to show

that a notice under Section 6(2) was indeed given / issued

by the appropriate authority in respect of the said

"fragment" or "holding" under the said Act, then and only

then, the bar of Section 31 would get attracted in the

present case. He submitted that in the above case, it was

further held that the mere fact that the land was entered

as a fragment in 7/12 extract also did not prohibit transfer

of the said land under the said Act. He submitted that the

provisions of allotment of land as a fragment is laid down

in rule 11 of the Rules framed under the said Act and as

such, in the present case, the answering respondent has

been unable to show that the subject land was declared as

a "fragment" or "holding" under the said Act and the

statutory notice under sub-section (2) of Section 6 was

issued by the appropriate authority. He submitted that

Sections 7, 8 and 9 cannot be read independent of and to

the exclusion of the provisions of Section 6 of the said Act.

He laid emphasis on paragraph Nos. 6, 7, 8 and 9 of the

above decision which read thus:-

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"6. Feeling aggrieved the plaintiffs have preferred this second

appeal.

7. In order to attract the bar of Section 31 of the Fragmentation

Act, the holding must have been allotted under the Fragmentation
Act. The relevant provisions of Section 31(1) of the Fragmentation
Act run as follows:--

31. (1) Notwithstanding anything contained in any law for the

time being in force, no holding allotted under this Act, nor any
part thereof, shall save as otherwise provided in this section-

(a) be transferred, whether by way of sale (including sale in

execution of a decree of a Civil Court or for recovery of arrears
of laud revenue or for sums recoverable as arrears of land
revenue) or by way of gift, exchange, lease, or otherwise; or

(b) be sub-divided, whether under a decree or order of a

Civil Court or any other competent authority, or otherwise, so
as to create a fragment, without the previous sanction of the
Collector. Such sanction shall be given by the Collector in
such circumstances and subject to such conditions, as may be
prescribed."

8. It will, therefore, be seen that in order to attract the bar of the

section, the holding must have been allotted under this Act. There is
nothing in the instant case to show that the suit land was a holding
allotted to the defendants under this Act. On the admitted facts the
suit land cannot be a holding allotted under the Fragmentation Act to
the defendants because Lakhu executed a sale deed of the suit land
to the defendants privately. The provision of allotment is laid down in
Rule 11 of the Rules framed under the Fragmentation Act. So all
these provisions clearly go to show that the suit land is not a holding
allotted under this Act and, therefore, the bar under Section 31 of the
Fragmentation Act cannot be attracted. Both the Courts below have
proceeded on the assumption that this section is applicable and both
of them have not taken into consideration the wording used in the
section and that is why both of them have fallen in error.

9. The only other section which prohibits transfer is Section 7(1)

of the Fragmentation Act and it runs as follows:--

"7. (1) No person shall transfer any fragment in respect of

which a notice has been given under Sub-section (2) of
Section 6, except to the owner of a contiguous survey number
or recognized subdivision of a survey number."

This provision clearly goes to show that this bar is attracted only if a

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notice is given under Sub-section (2) of Section 6 of the

Fragmentation Act. It is not the contention in this case that any such
notice was given under Sub-section (2) of Section 6 of the
Fragmentation Act. The mere fact that this land is entered as a
fragment in 7/12 extract does not prohibit the transfer of the land
under the Fragmentation Act. I have so far pointed out that there are
only two provisions in the Act inhibiting transfers of the fragments
and I have so far pointed out that none of these two provisions are
applicable in the instant case and so there can be no bar under the
Fragmentation Act for enforcing the agreement of reconveyance."

12.2. While relying on the case of Valjibhai

Jagjivanbhai (supra), attention of the Court was drawn by

Mr. Patil to the exercise of revisional power under Section

35 of the said Act. He submitted that the concept of

reasonable time is required to be adhered to in order to

exercise power under the said Act. While referring to the

above decision and more particularly paragraph Nos. 16,

16.1, 16.2 and 17.1, learned counsel submitted that

Section 6 of the Act envisaged that an entry be made in

the record of rights of all the fragments in the local area

upon issuance of notification of standard area under sub-

section (3) of Section 5 of the said Act. He submitted that

immediately thereafter, statutory notice under sub-section

(2) of Section 6 is required to be given in the manner

prescribed and then under Rule 4 of the said Act, an

appropriate entry is required to be made as required under

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sub-section (1) of Section 6 of the said Act. He submitted

that the aforesaid statutory process under the said Act

enables the revenue authorities to find out whether the

sale was legal or whether it was made in contravention of

any of the provisions of the said Act. Learned counsel

emphasised on paragraph Nos. 16, 16.1, 16.2 and 17.1

which read thus:-

"16. A comparative study of the aforesaid decisions cited by

counsels of both the sides would show that so far the present Act is
concerned, there are two different views taken by this Court. One
view is that so far the revisional powers under Section 35 are
concerned, since there is no limitation prescribed under the
concerned statute, these powers are required to be exercised within
reasonable time. However, when the action is required to be taken,
as in the present case under Section 9, the impugned act cannot be
validated only on the ground of lapse of considerable time. In other
words, the act which is void ab initio is non-est and it can be declared
as such at any point of time. Such act cannot be validated only on
the ground that it has remained as such, without being disturbed, for
considerably long period. The other view is that even power under
Section 9 of the Act is required to be exercised within reasonable
time. However, as already stated, in this Court's decisions cited by
Mr. Trivedi the ratio laid down by the Apex Court in the cases of (1)
The State of Punjab v. Gurdev Singh & Ashokkumar (2) The State of
Kerala v. M.K. Kunhikannan Nambiar (3) Mohamad Kavi Mohamad
Amin v. Fatmabai Ibrahim has not been taken into consideration.
Over and above this, one cannot overlook the fact that in respect of
Section 11 of the Hindu Minority and Guardianship Act, in the case of
Madhegowda v. Ankegowda [supra] the Apex Court has held that "In
view of the clear statutory mandate, there is little scope for doubt that
any transfer in violation of the prohibition incorporated in Section 11
of the Act is ab initio void." In para 25 of its judgment, the Apex Court
has held "Such an invalid transaction is not required to be set aside
by filing a suit or judicial proceeding." This is irrespective of the fact
that there is no provision like or similar to Section 9(1) of the Act in
Hindu Minority and Guardianship Act. According to Black's Law
Dictionary 'statutory' means "Relating to a statute, created or defined
by a statute, required by a statute, conforming to a statute". Hence
act of such transfer would be statutory void. Despite that in the case

