IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 429 OF 2001 (MS) State of Uttar Pradesh …………..Petitioner. Versus Smt. Shakura Begum and another. …………Respondents. & WRIT PETITION NO. 4555 OF 2001 (MS) State of Uttar Pradesh …………….Petitioner. Versus Mohd. Sharif and another ……….Respondents. Mr. H.M. Raturi, learned Standing Counsel for the petitioner. Mr. Rajendra Singh & Mr. A. Rab, learned counsel for the respondents. 5th August, 2008 Hon’ble P.C. Verma, J. Since both the writ petitions are directed against the order dated 21st July, 1983, therefore, both are being decided together. 2. Brief facts of the case are that notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act was issued to the respondent no. 1 Smt. Shakura Begum in the year, 1965 and in lieu of dower, respondent 2 no. 1 transferred Plot No. 433 measuring about 12.76 acres in her name and since Smt. Shakura Begum is tenure holder in her own right, these plots are not liable to be included in holding of respondent no. 1. Apart from this, an objection was raised that by means of his family settlement, he has affected a partition and has given share to his two sons and three daughters and that land is also liable excluded from the holding of respondent no. 1. Apart from this objection, other objection was also raised. Smt. Shakura Begum filed separate objection and the vendees in whose favour the land was transferred by means of registered sale deed dated 10.12.1972 and 15.3.1972 also filed their objections before the Prescribed Authority. The Prescribed Authority vide order dated 13.9.1976 rejected the objection of the objectors. 3. Being aggrieved against the said order, two appeals were preferred, one by Mohd. Sharif Khan and another by one Smt. Shakura Begum before the Civil Judge, Dehradun. The appeal filed by the appellants (respondents herein) were allowed by a common judgment dated 21.7.1983. Against the said order, these writ petitions have been filed. 4. Heard learned counsel for both the parties, perused the impugned order of the court below. 5. Learned Standing Counsel for the State has submitted that the Civil Judge has committed an error of law inasmuch as he has failed to take into account the 3 provisions of Section 3(7) of the Act, which lays down that only judicially separated wife will not be treated in the family of the tenure holder and as such, the order is wholly illegal and erroneous. 6. Learned Standing Counsel for the State has further submitted that the appellate Court has failed to take into account that the case was filed and was decreed after the enforcement of the Ceiling Act and as such, this case and decree was nothing but a method to scape from the clutches of Ceiling Law and as such, the Prescribed Authority rightly ignored this decree, but the lower appellate Court in holding otherwise has committed a manifest error of law. 7. Learned Standing Counsel for the State has further submitted that Civil Judge has failed to take into account the provisions of Section 5 (6) & 5(7) of U.P. Imposition of Ceiling on Land Holdings Act. 8. After perusing the impugned order, I find force in the aforesaid submissions of the learned Standing Counsel for the State/petitioner. Hence, the order dated 21.7.1983 passed by the Civil Judge (I), Dehradun in Misc. Ceiling Appeal No. 402 of 1976 and Misc. Ceiling Appeal No. 403 of 1976 as well as the order dated 13.9.1976 passed by the Prescribed Authority in Case No. 12 of 1975-76 is set aside. 4 9. Both the writ petitions are allowed and the matter is sent back to the Prescribed Authority to decide the case afresh after framing issues afresh and after hearing the parties considering the aforesaid submissions made by the learned Standing Counsel for the State/petitioner. 10. No order as to costs. (P.C. Verma, J.) 5.8.2008 Rathour