# Dr. Anil Kumar v. D.D.C. District G.B. Nagar & Ors

- **Citation:** (2014) 2 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-21
- **Case number:** Civil Misc. Writ Petition No.21572 of 2014
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anil-kumar-v-d-d-c-district-g-b-nagar-ors-42850
- **Pages:** 3

## Headnote

U.P. Consolidation of Holdings Act-Section
48-Sale deed by one co-shareholder to
other-prior to consolidation scheme-not
taken into consideration while determining
share-the C.O. Taken view as in pursuance
of sale deed name not mutated-and the sale
transaction hit by provision of section 168-A
of U.P. Z.A. & L.R. Act-SOC as well as D.D.C.-
rightly set-a-side the order passed by C.O.
In view of fact when sale deed executedvillage was not under consolidation-more
over sale transaction between one coshare
holder
to
other-neither
mutation
nor
provisions of 168-A of Z.A. Act attractedpetition dismissed.

Held: Para-11
Under the circumstances, there was no
question of the sale deed requiring
mutation in the revenue record. Mutation
could have been required only if the sale
deed was in favour of persons whose name
did not already exist in the record.
Moreover, sale deed is of a share in a joint
Khata and the same, therefore, is not hit by
provision 168-A of the Act as it existed in
the statute book on the date of sale deed.
This provision has been deleted from
statute book w.e.f. 23.8.2004 vide Act No.
27 of 2004. Sale of share by one co-tenure
holder in favour of another co-tenure holder
in a joint khata does not result in any
fragmentation.

Case Law discussed:
1971 RD 518.

## Text

2 All] Dr. Anil Kumar Vs. D.D.C. District G.B. Nagar & Ors.
611
expression of opinion by the Court on the
rights inter se as claimed by the petitioner
and the private respondents, which are left
to be decided in appropriate proceedings,
including those which are pending before
the Civil Court.

5. The petition is, accordingly,
disposed of. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2014

BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No.21572 of 2014

Dr. Anil Kumar ...Petitioner
Versus
D.D.C. District G.B. Nagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Sachan,Sri A.K. Sachan
Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holdings Act-Section
48-Sale deed by one co-shareholder to
other-prior to consolidation scheme-not
taken into consideration while determining
share-the C.O. Taken view as in pursuance
of sale deed name not mutated-and the sale
transaction hit by provision of section 168-A
of U.P. Z.A. & L.R. Act-SOC as well as D.D.C.-
rightly set-a-side the order passed by C.O.
In view of fact when sale deed executedvillage was not under consolidation-more
over sale transaction between one coshare
holder
to
other-neither
mutation
nor
provisions of 168-A of Z.A. Act attractedpetition dismissed.

Held: Para-11
Under the circumstances, there was no
question of the sale deed requiring
mutation in the revenue record. Mutation
could have been required only if the sale
deed was in favour of persons whose name
did not already exist in the record.
Moreover, sale deed is of a share in a joint
Khata and the same, therefore, is not hit by
provision 168-A of the Act as it existed in
the statute book on the date of sale deed.
This provision has been deleted from
statute book w.e.f. 23.8.2004 vide Act No.
27 of 2004. Sale of share by one co-tenure
holder in favour of another co-tenure holder
in a joint khata does not result in any
fragmentation.

Case Law discussed:
1971 RD 518.

(Delivered by Hon'ble Anjani Kumar Mishra ,J.)

1. Heard Sri AK Sachan, learned
counsel for the petitioner.

2. This writ petition arises out of an
objection under section 9-A(2) filed by
Mushe and others,

3. The dispute in the writ petition
pertains to land of Khata No. 104 which
was recorded in the name of Smt.
Saremwati, w/o Sri Kashi Ram, Mushe,
son of Solu, and Horam, son of Kale in
the basic year. Three sets of objections
were filed under section 9-A (2). Of the
three objections, the writ petition pertains
to the objection filed by Mushe claiming
on the basis of the sale deed dated
11.12.1964 wherein Chandru had sold his
1/4th share in favour of Horam, son of
Kale and Mushe, son of Solu.

4. A counter objection was filed by
the petitioner's mother claiming the share
of Chandru on the basis of sale deed dated
17.4.1973 alleged to have been executed
in her favour by the said Chandru.
612 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The Consolidation Officer by his
order dated 3.4.1989 determined the share of
the parties on the basis of the pedigree on
record. The claim based on the sale deed
dated 11.12.1964 was not accepted on the
ground that no mutation on the basis of the
sale deed has been made and that the sale
itself was void in view of section 168-A of
the UP Zamindari Abolution and Land
Reforms Act (the Act).