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of Madhukar Vishwanath Munje v. Madhao [supra] a three Judge

Bench has decided that a minor's suit challenging the disposal of his
or her property by a de facto guardian has to be brought within
prescribed period of limitation. In that case minor's suit for this
purpose was dismissed on the ground of limitation. These decisions
lend considerable support to the second view i.e. under Section 9 of
the Act power has to be exercised by the Collector within reasonable
time. In latter two cases listed above, administrative actions and
adjudicatory process were under consideration and not judicial
proceedings. There is one more decision of the Apex Court on this
line which is rendered in the case of Situ Sahu v. Jharkhand reported
in 2004 AIR SCW p. 5189. We will refer to it little later.

16.1 For considering, from different angle, the submission that even
to the provisions like Section 9 of the Act, the proposition of law that
the steps annulling such act or transaction are required to be taken
within reasonable time can be made applicable; again we have to
turn our attention to certain provisions of the Act. As stated above,
Chapter II of the Act deals with the determination of local and
standard areas and treatment of fragment. Section 5(1) deals with
determination of standard areas by the State. Sub-section (3) of
Section 5 deals with publication of notification in the Official Gazette
giving public notice of any standard area determined under sub-
section (1) or revised under sub-section (2) of Section 5. Section 6 of
the Act envisages entry to be made in the record of rights of all the
fragments in the local area upon issuance of notification of standard
area under sub-section of Section 5 and where there is no record of
rights maintained in such in such village the record as the State
Government may prescribed. Sub-section (2) of Section 6 requires
notice to be given in the manner prescribed for the giving of the
notice under relevant Code, of an entry in the register of mutations. It
would be also necessary at this juncture to refer to Rule 4 of the
Bombay Prevention of Fragmentation and Consolidation of Holdings
Rules, 1959 [hereinafter referred to as 'the Rules'], which prescribes
that all the fragments in the village where no record of rights is
maintained shall be entered as such as required by sub-section (1) of
Section 6 in the following form :-

Sr. S. No. Inam in Survey Ordinary Sub.-

No. or name of Class & No. No. Area division
the field how long Alie speciment assess. No.
land and Judi.
continuable
nation
Register &
Tenure &
decision if
any.
1 2 3(a) 3(b) 3(c) 4 5 6
Area Assessment Judi. or Owner or Nature and Other rights Ref. to Remarks
Special N.A. land origin of title or mutation
assessment with name encumbrances diary
payable of right
holder or

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encumbrance
s

7 8 9 10 11 12 13 14

These provisions enable the revenue authorities to have complete

details of the land which is entered as fragment in the record of rights
or in absence of it, the record which is maintained in accordance with
Section 6(1) of the Act, in any local area. It is, therefore, presumed
that whenever change in the ownership is required to be entered into
the revenue records after a sale transaction between two parties in
respect of such land is over, the revenue authority would be able to
find out whether the sale was legal or it was made in contravention of
any of the provisions of the Act. No need to say that when the sale
transaction is found to have been made contrary to the provisions of
the Act, no change in the mutation entry would be effected. Naturally
when the fragment is sought to be sold or is actually sold, it is
against the provisions of Section 7, as transfer by partition or in any
other way of a fragment is in contravention of provisions of Sections
7, 8, 8AA, etc. This is illustrative and not exhaustive.

16.2 So far Section 9 is concerned, as seen above, sub-section (1)

thereof declares any act of transfer or partition of any land contrary to
the provisions of the Act void and also prescribes the resultant
actions that can be taken by the Collector, namely imposition of fine
on the owner of the land as per sub-section (2) and the summary
eviction of the unauthorized occupant or a person in wrongful
possession of the land in question on account of any transfer or
partition either by the act of parties or by operation of law. Though
specifically it is not provided for, under Section 9 the Division Bench
of this Court in the case of Govindsingh v. G. Subbarao [supra] has
prescribed the procedure in detail to be followed by the Collector. It is
true that by virtue of Section 9(1) there is no need to find any
negative effect of the transaction of land which is, after inquiry, found
to be in contravention of the provisions of the Act.

16.3..............
16.4..............
16.5..............
17.................
17.1 The aforesaid discussion shows that there is sufficient scope
for the revenue authorities of the State to know about illegal
transaction which can be termed void under Section 9(1) of the Act,
inspite of that, if such void transaction is allowed to exist for years
together, it is difficult to hold that the competent authority, even then
would be within its bounds to initiate proceedings to declare such
transaction void and annul it. It is also difficult to envisage that when
two routes are available for reaching the ultimate destination under
Section 9(2) and (3) of the Act, on the route prescribed under Section

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35, the authority named therein will not be permitted to travel and the
shutters will be drawn at the point where reasonableness ends.
Whereas the other route i.e. under Section 9 of the Act will remain
open for all time to come. To lay down proposition of law, in relation
to Section 9 of the Act, that the Collector can exercise power
thereunder even after inordinate delay, irrespective of the fact that
there is scope for him to know about illegality committed cannot only
be dangerous because it can give ample opportunity to some crafty
seller to exploit the situation to his advantage, as we will presently
discuss, but it can also be against the principle that one cannot sleep
over his right for unreasonable period. It has to be pursued vigilantly.

