fragmaneation white paper

Electronic copy available at: http://ssrn.com/abstract=1551830

Research Paper on Nature & Scope of Bombay Prevention of Fragmentation and consolidation of land Holdings Act, 1947

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* Varsha Rajora, 3rd Year Student B.A. L.L.B (Hons), Institute of Law, Nirma University (ILNU) Ahmedabad

Electronic copy available at: http://ssrn.com/abstract=1551830


INDEX

CHAPTER-1

Introduction of Topic Nature and Scope of the Study Objectives of the study Hypothesis Significance of the study Research Methodology

CHAPTER-2

Legal Provisions

CHAPTER-3

Judicial Trend

CHAPTER-4

Conclusion & Suggestions

BIBLIOGRAPHY

Books

Journals

Reports

Web References

Case Laws


CHAPTER-1


Introduction

The Bombay Prevention of the Fragmentation and Consolidation of Land Holdings Act,

1947 was enacted by the legislature at the initial stages of independent India to prevent the

fragmentation of agricultural land holdings and to provide for the consolidation of agricultural

land holdings for the purpose of the better cultivation.

The Bombay Prevention of Fragmentation and Consolidation Act, 1947 provides for

State intervention for consolidation of fragments irrespective of the willingness of the people.

This act also provides various incentives for co-operation such as wavering of consolidation fee

charged by the government and granting of loans to agriculturists whose lands have been

consolidated. The East Punjab Holdings Act 1948 empowered the Punjab Government to take up

consolidation in any area either on the request of the holders of an area or, on its own initiative.

The Bihar Consolidation of Holdings and Prevention of Fragmentation Act 1956, prohibits the

creation of future fragments, a certain minimum area necessary for profitable cultivation to be

defined as a standard minimum area and all holdings below that size to be treated as fragments1.

An immediate reason for the overall patterns of land fragmentation in rural India is the

prevalence of the Zamindari system in many of the river valleys. The Zamindari system was

characterized by highly inequitable pattern of land holdings with very few landowners holding

onto most of the cultivatable land. To correct this inequitable pattern of land holding, the Indian

Constitution (enacted in 1949), granted powers to different states to enact land redistribution

measures. These efforts were supplemented in the early 1970s by the enactment of Land Ceiling

Acts, which placed upper limits on land holdings and required the surplus land to be redistributed

among the landless. This process along with the fragmentation through acts of succession from

one generation to the next has reduced size of land holdings and led to fragmentation of land

holdings of farmers2.

1 http://rspas.anu.edu.au/papers/asarc/WP2005_01.pdf

2 http://rspas.anu.edu.au/papers/asarc/WP2005_01.pdf


One of the main factors leading to low agricultural productivity is fragmentation of

land into small size of holdings. The growing pressure of population on land and customary

laws of inheritance are mainly responsible for the sub-division and fragmentation of holdings.

The sub-divided holdings are not only small in size but are scattered. This makes agriculture

uneconomic and deprives the cultivator of the advantages of large scale cultivation. It was,

therefore, felt necessary by the Government that consolidation of fragmented lands should be

fostered through legal enactment. It was also decided that further sub-division of holdings

into uneconomic patches should be prevented. The State Government passed an enactment,

viz...the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, to

deal effectively with the situation. This Act provides for prevention of fragmentation and

consolidation of holdings. For this purpose, it provides for determination of local standard

areas, minimum size of an individual fragment and actual consolidation of holdings. It also

provides for prevention of further sub-division of farms which are of less than the standard

size. A standard area in respect of any class of land means the area which the Government

determines, from time to time as the minimum area necessary for remunerative cultivation in

any area in the district. A plot of land smaller than the standard area fixed by this Act is to be

treated as a fragment under S 2(4) of the Act and all such fragments are to be entered in the

Record-of-Rights by making an omnibus mutation thereof in it as per section 6 (1) and (2) of

the Act. The Act under S 6(1) prescribes that fragments must be entered in the Record-of-

Rights and other village records. If noting of fragments in Record-of-Rights has not been

done in any of the villages, the necessary instructions in detail regarding noting of fragments

in the Record-of-Rights in respect of land falling below the aforesaid prescribed standard

areas have to be issued to the Tahsildars.3.

Naturally, with the implementation of the first part of the Bombay Prevention of

Fragmentation and Consolidation of Holdings Act, 1947. the creation of fragments (i.e. sub-

division of the land below the extent of standard area determined under Section 5 of the Act)

has been stopped and with the implementation of the second part of the Act, the fragments

3 http://www.maharashtra.gov.in/english/gazetteer/BHANDARA/agri_holdings.html


already created and the scattered lands of the agriculturists has been consolidated, in such a

manner that-

(i) The time and energy of the agriculturist will not be wasted and agriculturist will

plough the land easily

(ii) That each land owner will get the land in equal value of his pre-consolidation

holdings

(iii) That the rights of tenants will be protected.

One of the most important benefits which the agriculturist would get from the

consolidated land is that he could keep a watch over the crops more carefully than in

scattered pieces, and further he could avoid the litigation arising out of the boundary disputes

provided that the implementation of the scheme of consolidation is taken up by the

agriculturists in the national spirit and the scattered holdings are either exchanged or

consolidated and amicably accepted.

