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The delay in filing cannot be condoned without any notice to the petitioner and this aspect should have been considered by the court below.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No. – 37
Case :- WRIT – C No. – 30416 of 2018

Petitioner :- Panch Bahadur Singh
Respondent :- Additional Commissioner And 6 Others
Counsel for Petitioner :- Shyam Lal Yadav,Aprajit Yadav
Counsel for Respondent :- C.S.C.,Diwakar Singh

Hon’ble Siddhartha Varma,J.

Learned counsel for the petitioner submits that the restoration application of the petitioner has been dismissed on 7.2.2018 without considering the grounds the petitioner had taken in the Application. When on 17.2.2004 in absence of the petitioner the mutation case was considered and orders were passed on it, the petitioner who was a buyer moved an application on 31.8.2016 for recalling the order dated 17.2.2004 passed by the Up Ziladhikari, Handia, Allahabad. This application was also accompanied by an application for condonation of delay. A perusal of the order dated 7.2.2018 shows that not a single ground was considered while deciding the the restoration application by the Sub-divisional Officer, Handia, Allahabad.

Learned counsel for the petitioner submits that the petitioner was busy since 2004 to 2016 in the treatment of some illness of his son and that only when on 31.8.2016 on the inspection of the records came to know about the order dated 17.2.2004, the application was moved. He submits that there was no notice or summons served upon him. Learned counsel further submits that even on merits, the order dated 17.2.2004 could not have been passed as he bought the complete share of the seller. He placed reliance upon the judgment reported in 1992 RD 117 (Govardhan Singh and others vs. Board of Revenue). He submitted that when a complete share is bought of a co-sharer it could not be said that only a fragment was bought. He relied upon paragraph-6 of the judgment which he read out and is therefore being reproduced here as under:

“It is clear from the above authority of the Hon’ble Supreme Court that ‘tranfers that would result in fragmentation or to such transfers, Section 167 will mutatis mutandis be applicable.’ But in the instant case, the transfer as such in favour of the petitioners is not in respect of a fragment. Rather it is in respect of a defined share, the result of which is that the petitioners became co-bhumidhars along with respondent Raghubar in the plot in dispute entitled to remain in joint possession and enjoy the fruits of the land in dispute in proportion to their share. Revenue Courts while holding that sale deed was hit by Section 168-A of the Act, appear to have converted the share transferred in favour of the petitioner in terms of the area. This to my mind, was not based upon true import of the Section. Under the scheme of the Act. Two or even more persons can hold Bhumidhari rights together in a land which is ‘fragment’ within the meaning of Sub-section (8-A) of Section 3 of the Act. What is prohibited under Section 168-A (1) is transfer of a ‘fragment’ defined in terms of area and not of a defined share in the fragment so as to make the transferee a co-sharer in the ‘fragment’. For example, if a Bhumidhar having a Bhumidhari plot which is a fragement in itself, dies leaving two sons, devolution of his interest upon them, would not result in fragmentation of the holding. Similarly a Bhumidahr having land situated in a consolidated area admeasuring more than 4.6875 acres in Bundelkhand area specified in sub-clause (1) or more than 3.125 acres in the rest of Uttar Pradesh as specified in clause (b) of Sub-section (8-A) of Section 3 of the Act, transfers his entire holding in favour of two or more persons, it would not result in fragmentation within the meaning of Section 168-A read with Section 3(8-A) of the Act, even if their individual share (of each of the the transferees) converted in terms of area, comes to less than the prescribed extent. Such co-bhumidhars are entitled to retain the holding jointly and if they intend to get it transferred, the holding be put to auction so as to avoid fragmentation in ehe even of partition, as is evident from the provisions enacted in Section 178 of the Act, which as it stands amended from time to time, is quoted as below for ready reference.

“178. Mode of division of a holding (1) Except as provided in sub-section (3) Whenevr in a suit for (division) a court findings that the aggregate area of the holding or holdings to be (divided) does not exceed three and one eight acres, the court shall instead of proceeding to decide the holding or holdings, direct the sale of same and distribution of proceeds thereof, in accordance with such principles as may be prescribed.

(2) The rules framed under sub-section (1) shall prescribe the circumstances in which compensation may be awarded to a co-tenure holder inlieu of his share of holding and for the admission by the (Land Management Committee) of such co-tenure holder to land under provisions of Section 195.

(3) Where a co-tenure holder has
(a) let out only a share in any holding under sub-section (2) of Section 157; or
(b) duly acquired Bhumidhari rights under Section 134 (as it stood immediately before the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977) with respect only to a share in any holding.

The Court shal divide the holding by separating the share aforesaid, but in respect of the remainder of the holding, the provisions of sub-section (1), if applicable, shall be as follows.”

(a) Order of suspension was passed at the stage of formation of opinion by the Sub-divisional Officer for taking proceedings against the Pradhan under clause (g).
(b) The Naib Tehsildar’s report, as aforesaid, was regarding the activities of the Pradhan about his encroachment over the Banjar land of the Gaon Sabha in plot no. 232 by making a manure pit and placing a thatch thereover and it also contained allegations about annexation by the Pradhan in his chak the chak road of plot No. 318 and the water channel in plot No. 323 as well as for allowing illegal construction over the land of the Gaon Sabha by permitting the persons illegal occupation thereover.”

Learned Standing Counsel, however, submits that a delay of almost 12 years could not have been condoned and the Courts rightly passed the order dated 7.2.2018 rejecting the application for condonation of delay. He submits that the Revisional Court also rightly dismissed the Revision and, therefore, no interference be made by this Court.

Having heard the learned counsel for the petitioner and the counsel for the Gaon Sabha, I am of the view that the order dated 7.2.2018 cannot be sustained. The reason for the condonation of delay that there was no notice to the petitioner was not considered also. This aspect should have been considered by the court below. A seller when sells a property goes away. It is the buyer who suffers as his property is declared to be vested in the Gaon Sabha.

Further, I find that even on merits the petitioner’s case was not considered in its right perspective. The proposition of law propounded in the judgment cited by the learned counsel for the petitioner definitely was not looked into.

Under such circumstances, the order dated 7.2.2018 passed by the respondent no.2, Up Ziladhikari, Handia, Allahabad and the order dated 28.4.2018 passed by the Additional Commissioner (Admin.), Allahabad Division, Allahabad are set aside. The delay in filing the restoration application is condoned. The Sub-divisional Magistrate shall now on merits consider the matter as to whether the order dated 17.2.2004 had to be recalled.
The writ petition is partly allowed.
Order Date :- 7.9.2018

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