The Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act Notification Dated 8-8-2023

 https://drive.google.com/file/d/13M_EbaCAJc-MMJXSC58oeitG7qkhgTx8/view?usp=sharing

Print Page

Whether the transfer of Agricultural land is totally prohibited as Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act?

  At the outset, we may say that there is dichotomy between the contention of the first Respondent/ the second Defendant founded on the Fragmentation Act as mentioned above and also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9(1) of the Fragmentation Act makes void only the transfer or partition of any land contrary to the provisions of the said Act. The word 'transfer' is not defined under the Fragmentation Act though the expression 'land' has been defined thereunder. As per Section 2(5) of the Fragmentation Act, the term 'land' means, 'agricultural land whether alienated or unalienated'. {Para 15}

It will not be inappropriate to look into the object of the Fragmentation Act, in the context of the contentions. It runs as under:

Whereas it is expedient to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof;

18. Thus, obviously, it is not the object or purpose of the Fragmentation Act to totally prohibit or prevent transfer of land within any notified 'local area', but it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 930 of 2023 

Decided On: 04.05.2023

 Damodhar Narayan Sawale (D) through L.Rs.  Vs. Tejrao Bajirao Mhaske and Ors.

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0535/2023.

Read full Judgment here: Click here

Print Page

Whether Fragmentation Act is applicable if sale transaction was not intended to be acted upon?

As a matter of fact, the very applicability of the Fragmentation Act itself on sale transactions would depend upon the question whether the area in question falls under a Municipal Council or not and if it does not, then on the further question as to whether it falls within a 'local area' notified under the Fragmentation Act. Above all, the case attempted to be projected and proved by the second Respondent is that in regard to sale deed dated 04.07.1978 and the sale deed dated 21.04.1979 (Ext.128) they were never intended to be acted upon and in fact, they were never been acted upon. If that is accepted, then, there is absolutely no question of applicability of the provisions of 'the Fragmentation Act' as they would apply only in the eventuality of an actual transfer of land or partition of land subject to the satisfaction of other conditions. {Para 22}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 930 of 2023 

Decided On: 04.05.2023

 Damodhar Narayan Sawale (D) through L.Rs.  Vs. Tejrao Bajirao Mhaske and Ors.

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0535/2023.

Print Page

Whether it is mandatory to enclose no objection certificate For Registering Sale Of Fragmented Land?

 In our view, neither sections 34 and 35 nor section 69 of the Indian Registration Act empowers the State Government to issue directions to the Sub-Registrar who is the statutory authority under the Registration Act to desist the registration of the document on account of breach of any terms and conditions under the provisions of the Maharashtra Prevention of Fragmentation and Consolidation of Holding Act, 1947 or under any other law or without obtaining prior No Objection Certificate from the concerned authority as a precondition for the registration of any document. {Para 31}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 2111 of 2022

Decided On: 05.05.2022

 Govind Ramling Solpure and Ors.  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka and S.G. Mehare, JJ.

Author: R.D. Dhanuka, J.

Citation: MANU/MH/1601/2022

Print Page

Can one brother sell the property to a stranger if there is a preferential offer clause in the family settlement?

The question is to whether clause (5) in question is vague and unenforceable. We noticed that it provides that the property in question cannot be sold without concurrence of the three brothers in writing. If it is sold on the agreement of three brothers, the first preference is to be given to both other brothers. When it is stated that the property cannot be sold without concurrence of the three brothers in writing, there cannot be any doubt about its meaning. It means what it says which is that should a brother want to sell the property, the other two brothers must agree in writing. This clause cannot be described as vague. This is different from the aspect as to whether it is a clog on ownership or whether it is otherwise unenforceable but it cannot be described as being vague. The second contention is that when a decision is taken by the brothers permitting sale by a third brother, then, first preference is to be given to both the other brothers. What is intended is that after the written concurrence is obtained for selling in order that property is not sold to a third party/stranger, the other two brothers are given an opportunity to buy that property. This portion of the clause cannot also be described as vague as such. No doubt, it could be argued that the price at which the offer is to be made is not expressly mentioned. We have found that the clause is part of a family settlement between brothers. Courts ordinarily lean in favour of family settlement. Clause (5) itself does not contain an agreement to sell. It only contemplates a preferential offer being treated as a condition precedent to a brother affecting a sale outside of a family to a stranger. The price can only be understood as market price which would be the fair price. Therefore, we are of the view that the finding by the High Court that contract is vague cannot be sustained.