There are some fixed principles such as exchange of lands of the same type, namely

jirayat or bagayat. The scheme of consolidation is first prepared in accordance with the rules

and provisions laid down under the Bombay Prevention of Fragmentation and Consolidation

of Holdings Act, 1947. The scheme is then sent to the consolidation officer for his approval

and publication under Section 19 (1) of the Act for one month. If any objections are received

within the stipulated period, the consolidation officer hears the objections and republishes the

scheme under Section 19 (2) of the Act, after taking into account the valid objections. The

consolidation officer then submits the scheme for confirmation to the Settlement

Commissioner and Director of Land Records. When the scheme is duly confirmed by the

Settlement Commissioner and Director of Land Records, the assistant consolidation officer

proceeds to execute it in the village.


After execution of the schemes, the assistant consolidation officer proceeds with the

post-consolidation work such as

(1) Rewriting of Record-of-Rights.

(2) Preparation of Kami-Jasti patraks.

(3) Printing of village maps.

(4) Issue of transfer certificates.

(5) Preparation of the cyclostyled copies of the schemes.

After the completion of the above work, copies of the confirmed schemes are sent to

the respective offices, i.e., tahsildar, district inspector of land records and Photozinco Press

and the certificates under Section 2 (1) of the Act are distributed to the Khatedars of the lands

and are duly registered free of cost4.

History of the Act

In the erstwhile Bombay Province, efforts were made to improve Indian agriculture under

Bombay Small Holdings Bill, 1927. This bill forestalled many of the provisions of the Bombay

Prevention of Fragmentation and Consolidation of Holdings Act. 1947. Though the bill had some

good features, it had to be dropped owing to strenuous opposition both within and outside the

Council. This was followed by another bill which was finally enacted by the popular ministry of

Bombay State in 1947 viz. Bombay Prevention of Fragmentation and consolidation of land

holdings Act, 1947.

Process of Prevention of Fragmentation and consolidation of land holdings

For the purpose of prevention of fragmentation of land, the Bombay Prevention of

Fragmentation and consolidation of land holdings Act, 1947 was enacted. The Government of

Gujarat, after its inception in 1960, adopted the Act (with certain modifications through

Amendments) for the prevention of Fragments in Gujarat. The proceedings carried out by the

4

http://www.maharashtra.gov.in/english/gazetteer/Beed/agri_conso_holding.html


consolidation officer for the prevention of fragments and for consolidation of land holdings are

of administrative nature and not of judicial nature or quasi-judicial nature. When a Government

intends to determine local and standard areas for the prevention, it has to issue a notification

under Sec 3 of the Act in the official Gazette specifying the village, Mahal, Taluka or Tahsil. The

State Government may appoint a District Advisory Committee for determination of local and

standard areas. The State Government may, after such inquiry settle for any class of land in any

local area or minimum area that can be cultivated profitably as a separate plot. Also, the State

Government shall by notification publish the minimum areas provisionally settled by it under S

4(1) and invite Objections under S 4 (2) of the Act. The State Government, after considering the

objections received within 3 months, determines the standard area for each class of land in such

local area under S 5(1) of the Act. The State Government may revise the Standard Area

determined under S 5(2) of the Act and publish the revised Standard area under S 5 (3) in

Official Gazette for public notice. On Notification under Sec 5(3), all fragments in the local area

shall be entered as such in the Record of Rights or in village Records under Sec 6 of the Act.

Also, Notice of every entry in the Record of Rights must be given under Sec 6 (2) of the Act.

Once the notice has been issued under Sec 6(2), no person shall transfer, partition or lease any

fragment under Sec 7 & 8 of the Act. In case of any transfer or partition of any land which is

contrary to the provisions of the act shall be considered void and for such transfer or partition,

the owner shall be liable for fine not exceeding Rs 250/- under S 9 of the Act. But if any person

is found to be under unauthorized occupancy of land, he shall have to evict the premises and the

act committed under such wrongful possession have to be considered void under the provisions

of the Act. Further, any owner may transfer his fragment to government on payment of due

compensation (determined by Land Acquisition Act, 1894) under S 10 & 12 of the Act.

With the object of consolidating land holdings for better cultivation, the State

Government may make a scheme for consolidation of land under Sec 15 of the Act. The scheme

may be of its own motion or it may declare it by notification in official Gazette. On publication

of Such Notification, the State Government may appoint a Consolidation Officer who shall, in

consultation of village committee (U/S 15 A), proceed to prepare a scheme for the consolidation

of land holdings. The Scheme Prepared by the Consolidation officer shall provide for the

compensation to the owner and the amount of the compensation is to be determined through


Land Acquisition Act, 1894. During preparation of scheme, if it appears to consolidation officer

that it is necessary to amalgamate any road, street, lane or path with any holding in the scheme,

he shall make declaration to that effect under S 17 (1) which shall be published with draft of the

scheme. Any member may raise objections to that effect within 30 days after the publication of

such declaration under S 17 (3) of the Act. The consolidation officer, after considering the

objections, submit the draft of the scheme to the settlement officer under sec 17 (4) with

objections raised and recommendations received. The decision of the settlement officer shall be

considered final in this regard. The lands which are reserved for the public purposes are not

taken for this purpose (S 18). When the scheme is ready for publication, the consolidation officer

shall publish it in the prescribed manner. If any person is likely to be affected by the scheme, he

may raise objections within 30 days of publication of scheme. After considering the objections,

the consolidation officer submits the scheme with remarks to the settlement commissioner. The

commissioner shall publish the scheme after amending it (S 19). If no objections are raised

within 30 days of publication, the settlement officer shall finalize and confirm the scheme under

S 20 (1) of the Act. If objections are raised within 30 days of publication, the settlement

commissioner shall, after considering the objections, publish the further amended scheme (S 20

(2)). If within 15 days of the publication of further amended scheme, no objections are raised

then the settlement Commissioner shall confirm the scheme. But if the objections are received,

the Commissioner shall submit the further amended scheme to state government with objections

received. The State government shall, after considering the objections, confirm the scheme with

or without amendments. After Confirming the Scheme, the State Government shall publish a

Notification in an official Gazette stating that the scheme has been confirmed (S 21).

