IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Writ Petition No. 513 of 2002 (M/S) Smt. Rasheedan W/o Maseeh Ahmad R/o Village Nasirpur Kala Pargana Jwalapur Tehsil and District Haridwar ……………Petitioner Versus 1. District Deputy Director of Consolidation/ Collector Haridwar. 2. Settlement Officer of Consolidation Haridwar Camp Roorkee. 3. Consolidation Officer Roorkee. 4. State of Uttarakhand through Collector Haridwar. 5. Babu Hasan S/o Tufail Ahmad R/o Village Nasirpur Kala, Pargana Jwalapur, Tehsil and District Haridwar. ………… Respondents Sri Mahavir S. Tyagi, Advocate, present for the petitioner. Sri Sudhir Kumar, Brief Holder, present for the respondents No. 1 to 4. Sri Tapan Singh, Advocate, holding brief of Sri Lok Pal Singh, Advocate, present for the respondent No. 5. Hon'ble Prafulla C. Pant, J. This writ petition, moved under Article 226 read with 227 of the Constitution of India, is directed against the order dated 30.05.2002, passed by respondent No. 1 - District Deputy Director of Consolidation / Collector, Haridwar, in 2 Revision No. 40 of 2001, filed before said authority, under Section 48 of Uttar Pradesh Consolidation of Holdings Act, 1953. (2) Heard learned counsel for the parties and perused the papers on the record. (3) Brief facts giving rise to this petition are that Azimmuddin was Bhumidhar of land of Khata No. 7 (Old No. 5), situated in village Nasirpur Kala, Pargana Jwalapur, District Haridwar. The petitioner and respondent No. 5 are related by following pedigree:- Azimmuddin Maseeh Ahmad Tufail Ahmad (Son) (Son) Rasheedan (Widow of Maseeh d) Babu Hasan Abdul Hasan Sharafat Liakat Riasat Ahma Petitioner (Respondent No.5) After death of Azimmuddin, Maseeh Ahmad and Tufail Ahmad succeeded the land in question. The share owned by Tufail Ahmad after his death was succeeded by his sons Babu Hasan (respondent No. 5), Abdul Hasan, Sharafat, Liakat and Riasat. Meanwhile, it appears that Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act No. 1 of 1961) came into force 3 and the share inherited through Tufail Ahmad by respondent No. 5 and his brothers got saved from ceiling, as their holding was less than maximum limit prescribed under the aforesaid Act, but the share inherited by Maseeh Ahmad was treated to be half share of the land owned by Azimmuddin, as such 18 Bighas 14 Biswas of his land was declared surplus by the prescribed authority under the aforesaid Act. It appears that Maseeh Ahmad and five sons of Tufail Ahmad obtained a compromise partition decree on 01.06.1974, in which share of Maseeh Ahmad was declared 1/6th. Said decree was ignored by Prescribed Authority (Ceiling). Appeal No. 9 of 1978 filed by Maseeh Ahmad before District Judge, Saharanpur, was also dismissed vide order dated 31.07.1978 passed by IV Additional District & Sessions Judge, Saharanpur. It appears that Maseeh Ahmad further challenged the declaration of surplus land by filing Civil Misc. Writ Petition No. 9256 of 1978 before Allahabad High Court which was also dismissed vide order dated 14.04.1980, and surplus land of Maseeh Ahmad vested in State. Thereafter, village Nasirpur Kala came under consolidation operations after a notification was issued under Section 4 of U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. 5 of 1954). It appears that after preparation of CH5, Babu Hasan (respondent No. 5) and his brothers filed objections under Section 9-A (2) of 4 U.P. Act No. 5 of 1954. Objections were contested by the petitioner before the Consolidation Officer. Said authority (Consolidation Officer, Roorkee) vide his order dated 16.09.1996 rejected the objections of Babu Hasan and his brothers, and held that petitioner Rasheedan (widow of Maseeh Ahmad) inherited half share in the land owned by Azimmuddin, after death of her husband. Aggrieved by said order passed by the Consolidation Officer, Roorkee, in Case No. 5669, 5670 and 5671, Babu Hasan (respondent No. 5) preferred appeal before Settlement Officer of Consolidation under Section 11 of U.P. Act No. 5 of 1954, which was registered as Appeal No. 162. Said authority, after hearing the parties, also dismissed the appeal. Thereafter