The refusal of mutation entry certification based on the Fragmentation Act was jurisdictionally incorrect, meriting quashing of prior orders.

ORAL ORDER

1. Heard the learned counsels for the parties.

2. In the present Special Civil Application, the petitioners have prayed for quashing and setting aside the impugned order dated 30.11.2015 passed by the Special Secretary, Revenue Department, confirming the order dated 31.07.2014 passed by the Collector, which upheld the order dated 28.03.2011 passed by the Deputy Collector, whereby the mutation entry in favour of the petitioners based on the registered sale deed is not certified.

3. The learned counsel for the petitioners submits that the petitioners had purchased the land bearing Block No.322, situated at Village Pedhmala, Taluka Himmatnagar, District Sabarkantha. He submits that accordingly, the mutation entry No.1504 dated 08.10.2009 came to be entered in the revenue record. However, the said entry was not certified on the grounds that the land in question was part of a Block, the seller was non-agriculturist and the land in question was encumbered with a bank loan. The learned counsel submits that in appeal to the Deputy Collector, the Deputy Collector held that the sale transaction in question is in contravention of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 as it is a part of Block and therefore, on the said ground, the appeal of the petitioners came to be dismissed. That thereafter, in the revision proceedings before the Collector, the order of the Deputy Collector came to be upheld. Further, in the revision, the Special Secretary, Revenue Department upheld the order passed by the Collector.

3.1 The learned counsel for the petitioners submits that by catena of decisions, it is held that the authorities have to exercise the powers in the RTS proceedings in respect of mutation entry under the Gujarat Land Revenue Code and the revenue authorities cannot exercise any power under the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The learned counsel submits that in the present case, the mutation entry in favour of the petitioners has been rejected only on the ground that the land purchased was part of the Block No.322 and therefore, the mutation entry has not been certified, it being in violation of the Fragmentation Act. He, therefore, submits that the present Special Civil Application be allowed and the impugned orders be set aside.

4. Per contra, the learned AGP appearing for the respondent authorities submits that in the present case, the petitioners have purchased a part of land out of Block No.322 and therefore, the same is in violation of the Fragmentation Act. He submits that as the land was considered as fragment at relevant point of time, the revenue authorities have rightly refused to certify the revenue entry in favour of the petitioners even though the land was purchased by a registered sale deed. He submits that no error can be said to have been committed by the revenue authorities in not certifying the mutation entry in favour of the petitioners. He, therefore, submits that the impugned orders are just and proper and the Special Civil Application be dismissed.

5. Considered the submissions of the learned counsels for the parties and perused the documents on record.

6. It is not in dispute that the petitioners have purchased the subject land by way of registered sale deed and accordingly, the mutation entry No.1504 came to be effected in the revenue record. However, the said mutation entry was not certified on the ground that the land purchased by the petitioners was out of Block No.322 and the same was in violation of the Fragmentation Act.

7. In the case of Evergreen Apartment Co-operative Housing Society v