During the continuance of the proceedings, the consolidation officer shall exercise and

discharge the functions of a revenue officer under Chapter IX of the Bombay Land Revenue

Code. No revenue officer other than the consolidation officer shall take any proceedings under

the said Act. Further, when the consolidation officer proceeds to prepare a scheme under Sec 15,

during the continuance of the consolidation proceedings-

a) No proceedings

i. Under section 153 or 155 of the Bombay Land Revenue Code, 1879;


ii. For execution of any award made or deemed to be made under the Bombay Co-

operative Societies Act, 1925;

iii. For execution of any award made under the Bombay Agricultural Debtors Relief

Act, 1947 or under the Saurashtra Agricultural Debtors Relief Act, 1954;

iv. For execution of any decree passed by a Civil Court in respect of any land for

which a notice under section 1 5A has been given shall be commenced, and all such

proceedings if commenced shall be stayed;

b) No person shall transfer any land in respect of which a notice under section l5A has been

given, except with the previous permission in writing of the Consolidation Officer. Such

permission may be given in such circumstances and subject to such conditions as may be

prescribed.

If after a scheme has come into force and it appears to the Settlement Commissioner that

the scheme is defective on account of an error (other than that referred to in section 31A i.e.

Clerical and arithmetical mistakes), irregularity or informality, the Settlement Commissioner

shall publish a draft of such variation in the prescribed manner. The draft variation shall state

every amendment proposed to be made in the scheme. Within one month of the date of

publication of the draft variation, any person affected may communicate in writing any objection

to such variation to the Settlement Commissioner. After receiving the objections under sub-

section (2) of Sec 32 the Settlement Commissioner may, after making such enquiry as he may

think fit, make the variation with or without modification or may not make any variation. If the

scheme is varied under sub-section (3) of Sec 32, a notification stating that the scheme has been

varied shall be published in the Official Gazette and the scheme so varied shall be published in

the prescribed manner in the village or villages concerned and from the date of the notification

stating that the scheme has been varied the variation shall take effect as if it were incorporated in

the scheme (S 32(4)). A scheme for the consolidation of holdings confirmed under this Act may

at any time he varied or revoked by a subsequent scheme prepared, published and confirmed in

accordance with this Act (S 33).


Scope

The Scope of the Act is limited to the Analysis of the Provisions of the Bombay

Prevention of Fragmentation and consolidation of land holdings Act, 1947

Hypothesis

1. That the Bombay Prevention of Fragmentation and consolidation of land holdings Act,

1947 is weak in its implementation.

Aim & Objective of the Study

1. To Critically analyze the Nature & Scope of the Provisions of the said Act

2. To undertake the evaluation of judgment and interpretation of principles laid down in

various cases.

Research Methodology

The quality and value of research depends upon the proper and particular methodology

adopted for the completion of research work. Looking at the vastness of the research topic

doctrinal legal research methodology has been adopted. To make an authenticated study of the

research topic Nature & Scope of the Bombay Prevention of Fragmentation and consolidation of

land holdings Act, 1947, enormous amount of study material is required. The relevant

information and data necessary for its completion has been gathered from both primary as well

as secondary sources available in the books, journals, periodicals, research articles and

proceedings of the seminars, conferences, websites, etc.

Keeping in view the need of present research, various cases filed in the Supreme Court as

well as in the High Courts on the issue of and the judgments therein have also been used as a

source of information. The judgments pronounced in the cases have been analyzed in detail and

used as a means of diagnosis to know the basic lacunae arising in the way of providing the

remedy.


CHAPTER-2


Legal Provisions

Chapter II of the Act determines the Local and Standard Areas and further deals with the treatment

of Fragments.

3. Determination of focal areas.- The State Government may, after such inquiry as it

deems fit, by notification in the Official Gazette, specify a village, mahal or taluka or

tahsil or any part thereof as a local area for the purposes of this Act.

4. Settlement of standard areas.-

(l) The State Government may, after such inquiry as it deems fit and after consultation

with the District Advisory Committee or any other body, appointed by it, provisionally

settle for any class of land in any local area the minimum area that can be cultivated

profitably as a separate plot.

(2) The State Government shall by notification in the Official Gazette, and in such other

manner as may be prescribed publish the minimum areas provisionally settled by it under

sub-section (1) and invite objections thereto.

5. Determination and revision of standard areas.-(1) The State Government shall, after considering the objections, if any, received within

three months of the date of publication of the notification under sub-section (2) of section

in the village concerned and making such further inquiry as it may deem fit, determine

the standard area for each class of land in such bear area.

(2) The State Government may, at any time, if it deems fit expedient so to do revise a

standard area determined under sub-section (1).

(3) The State Government shall, by notification in the Official Gazette, and in such other

manner as may be prescribed, give public notice of any standard area determined under

sub-section (1) or revised under sub-section (2).

6. Entry in the Record of Rights.-(1) On notification of a standard area under sub-section (3) of section 5 for a local area all

fragments in the local area shall be entered as such in the Record of Rights or where there

is no Record of Rights in such village record as the State Government may prescribe.


(2) Notice of every made under sub-section (1) shall be given in the manner prescribed

for the giving of notice in the Hyderabad area of the State, under the Hyderabad Record

of Rights in Land Regulation, 1358 fasli and elsewhere, under the relevant Code, or an

entry in the register of mutations.