51. The first defendant has sold his share to the second defendant. Under the clause, can the first defendant sell to a stranger? He can sell provided there was a written concurrence by the other brothers for a sale and the offer is made to the other brothers and it does not fructify into a sale for reasons which are not attributable to the brother who wishes to sell. We find that there was an offer to the appellant by the first defendant. He has failed to act upon it. The other brother has no case about offer not being made and he has not raised any dispute over the sale to the second defendant. The perusal of the plaint reveals that the following case has been set up by the plaintiff: “7. that the defendant no.1 was interested in disposing his share in House no.19-A, Chandigarh and the plaintiff was already and willing to purchase the portion of the defendant no.1 and the plaintiff has been expressing his readiness willingness to purchase the share of the defendant no.1 through number of Regd. Letters, telephone and even on FAX. 8. That the defendant no.1 as well as his wife and son has been corresponding and discussing on behalf of the defendant no.1 promising to sell the property to the plaintiff as defendant no.3 did not show any interest to purchase the share of defendant no.1 nor he was interested at all to purchase the 1/3rd share of the defendant no.1 in the property.

9. that the plaintiff was shocked and surprised to learn that the defendant no.1 has sold his 1/3rd share of the property to defendant no.2 a tenant who was already occupying the said portion in a totally secret manner without informing the plaintiff and against the terms and conditions of agreement of family partition and minutes dated 31.3.1982 arrived between plaintiff, defendant no.1 and defendant no.3. the site plan showing the portion sold by the defendant no.1 to defendant no.2 (in red) is attached with this plaint.” (Emphasis supplied)

52. Thus, what is sought is specific performance. The appellant proceeded in the suit on the basis that there is a contract. A contract presupposes an offer which is accepted which means that there was an offer from the defendant. The correspondence, which we have referred to, fortifies us in holding that there was an effective offer and it did not materialize on account of any default on the part of the plaintiff.

53. Now, if the clause is broken down, it involves the following steps. A brother announces his desire to sell his share. He seeks written concurrence of the other brothers. A written concurrence is given. Then, the next step is reached. The selling brother offers to sell it to the other brothers. If they take the offer and the price is agreeable to the parties, sale follows. If the brothers do not wish to buy, the sale to the strangers is permitted. In the above process, in the facts of this case, it is clear that the appellant and the first defendant, without insisting on the written concurrence, went to the stage of offer to brothers. The appellant has led the first defendant to assume, even without a written concurrence, that the sale is permitted. The first defendant has acted clearly on the basis that the requirement of the first stage was not being insisted upon. Otherwise, he could have certainly obtained the concurrence. Having thus acted in the matter, and the second stage having been reached, when for reasons where the fault cannot be attributed to the first defendant, the offer, which the appellant himself describes as reasonable, was

not seized upon by the appellant, the third stage emerged. This meant that it became open to the first defendant to sell to a stranger and which is what he did by it selling it to the second defendant. Even proceeding to enforce the clause, we find that the appellant is clearly estopped from setting up the plea of absence of written consent of the brothers. It would be inequitable, particularly when we are considering the matter in an appeal sourced under Article 136 of the Constitution of India.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1524-1525 OF 2019

TILAK RAJ BAKSHI Vs  AVINASH CHAND SHARMA

Author: K.M. JOSEPH, J.

Dated: AUGUST 20, 2019.

Citation: (2020) 15 SCC 605.

Print Page

When fragment can be transferred as per fragmentation and consolidation Act?

 The only other section which prohibits transfer is Section 7(1) of the Fragmentation Act and it runs as follows:--

"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 subdivision of a survey number."

This provision clearly goes to show that this bar is attracted only if a notice is given under Sub-section (2) of Section 6 of the Fragmentation Act. It is not the contention in this case that any such notice was given under Sub-section (2) of Section 6 of the Fragmentation Act. The mere fact that this land is entered as a fragment in 7-12- extract does not prohibit the transfer of the land under the Fragmentation Act. I have so far pointed out that there are only two provisions in the Act inhibiting transfers of the fragments and I have so far pointed out that none of these two provisions are applicable in the instant case and so there can be no bar under the Fragmentation Act for enforeing the agreement of reconveyance.

Bombay High Court

Putalabai Lakhu Pawar And Ors. vs Shiva Dhondi Pawar And Ors. on 26 February, 1980

Equivalent citations: AIR 1981 Bom 9, (1981) 83 BOMLR 149

Bench: Deshpande

Print Page

When transfer of land is not prohibited under fragmentation and consolidation Act?