12.3 Relying on the unreported judgment dated

20.9.2017 passed by the Court of Civil Judge Junior Division

at Kale (Kheriwade), Tal. Panhala in RCS No. 41/2017 (old

RCS No. 42/2010), learned counsel for the petitioners

submitted that respondent No. 1 - Shripati Rangrao

Chavan through his legal heirs had filed a civil suit bearing

old RCS No. 42/2010 against several purchasers for

seeking partition and separate possession in respect of

the same subject land which is the subject matter of the

present petitions. Defendant Nos. 1, 3, 4, 5, 6, 7 and 8 in

the said RCS suit are the petitioners in the present group

of petitions. He submitted that appropriate issues were

framed and trial was conducted wherein the civil court

came to the conclusion that the suit property was not a

joint and ancestral property belonging to respondent No.

1's legal heirs and that the suit property was already

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partitioned between respondent No. 1's predecessor-in-

title and co-sharers. He submitted that by virtue of the

judgment and decree given by the Civil Court, respondent

No. 1 did not have any right whatsoever in the subject

property and as such, the two impugned orders passed by

the lower authorities could not be sustained. He submitted

that in view of the above judgment and decree, disentitling

respondent No. 1's predecessor-in-title in respect of the

subject property / land, proceedings under the provisions

of the said Act filed subsequent to the passing of the

above judgment and decree were a complete afterthought

and did not have any force in law.

13. PER CONTRA, Mr. Datta Pawar, learned counsel

appearing for respondent Nos. 1.1 to 1.3 submitted that

the registered sale deeds executed by respondent No. 2 in

favour of the petitioners was in contravention of Section 7,

8 and 9 of the said Act. He submitted that both the

impugned orders have been passed in accordance with law

and in compliance of provisions of the said Act. He

submitted that the statutory notice required to be given

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under Section 6(2) of the said Act, was not given in the

present case but according to him such a notice is

required to be given by the authority i.e Talathi as per

Section 150(2) of the Maharashtra Land Revenue Code,

1966 to the owner of the land and not to the purchaser.

He submitted that absence of the notice in the present

case would not come in the way of upholding the two

impugned orders as the provisions of Section 6 are to be

read independent of the provisions of Sections 7, 8 and 9

of the said Act

13.1 Mr. Pawar further submitted that issuance of

statutory notice under Section 6(2) of the said Act had no

nexus with the provisions of Sections 7, 8 and 9 of the said

Act. He submitted that the various sale deeds executed by

respondent No. 2 in favour of the petitioners were in

contravention of the provisions of Sections 7, 8 and 9 of

the said Act and therefore, the original application made

by respondent No. 1 under Section 31 of the said Act for

setting aside of the various sale deeds was maintainable.

He submitted that respondent No. 1 filed Suit No. 41/2017

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for seeking partition and separate possession before the

trial Court against the petitioner and other purchasers. He

submitted that respondent No. 1, however, could not have

filed the suit challenging breach of the said Act since there

was a specific bar created under Section 36A of the said

Act and the only remedy available to respondent No. 1 was

to file an application under the provisions of Section 7 read

with Sections 8 and 9 of the said Act before the

appropriate authority. He painstakingly stressed that the

original proceedings filed by respondent No. 1 were on the

basis of the provisions contained in Sections 7, 8, 9, 31A

and Section 35 of the said Act. He submitted that there

was no time bar and embargo upon a party to approach

the appropriate authority under the aforesaid provisions

for making the appropriate application and therefore,

submissions made on behalf of the petitioners pertaining

to delay and laches are not relevant in the present case.

He submitted that in the year 2017, Section 9 of the said

Act was amended by virtue of which it gave an opportunity

to the purchaser who had purchased any property from

15.11.1965 onwards till passing of the amendment Act,

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2017 to make an appropriate application to the

appropriate authority if there was any violation of the

provisions of the said Act. He submitted that the various

petitioners did not approach the appropriate authority for

seeking regularization / the breach committed by the

petitioners and thus, the said Act could not come to the

petitioners' aid. In support of his submissions, learned

counsel referred to and relied upon the following

decisions:-

1. Jairam Baban Makode & Ors. Vs.

Bhagirathibai Mitharam Patil & Ors. 3;

2. Patel Jividas Trikamdas & Ors. Vs

Collector & Ors.4;

3. State of Orissa Vs.

Brundaban Sharma.5;

4. P.K. Palanisamy Vs.

N. Arumugham & Anr.6;

5. M.P. Steel Corporation Vs.

Commissioner of Central Excise7

13.2 In the case of Jairam Baban Makode (supra),

the purchaser of agricultural land challenged the orders

passed by Sub-Divisional Officer on 26.10.1989 and

3 2005(2) ALL MR 360

4 AIR 1997 GUJARAT 121
5 1995 (supp 3) SCC 249
6 Judgment of the Supreme Court dated 23.7.2019 passed in Civil Appeal No. ____ of 2009
(Arising out of SLP (Civil) No. 2308 of 2009)
7 (2015) 7 SCC 58