7. Transfer and lease of fragments.-(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

recognized sub-division of a 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 or 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.

8. Fragmentation prohibited.-

No land in any local area shall be transferred or partitioned so as to create a fragment.

9. Penalty transfer or partition contrary to provisions of Act.-(1) The transfer or partition of any land contrary to the provisions of this Act shall be

void.

(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not

exceeding Rs.250 as the Collector may, subject to the general Orders of the State

Government, direct. Such fine shall be recoverable as an arrear of land revenue.

(3)Any person unauthorisedly occupying, or wrongfully in possession of, any land, the

transfer or partition of which either by the Act of parties or by the operation of law, is

void under the provisions of this Act, may be summarily evicted by the Collector.

10. Transfer of fragment to Government.

(1) Any owner of a fragment transfer it to the State Government on payment by the State

Government of such compensation to persons possessing interest therein as the Collector

may determine ad thereupon the fragment shall vest absolutely in the State Government


free from all encumbrances but no such fragment shall be transferred to the State

Government unless it is first offered to the owner of a contiguous survey number or

recognized sub-division if a survey number on payment of the compensation determined

by the Collector as aforesaid and such owner has refused to purchase the fragment on

payment of such compensation.

12. Determination of compensation for purposes of section 10. - In determining the

compensation for the purposes of section 10 the Collector shall regard to the provisions

of sub-section (1) of section 23 of the Land Acquisition Act, 1894.

Chapter III of the Act deals with the Procedure for Consolidation

15. Government may of its own accord or on application declare its intention to make scheme for consolidation of holdings.

With the object of consolidating holdings in any village, mahal, taluka or tahsil or any

part thereof for the purpose of better cultivation of lands therein, the State Government

may of its own motion or on an application made in that behalf declare by a notification

in the Official Gazette and by publication in the prescribed manner in tht village or

villages concerned its intention to make a scheme for the consolidation of holdings in

such village or villages or part thereof as may be specified. On such publication in the

village concerned the State Government it may appoint a Consolidation Officer who shall

proceed to prepare a scheme for the consolidation of holdings in such village or villages

or part thereof, as the case may be in the manner hereinafter provided.

(15A.) Preparation of scheme and principles to be followed in its preparation.-

(1) The Consolidation Officer shall, alter giving due notice to the land owners concerned

and the village committee, visit each of the concerned villages, and shall, in consultation

with the village committee, proceed to prepare a scheme for the consolidation of holdings

which shall include such statements, records and maps as may be prescribed.

(2) In preparing the scheme, the Consolidation Officer shall have regard to the procedure

which the State Government may from time to time prescribe in regard to the number of

blocks in which the village lands are to be grouped, the manner of allotting new plots to


each owner, the recommendations of the village committee and such other matters as may

be prescribed.

16. Scheme to provide for compensation.-

(1) The scheme prepared by the Consolidation Officer shall provide for the payment of

compensation to any owner who is allotted a holding of less market value than that of his

original holding and for the recovery of compensation from any owner who is allotted a

holding of greater market value than that of his original holding.

(2) The amount of compensation shall be determined, so far as practicable, in accordance

with the provisions of sub-section (1) of section 23 of the Land Acquisition Act, 1894.

17. Amalgamation of public roads etc. within scheme for consolidation of holdings-

(1) Whenever in preparing a scheme for the consolidation of holdings, it appears to the

Consolidation Officer that it is necessary to amalgamate any road, street, lane or path

with any holding in the scheme he shall make a declaration to that effect stating in such

declaration that it is proposed that the rights of the public as well as of all individuals in

or over the said read, street, lane or path shall he extinguished or, as the case may be,

transferred to a new road, street, lane or path laid Out in the scheme of consolidation.

(2) The declaration in sub-section (1) shall be published in the village concerned in the

prescribed manner along with the draft scheme referred to in section 19.

(3) Any member of the public or any person having any interest or rights, in addition to

the right of public highway, in or over the said road, street, lane or path or having any

other interest or right which is likely to be adversely affected by the proposal way, within

thirty days after the publication of the declaration under sub-section (I) state to the

Consolidation Officer in writing his objection to the proposal, the nature of such interest

or right and the manner in which it is likely to be adversely affected and the amount and

the particulars of his claim to compensation for such interest or right, Provided that no

claim for compensation on account of the extinction or diminution of the right of public

highway over such road, street, lane or path shall be entertained.

(4) The Consolidation Officer, shall, after considering the objections, if any made to the

proposal, submit it with such amendments, if any, as he may consider necessary, to the


Settlement Commissioner, together with the objections received, his recommendations

thereon and a statement of the amounts of compensation, if any, which in his opinion are

payable, and of the persons by whom and the persons to whom such compensation is

payable. The decision of the Settlement Commissioner on the proposal and regarding the

amount of compensation and the persons by whom such compensation, if any, is payable,

shall, subject to any modification made by the State Government, be final.

18. Land reserved for public purpose.- Notwithstanding anything contained in any

law for the time being in force, it shall be lawful for the Consolidation Officer, in

consultation with the village committee,-

(a) To direct that any land specifically assigned for any public purpose shall cease to be

so assigned and to assign any other land in its place;

(b) If in any area under consolidation no land is reserved for any public purpose including

extension of the village sites, or if the land so reserved is inadequate, to assign other land

for such requirements and for that purpose to effect a proportionate cut in all the holdings

of the village.

(2) Where a proportionate cut in all the holdings of a village has been effected under sub-

section (1), the State Government shall pay to every person affected thereby

compensation in respect of the land covered by such cut at the market value of the land at

the date of the publication of the notification under section 15.

