I have perused the copies of record of rights available on case
record. Record of rights nowhere shows that survey no.55/1
has been declared as a fragment. On this count, the order
passed by SDO on 19.2.1996 is extra legal.”
I have seen those reasons and I am fully satisfied with the above
reasons furnished by the revisional authority in the order dated 19.02.1996.
In fact, the revisional authority has corrected the mistakes made by the Sub
Divisional Officer by recording finding that there was violation of mandatory
provision of Section 7 and Section 6(2) of the Fragmentation Act, inasmuch as
the alleged fragment was never recorded in the record of rights so that the
public in general can have notice of such fragment before endeavouring to
purchase such alleged fragment. In other words unless the fragment is
recorded to the knowledge of one and all the 'fragment' cannot be treated as
one under law.
Smt. Tulsabai Deokaran Agrawal,
V
Additional Commissioner,
WRIT PETITION NO.3640 OF 2003.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CORAM : A.B.CHAUDHARI, J.
DATED : SEPTEMBER 26, 2013.
Citation;2014(1) MHLJ 921 Bombay
Heard.
2. By the present petition the petitioner has put to challenge a
1.
common revisional order dated 13th May, 2003 passed by Additional
Commissioner, Amravati Division, Amravati in Revision Petition Nos.
31/PFG/20002001 and 32/PFG/20002001 of Sonari, Tq. Murtizapur, Distt.
Akola by which the revisional authority set aside orders dated 19.02.1996 and
30.09.2000 in the mater of declaration of fragment and subsequent permission
3.
under Section 9 for purchase of the fragment.
In support of the writ petition Ms. Sukhada Tatwawadi, the
learned counsel for the petitioner contended that the first order was passed on
19.02.1996 by the Sub Divisional Officer holding that the respondent trust
purchased a fragment without permission and in violation of the provisions of
the Bombay Prevention of Fragmentation and Consolidation of Holdings Act,
1959 (hereinafter referred to as the ‘Fragmentation Act’ for brevity) and the
said order was not put to challenge in the revision. She further argued that
the revision was filed in the year 2000 and still there was no prayer to quash
the said order dated 19.02.1996 in the revision but prayer clause (b) related
only to the order dated 30th September, 2000 which was made under Section 9
of the Act. The order dated 19.02.1996 was not specifically challenged in the
prayer clause though there is a reference in prayer clause (a) to call for the
record in respect of the said order also. She, however, submitted that the order
made in the year 1996 could not be put to challenge in the year 2000 and was
beyond limitation. The learned counsel for the petitioner then contended that
there was no issue raised about want of notice under Section 6(2) of the
Fragmentation Act and therefore, the revisional authority could not have
interfered with the orders which have been set aside.
4.
Per contra, the learned counsel for the respondent opposed the
5.
authority as legal, correct and proper.
writ petition and supported the impugned order passed by the revisional
I have perused the impugned orders, so also the record and
proceedings. The prayers in the revision read thus :
6.
call for the record in R.C. No.PFG31/Sonori/1/9396
from the file of the respondent no.1 decided on
19.2.1996 and 30.9.2000.
b) “a) quash and set aside the impugned order passed on
30.9.2000 in R.C. No.PFG31/Sonori/1, 9596, being
illegal, invalid and improper.
c) grant any other consequential relief which this Hon'ble
Authority deems fit and appropriate in the
circumstances of the matter and also in the interest of
justice.”
It is not in dispute that order dated 19.02.1996 was passed by
the Sub Divisional Officer in the proceedings which were registered on a
complaint made by the villagers of village Sonori for cancellation of the sale
deed of the alleged fragment and not for permission to purchase under Section
9(2) of the Fragmentation Act at the behest of the petitioner. The petitioner
thereafter filed an application under Section 9(3) of the Fragmentation Act for
purchase of the said alleged fragment and it is on that application order dated
30.09.2000 was passed granting permission to the petitioner. Thus, the second
order i.e. dated 30.09.2000 was the effective order to deprive the purchaser of
the suit property since there is a direction to the purchaser of the suit property
and the original owner to effect sale deed in favour of the petitioner. Thus, it
is clear that the effective order was order dated 30.09.2000 which was
immediately challenged in the revisional jurisdiction. Even otherwise, order
dated 30.09.2000 was fully dependent on the earlier order dated 19.02.1996.
The said order dated 19.02.1996 could be examined by the revisional
authority though there is no prayer clause for setting aside order dated
19.02.1996, looking to the language of Section 35 of the Fragmentation Act.
Section 35 of the Fragmentation Act is reproduced below :
“35. Power of State Government or Commissioner to call
for proceedings.
