S.B. Majmudar, J.
1. In this petition which is styled to be one under Article 226 of the Constitution and which in substance is one under Article 227 thereof the petitioner challenges an order passed by the Deputy Collector, Dabhoi in Concase No. 34 of 1976 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 Section 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 Section 7 of the Fragmentation Act and consequently the petitioner is ordered to be evicted from the said land as per the provisions of Section 9(3) 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 Section 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. 2's 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 Section 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 1-3-1969 was posted in the revenue record showing the name of the petitioner as the owner and occupant. As Section 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 Section No. 494/1, admeasuring 2 acres 19 gunthas, he was allowed to purchase the said Section 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 Section 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 there from as per Section 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 Section No., the transaction in his favour was not violative of the provisions of Section 7 and hence there was no question of passing any further order against him under Section 9. The Deputy Collector by his order dated 25-9-1975 took the view that Section No. 494/1 was situated in village Bhilapur while Section 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/- 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 Section 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 Section 15A was issued and when consolidation proceedings were started. Consequently, the matter was required to be reconsidered by the Deputy Collector. The petitioner's case is that the consolidation proceedings scheme was published by the Goverement 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 12-8-1976 that Section No. 49 was converted into block No. 44 under the consolidation scheme and as block No. 44 was in the sim of Nawapura, the petitioner's possession of contiguous Section 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 petitioner's 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.
4. The respondents who are Special Secretary and original owner of the disputed land are joined as respondent Nos. 1 and 2. They are duly served, but have not thought it fit to appear to contest these proceedings.
5. Mr. Shevade, learned Advocate for the petitioner, submitted before me that on the record of the case, it is clearly established that the disputed survey number which the petitioner purchased under the impugned transaction being Section No. 49 was just touching the petitioner's Section No. 494/1 admeasuring 2 acres-19 gunthas, though situated in the revenue limits of village Bhilapur. Mr. Shevade contended that for the purpose of Section 7 of the Act, whether contiguous survey number is situated in the same village or in different village is an irrelevant consideration. Mr. Shevade further contended that so far as consolidation scheme is concerned, it came to be initiated three years after the transaction i.e. in the year 1971 and initiation of such consolidation scheme three years after the sale transaction cannot have any vitiating effect on the sale transaction retrospectively. He further contended that in any case, the impugned orders are not passed by the authorities acting under the Act as per the provisions of Section 31 of the Act. On the facts of the case, no notice under Section 31 is given to the petitioner and it could not be given for the simple reason that at the time of the impugned transaction, consolidation scheme proceedings were not initiated in the area. Hence there was no question of consolidation proceedings being completed and final blocks being formed and allotted. He, therefore, contended that the impugned orders are patently bad in law and liable to be set aside.
6. Having given my anxious consideration to the contentions raised on behalf of the petitioner, I have come to the conclusion that the impugned orders proceed on total misconception of correct legal position. The Deputy Collector has in terms observed that the petitioner's Section No. 494/1 is contiguous to the disputed Section No. 49 which belonged to respondent No. 2. But as both survey numbers are situated in different villages, proceedings under Sections 9(1), (2) and (3) of the Act were required to be initiated against the petitioner. The Special Secretary in revision on the contrary has taken the view that the petitioner had failed to establish that he was occupant of the contiguous land at the relevant time. It appears that both the authorities below were proceeding under some patent misconception of law and facts. The impugned sale deed at Annexure E in terms shows that conveyed Section No. 49 which belonged to respondent No. 2 was situated just on the western side of petitioner's Section No. 494/1 and both these survey numbers were contiguous. That fact was accepted by the Deputy Collector and nobody had challenged that fact before the Special Secretary. Still however, curiously enough, the Special Secretary in revision held that it was an obligation of the petitioner to prove that he was holder of contiguous land and that he had not established as to whether he was occupant of that contiguous Section No. 494/1 when he purchased the disputed land. The Special Secretary completely ignored the clear recitals in the impugned sale deed itself which I have mentioned above. While describing boundaries of the land conveyed in the sale deed, it is in terms stated that on the eastern side of the land conveyed was situated Section No. 494/1 belonging to the purchaser, viz. the petitioner. It must, therefore, be held that the petitioner was already holding contiguous Section No. 494/1 when he purchased the disputed land under the impugned transaction. This fact appears to be well established on the record of the case and was in fact not challenged by any one before the authorities below. If that is so, the short question which survives for my consideration is as to whether merely because the holder of an agricultural S. No. conveys his survey number situated in another village, he violates provisions of Section 7(1) of the Act when he purchased a contiguous fragment number situated in the revenue limits of the neighbouring village. In order to answer this question, it is necessary to have a look at the provisions of Section 7 which reads as under:
7. (1) No person shall transfer any fragment in respect of which a notice has been given under Sub-section (2) of Section 6 except to the owner of a contiguous survey number or recognised sub-division of survey number:
Provided that the holder of such fragment may mortgage or transfer it to the State Government or a land mortgage bank or any other co-operative society as security for any loan advanced to him by the State Government or such bank or society, as the case may be.