(3) Save as provided in sub section (1), the amount of such compensation shall be

determined by the Consolidation Officer, so far as practicable in accordance with the

provisions of sub-section (1) section 23 of the Land Acquisition Act, 1894.

19. Publication of draft scheme and of a amended draft schemes-(1) When a scheme of consolidation is ready for publication, the Consolidation Officer

shall publish a draft thereof in the prescribed manner in the village or villages concerned.

Any person likely to be affected by such scheme, may, within thirty days of the date of

such publication, communicate in writing to the Consolidation Officer any objections

relating to the draft scheme.

(2)If any objections are received and after considering them, the Consolidation Officer

considers it necessary to amend the draft scheme, he shall amend the draft scheme and


publish the amended draft scheme as provided in sub-section (1). Any person likely to be

affected by such amended drafted scheme may, within thirty days of the date of such

publishing, communicate in writing to the Consolidation Officer any objections relating

to the amended draft scheme.

(3) (a) Where no objections are received to the draft scheme published under sub-section

(1) or to the amended draft scheme published under sub- Section (2), such draft scheme

or amended draft scheme.

(b) Where objections are received to the said draft scheme or amended. draft scheme but

the Consolidation Officer does not consider it necessary to amend the said draft scheme

or amended draft scheme, such draft scheme or amended draft scheme, together with

objections and his remarks thereon.

(c) Where objections are received to the said amended draft scheme and after considering

the objections, the Consolidation Officer considers it necessary to amend further the

amended draft scheme, such amended draft scheme as further amended together with

the objections and his remarks thereon, shall be forwarded by the Consolidation Officer

to the Settlement Commissioner for confirmation.

20. Confirmation of draft scheme or amended draft scheme.-(1) If on receipt of a draft scheme or an amended draft scheme under subsection (3) of

section 19, the Settlement Commissioner, after considering the objections, if any, and the

remarks of the Consolidation Officer thereon and after being otherwise satisfied about the

correctness of procedure followed by the Consolidation Officer and the allotment of

holdings, and compensation or about there being no clerical or arithmetical mistakes or

error arising from accidental slip or omission, approves of the draft scheme, or as the case

may be, amended draft scheme, he shall confirm it.

(2) If the Settlement Commissioner does not approve of the draft scheme or the amended

draft scheme forwarded by the Consolidation Officer and considers it necessary to amend

it, he shall further amend it and publish it as amended in the prescribed manner in the

village or villages concerned. Any person likely to be affected by the draft scheme as so

published may, within thirty days of the date of such publication, communicates his

objections in writing to the Settlement commissioner.


(3) If no objections are received within the period specified in sub-section (2), Settlement

Commissioner shall confirm the draft scheme as published under that sub-section. If any

objections are received within the said period, the Settlement Commissioner shall

confirm the draft scheme as published under sub-section (2) without any modifications

therein or with such modifications there in as he may consider necessary.

CHAPTER IV of the Act deals with the effect of the Consolidation Proceedings and of

Consolidation of Land Holdings

26. Exercise by Consolidation Officer under certain Acts.-

(1) During the continuance of the consolidation proceedings the Consolidation Officer

shall exercise and discharge the functions of a revenue officer under Chapter IX of the

Bombay Land Revenue Code, 1879, or under Chapter X of the Madhya Pradesh Land

Revenue Code, 1954, or as the case may be, under Chapater VIII of the Hyderahad Land

Revenue Act, 1317 Fasli, the Mamlatdars Courts Act, 1906, and the relevant tenancy

law; and no revenue officer other than the Consolidation Officer shall take any

proceedings under any of the said Acts in respect of any holding or land for which a

notice under section I 5A has been given.

27. Stay of certain proceedings; ban on transfer of land during continuance of consolidation proceedings.

When a Consolidation Officer proceeds to prepare a scheme under section 15, during the

continuance of the consolidation proceedings

(a) No proceedings,

(i) Under section 153 or 155 of the Bombay Land Revenue Code, 1879;

(ii) For execution of any award made or deemed to be made under the Bombay Co-

operative Societies Act, 1925;

(iii) For execution of any award made under the Bombay Agricultural Debtors Relief

Act, 1947 or under the Saurashtra Agricultural Debtors Relief Act, 1954;

(iv) For execution of any decree passed by a Civil Court;


(v) For partitioning or subdividing in any manner, in respect of any land for which a

notice under section 1 5A has been given shall be commenced, and all such

proceedings if commenced shall be stayed;

(b) No person shall transfer any land in respect of which a notice under section l5A has been

given, except with the previous permission in writing of the Consolidation Officer. Such

permission may be given in such circumstances and subject to such conditions as may be

prescribed.

32. Power to vary scheme on ground of error, irregularity, informality.

(1) If after a scheme has come into force it appears to the Settlement Commissioner that

the scheme is defective on account of an error (other than that referred to in section 31A),

irregularity or informality the Settlement Commissioner shall publish a draft of such

variation in the prescribed manner. The draft variation shall state every amendment

proposed to be made in the scheme,

(2) Within one month of the date of publication of the draft variation any person affected

thereby may communicate in writing any objection to such variation to the Settlement

Commissioner.

(3) After receiving the objections under sub-section (2) the Settlement Commissioner

may, after making such enquiry as he may think fit, make the variation with or without

modification or may not make any variation.

(3A) If the scheme is varied under sub-section (3), a notification stating that the scheme

has been varied shall be published in the Official Gazette and the scheme so varied shall

be published in the prescribed manner in the village or villages concerned.

(4) From the date of the notification stating that the scheme has been varied the variation

shall take effect as if it were incorporated in the scheme.