The State Government or the Commissioner in respect of such
matters as the State Government may by general or special
order specify in this behalf may at any time for the purpose of
satisfying itself or himself as the case may be, as to the legality
or propriety of any order passed by any officer under this Act
call for and examine the record of any case pending before or
disposed of by such officer and may pass such order in
reference thereto as it or he, as the case may be, thinks fit.”
7.
In the case of Everest Apartments Cooperative Housing Society vs.
State of Maharashtra, reported in AIR 1966 SC 1449 the Supreme Court
observed thus in para 5 & 6 :
“5. There is no doubt that S. 154 is potential but not
compulsive. Power is reposed in Government to intervene to do
justice when occasion demands it and of the occasion for its
exercise, Government is made the sole judge. This power can be
exercised in all cases except in a case in which a similar power
has already been exercised by the Tribunal under S. 149(9) of
the Act. The exception was considered necessary because the
legality or the propriety of an order having once been
considered, it would be an act of supererogation to consider the
matter twice. It follows, therefore, that Government can
exercise its powers under S. 154 in all cases with one exception
only and that the finality of the order under S. 23(3) does not
restrict the exercise of the power. The word 'final' in this
context means that the order is not subject to an ordinary
appeal or revision, but it does not touch the special power
legislatively conferred on Government. The Government was
in error in considering that it had no jurisdiction in this case
for it obviously had.
6. .... As Government is not compelled to take action, unless it
thinks fit, the party who moves Government cannot claim that
he has a right of appeal or revision. On the other hand,
Government should welcome such applications because they
draw the attention of Government to cases in some of which,
Government may be interested to intervene. In many statutes,
as for example the two major procedural Codes, such language
has not only not inhibited the making of applications to the
High Court, but has been considered to give a right to obtain
intervention, although the mere making of the application has
not clothed a party with any rights beyond bringing a matter
to the notice of the Court. After this is done, it is for the Court
to consider whether to act or not. The extreme position does
not obtain here because there is no right to interference in the
same way as in a judicial proceeding. Government may act or
may not act ; the choice is of Government. There is no right to
relief as in an appeal or revision under the two Codes. But to
say that Government has no jurisdiction at all in the matter is
to err. and that is what Government did in this case.”
The language of Section 35, quoted above, is similar and I have no hesitation
to take a view, in the light of the said decision of the Supreme Court that there
is power in the revisional authority to examine the validity of the relevant
orders when it has called for the record as per prayer (a) of the revision
application. The submission made by the learned counsel for the petitioner,
therefore, cannot be accepted. In the instant case, the revisional authority has
found a major legal defect in the order made by the subordinate officer for
which he has given reasons. I quote those reasons hereunder :
“In the instant case there is nothing on record which shows
that survey no.55/1 was declared as a fragment and was
recorded as a fragment in record of rights. In the instant case,
provisions of Section 7 are not attracted because no notice has
been given under section 6(2) in respect of survey no.55/1.
Since section 7 is not attracted, question of taking action
under section 9 does not arise. Hayatual Ulum Welfare
Education Society had purchased survey no.55/1 relying on
record of rights.
I have perused the copies of record of rights available on case
record. Record of rights nowhere shows that survey no.55/1
has been declared as a fragment. On this count, the order
passed by SDO on 19.2.1996 is extra legal.”
I have seen those reasons and I am fully satisfied with the above
reasons furnished by the revisional authority in the order dated 19.02.1996.
In fact, the revisional authority has corrected the mistakes made by the Sub
Divisional Officer by recording finding that there was violation of mandatory
provision of Section 7 and Section 6(2) of the Fragmentation Act, inasmuch as
the alleged fragment was never recorded in the record of rights so that the
public in general can have notice of such fragment before endeavouring to
purchase such alleged fragment. In other words unless the fragment is
recorded to the knowledge of one and all the 'fragment' cannot be treated as
one under law. The said reasons are supported by the said decision of the this
Court in the case of Putalabai vs. Shiva Dhondi, reported in 1980 Mh.L.J. 547.
Even otherwise the language of Sections 6 and 7 spells out mandatory nature
thereof and the purpose is obvious as stated by me herein before.
Section 35 or any other ancillary provisions do not provide for
8.
any limitation. It is true that in the absence of any provision for limitation the
revision should be entertained only if it is within reasonable period. The
reasonable period must depend on the facts of each case and there cannot be
any straightjacket formula to find out what is the reasonable period. In the
instant case, as earlier held by me, the first order dated 19.02.1996 was in the
nature of mere declaration and next order made in the year 2000 was the
effective order granting permission to purchase thereby disturbing rights of
original owner as well as the earlier purchaser of the alleged fragment. It is in
that context, I am inclined to hold that the revision was filed within reasonable
period. In the result, I find no merit in the writ petition. Hence, I pass the
following order.
ORDER
Writ Petition No. 3640 of 2003 is dismissed. No order as to costs.
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