I have considered the submissions made by the learned Counsel for both sides I have also gone through the authorities cited by the learned Counsel for the respondent. In so far as the applicability of Section 8 of the Act is concerned, I am unable to accept the submissions made by the learned Counsel for the appellant on several counts. Firstly, perusal of the judgments and orders passed by both the courts below discloses that no specific arguments have been advanced on applicability of Section 8 of the Act. It is also pertinent to note that no specific issue about the applicability of Section 8 has been framed by the trial Court. In any event, the submissions made by the learned Counsel that the transaction in question is hit by Section 8 of the Act does not hold water in view of the fact that the appellant has not placed any material either before the lower courts or before this Court that Section 8 of the Act is applicable in the present case. A bare perusal of Section 8 of the Act makes it dear that the same applies to the land in local area and transfer or partition of any land in local area so as to create the fragmentation is barred. The learned Counsel for the appellant is unable to point out that the suit property was in any local area. Whether the suit property falls in local area is not a pure question of law and as such I am unable to agree with the submissions made by the learned Counsel for the appellant that since the applicability of Section 8 is a pure question of law the appellant is entitled to raise this question in the second appeal. Without any foundation being laid by the appellant, in my opinion, the appellant can not permitted to take shelter of Section 8 to defeat the claim of the respondent for getting the relief of specific performance. In any event, as rightly submitted by Mr. Gupta the learned Counsel for the appellant that the appellant has not placed any material to prove that the notification under Section 6 of the Act has been issued in respect of the said area, the reliance placed by the learned Counsel for the appellant on Section 8 of the Act is totally misplaced. Mr. Gupta is also right in contending that in any event Section 7 permits the transfer of fragmentation to contiguous owner of the contiguous survey number. In the absence of any specific pleadings by the present appellant that the agreement was hit by Section 8 of the Act, it is not possible to come to a finding that the findings given by both the courts below are perverse.

Bombay High Court

Namdeo Shamrao Waghmare vs Ramdas Shripat Waghmare on 30 September, 2004

Equivalent citations: 2005 (2) BomCR 829

JUDGE: Lavande A.P., J.

Print Page

Whether court can direct enquiry for mesne profits in absence of prayer?

So   far   the   contention   raised   by   the 
Counsel for the appellants that in absence of any 
pleadings  or  prayers  in the  suit,  enquiry  in  the 
mesne profits should not have been directed by the 
trial   Court   as   held   in   the   case   of  Ganapati 
(supra).   It   is   admitted   position   that,   the 
plaintiff   did   not   plead   or   pray   for   inquiry   of 
mesne   profits   and   therefore,   to   that   extent   such 
inquiry   was   directed   by   the   trial   Court   by 
direction   in   clause­3   of   its   order   dated 
12­12­2008   is   required   to   be   quashed   and   set 
aside.

SECOND APPEAL NO.245 OF 2011
WITH
CIVIL APPLICATION NO.12907 OF 2011
                                      
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD

Shankar  Manikrao Waghmare  V            Bhaurao  Bapurao Waghmare,

    
                       CORAM: S.S. SHINDE, J.
                       DATE : 8TH DECEMBER, 2011
     Citation: 2012(2)BomCR747, 2012(3)MhLj134   

Print Page

Whether Fragment can be transferred to owner of contiguous survey number or an owner of a recognised sub-division of a survey number?

 Shri Andhyarujina, the learned Advocate-General, while defending the vires of section 7(1) of the Act, has taken us through the salient provisions of the Act. He has pointed out that the Act has been brought into force to prevent fragmentation of agricultural holdings and to provide for better cultivation thereof. The object of the Act is to avoid fragment which are often brought about by transfers, which is destructive of agricultural efficiency. The Act aims at consolidation of a fragments into standard areas so as to achieve more and better agricultural produce. According to Shri Andhyarujina, the provision of section 7 of the Act does not lay down a rule of pre-emption by vicinage. It does not confer a right on an adjoining land-holder to purchase an adjoining holding. All that section 7 of the Act seeks to do is to prohibit a transfer of a fragment to a person other than an owner of a contiguous survey number or an owner of a recognised sub-division of a survey number. What section 7 of the Act seeks to do is to permit the amalgamation of a fragment into an adjoining holding so as to make it into a standard holding rather than confer a right on an adjoining holder to purchase the property. The concerned provision aims at achieving maximum agricultural output. The provision is in respect of an agricultural land and the same cannot be impugned even if the provisions of Article 19(1)(f) of the Constitution has continued to hold the field.

5. Section 2(4) of the Act defines "fragment" to mean a plot of land of less extent than the appropriate standard areas determined under the Act. Section 2(5) of the Act defines "land" to mean agricultural land, whether alienated or unalienated. Section 2(6) defines "local area" to mean any area notified as such in the Official Gazette under section 3 of the Act. Section 2(10) of the Act defines "Standard area" in respect of any class of land to mean the area which the State Government may from time to time determine under section 5 as the minimum area necessary for profitable cultivation in any particular local area, and includes a standard area revised under the said section.

Bombay High Court

Mallu Tatya Suryavanshi vs Shripati Rama Gondhali And Ors. on 10 October, 1994

Equivalent citations: 1995 (2) BomCR 544

Bench: A Agarwal, K Baam

Print Page