33. Power to vary or revoke scheme. A scheme for the consolidation of holdings

confirmed under this Act may at any time he varied or revoked by a subsequent scheme

prepared, published and confirmed in accordance with this Act.


CHAPTER-3


Judicial Trend

Under Section 6 (2) of the Act, there is a provision that the notice of fragmentation of the

land had to be given to the owner and only in a case, after the notice, the land is transferred then

there may be a case of violation of S 7 of the Act. It is a question of fact whether the notice under

S 6 (2) has been given to the landlord or not. In Manubhai v. Chimanlal, 1998 (2) GCD 1733

(Guj), the petitioner raised the contention that the notice was not given. The burden lies upon

him to prove the fact5. A Civil Suit for the possession of land was filed and was withdrawn on

legal advice. He then filed this application and the deputy collector has taken action accordingly.

It cannot be said that the action of the Deputy collector is delayed6. When the notice under sub-

section (2) of the Act was not given or established to be given, the provisions of sub-section (1)

of section 7 are not attracted and as such, there was no prohibition on the owners of the fragment

to transfer the same to the petitioner7.

In Koli Bhikha Rama v State of Gujarat8, the land purchased of two survey numbers are

adjoining and the documents have been executed in respect of both survey on the very day but

different documents have been executed wherein the name of the father remained common in

both the documents as the brothers are different. Action has been initiated by the authority only

on the basis of the fact that two sale deeds executed in favor of the father and different brothers

of adjoining land and therefore the provisions of the Act have been violated. But the authority

has not taken account of the real effect of the said transaction in one family where the father is

common and in both the documents the brothers are different. Further there is no evidence that

the land has been cultivated by the different brothers in a fragmented manner and the land

remained as it is and utilized by one family. The object of the Act is to see that no land in any

local areas shall be transferred, partitioned so as to create fragment. S 7 (1) provides that no

person shall be transfer any fragment in respect of which notice has been given under S 6 (2)

except to the owner of a contiguous survey number or recognized sub-division of survey number.

The Legislature did not deny the right to purchase a fragment, which is conferred on the owner

of a contiguous survey number will be more conducive to achievement of the object of the Act to

5 Manubhai v. Chimanlal, 1998 (2) GCD 1733 (Guj.)6 Manubhai v. Chimanlal, 1998 (2) GCD 1733 (Guj.)7 Pandya Bherulal v. State of Gujarat, 1988 (1) GLR 4688 Koli Bhikha Rama v State of Gujarat, 2003 (1) GLH 599 (Guj)


prevent fragmentation and achieve consolidation of holdings of agricultural lands. The

transaction in question did not create fragmentation and therefore, the said transaction cannot be

considered to be contrary to the Act.

In Babubhai Hirabhai v. city Dy. Collector9, the shares of family members in the land in

question has been determined but actual division of land has not come into effect and the land

remains undivided and unpartitioned. By making entry in the revenue record in favor of family

members by determining the particular share of each family member in their favor without actual

division by Meters and bound the land remained undivided and unpartitioned. Orders passed by

lower authorities quashed10. The evidence purpose of the Act and particularly S 7 is that the

fragment must pass into the hands of the owner of an adjoining land who can economically and

efficiently cultivate it, because in any case, he would be cultivating his own land and he would

be able to devote personal attention to the cultivation of the fragment by virtue of its immediate

proximity. From his stand-point, the mere fact that an approach road separates the fragment from

the land owned by the purchaser cannot come in the way of a transaction of this nature in the

facts and circumstances of the case11.

In Prembhai Govanbhai v. Diyarbhai Rambhai12, when the collector, while effecting a

partition among several co-shares finds that a co-sharer is entitled to a specific share in the land

and cannot be given that share without creating a fragment, then such a co-sharer is required to

be compensated in money for that share. The amount of compensation is required to be

determined so far as practicable in accordance with the provisions of the Land Acquisition Act.

In such a case, no other procedure is required to be followed. If, however, while effecting

partition, it is found that there is not enough land to provide for the shares of all co-sharers in

accordance with the provisions of sub-section (1), the co-sharers may agree among themselves as

to the particular c-sharer or co-sharers who should get the share of land and which of them

should be compensated in money. If there is no such agreement, clause (b) of sub-section (2)

further provides that the co-sharers to whom a share of land can be provided and those to whom

9 Babubhai Hirabhai v. city Dy. Collector, 2000 2 GCD 156610 Babubhai Hirabhai v. city Dy. Collector, 2000 2 GCD 156611 Kalidas Motiram v. Makhibhai, 1977 GLR 91012 Prembhai Govanbhai v. Diyarbhai Rambhai, 1984 GLH 470 (Guj)


money can be compensated should be given shall be decided b a lot in a manner prescribed. The

manner of choosing by lot the co-sharers, for allotment of land or money compensated under

clause (b) of sub-section (2) is prescribed by the rule 6 of the rules. Reading the aforesaid section

and rule 6 together, it becomes apparent that the manner prescribed by rule 6 is required to be

followed only in cases covered by clause (b) and not in cases covered by clause (a) of that sub-

section13.

In Ramalabhai v. State of Gujarat14, an oral Mortgage transaction took place in the year

1958-59. Possession was also handed over. Necessary entries were also mutated in the Revenue

Record. Since transaction was oral, no prior permission of the authority was necessary. Powers

were exercised by authority after 25 years. The Honble Court held that Suo Motto powers

should be exercised within a reasonable time and effectuates the purpose of the Act. During the

span of 25 years parties changed their position irretrievably. The Honble Court further held that

exercise of powers after such an inordinate delay is not justified15.

