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IN THE HIGH COURT OF BOMBAY
Ashok Agarwal Smt. K.K. Baam, JJ.
Mallu Tatya Suryavanshi.... Petitioner.
Versus
Shripati Rama Gondhali and others.... Respondents.
Writ Petition No. 2092 of 1984, decided on 10-10-1994.
Advocates appeared :
V.B. Rajure, for the petitioner.
S.L. Kapse, for respondent No. 1.
V.M. Joshi, for respondent Nos. 2(a) 2(b).
T.R. Andhyarujins, Advocate General, with V.P. Malvankar, A.G.P., for respondent No. 3.
Held-Absolute bar is not created for transfer, transfer to a contiguous holder is permitted. A transfer by way of security for a loan is made permissible to the State Government, or a land mortgage Bank or a co-operative society as is provided under the proviso to Section 7 (1) of the Act. A transfer is made permissible to the State Government if an owner of a contiguous holding refuses to purchase as is provided under Section 10 (1) of the Act. There is no provisions in the Act which entitles a contiguous holder to claim an assignment in his favour on ground of vicinage. In the circumstances, held that the provisions of Section 7 (1) are not ultra vires Article 19 (1) (f) of the Constitution of India as it then provided.
The provisions of Section 7 (1) of the Act cannot be held as ultra vires even if the provisions of Article 19 (1) (f) of the Constitution had continued to be in the Constitution. The said provisions has since been deleted by the forty amendment to the Constitution, which has been brought about with effect from 20-6-1979. By the very same amendment. Article 31 of the Constitution has also been deleted and the same has been replaced by Article 300-A of the Constitution now provides that no person shall be deprived of his property have by authority of law. Hence as long as there is a valid law governing the rights to property, the same can no longer be challenged on the ground of infringement of fundamental rights to property as Article 19 (1) (f) and Article 31 of the Constitution, which conferred the rights, have since been deleted. Thus we find that the provisions of Section 7 (I) of the Act are ultra vires even in the face of Article 19 (1) (f) and Article 31 of the Constitution. They are more so after the deletion of the aforesaid Article 19 (1) (f) and 31. Once then provision is found to be just and proper even in the face of Article 19 (1) (f) and 31, the same cannot be impugned on the ground of Articles 14 and 21 of the Constitution this is a provision relating to agricultural lands. It seeks to consolidate fragments into standard holdings object is to imprope agricultural yield. Hence the provision cannot be held to be ultra vires.
Section 31 of the Act deals with the restriction on alienation and sub-division of consolidated holdings. These relates to holding which are allotted after consolidation of holdings are brought about. The same relate to agricultural lands in general, whereas Section 7 of the Act deals specifically with transfer of fragments. The exception which is carved out by sub-section (3) (iii) of Section 31 of the Act relates to transfer in respect of a holding contemplated under sub-section (1) of Section" 1 of the Act, i. e. holdi.1g after consolidation, whereas Section 7 of the Act speaks of transfer of any fragment. Hence the specific bar which is contained in respect of transfer of fragment in Section 7 (I) will not be saved by the provisions of Section 31 (iii) of the Act.
Articles 19 (1) (f) & 31, 14 & 21.
See Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947-Section 7 (1).
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. 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 :
"During the course of the argument, a question arose as to whether section 7(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, providing that no person shall transfer any fragment except to the owner of a contiguous survey number or recognised sub-division of a survey number is ultra vires the provisions of the Constitution. We have taken note of two deciesions of the Supreme Court in (Bhau Ram v. Baij Nath Singh)1, A.I.R. 1962 S.C. 1476 and in (Sant Ram v. Labh Singh)2, A.I.R. 1965 S.C. 314 which have held that the right of presumption, whether granted by statuse, or by custom, was ultra vires Article 19(1)(f) and Article 19(5) of the Constitution as it stood then. The provisions of Article 19(1)(f) have no doubt thereafter been deleted by the Constitution (Forty-fourth Amendment Act, 1978), but even then, the question would arise whether right of presumption would still be ultra vires Article 14 and Article 21 of the Constitution as being unreasonably oppressive so far as the seller is concerned as the same may compel him to sell properties at a depressed price. The further question that arose was whether the right, which was guaranteed under Article 19(1)(f) shall, after its deletion, be deemed to be comprised within the rights relating to personal liberty as guaranteed in Article 21. As this case involves these important questions of law relating to the vires of section 7(1) and other allied provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, we have thought it fit to issue notice to the learned Advocate-General of the State to appear and to assist us in disposing of the matter. Let notice be issued to the learned Advocate-General accordingly. Petition to be listed for hearing on 26th July, 1994."
In response to the notice, the learned Advocate-General has appeared and has argued the matter in respect of the vires of section 7 of the Act.
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 contr
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