Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(Bom) 631

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Milind N. Jadhav, J.
Shahaji Nivrutti Gaikwad - Appellant
Versus
Shripati Rangrao Chavan (since Deceased) - Respondent
Writ Petition No. 8390 of 2019, 8342 of 2019, 8661 of 2019, 9519 of 2019; Writ Petition (Stamp) No. 13805 of 2019, 13807 of 2019, 13810 of 2019
Decided On : 02-07-2020

Advocates Appeared:
Chetan G Patil, Advocate, Ruturaj Pawar, Advocate, M.G. Bagkar, Advocate, Datta H Pawar, Advocate, P.P. Pujari, Advocate, S.D. Rayrikar, Advocate, M.S. Bane, Advocate, A.R. Metkari, Advocate, Y.D. Patil, Advocate, A.B. Kadam, Advocate, N.C. Walimbe, Advocate

The provisions of Sections 7, 8, and 9 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 cannot be read and applied independent of the provisions of sub-section (2) of Section 6 of the Act.

Headnote:
PREVENTION OF FRAGMENTATION AND CONSOLIDATION OF HOLDINGS ACT, 1947 - SECTIONS 6, 7, 8, 9, 31 - MAHARASHTRA PREVENTION OF FRAGMENTATION AND CONSOLIDATION OF HOLDINGS (AMENDMENT) ACT, 2017 - SECTION 31A - BOMBAY STAMP (DETERMINATION OF TRUE MARKET VALUE OF PROPERTY) RULES, 1995 - RULE 11 - MAHARASHTRA LAND REVENUE CODE, 1966 - SECTION 150(2) - SALE DEED - VALIDITY - NOTICE UNDER SECTION 6(2) OF THE ACT - REQUIREMENT - DELAY AND LACHES - APPLICABILITY - REGULARIZATION OF TRANSFER OR PARTITION - CONDITIONS - INTERPRETATION OF STATUTES - REVISION OF ORDERS - POWER OF REVISIONAL AUTHORITY - SCOPE AND EXTENT - JUDICIAL REVIEW - WRIT JURISDICTION - SCOPE AND EXTENT.
Fact of the Case:

Petitioners challenged the concurrent orders passed by respondent authorities under the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (the "Act") declaring the sale deeds executed in their favor by respondent No. 2 as illegal and violative of the provisions of the Act. Respondent No. 1, since deceased and represented by his legal heirs (respondents 1.1 to 1.3), filed an application under Section 31 of the Act seeking cancellation of the sale deeds. Respondent No. 4, Sub Divisional Officer, allowed the application and declared the sale deeds to be illegal. Respondent No. 3, Additional Commissioner, confirmed the order. Petitioners contended that the impugned orders were passed after a delay of 19 years from the date of execution of the sale deeds and that respondent No. 4 ought not to have entertained the application. They also contended that the subject property was not classified as a "holding" allotted under the Act and hence, the restrictions on alienation of the property as contemplated under Section 31 could not be attracted to the present case. Respondent Nos. 1.1 to 1.3 contended that the sale deeds were in contravention of Sections 7, 8, and 9 of the Act and that the delay in filing the application was not fatal.
Finding of the Court:

The Court held that the impugned orders were unsustainable. It held that the provisions of Sections 7, 8, and 9 of the Act could not be read and applied independent of the provisions of sub-section (2) of Section 6 of the Act. It held that there was a complete non-application of mind on the part of both the lower authorities on the issue of whether the subject land was declared as a fragment and whether the statutory notice under sub-section (2) of Section 6 of the Act was given in respect of the same. It also held that the delay of 19 years in filing the application by respondent No. 1 was fatal and that the impugned orders were passed in violation of the principles of natural justice.
Issues: 1. Whether the impugned orders passed by the respondent authorities under the Act were sustainable? 2. Whether the provisions of Sections 7, 8, and 9 of the Act could be read and applied independent of the provisions of sub-section (2) of Section 6 of the Act? 3. Whether there was a complete non-application of mind on the part of both the lower authorities on the issue of whether the subject land was declared as a fragment and whether the statutory notice under sub-section (2) of Section 6 of the Act was given in respect of the same? 4. Whether the delay of 19 years in filing the application by respondent No. 1 was fatal? 5. Whether the impugned orders were passed in violation of the principles of natural justice?
Ratio Decidendi: 1. The provisions of Sections 7, 8, and 9 of the Act cannot be read and applied independent of the provisions of sub-section (2) of Section 6 of the Act. 2. There was a complete non-application of mind on the part of both the lower authorities on the issue of whether the subject land was declared as a fragment and whether the statutory notice under sub-section (2) of Section 6 of the Act was given in respect of the same. 3. The delay of 19 years in filing the application by respondent No. 1 was fatal. 4. The impugned orders were passed in violation of the principles of natural justice.
Final Decision: The Court allowed the petitions, quashed and set aside the impugned orders, and dismissed the original applications filed by respondent No. 1.

JUDGMENT

Milind N. Jadhav, J. - Rule.

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 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 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;

(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;

(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:-

S. No.	WP No.	Name of the Peti

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Judicial Analysis

2020 Supreme(Bom) 631

The provisions of Sections 7, 8, and 9 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 cannot be read and applied independent of the provisions of sub-section (2) of Section 6 of the Act.

Cases Referred (4)

Judicial Analysis