While exercising power under Section 211 of the Revenue code, the officer of the

Revenue Department gave directions to the competent authority to initiate proceedings under S 9

of the Act. The Honble Court held that the exercise of the power by an officer acting under one

enactment and issuing direction under another enactment is without the authority of law.

Therefore, the directions were set asided16.

Where the agricultural land was transferred for consideration, in a writ petition by a

seller, it was held that seller of such transaction of voluntary sale has to file, within the

applicable period of limitation, a suit for declaration that sale is void. Writ Jurisdiction cannot be

exercised in favor of transferor who had violated the law in entering the transaction17.

Under Section 9 of the Act, powers are conferred on the authorities to pass proper orders

declaring the transactions contrary to the Act to be null and void and ask to pass consequential

13 Prembhai Govanbhai v. Diyarbhai Rambhai, 1984 GLH 470 (Guj)14 Ramalabhai v. State of Gujarat, 2002 (2) GLH 18015 Ramalabhai v. State of Gujarat, 2002 (2) GLH 18016 Kalidas v. State of Gujarat, 2002 (2) GLH 617 Patel Ratilal v. State of Gujarat, 2000 (1) GLR 562


orders of fine as well as summary eviction. But the said statutory powers like any other powers

have to be exercised within the reasonable time.

In Ranchhodbhai Lallubhai Patel v State of Gujarat,18 the authorities did not initiate the

proceedings against the petitioner and opponent No 3 for 7 years. In the mean time the petitioner

who had purchased the land for the purpose of putting up residential house spent an amount of

Rs 25,000/- and constructed a residential house with facilities of Washrooms, bathrooms and a

store room. It is obvious that when no proceedings were initiated against them for a long time,

there arises a reasonable belief for the petitioner that there was nothing wrong with the sale deed

under which he had purchased the land and he had become a full owner of the land. He could

never have dreamt that after 7 years of his purchase he would be presented with a show cause

notice under S 9 of the Act. Such inaction on the part of authorities exercising powers under the

Act for a number of years and waking up one fine morning after 7 years by issuing notice to the

concerned parties for showing cause why the transaction entered into by them should not be

declared as null and void, has got to be held as quite unreasonable. It has got to be held that the

powers exercised by the concerned authorities under the section was at grossly belated stage and

as there was unreasonable delay in exercise of that power, the exercise would be ex facie

unreasonable, unjust and illegal.

In Chhaganbhai v. Vallabhai19, Sub-rule (2) of the Rule 27 of Bombay Prevention of

Fragmentation and consolidation of land holdings Rules which specifies persons eligible to

purchase an agricultural land does not specify them in order of priority specified in Sec 64 of the

Bombay tenancy and Agricultural Lands Act. Since Sub-rule (2) of Rule 27 does not specify any

order of priority it is open to the vendor to sell his holding either to owner of a contiguous

agricultural land or to any other agriculturalist after obtaining permission of the officer in that

behalf. If there are two intending vendees who are eligible under rule 27 to purchase an

agricultural land it is the choice of the vendor which must prevail. He can sell it to one after

obtaining the permission from the officer. It is not open to the officer or the state of government

as the case may be, to refuse to the vendor permission to sell his land in order to dictate to him

18 Ranchhodbhai Lallubhai Patel v State of Gujarat, 1984 (2) GLR 1225 (Guj)19 Chhaganbhai v. Vallabhai, 1976 GLR 464


the choice of his vendee where there are more than one intending vendees eligible and ready to

purchase it. To arrogate unto itself the power of dictating choice to a vendor as regards his

vendee is to travel beyond the scope of Rule 27 and to arrogate unto it power which rule 27 does

not confer onto the concerned officer. The Honble Court held that unless the proceedings were

instituted for summary eviction under Sec 9 of the Act from the land in question and unless the

petitioners were duty heard in that behalf no order of summary eviction could have been passed

against them.

The Aim of Sec 27 is that while consolidation officer proceeds to prepare the scheme

under Sec 15 and while consolidation proceedings are pending, no proceedings under any one of

the four categories mentioned in this section which affect land in respect of which a notification

has been already issued should be allowed to be commenced20.

In Malappa v Padamanna21, the Honble Bombay High Court held that under section 15

A of the Act, the legislature contemplated that a land belonging to a land owner will not be

affected by the scheme unless he is personally given notice of the inquiry. This provision is

obviously made with a view to safeguard the interest of the land owner so as to enable him to put

before to his land to know his point of view in respect of land which is likely to be allotted to

him. It is difficult to imagine how a scheme concerning land belonging to the land owner to

whom a notice has been given can really be said to be a scheme properly made in compliance

with the statutory provisions of the section at least it so as it affects him. The pre-condition,

therefore, for preparing a draft scheme is individual notice to the land owner and if such notice

has not been given, the scheme so far as he is concerned cannot be said to have been made in

compliance with the provisions of law22.

The Honble High Court further held that S 19 provides for the publication of the scheme

of draft by the consolidation officer. It further provides that 30 days time shall be given for filing

20

59 BLR 1016 (Bom.)21 Malappa v Padamanna, AIR 1982 Bom 21122

Malappa v Padamanna, AIR 1982 Bom 211


objections, if any, to the persons concerned. Where such a procedure was not adopted and only 1

days time was given, the proceedings are vitiated and held to be without jurisdiction23.

