( 1 ) THIS petition is filed by the persons who are co-owners of agricultural land survey No. 54/3 admeasuring O acre and 34-gunthas arid survey No. 54/4 admeasuring O acre and 31 gunthas situated in village Simarda in Petlad Taluka of Kaira District. The father of the petitioners sold the land on 10-12-1962 to opponents Nos. 2 and 3. As the transaction was hit by the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 the proceedings were stated. Ultimately transaction was held to be void and a fine of Rs. 100. 00 was inflicted on the transferer. However the Prant Officer Petlad by his order dated 17-1-77 and produced at annexure B allowed the land to continue with the purchasers who are opponents Nos. 2 and 3. The said order of the Prant Officer was confirmed by the Deputy Secretary Revenue Department Gujarat State on 9-6-1977. That order is produced at annexure C. This petition is filed to get these two orders produced at annexures B and C quashed.

( 2 ) ). It clearly appears that the two authorities thought that there was a discretion conferred upon them by sec. 9 (3) of the Act as there was evidence that opponents Nos. 2 and 3 had spent large amounts for irrigating the lands they may be continued in possession sec. 9 of the Act reads as under:" 9. (1) The transfer or partition of any land contrary to the provisions of that 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. " now so far as sec. 9 (1) is concerned the authorities held that the transfer was contrary to the provisions of the Act and therefore the transfer was void. The authorities under the provisions contained in sec. 9 (2) also inflicted a fine and that fine was Rs. 100. 00. The fine which could be levied under sec. 9 (2) could not exceed a sum of Rs. 250. 00 and therefore considering that the owner of the land was liable to pay such fine not exceeding Rs. 250. 00 the fine was levied at Rs. 100. 00. That order was perfectly legal. Thereafter when sec. 9 (3) was read the authorities felt that; though opponents Nos. 2 and 3 were unauthorisedly occupying and were wrongfully in possession of the land because the transfer by the Operation of law was void under the provisions of the Acts the Collector had power to summarily evict the person in possession. The wordings used in the section were as under:may be summarily evicted by the Collector. "the authorities thought that the word may used in the section gave them discretion and once the power was discretionary they considered that the discretion must be exercised in favour of the person who had paid money for the purchase of the land and who had spent a large amount for irrigating the land and that is how the discretion was exercised. The question now which is really of importance is whether the word may used in sec. 9 (3) gives any discretion to the authorities concerned or whether the word may is equivalent to the word shall or the word must.

( 3 ) ). I may first refer to a case of GOVINDSINGH RAMSINGHBHAI VAGHELA V. G. SUBBARAO ASSTT. COLLECTOR. DHOLKA AND OTHERS REPORTED IN 11 G. L. R. AT PAGE 897. The Division Bench of this Court in paragraph 17 observed as under:"17 RE. GROUND (F): It is no doubt true that the words used in sec. 9 sub- sec. (3) are only these namely Any person. . . may be summarily evicted by the Collector and the sub-section does not say in so many terms that having summarily evicted such person the Collector may restore possession of the land to the original owner but that is clearl