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18.7.1990 directing restoration of land in favour of the

original owner by invalidating the sale on the ground that

it was a fragment which had been sold to a person who

was not owner of contiguous land. Learned counsel

referred to and relied upon the findings rendered in

paragraph 5 of the judgment which in turn, was based

upon the judgment in the case of Putalabai Vs. Shiva

Dhoni8, which reads thus:-

"5. In the thus apparent that until and unless the land is notified
as fragment as contemplated by Section 6(2) of the Fragmentation
Act, bar under Section 7 cannot be pressed into service. The
provisions of sub-section (2) of Section 6 prescribes notice of every
entry made under sub-section (1) as given in the manner prescribed
for giving notice of entry in the register of Mutation. The said
procedure for giving notice of entry in the Mutation register is
mentioned in Section 150(2) of Maharashtra Land Revenue Code
and it requires a complete copy of entry to be displayed at a
conspicuous place in the Chavadi and also written intimation to be
given to all persons appearing from the record of rights or register of
mutations to be interested in mutation. Thus, it is apparent that here,
after holding the land to be a fragment under Section 6(1) of
Fragmentation Act, notice thereof ought to have been published in a
conspicuous place in the chavdi and also should have been given in
writing to at least owners of that land. The Sub-Divisional Officer as
also the revisional authority have not recorded any finding in this
respect. Until and unless the finding that the land was notified as
fragment as contemplated by Section 6(2) of the Fragmentation Act
is reached, bar under Section 7(1) could not have been invoked and
could not have been utilized by these authorities to set aside the sale
deeds. Thus, very jurisdiction fact is found to be missing in these
orders. Hence, these orders dated 31-3-1989 and 26-10-1989
passed by the respective authorities are quashed and set aside. The
matter is remanded back to the Sub-Divisional Officer, Akot, for
taking fresh decision on the application filed by Respondent No.1
before it under Section 7 read with Sections 9 and 10 the
Fragmentation Act, after giving due notice to all concerned. Such

8 1980 Mh.L.J. 547

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decision should be taken as early as possible in any case, within a

period of six month from the date of receipt of this order."

13.3 In the case of Patel Jividas Trikamdas (supra),

the question that arose before the Gujarat High Court was

"Whether an illegal transaction or sale in contravention of

the provisions of law could be questioned or revoked or

cancelled after a lapse of several years under Article 226 /

227 of the Constitution of India. In the facts of the said

case, learned counsel drew the court's attention to

paragraph Nos. 6, 7 and 8 and relied upon the proposition

that once an order is found in violation of the provisions of

law, it is illegal and void and therefore, it is non est for all

purposes. He submitted that in such a case even if the

exercise of revisional power is made after a long lapse of

time, the same was found to be valid as held by the Apex

Court in the case of Brundaban Sharma (supra) which

was referred to and relied upon in the said case.

Paragraphs 6, 7 and 8 of the judgment read thus:

"6. It is a settled proposition of law that any action, transaction,

decision or order which is illegal and void ab initio is to be treated as
non est. The validity of such an illegal non est order could be
questioned in any proceedings at any stage by anybody. The very
nature of the non est order in its effect does not create any right, title
or interest. It being a void, it confers no any status or any right. With
the result, such non est or illegal order, decision, transaction or

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action would be for all purposes ineffective and of no consequence in

the eyes of law. This proposition of law is very well explained,
examined and expounded by catena of judicial pronouncements. The
view being taken by this Court at this juncture is reinforced by a
decision of the Hon'ble Apex Court in the case of State of Orissa v.
Brudaban Sharma, 1995 Supp (3) SCC 249. In that case, the
question had arisen under the Orissa Estate Abolition Act, 1951.
Section 38-B was added in 1973 in the said Act. The Board of
Revenue under the said Act had exercised power under Section 38B
after a period of 27 years. Thus, the confirmation of tenancy rights by
the Tehsildaar without obtaining prior confirmation of the Board of
Revenue was questioned after 27 years. It was found in the said
decision that the order of the Tahsildar was void. The Board of
Revenue was therefore justified in quashing the said order even after
27 years had lapsed since the grant of patta by the Tahsildar in
favour of the party. It was laid down by the Hon'ble Apex Court that
once the order is found in violation of the provisions of the law, it is
illegal and void and therefore it is non est for all purposes. It was,
therefore, held that it cannot be said that the Board of Revenue
exercised the power under Section 38-B of the said Act after an
unreasonable lapse of time. In the circumstances, the exercise of
revisional power under Section 38-B by the Board of revenue after
27 years was found legal and valid and it was further held that it
brooked no delay. It was also held by the Hon'ble Apex Court that the
order passed by the Tahsildar without the confirmation by the Board
which was a requirement of the law was non est and a non est order
is void and it confers no title and its validity can be questioned or
invalidity be set up in any proceedings or at any stage.

7. In view of the decision of the Apex in the case of State of

Orissa v. Brundaban Sharma, (1995 Supp (3) SCC 249) (supra), the
two decisions relied on by the learned counsel appearing for the
petitioners would not assume any more significance. The ratio of the
decision of the Hon'ble Apex Court would undoubtedly water down
the ratio of the aforesaid two decisions of this Court. In the
circumstances, the aforesaid two decisions relied on by the learned
counsel for the petitioners is of no avail.

8. In the present case, there is no dispute about the fact that

fragmentation is prohibited under Section 8 of the Act. It is clearly
provided that no land in any local area shall be transferred or
partitioned so as to create a fragment. The petitioners purchased the
disputed land admeasuring 2 acres in block No: 1029/93 out of the
total land of 6 acres and 17 gunthas and thereby created fragment of
the agricultural land which is prohibited under Section 8 of the Act. In
case of any violation of the provisions of the Act, penalty for transfer
or partition contrary to the provisions Act is prescribed under Section
9. The proceedings were started by the Collector, respondent No. 1,

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against the petitioners in 1988 pursuant to the provisions of Section 9

in Fragment case No. 30/88. It is true that the proceedings
questioning the validity of the sale transaction in violation of the
provisions of Section 8 have been initiated 20 years after the
transaction took place. However, that by itself would not be sufficient
to justify the illegal transaction. The impugned order of respondent
No. 1 came to be passed on 30-7-92 which came to be confirmed in
appeal by the respondent No. 2 on 4-10-94. The said orders could
not be said to be illegal or unjust requiring interference of this Court
exercising extraordinary, equitable, plenary and discretionary writ
jurisdiction under Article 226/227 of the Constitution of India. It may
also be mentioned that there is no proof of the date as to when the
mutation came to be made in the record of rights. There is nothing on
record which would even remotely indicate that the petitioners were
shown owners of the land by virtue of the disputed transaction of sale
in 1968. Apart from that, in view of the aforesaid settled proposition
of law, the petitioners are not entitled to claim any equity. Of course,
there is no any material whatsoever to indicate that the petitioners
have spent huge amount, except the bare version of the petitioners.
Even assuming that huge amount has been spend on the land, then
also, it would not be a ground not to exercise the statutory rights or
powers under Section 9 of the Act by the Competent Authority. Not
only that the amount must have been spent for taking better crops
which are admittedly enjoyed by the petitioners since last more than
20 years, In the circumstances, the aforesaid three grounds raised
by the learned counsel for the petitioners would not constitute any
legal hurdle or hindrance in rejecting the petition under Article
226/227 of the Constitution of India."

