S.B.MAJMUDAR - (1.)In this petition which is styled to be one under Art. 226 of the Constitution and which in substance is one under Art. 227 thereof the petitioner challenges an order passed by the Deputy Collector Dabhoi in Concase No. 34/76 dated 12-8-1976 and as confirmed by the Special Secretary Revenue Department on 23-3-1977 annexures C and D respectively. By the impugned orders passed under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 (hereinafter referred to as the Fragmentation Act) the transaction regarding agricultural land bearing S. No. 49 admeasuring in area 1 acre 32 gunthas of village Nawapura taluka Dabhoi of Baroda district has been held to be contrary to the provisions of sec. 7 of the Fragmentation Act and consequently the petitioner is ordered to be evicted from the said land as per the provisions of sec. 9 of the said Act.
(2.)The grievance of the petitioner can be better appreciated in the background of a few relevant facts which deserve to be noted at the outset. Respondent No. 2 herein was the original owner of the land in question. The petitioner was the owner of adjoining piece of agricultural land bearing S. No. 494/1 which is contiguous to survey number 49 However it is a fact established on the record of this case that respondent No. 2s S. No. 49 was within the revenue limits of village Nawapura while the contiguous Survey no. 494/1 belonging to the petitioner was within the limits of village Bhilapur. The petitioner purchased S. No. 49 from respondent No. 2 by a registered sale deed dated 7-5-1968 for a consideration of Rs. 7 500 Thereupon entry No. 181 dated 1 was posted in the revenue record showing the name of the petitioner as the owner and occupant. As S. No. 49 was mentioned as fragment in the revenue record the said deed itself stated the said fact and further recited that as the petitioner was the owner of contiguous S. No. 494/1 admeasuring 2 acres 19 gunthas he was allowed to purchase the said S. No. 49 and the said transaction would not be contrary to law. The case of the petitioner is that on the purchase of the said land by him possession thereof was simultaneously delivered by respondent No. 2 to him and thereafter the petitioner is continuously in possession of the said land. Somewhere in the later part of 1975 the Deputy Collector initiated proceedings being case No. 7 of 1975 against the petitioner and respondent No. 2 on the allegation that sale of the land in question by respondent No. 2 to the petitioner was violative of the provisions of sec. 7 of the Fragmentation Act and hence the said land was liable to be restored in possession of the original occupant viz. respondent No. 2 after evicting the petitioner therefrom as per sec. 9 of the said Act. Notice to show cause was issued to the petitioner as well as to respondent No. 2. The petitioner resisted the said proceedings and submitted that as he was the owner of contiguous S. No. the transaction in his favour was not violative of the provisions of sec. 7 and hence there was no question of passing any further order against him under sec. 9. The Deputy Collector by his order dated 25-9-1975 took the view that S. No. 494/1 was situated in village Bhilapur while S. No. 49 was situated in another village Nawapura and hence such a transaction cannot be sustained under the provisions of the Act. He declared the sale to be void and fined the second petitioner respondent a sum of Rs. 50.00 and also directed the petitioner to hand over possession of the land in question to respondent No. 2.
(3.)The petitioner preferred revision application before the State Government under sec. 35 of the Act. The said revision application came to be allowed by the then Special Secretary taking the view that it was not clearly established as to when notification under sec. 15A was issued and when consolidation proceedings were started. Consequently the matter was required to be reconsidered by the Deputy Collector. The petitioners case is that the consolidation proceedings scheme was published by the Government in or about 1971. The said proceedings were subsequently confirmed; while the transaction in favour of the petitioner took place years before in 1968 and hence subsequent initiation of consolidation proceedings cannot have any effect on the transaction in question. The Deputy Collector on remand held by his order dated 12 that S. No. 49 was converted into block No. 44 under the consolidation scheme and as block No. 44 was in the sim of Nawapura the petitioners possession of contiguous S. No. 494/1 of village Bhilapur had no effect on the validity of the transaction and as these two survey numbers one belonging to the petitioner and another belonging to second respondent belonged to two different villages they could not be consolidated and hence the petitioners transaction could not be upheld. The aforesaid order of the Deputy Collector was again taken in revision before the Special Secretary who by his order dated 23-3-1977 was pleased to dismiss the revision application by holding that the petitioner had failed to establish that he was occupant of contiguous survey number. It is thereafter that the petitioner has come to this court by way of the present proceedings.