( 1 ) THIS petition under Art. 226 of the Constitution challenges the order dated 3-1-1997 passed by the State Government in the Revenue Department dismissing Revision Application No. SRD-CON-Vadodara-25-94 against the order dated 13-7-1994 passed by the Deputy Collector, Dabhoi in Consolidation Case No. 7 of 1989 - Remand Case No. 16 of 1992 under the provisions of Sec. 9 of the bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "the Act" ).

( 2 ) THE facts giving rise to the filing of the present petition, briefly stated, are as under :-2. 1 The petitioners are the heirs of late Nayamatkhan Ahmedkhan Rathod (hereinafter referred to as "the deceased" ). The deceased purchased a parcel of agricultural land bearing Revenue Survey No. 35 admeasuring 0-48-56 H. R. A. , in the sim of village Marudiya, Taluka Tilakwada, District Vadodara. The land was purchased by the deceased from Nathabhai Karsanbhai Tadvi by a conditional sale deed dated 8-5-1970. Upon the death of Nayamatkhan, the present petitioners as heirs of the deceased are in possession of the land and have been cultivating the same. 2. 2 In the year 1985, the Deputy Collector, Dabhoi suo motu initiated proceedings under Sec. 9 of the Act on the ground that the deceased had purchased the aforesaid land, which was a fragment, in violation of the provisions of Sec. 7 of the Act. The petitioners resisted the said notice particularly on two grounds. Firstly, the proceedings were initiated after gross delay of 15 years and, therefore, issuance of notice was illegal. Secondly, the transfer was not hit by the provisions of Sec. 7 of the Act, because the deceased was the owner of adjacent land bearing Revenue survey No. 40. 2. 3 The Deputy Collector rejected the aforesaid contentions and the State government has also upheld the order of the Deputy Collector and, therefore, the petitioners have filed the present petition.

( 3 ) ON behalf of the petitioners, it is submitted that the land in question was purchased as far back as on 8-5-1970 and, therefore, the authority could not have initiated any proceedings after a gross delay of 15 years. In this connection, reliance is placed on the decision of this Court in the case of Ranchhodbhai v. State, 1984 (2) GLR 1225, and also on the unreported (now reported) decision dated 22-8-1996 of the Supreme Court in Civil Appeal No. 5023 of 1985 (Mohemad Kavi Mohamad amin v. Fatimabai Ibrahim, 1997 (6) SCC 71 ). Secondly, it is submitted that in any view of the matter since the deceased was the owner of the adjacent land, the transaction was not hit by the Act, but on the contrary saved by the proviso to Sec. 7.

( 4 ) IN reply, the learned Counsel for the respondents has submitted that when the transaction was found to be contrary to law, there cannot be any question of limitation as the transaction in contravention of Sec. 7 of the Act was void ab initio and such a transaction can be set aside after any length of time. Reliance is placed in this connection on the decision of this Court in the case of Patel Jividas Trikamdas and Ors. v. District Collector, Mehsana , 1996 (2) GLR 688 and on the decision of the Supreme Court in the case of State of Orissa v. Brundaban Sharma, 1995 suppl. (3) SCC 249. Secondly, it is submitted that deceased Nayamatkhan was not the sole owner of the adjacent land bearing Survey No. 40, but he was only one of the co-owners and, therefore, he was not exclusive owner of the said adjacent land. The subsequent partition of the adjacent land cannot improve the case of the petitioners as on the date of the transaction in question the purchaser of the fragment and owners of the adjacent land cannot be said to be the same person/s.

( 5 ) HAVING heard the learned Counsel for the parties, this Court is of the view that in such matters, if the authority exercises the powers under Sec. 9 of the act after a long lapse of time, the authority must consider the foll