13.4 While relying on the decision in the case of

Brundaban Sharma (supra), learned counsel drew the

court's attention to paragraph Nos. 16, 17 and 18 in

support of the proposition that revisional power was

required to be exercised in a reasonable manner and

within a reasonable time in order to prevent miscarriage of

justice or violation of the provisions of the Act or misuse or

abuse of powers by the lower authorities or fraud or

suppression. However, he submitted that in any event, a

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non-est order is a void order and it conferred no title and

its validity cannot be questioned or invalidity be set up in

any proceedings or at any stage after exercise of such

powers after an unreasonable lapse of time. He submitted

that on the strength of this proposition, the delay of 19

years in the present case, in respondent No. 1 making the

original application under the provisions of the said Act is

required to be considered as acceptable. Paragraph Nos.

16, 17 and 18 of the judgment passed by the Apex Court

read thus:-

"16. It is, therefore, settled law that when the revisional power was
conferred to effectuate a purpose, it is to be exercised in a
reasonable manner which inheres the concept of its exercise within a
reasonable time. Absence of limitation is an assurance to exercise
the power with caution or circumspection to e ffectuate the purpose of
the Act, or to prevent miscarriage of justice or violation of the
provisions of the Act or misuse or abuse of the power by the lower
authorities or fraud or suppression. Length of time depends on the
factual scenario in a given case. Take a case that patta was obtained
fraudulently in collusion with the officers and it comes to the notice of
the authorities after a long lapse of time. Does it lie in the mouth of
the party to the fraud to plead limitation to get away with the order?
Does lapse of time an excuse to refrain from exercising the revisional
power to unravel fraud and to set it right? The answers would be no.

17. It is already seen that the proceedings for settlement of the

tenure is a quasi-judicial order and it should be guided by authentic
and genuine documentary evidence preceding the cut-off date and
the date of vesting of the lands under the Act. Since the Act creates
a right and interest in the holder of the land as tenant, pursuant to an
order making the settlement by the competent authority, the
Tahsildar is enjoined to conduct an inquiry in that behalf. It is seen
that under first proviso to Section 5(1), if the Collector concludes that
the lease, transfer or settlement is not to be set aside, he should
obtain prior confirmation from the Board of Revenue. No such

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approval was, in fact, obtained by the Tahsildar Though in the first

instance, when the respondent had brought it to the notice of the
Government of his claim, in 1967 proceedings initiated were got
dropped by the Government obviously at the instance of the
respondent. Later on the instructions of the Government itself, inquiry
was got done; and on receipt of the report from the Additional District
Collector on 4-10-1982, proceedings were initiated by the Board and
the respondent was given reasonable opportunity of hearing. The
order was passed within a reasonable time thereafter.

18. Under these circumstances, it cannot be said that the Board of

Revenue exercised the power under Section 38-B after an
unreasonable lapse of time, though from the date of the grant of
patta by the Tahsildar is of 27 years. It is true that from the date of
the alleged grant of patta 27 years did pass. But its authenticity and
correctness was shrouded with suspicious features. The records of
the Tahsildar were destroyed. Who is to get the benefit? Who was
responsible for it? The reasons are not far to seek. They are self-
evident. So we hold that the exercise of revisional power under
Section 38-B by the Board of Revenue was legal and valid and it
brooked no delay, after it had come to the Board's knowledge. That
apart as held by the Board of Revenue, the order passed by the
Tahsildar without confirmation by the Board is non est. A non est
order is a void order and it confers no title and its validity can be
questioned or invalidity be set up in any proceeding or at any stage."

13.5 Relying on an unreported decision of the Apex

Court in the case of P.K. Palanisamy (supra), learned

counsel referred to and relied upon the contention /

proposition stated in paragraph 13 of the said decision.

For the sake of convenience, paragraph No. 13 is

reproduced below:-
"13. A contention has been raised that the applications filed
by the appellant herein having regard to the decisions of the Madras
High Court could not have been entertained which were filed under
Section 148 of the Code. Section 148 of the Code is a general
provision and Section 149 thereof is special. The first application
should have been filed in terms of Section 149 of the code. Once the
court granted time for payment of deficit court fee within the period
specified therefor, it would have been possible to extend the same by
the court in exercise of its power under Section 148 of the Code.

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Only because a wrong provision was mentioned by the appellant, the

same, in our opinion, by itself would not be a ground to hold that the
application was not maintainable or that the order passed thereon
would be a nullity.
It is a well settled principle of law that mentioning of a wrong
provision or non-mentioning of a provision does not invalidate an
order if the court and / or statutory authority had the requisite
jurisdiction therefor."

