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Judgment
Ravi R. Tripathi, J.—The present petition is filed by (i) Manjulaben Sunderlal Vasava; (ii) Mahendrabhai Chhotalal Patel; (iii) deceased Soniben Kupjibhai Talshibhai, by her heirs petitioner Nos. 3/1 to 3/5. The facts of the case are that original landlord Soniben, daughter of Kupjibhai Talshibhai executed a Will on 14th January 1980 and by that Will some land out of land bearing Survey No. 32 admeasuring 1-Hectare-42-Are-70-sq.meters and Survey No. 35 admeasuring 0-Hectare-0-Are-9038 sq.meters were given to petitioner No. 1 and petitioner No. 2.
The facts set out in paragraph 1 of the petition and the facts set out in order passed by the Deputy Collector dated 31st July 1997, a copy of which is produced at Annexure ''A'' and the facts set out in order passed by the Secretary (Appeals) dated 29th October 1999, a copy of which is produced at Annexure ''B'' are not the same. Therefore, the facts as set out in the orders of the Deputy Collector and the Secretary (Appeals) are taken as true.
Learned advocate Mr. Kakkad for the petitioner vehemently submitted that the Deputy Collector has passed an order whereby the notice issued is quashed (filed). Against this order, it was the revision filed before the Secretary (Appeals) by the Government before whom it was contended that the proceedings could not have been initiated u/s 73AA of the Bombay Land Revenue Code (hereinafter referred to as, ''the Code'') and if at all any proceedings were to be undertaken they could have been under taken u/s 73A of the Code. ''Will'' is dated 14th January 1980 whereas Section 73AA of the Code was placed on the statute book only with effect from 1st December 1981.
On perusal of the order passed by the Secretary (Appeals), it is found that the Secretary (Appeals) has quashed the order passed by the Deputy Collector but has then remitted the matter back to the Collector, Surat for taking necessary action in the matter under the relevant provisions because it is recorded that there are various provisions of which breach is noticed by the transaction in question. Even if Section 73A of the Code is applicable to the facts of the case (to the land in question), it was within the power of the revenue authorities to provide for restrictions and necessary permission was required to be obtained. Besides, the Secretary (Appeals) has also recorded that as the land bearing Survey No. 32 was divided in two parts and part of it was given to petitioner No. 1 and part of it was given to petitioner No. 2. Therefore, a fragment was created and, thus, there was a breach of the provisions of the Prevention of Fragmentation Act.
Hence, this petition is found without any substance. The same is dismissed. Rule is discharged. No order as to cost.
At the request of learned advocate Mr. Kakkad, it is clarified that non-entertainment of this petition will not deprive the petitioners of their right to resort to remedy, if any, available to them.