The voidability of transfers contrary to the Act and the obligation of revenue officers to refuse mutation based on such void transfers.

JUDGMENT

Rohit B. Deo, J. - Heard Shri Anand Jaiswal, the learned senior counsel for petitioner, Shri Nandesh Deshpande, the learned counsel for respondent 6 and Shri C.A. Lokhande, the learned AGP for respondent 1 to 3.

2. Rule. Rule made returnable forthwith with consent.

3. The petitioner is an agriculturist who contends that in the year 2005 he executed a nominal saledeed qua 10 R agricultural land in favour of late Sudhakar Ganpat Bawane father of respondents 6 and 7 as security for a hand loan.

4. The petitioner contends that the loan was repaid, and before Sudhakar Bawane could execute the deed of reconveyance, he expired in the year 2007.

5. The petitioner contends that taking undue advantage of the nominal saledeed, the respondents 6 and 7 applied for mutation of their names as owners of the said 10 R portion in the revenue record, and the respondent 5 Talathi vide mutation entry 1205 recorded the names of respondents 6 and 7 in the revenue record and sought the approval of respondent 4 Circle Officer.

6. The petitioner objected to the entry. The objection is predicated on the assertion that the saledeed was a nominal document of security and no right or interest in land was intended to be transferred. It is not in dispute that the Circle Officer suspended the mutation entry by order dated 16.3.2015 albeit for reasons other than the reasons spelt out in the objection. The Circle Officer held that the saledeed is hit by the provisions of the Maharashtra Prevention of Fragmentation and Consolidation of Holding Act, 1947 ("Act" for short).

7. Respondents 6 and 7 preferred an appeal before the respondent 3 Sub Divisional Officer who by order dated 6.7.2015 confirmed the view of the Circle Officer. Respondents 6 and 7 preferred an appeal before the respondent 2 Additional Collector, Yavatmal which is allowed by order dated 27.4.2016. The Additional Collector held that in view of the provisions of section 149 and 150 of the Maharashtra Land Revenue Code, 1966 ("MLR Code"), it is mandatory for the revenue officer to effect mutation in the revenue record if the mutation is sought on the basis of a registered document. The petitioner preferred a revision under section 257 of the MLR Code which is rejected by the respondent 1 Divisional Commissioner by order dated 23.5.2016.

8. The revisional authority concurred with the view of the Additional Collector that unless the saledeed is declared illegal by the competent Court, the revenue officer is obligated to effect the mutation entry on the basis of such registered saledeed.

9. Being aggrieved by the view taken by the Additional Collector in appeal and the Divisional Commissioner in revision, the petitioner is invoking writ jurisdiction.

10. Shri Anand Jaiswal, the learned senior counsel appearing on behalf of the petitioner took me through the provisions of the Act extensively to buttress the submission that the saledeed is in contravention of the provisions of section 7 and is void.

11. Shri Anand Jaiswal, the learned senior counsel invited my attention to sections 7 and 9 of the Act which read thus:

7. Transfer and lease of fragments.

(1) 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 recognised subdivision 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 cooperative 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.

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

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