13.6 Relying on the case of M.P. Steel Corporation

(supra), learned counsel referred to and relied upon the

proposition that applicability of the Limitation Act to

tribunals and jurisdiction of the tribunals was required to

be considered because the petitioner had raised the

ground of limitation. He submitted that bar of limitation

contained in the schedule to the Limitation Act applies to

suits, appeals and applications. He fairly submitted that

the first division in the schedule to the Limitation Act deals

with suits and Section 3(2) of the Limitation Act shows that

"suits" are instituted as actions begun in courts of law

established under the Constitution of India. He further

submitted that the second division in the schedule

concerns itself with appeals which again are only to the

Courts established under the Constitution of India. He

further submitted that the third division concerns with all

applications that are referred to under Articles 118 to 137

being a reference only to courts either under the Code of

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Civil Procedure or under other enactments. Therefore, it is

his submission that when the Constitution uses the

expression "court", it refers to the court system and such

court system is a system which is opposed to and contrary

to the system exercised by quasi judicial bodies and

statutory officers / tribunals. He, therefore, submitted that

even though there was an inherent delay in approaching

and filing of the original application on the part of

respondent No. 1 under the provisions of the said Act, in

view of the above proposition, the bar of limitation would

not apply to respondent No. 1's case and thus, the

submissions made on behalf of the petitioners that there

was a delay of 19 years in filing the original application

deserve to be rejected. He submitted that the judgment

clearly holds that Limitation Act applies only to courts and

does not apply to quasi judicial bodies and therefore, the

issue of delay as raised by the petitioners deserve to be

dismissed.

14. I have heard both the learned counsel appearing

for the respective parties at length. Before I analyze the

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submissions made by the respective parties, it would be

apposite to consider the legal provisions of the

Maharashtra Prevention of Fragmentation and

Consolidation of Holding Act, 1947 which are applicable to

the present case. Sections 6, 7, 8 and 9 of the said Act

read thus:

"6. Entry in the Record of Rights.

(1) On notification of a standard area under sub-section (3) of the
section 5 for a local area all fragments in the local area shall be
entered as such in the Record of Rights or where there is no
Record of Rights in such village record as the State Government
may prescribe.
(2) Notice of every entry made under sub-section (1) shall be given
in the manner prescribed for the giving of notice in the
Hyderabad area of the State, under the Hyderabad Record of
Rights in Land Regulation, 1358 Fasli and elsewhere, under the
relevant Code, of an entry in the register of mutations.

7. Transfer and lease of fragments.

(1) No person shall transfer any fragment in respect of which a
notice has been given under sub-section (2) of section (6)
[except to the owner of] a contiguous survey number or
recognized sub-division of a survey number:
[Provided that the holder of such fragment may mortgage or
transfer it to the State Government or a land mortgage bank
or any other co-operative society as security for any loan
advanced to him by the State Government or such bank or
society, as the case may be.]
(2) Notwithstanding anything contained in [any law for the time being
in force or in any instrument or agreement], no such fragment
shall be leased to any person other than a person cultivating any
land which is contiguous to the fragment.

8. Fragmentation prohibited.
No land in any local area shall be transferred or partitioned so
as to create a fragment.

[8AA. Restriction on partition of land.

(1) Where, by transfer, decree, succession or otherwise, two or
more persons are entitled to shares in an undivided agricultural

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land in any local area for which standard areas have been
fixed, and the land has to be partitioned among them, such
partition shall be effected so as not to create a fragment.
(2) Where such partition is made by the Court or the Collector, the
following procedure shall be adopted:-
(a) If, in effecting a partition among several co-sharers, it is
found that a co-sharer is entitled to a specific sharer in
the land and cannot be given that share without
creating a fragment, he shall be compensated in money
for that share. The amount of compensation-shall be
determined so far as practicable in accordance with the
provisions of section 23 of the Land Acquisition Act,
1894.
(b) If, in effecting a partition, it is found that there is not
enough land to provide for the shares of all the co-
sharers in accordance with the provisions of sub-
section (1), the co-sharers may agree among
themselves as to the particular co-sharers or co-sharers
who should get the share of land and which of them
should be compensated in money. In the absence of
any such agreement, the co-sharers to whom a share
of land can be provided and those to whom money
compensation should be given shall be chosen by lot in
the manner prescribed.
(c) The compensation shall be payable by each co-sharer
in proportion to the excess value of land he gets over
the share of land legally due to him, and such co-sharer
shall deposit the proportionate amount of compensation
in the manner prescribed before taking possession of
the share allotted to him. On his failure to do so, his
share shall be allotted to any other co-sharer to whom
land has not been previously allotted and who is
chosen in the manner provided in clause (b) subject to
the payment of similar compensation to the co-sharers
not getting shares of land.
(d) If none of the co-sharers to whom land has been
allotted under clause (c) pays the compensation and
takes the share, the share shall be sold in auction to the
highest bidder, and the purchase money shall be paid
to the co-sharers not getting land in proportion to their
respective shares.
(e) Where the parties agree upon any other method of
partition which will not result in the creation of a
fragment, that method shall be followed in effecting
partition.
(3) Where a partition is effected in execution of a decree all
questions relating to the partition of the land and apportionment
of compensation shall be decided by the Court executing the

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decree or by the Collector effecting the partition, as the case

may be, in accordance with the provisions of sub-section (2).]

[8A. Sections 7 and 8 not to apply to transfer for public purpose.

Nothing in sections 7, [8 and 8AA] shall apply to a transfer of
any land for such public purpose as may be specified in this behalf
by the State Government by notification in the Official Gazette.]