6. Aggrieved, an appeal was
preferred which was allowed by order
dated 7.7.2006 whereby relying upon the
sale deed dated 11.12.1964, an area of
1.160 was ordered to be recorded in the
name of successor in interest of Horam
and Mushe.

7. Against the order passed by the
appellate authority, the mother of the
petitioner preferred Revision No. 29. The
Deputy Director of Consolidation (the
DDC) by his order dated 1.8.2013
dismissed the revision. Hence the present
writ petition.

8. Learned counsel for the petitioner
Sri AK Sachan has submitted that the sale
deed dated 11.12.1964 was never mutated in
the revenue records and in any case the said
sale deed was void in view of Section 168-A
of the Act. He submits that the orders of the
appellate court and revisional court which
ignore the aforesaid two aspects of case are
patently illegal and therefore deserve to be
set aside.

9. I have considered the submission
made by the petitioner and have perused
the record.

10. The record reveals that the sale
deed dated 11.12.1964 was executed in
favour of persons who were co-tenure
holders of the Khata in question and were
recorded as such thereon from prior to the
sale deed.

11. Under the circumstances, there was
no question of the sale deed requiring
mutation in the revenue record. Mutation
could have been required only if the sale
deed was in favour of persons whose name
did not already exist in the record. Moreover,
sale deed is of a share in a joint Khata and
the same, therefore, is not hit by provision
168-A of the Act as it existed in the statute
book on the date of sale deed. This provision
has been deleted from statute book w.e.f.
23.8.2004 vide Act No. 27 of 2004. Sale of
share by one co-tenure holder in favour of
another co-tenure holder in a joint khata does
not result in any fragmentation.

12. This view is fully supported by
the judgment in the case of Santokhi Vs.
Board of Revenue UP reported in 1971
RD 518, wherein it was held as under:

"Where undivided interest of one of the
co-tenure holders is transferred, it cannot be
said that the transfer involves transfer of a
'fragment', ........"What is transferred is
undivided interest in the land and not any
specific land. The prohibition contained in
Section 168-A is in respect of land which is a
fragment i.e. which is lesser in extent than
the prescribed area and not of undivided
interest in the land..."

13. By the sale deed in question the
share of one co tenure holder increased
2 All] Rameshwar Das Gupta & Anr. Vs. State of U.P. & Ors.
613
and that of the vendor decreased in an
undivided
holding.
Hence
no
fragmentation resulted and the holding
remained the same.

14. The plea of fragmentation
cannot be accepted for another reason.
For this plea to succeed it is also required
to be proved that the sale was of a
fragment in a consolidated area. There is
nothing on record that consolidation
operations had taken place prior to the
execution of the sale deed on 11.2.1964.

15. In view of aforesaid discussion
the submissions made by the learned
counsel for the petitioner have no force.
The writ petition is devoid of merits and
is accordingly dismissed at the admission
stage.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Civil Misc. Writ Petition No.22113 of 2014

Rameshwar Das Gupta & Anr..Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Pankaj Dubey

Counsel for the Respondents:
C.S.C., Sri Ramendra Pratap Singh

Right to fair compensation and transparency
in
land
Acquisition
Rehabilitation
and
Resettlement Act, 2013-Section 24-claim of
fair
compensation-land
acquired
by
notification u/s 4-on 17.09.96-notification
under section 6 issued on 28.10.96compensation received as per Rule 1997 on
05.02.01-claim
based
upon
ground-no
physical possession taken-and petitioners
are still in actual possession-except certain
photographs no documents produced-heldafter receiving amount of award based
upon
agreement
possession
of
state
government itself presumed-if possession
retain petitioner-deemed dishonest can not
invoke writ jurisdiction-petition dismissed.

Held: Para-9
We are further of the view that in case the
petitioners had not handed over the
possession after the Award had been
passed even after receiving compensation
and also did not challenge the said
proceedings before any competent court or
authority by not handing over possession of
the land, the petitioners had clearly not
conducted themselves properly and had
proceeded with a dishonest intention. Such
being the position, the petitioners would
not be entitled to any relief under the extra
ordinary discretionary jurisdiction of this
Court under Article 226 of the Constitution
of India.

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard learned counsel for the
petitioners as well as learned Standing
Counsel
appearing
for
the
Staterespondents no. 1 to 3 and Sri Ramendra
Pratap Singh, learned counsel appearing
for
respondent
no.4-Greater
Noida
Industrial Development Authority and
have perused the record.

2. The admitted case of the
petitioners is that by notification dated
17.9.1996 issued under section 4 of the
Land Acquisition Act, 1894 (hereinafter
referred to as "the Act") and the
subsequent notification dated 28.10.1996
issued under section 6 of the Act, the land
of the petitioners was acquired by the