Point of Law: Order passed by the Prant Officer, Gandhinagar and confirmed by the Secretary (Appeals) suffers from clear non application of mind while dealing with the proceedings initiated against the petitioner, and therefore, the orders, which are travelling beyond the scope of notice intending action under the particular provision of ‘the Act’ are required to be quashed and set aside for the total non application of mind and it is hereby so declared.

JUDGMENT :

1.0 By way of this petition the petitioner – purchaser of the land in dispute challenges the orders passed by the Prant Officer, Gandhinagar dated 29.01.1999 in Fragmentation Case No.33 of 1998 whereby for breach of Section 31(1)(b) of the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as ‘the Act’) rendered sale deed executed illegal under Section 9(1) of ‘the Act’, as also the seller was imposed penalty of Rs.250/- and the purchaser was ordered to be removed summarily from possession of the land in dispute, which came to be confirmed by the revisional authority, being Secretary (Appeals) in Revision Application, vide order dated 22.01.2008, filed under Section 35 of ‘the Act’.

1.1 The petitioner purchased the land admeasuring 1821 sq meters situated Mouje Village Adalaj Taluka Gandhinagar bearing Block No.244, out of total land being 14670 sq meters of land, vide registered sale deed bearing No.1845 dated 20.05.1997. The copy of the sale deed is annexed with the petition, which reflects that, out of the total 14670 sq meters of land, major chunk of land, being 12849 sq meters of land, came to be acquired by the competent authority for the purpose of public road, and therefore, the said sale deed is for the remaining portion of the land being 1821 sq meters.

1.2 As recorded in the order passed by the Prant Officer, Gandhinagar, concerned Mamlatdar while dealing with the mutation entries in the record of rights based on said sale deed found that since there is division of Block, that too, without prior permission, sale could not have been effected, and therefore, he forwarded all the papers alongwith the opinion to the Prant Officer, Gandhinagar for initiating proceedings under ‘the Act’, and therefore, from the Office of the Prant Officer, Gandhinagar, notice dated 15.12.1998 came to be issued that the sale transaction is in breach of Section 31(1)(b) of ‘the Act’, and therefore, why it should not be declared illegal. Pursuant to the said notice, Prant Officer, Gandhinagar heard the petitioner, recorded the deposition of the seller and after appreciation of the evidence led and material produced before it passed the impugned order, which came to be confirmed by the revisional authority.

2.0 Mr. S.K. Patel, learned advocate for the petitioner, submitted that the impugned order passed by the Prant Officer, Gandhinagar travels beyond the scope of notice itself. According to his submission, notice under ‘the Act’ came to be issued to the petitioner not for the transfer of the land but it was issued claiming the land under transfer to be sub-divided, without permission in writing of the Collector. It is further submitted that even the order refers about dividing the land and making boundaries for the purpose of demarcation, in village where consolidation of holding scheme is implemented, and therefore, sub-division of a Block cannot be effected without permission of the Collector, and therefore, he concluded that there is breach of Section 31(1)(b) of ‘the Act’ and rendered the transaction of sale in the present case liable to be declared illegal under Section 9 of ‘the Act’. It is, therefore, submitted that there is no question of sub-division of Block or land under the Block is not sub-divided by transfer of the land as alleged. He has further submitted that out of the whole Block, substantial portion of the land has been acquired as reflected from the sale deed itself for the purpose of public road i.e. Gandhinagar – Sarkhej Highway, and therefore, the remaining portion of the land, being 1821 sq meters, cannot be said to be a sub-division, that too, by the act of the party, which requires permission of the Collector under ‘the Act’. He has submitted that since there is no sub-division, as alleged, under Section 31(1)(b) of ‘the Act’ in purchasing the remaining land, after substantial portion is acquired by the competent authority for the purpose of road, from the original ow