9. Penalty for transfer or partition contrary to provisions of Act.

(1) The transfer or partition of any land contrary to the provisions

of this Act shall be void.
(2) The owner of any land so transferred or partitioned shall be
liable to pay such fine not exceeding Rs. 250 as the Collector
may, subject to the general orders of the State Government,
direct [Such fine shall be recoverable as an arrear of land
revenue.]
[(3) Any person unauthorizedly occupying, or wrongfully in
possession of, any land the transfer or partition of which, either
by the act of parties or by the operation of law, is void under
the provisions of this Act, may be summarily evicted by the
Collector.]
"Provided that, save as otherwise provided in section
31, the Collector may, upon an application made in this
regard, regularize a transfer or partition of a land contrary to
the provisions of this Act made on or after 15th day of
November 1965 and before the date of commencement of
Maharashtra Prevention of Fragmentation and Consolidation
of Holdings (Amendment) Act, 2017, if such land is allocated
to residential, commercial, industrial, public or semi-public or
any non-agricultural use, in the prevailing draft or final
Regional Plan; or is intended to be used for any bona fide
non-agricultural user, subject to payment of regularization
premium at such per centum not exceeding 25 per cent. of the
market value of such land as per the Annual Statement of
Rates, as the Government may notify, from time to time, in the
Official Gazette:
Provided further that, save as otherwise provided in
section 31, if a transaction of transfer or partition of land
contrary to the provisions of this Act is regularized on the
ground that the land would be used for any bona fide non-
agricultural use, then failure to start such bona fide non-
agricultural use within 5 years from the date of regularization
shall result in forfeiture of such land by the Collector. Such
land thereafter shall be first offered to the holder or occupant
of a neighbouring contiguous survey number or recognized
sub-division of a survey number on payment of 50 per cent. of
the market value of such land as per the prevailing Annual

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Statement of Rates and three-fourth of the amount so

collected shall be paid to the defaulting person from whom
such land was forfeited to the Government and the remaining
one-fourth of the amount so collected shall be credited into the
Government account. Where occupant of such neighbouring
contiguous survey number or recognized subdivision refuses
to purchase the fragment, the fragment shall be auctioned by
the State Government and the proceeds thereof shall be
divided between the defaulting person and the Government in
the ratio of 3:1.

Explanation.- For the purpose of this sub-section, the term

"Annual Statement of Rates" shall mean the Annual Statement
of Rates published under the provisions of the Bombay Stamp
(Determination of True Market Value of Property) Rules, 1995
or any other Rules for the time being in force in this regard,
prevalent in respect of the year in which the order of
regularization is issued by the Collector or the year in which
such premium is paid, whichever is later."

Under sub-section (1) of Section 6, a notification

of standard area which has been issued under sub-

section(3) of Section 5 in respect of all fragments is

required to be entered as such in the Record of Rights or

when there is no Record of Rights in such village as

prescribed under Rule 11 of the said Act. Under sub-

section (2) of Section 6, unless and until the land is

notified as fragment, bar under Section 7 cannot be

pressed into service. The provisions of sub-section (2) of

Section 6 prescribe for giving of notice of entry in the

register of mutations. The procedure for entering notice

of entry in the mutation register is as per Section 150(2) of

the Maharashtra Land Revenue Code, 1966 and it requires

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complete copy of the entry to be displayed at a

conspicuous place in the chavadi and also requires written

intimation to be given to all persons of the entry in the

Record of Rights or register of mutations. This envisages

that notice thereof is required to be displayed at a

conspicuous place in the chavadi and also should have

been given in writing to at least the owners of that land.

Under sub-section (1) of Section 7, there is a complete

prohibition for transfer of such land which is prescribed

and qualified as a "fragment" for which a notice under sub-

section (2) of Section 6 has been given. This provision

clearly envisages that the bar under Section 7(1) gets

attracted only if the notice is given under sub-section (2)

of Section 6 of the said Act. Under Section 8,

fragmentation is prohibited and it states that no land in

any local area shall be transferred or partitioned so as to

create a fragment.

15. On a conjoint reading of the above provisions, it

is observed that there is a prohibition on transfer of any

fragment in respect of which a notice has been given

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under sub-section (2) of Section 6. In order to attract the

bar of Section 31 of the Fragmentation Act, the holding

must have been allotted under the Fragmentation Act.

Further, in order to protect the bar on prohibition of

transfer under Section 7(1) of the Fragmentation Act, a

notice given under sub-section (2) of Section 6 of the

Fragmentation Act is required to be shown. In the case of

Putlabai (supra), It has been held that the mere fact that

land is entered as a fragment in 7/12 extract does not

prohibit the transfer of the said land under the

Fragmentation Act.

16. On due consideration of the pleadings filed by

the petitioners in the respective petitions and the

applicability of the provisions of the said Act to the facts

and circumstances of the case, it has not been pointed out

before me that any notice under sub-section (2) of Section

6 has been issued in respect of the subject land which is

the subject matter of the various petitions before me. On

26.2.2020 i.e before the conclusion of final arguments,

respondent No. 1.2 Shripati R. Chavan filed an affidavit

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bearing Stamp No. 830 dated 25.2.2020 wherein the

following stand has been taken in paragraph Nos. 7 and 8

thereof:-

"7. I say that the Respondent submits that the sale deed executed
by the Respondent No. 2 in favour of the Petitioner is in
contravention of section 7, 8 & 9 of Bombay Prevention of
Fragmentation and Consolidation of Holdings Act, 1947. I say
that if for the sake of argument we assume that the Application is
not maintainable u/sec. 31 of the Act still the sale deed is
violating provisions of sec. 7,8 & 9 of the said Act.

8. I say that the Petitioner has not disputed that the slab for holding
which violates fragmentation in respect of the suit property. I say
that though section mandates notice shall be given under 6(2) of
the Act however that notice is required to be given by Authority
i.e. Talathi as per Sec. 150(2) of the Maharashtra Land Revenue
Code, 1966 (MLRC) to the owner of land and not to the
purchaser. I say that in present matter it is not disputed that
sealing for fragmentation is 20R therefore objection raised by the
Petitioner that notice under Section 6(2) is not given is not
justifiable and valid. I say that the Petitioner has totally
misinterpreted the provisions of sec. 6 and 7."