Where the dispute is between the land tenant and land lord, the land lord is entitled to

obtain the possession of the land because the tenant had committed 3 defaults in the payment of

rent it is obvious that the case is governed by the Bombay Tenancy and Agricultural Lands Act

and that the Mamlatdar would ordinarily have power to deal with the case. Where a notification

under S 15 of this Act has been issued, it is only the consolidation officer and not the Mamlatdar

who would have the power to deal with the proceedings. If the consolidation officer passes an

order to eviction of the tenant then that order would be one passed under the Bombay tenancy

Act and would be appealable under S 74 of that Act. That is not an order under Chapter IV of

this Act an appeal against which is barred by Sec 36, and therefore, the Revenue Tribunal setting

aside the appellate under restoring possession to the tenant, acts erroneously. In such a case in

revision an order should be made in accordance with Sec 25 (1) of the Tenancy Act for the

restoration of possession by the landlord to the tenant and for the payment of rent by tenant to the

landlord24.

One days time was granted by consolidation officer for communicating objections to

draft scheme. It was held that the error in procedure creates infirmity in the consolidation scheme

so as to justify its variation25.

23

Malappa v. Padamanna, AIR 1982 Bom 21124

ILR (1958) Bom 26825 Malappa v. Padamanna, AIR 1982 Bom 211


CHAPTER-4


Conclusion

Farmlands in India are undergoing fragmentation, resulting in gradual deterioration of

their quality and productive efficiency. By incurring high costs of production, fragmented

landholdings constrain effective land management and promotion of location-specific land use,

which is essential for sustainable land conservation and for increasing farmers income. So far

the economic cost of land fragmentation is not realized much by the majority of farmers, because

they are engaged in subsistence agriculture. While agriculture needs to be commercialized to

enhance overall production and to improve farmers quality of life, this is not possible,

particularly for farmers with small landholdings fragmented into several tiny parcels. Because of

high costs of input per unit of output, small farmers cannot use fragmented land parcels for

locationally suitable crops and find it very difficult to compete with large farmers in selling farm

produce. In such a situation, small farmers have no option other than continuing subsistence

agricultural systems, which cannot help to enhance their socioeconomic status. Alternatively,

they have to sell their landholdings to large farmers or absentee landlords and seek alternative

employment opportunities.

There are several driving forces behind the on-going fragmentation of landholdings in

India. Among them, steadily increasing population and scarce non-farming employment are the

major forces. As per the law of inheritance, individuals separating from a farm household may

get a few tiny parcels of land as their share from the paternal property. They would still like to

have these because without them they are vulnerable to the risk of starvation, as alternative

income opportunities are scarce.

Realizing the detrimental effects of land fragmentation, India have pursued policies and

programs facilitating land consolidation and made legal provision for preventing land

fragmentation. The above analysis of judicial pronouncements has revealed that most endeavors

were a failure, because farmers and local elite were reluctant to participate in consolidation

programs. Farmers did not participate because they were afraid of being evicted and losing good

quality of land in the process of swapping of land. Local elites, who mostly happened to be the

landlords, were not interested in land consolidation due to the threat of losing their influence

over local population. The program, however, could achieve some success in a few provinces of


India where there was not much variation in land quality. While land consolidation programs and

laws have failed to deliver meaningful results, the structural forces driving land fragmentation

such as population growth, paternal property inheritance system and scarcity of non-farming

employment opportunities are still prevailing in the region, though they are not as strong as they

used to be until a few decades ago. As a result, the sheer numbers of land holdings and land

parcels are steadily increasing in all countries, thereby threatening the prospect of improving

production efficiency. This entails formulation and implementation of a comprehensive land

consolidation strategy comprising short, medium and long-term programs.

These legal and policy measures would help to control land fragmentation as long as they

are effectively pursued through appropriate institutional arrangements. However, based on the

experience gained in implementing corrective measures, it is plausible to say that it would be

very difficult to implement the measures effectively in all parts of country as land consolidation

involves restructuring of people's private property. Therefore, attention should be paid to

addressing the structural causes of land fragmentation for permanent solution of the problem. In

this regard, efforts should be made to stabilize population growth by promoting small families in

rural areas through liberal investments in health and education sectors. Provided they are

effectively implemented, such policies will facilitate gradual shift of population from agricultural

to non-agricultural sector, thereby paving the way for spontaneous consolidation of landholdings

and land parcels.


Bibliography

Books:

1. Jindal (2005). Jindals Gujarat Local Acts, Jodhpur: India Publishing House Jodhpur

2. Bare Act of Bombay Prevention of Fragmentation and consolidation of Land Holdings

Act, 1947

Web References:

1. http://www.manupatra.com/

2. http://www.indlaw.com/

3. http://www.maharashtra.gov.in/

4. http://rspas.anu.edu.au/

Case Laws:

1. Patel Ratilal v. State of Gujarat, 2000 (1) GLR 562

2. Ranchhodbhai Lallubhai Patel v State of Gujarat, 1984 (2) GLR 1225 (Guj)

3. Prembhai Govanbhai v. Diyarbhai Rambhai, 1984 GLH 470 (Guj)

4. Ramalabhai v. State of Gujarat, 2002 (2) GLH 180

5. Kalidas v. State of Gujarat, 2002 (2) GLH 6

6. Babubhai Hirabhai v. city Dy. Collector, 2000 2 GCD 1566

7. Kalidas Motiram v. Makhibhai, 1977 GLR 910

8. Manubhai v. Chimanlal, 1998 (2) GCD 1733 (Guj.)

9. Pandya Bherulal v. State of Gujarat, 1988 (1) GLR 468

10. Koli Bhikha Rama v State of Gujarat, 2003 (1) GLH 599 (Guj)

11. Malappa v. Padamanna, AIR 1982 Bom 211

12. Chhaganbhai v. Vallabhai, 1976 GLR 464

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