(2) Notwithstanding anything contained in any law for the time being in force in any instrument or agreement, no such fragment shall be leased to any person other than a person cultivating any land which is contiguous to the fragment.
7. On the express language of Section 7(1), the prohibition contained therein gets J lifted in cases where the transaction of sale of fragment comes to be entered into between two owners of contiguous survey numbers. The prohibition contained in Section 7(1) does not proceed any further and it does not lay down that the owner of contiguous survey number must be the owner of such survey number situated in the same revenue village. It is, therefore, easy to visualise that the legislature has never contemplated any restriction on the right of owner of contiguous survey number to purchase adjoining survey number which might be a fragment and which might be situated in the revenue limits of adjoining village. The view taken by the respondents especially the Deputy Collector, if upheld, would amount to reading more words in Section 7(1) than are found in the said section and it would amount to re-writing the section, by insertion after words 'except to the owners of contiguous survey number' the further words 'situated in the same village'. In the absence of such additional words as employed by the legislature, it will not be open to any authority or even to a court of law to insert such words in the section and to extend the prohibition of the section accordingly. On the plain language of Section 7(1), it must be held that the prohibition against transfer of a fragment will stand lifted and will not vitiate the transaction between the owners of two contiguous survey numbers one of which may be a fragment even though the concerned fragment might be situated within the local limits of another revenue village. On the facts of the present case, it must be held that the impugned transaction under which fragment Section No. 49 of village Nawapura was transferred to the petitioner who was the owner of contiguous Section No. 494/1 of the adjoining village Bhilapura was not hit by the provision of Section 7(1) of the Act. Once that conclusion is reached, it is obvious that Section 9 cannot be pressed in service by the authorities against the petitioner. It must be kept in view that the notice to show cause as issued to the petitioner in pursuance of which proceedings in the present case were initiated in terns causes the alleged breach to Section 7 of the Act. No breach of Section 31 Was ever alleged against the petitioner. Consequently, the impugned orders pasH-1 pursuant to the show-cause notice issued to the petitioner on the assumption that the transaction in question was violative of Section 7 must be held to be null and void. The transaction in question cannot be said to be hit by Section 7(1) of the Act and hence, the petitioner cannot be evicted under Section 9(3) nor can respondent No. 2 be fined under Section 9(2) for having entered into the transaction which was not violative of Section 7(1) of the Act. In view of the aforesaid conclusion to which I have reached, the impugned orders will have inevitably to be set aside. Rule issued in the petition is accordingly made absolute. The impugned orders at Annexures C and D are quashed and set aside. It is held that sale of Survey No. 49 of village Nawapura by respondent No. 2 to the petitioner as per the sale deed dated 8-5-68 is not violative of the provisions of Section 7(1) of the Fragmentation Act. There will be no order as to costs.