17. On 24.2.2020, both learned counsels for the

respective parties, as also the learned AGPs completed

their oral arguments. On that day, Mr. Pawar, learned

counsel for respondent Nos. 1.1 to 1.3 in all petitions

sought permission from this Court to inform the Court

about the status of the appeal from the civil suit

proceedings which came to be decided against respondent

No. 1's successors and also the status of notice issued

under Section 6(2) of the said Act. Accordingly, time was

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granted to him and the petitions were adjourned to

26.2.2020.

18. Respondent Nos. 1.1 to 1.3 have not been in a

position to show that any statutory notice was issued

under sub-section (2) of Section 6 of the said Act in respect

of the subject land. Further, the submissions on behalf of

respondents that the provisions of Sections 7, 8 and 9 are

required to be read and applied independent of the

provisions of sub-section (2) of Section 6 of the said Act

cannot be accepted in view of the various decisions of this

Court rendered on the above subject and which have been

reproduced (supra). The provisions of Section 6 are a

precursor and a pre-condition in so far as the applicability

of the provisions of Sections 7, 8 and 9 are concerned.

There cannot be an independent application of the

provisions of Section 6 on the one hand and the provisions

of Sections 7, 8 and 9 on the other hand. Sub-section (1)

of Section 7 clearly refers to transfer of a fragment in

respect of which a notice has been given under sub-

section (2) of Section 6 of the said Act and therefore, in

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order to attract the bar under sub-section (1) of Section 7,

it is mandatory that the subject land has been registered /

entered in the Record of Rights or the register of mutations

as a fragment and notice thereof has been given as

prescribed. In the present case, there has been a

complete non-application of mind on the part of both the

lower authorities on the above aspect which goes to the

root of the case. There is no discussion or finding by both

the lower authorities namely respondent Nos. 3 and 4 on

the aforesaid issue which is a mixed question of fact and

law. The Revisional Authority in para 6.1 of the impugned

judgment has come to the conclusion that under the

provisions of the said Act the Collector being the

appropriate authority has the power to set aside the sale

without giving a finding as to whether the subject land was

declared as a fragment, whether the subject land was

entered as a fragment in the Record of Rights and whether

the statutory notice in respect of the subject land was

given under sub-section (2) of Section 6 of the said Act.

This finding given in paragraph 6.1 goes against the very

basis of enactment of the said Act and the two bars

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envisaged under the said Act under sub-section (1) of

Section 7 and sub-section (1) of Section 31. It is trite to

notice that sub-section (1) of Section 7 refers to

"fragment" in respect of which notice has been given

under sub-section (2) of Section 6 and sub-section (1) of

Section 31 refers to "holding" allotted under the said Act.

Both the above legal statutory provisions clearly envisage

that unless and until the subject land is determined as a

"fragment" or "holding", the bar under these two

provisions will not apply in a given case. Both the lower

authorities failed to consider the bar given under the

aforesaid two provisions with reference to the facts of

respondent No. 1's case, viz; that the subject land was

never declared as fragment and no notice under sub-

section (2) of Section 6 was given in respect of the same.

It was required by both the lower authorities to call upon

respondent No. 1 to produce the material evidence in

respect of the aforesaid two issues before considering the

original application filed by respondent No. 1 in September

2017 under the provisions of Section 31 of the said Act,

after a period of almost 19 years from the date of

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execution and conveyance of the sale deed.

19. The submission on delay and laches made on

behalf of the petitioner deserve to be accepted. It can be

seen from the record that respondent No. 1 has been

prosecuting his right in respect of the subject land in the

civil court from 2010 onwards. Respondent No. 1 has

failed to prosecute his right of partition in respect of

entitlement of the subject land namely Gat No. 131. Only

after failing in his attempt to seek entitlement to the

subject land, respondent No. 1 initiated the present

proceedings by invoking the provisions of Section 31 of the

said Act for the first time on 7.9.2017 by filing various

applications against the petitioners (purchasers) in the

present group of petitions. Mr. Pawar fairly concedes that

the appeal in respect of RCS Suit No. 41/2017 is pending

adjudication before the District Judge, Kolhapur. He has

also placed on record a copy of the status report of the

pendency of Regular Civil Appeal No. 313 of 2017 which is

enclosed as "Exc. C" to the affidavit in reply dated

25.2.2020. Mr. Patil, learned counsel appearing for the

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petitioners does not object to the status report placed on

record by the respondents and submits that the petitioners

have not conveyed any specific information to him

regarding pendency of the aforesaid appeal. He,

therefore, submits to the order of the Court.

20. In view of the reasons recorded above, in Writ

Petition Nos. 8390 of 2019, 8342 of 2019, 8661 of 2019,

9519 of 2019, (st) (st) 13805 of 2019 and 13810 of 2019,

the orders dated 31.1.2018 passed by respondent No. 4 -

Sub Divisional Officer, Panhala Sub Division, Dist. Kolhapur

and orders dated 21.2.2019 passed by respondent No. 3 -

Additional Commissioner, Pune Division, Pune are quashed

and set aside. In Writ Petition (st) No. 13807 of 2019, the

order dated 15.2.2018 passed by respondent No. 4 - Sub

Divisional Officer , Panhala Sub Division, Dist. Kolhapur

and order dated 21.2.2019 passed by respondent No. 3 -

Additional Commissioner, Pune are quashed and set aside.

21. The Original Application bearing Nos. 100/2017,

101/2017, 102/2017, 105/2017, 106/2017 & 197/2017

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stand dismissed.

22. Writ Petition Nos. 8390 of 2019, 8342 of 2019,

8661 of 2019, 9519 of 2019, (st) 13805 of 2019, (st) 13807

of 2019 and (st) 13810 of 2019 are allowed.

23. Rule is made absolute in the above terms.

24. Parties to bear their own costs.

[ MILIND N. JADHAV, J. ]

Ravindra M.
Amberkar
Digitally signed by
Ravindra M. Amberkar
Date: 2020.07.02
14:43:46 +0530

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