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Judgment
B.S. Verma, J.
The present writ petition has been filed by the petitioners for issue of writ, order or direction in the nature of certiorari quashing the judgment and order dated 312000 (Annexure No. 2) passed by respondent No. 1 and order dated 1111999 (Annexure No. 1) passed by respondent No. 2 respectively.
Brief facts of the case are that Bharat Singh was Bhumidhar of plot No. 68 area 7164 bigha, plot No. 118 area 059 bigha, plot No. 122, area 6317, total area 14510 bigha. He executed a saledeed in favour of Deshpal (father of petitioner No. 1) and Karan Pal Singh and Krishan Pal Singh (both sons of Phool Singh), who are petitioner Nos. 2 and 3 on 2681988 in respect of 1/8th share of undivided portion of these plots.
Proceedings were initiated under Section 168A of the U.P.Z.A. and L.R. Act (for short the Act) regarding the transferred land by way of the saledeed dated 2681988 on the ground that the saledeed was hit by the provisions of Section 168A of the said Act and that the saledeed is void as per provision of Section 166 of the Act. It was held by the Additional Collector, Haridwar (respondent No. 2) in his judgment and order dated 1111999 that the land under the saledeed being fragment vested in the State under the provisions of Section 167 of the Act. It was also held that the sale is void ab initio being fragment. Aggrieved by the impugned order, the petitioners filed a Revision No. 42/9899 before the Additional Commissioner, Saharanpur. Ultimately, the revision was also dismissed by the Additional Commissioner, Saharanpur Region, who confirmed the order of the Additional Collector passed in the proceedings under Sections 168A and 167 of the Act in Case No. 2/9798, State v. Manoj & Ors.
This fact has not been disputed that the saledeed was executed by Bharat Singh in favour of Deshpal Singh, father of the petitioner No. 1 and Karanpal Singh and Krishnapal Singh, sons of Phool Singh. It is also not disputed that 1/8th undivided share was transferred by Bharat Singh.
Learned Counsel for the petitioner Sri M.S. Tyagi has submitted that since it was a saledeed in respect of a share only, it would not amount to fragmentation of the holdings. Learned Standing Counsel has contended that Sri Bharat Singh transferred the land in question only of l/8th share by way of saledeed, which is less than 3.125 acres, which is a fragment as defined in Section 3 (8a) (b) of the Act.
The only question involved in this case is as to whether the saledeed executed by Sri Bharat Singh is hit by Section 168A of the Act or not.
Provision for transfer of fragments is governed by Section 168A of the Act, which reads as follows:
�168A. Transfer of fragments. (1) Notwithstanding the provisions of any law for the time being in force no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenureholder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenureholder the whole or so much, of the plot in which the person has bhumidhari rights, which pertains to the fragment is thereby transferred.
(2) The transfer of any land contrary to the provisions of subsection (1) shall be void.
(3) When a bhumidhar has made any transfer in contravention of the provisions of subsection (1) the provisions of Section 167 shall mutatis mutandis apply.�
The same controversy whether the saledeed executed of a share which is less than 3.125 acres comes within the meaning of fragment has been decided by the Allahabad High Court in the case of Goverdhan Singh & Ors. v. The Board of Revenue & Ors., 1992 RD 117, in which the judgment of the Hon''ble Apex Court in Mithlesh Kumari v. Fateh Bahadur Singh, 1991 RD 184, was referred. In that case, it was observed by the Hon''ble Supreme Court that �the object of the section is to prevent fragmentation of land situated in a consolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers Section 167 will mutatis mutandis be applicable.� In the case of Goverdhan Singh (supra), reliance was also placed on the decision of Allahabad High Court Santosh v. Board of Revenue U.P., 1971 RD 518, and it was held in paragraph 6 of the judgment that �transfer of a, share is distinguishable from a transfer of a portion of the plot in terms of area amounting to `fragment'' within the meaning of Section 168A of the Act. The transferees of a defined share are, however, entitled to coshare in the holding alongwith the transferor and if any of the co sharers applied for division of holding which may result in fragmentation, the same would be taken care of by the law and fragmentation would be prevented as is evident from Section 178 (1) of the Act read with related rules.� I am fortified in my view by the decision of the Allahabad High Court in Goverdhan Singh case (supra) and I am of the considered view also that the saledeed executed by Sri Bharat Singh is not hit by Section 168A of the Act and the learned Additional Collector, Haridwar as well as learned Additional Commissioner have erred in law in holding that the saledeed executed by Sri Bharat Singh was hit by Section 168A of the Act. The impugned judgment and orders suffer from manifest error of law being perverse and are liable to be set aside.
The writ petition succeeds and is allowed. The impugned judgment and order dated 1111999 (Annexure1) and judgment and order dated 312000 (Annexure No. 2) passed by respondent Nos. 2 and 1 respectively are quashed. The petitioners as a consequence shall remain recorded in the revenue records over the plots in dispute as cobhumidhars alongwith Sri Bharat Singh. No order as to costs.