Babu Hasan (respondent No. 5) filed revision No. 40 of 2001 under Section 48 of the aforesaid Act before District Deputy Director of Consolidation. Said authority after hearing the parties, allowed the revision and remanded the matter to Consolidation Officer to decide the objections afresh on merits. Hence this petition by the petitioner Rasheedan challenging the order passed by the revisional authority on the ground that it has acted erroneously in holding that the parties were bound by decree dated 01.06.1974, passed by revenue authorities under Section 176 of U.P. Zamindari Abolition & Land Reforms Act, 1950 (U.P. Act 1 of 1951). 5 (4) In the counter affidavit filed on behalf of the respondent No. 5 it has been stated that not only the petitioner is bound by the partition decree passed by the revenue authorities in Revenue Suit No. 5 of 1973, wherein Maseeh Ahmad (husband of the present petitioner) was party, but also by the statement made by him (Maseeh Ahmad) before Prescribed Authority (Ceiling) on 06.09.1974 in Ceiling Case No. 8 of 1974 in which he admitted that his share was 1/6th in the land in question. (5) In the counter affidavit filed on behalf of respondents No. 1 to 4 it has been stated that Revenue Suit No. 5 of 1973 (for partition) appears to have been filed by Maseeh Ahmad and sons of Tufail Ahmad to defeat the object of U.P. Imposition of Ceiling on Land Holdings Act, 1960 and as such in the proceedings of ceiling the decree passed in said partition suit was not acted upon and 18 Bighas 14 Biswas of land inherited by Maseeh Ahmad, from Azimmuddin, was declared surplus. (6) Before further discussions this Court thinks it just and proper to mention sub section (7) of Section 5 of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act No. 1 of 1961), which reads as under:- 6 “(7) In determining the ceiling area applicable to a tenure-holder, any partition of land made after the twenty-fourth day of January, 1971, which but for the partition would have been declared surplus land under this Act shall be ignored and not taken into account: Provided that nothing in this sub- section shall apply to- (a) (b) a partition of a holing made in a suit or a proceeding pending on the said date: Provided further that notwithstanding anything contained in the preceding proviso the prescribed authority, if it is of opinion that by collusion between the tenure-holder and any other party to the partition, such other party has been given a share which he was not entitled to, or a large share than he was entitled to may ignore such partition. Explanation I.-If suit is instituted after the said date for declaration that a partition of land has taken place on or before the said date, then such declaration shall be ignored and not be taken into account and, it shall be 7 deemed that no partition has taken place on or before the said date. Explanation II.-The burden of providing that a case falls within the first proviso shall rest with the party claiming its benefit.” (7) From the perusal of the papers on record, it appears that a compromise decree was passed by the revenue authorities under Section 176 of U.P. Act No. 1 of 1951, in which the share of Maseeh Ahmad (husband of the present petitioner) was declared 1/6th. From the facts already narrated above, it is clear that after death of Tufail Ahmad, when his five sons inherited the property, they got shares measuring less than the maximum limit while half share of Maseeh Ahmad came under the clutches of the ceiling law and he was to part with 18 Bighas 14 Biswas of the land under the ceiling law. The ceiling authorities rightly rejected the compromise decree obtained by the petitioner’s husband with her nephews in partition suit, keeping in view the provision contained in sub section (7) of Section 5 of U.P. Act No. 1 of 1961. (8) Learned counsel for the respondent No. 5 argued that not only the petitioner is bound by the decree passed in the partition suit but also by his husband’s statement made before Prescribed 8 Authority (Ceiling) on 06.09.1974, a copy of which is Annexure CA-1 to the counter affidavit, filed by the respondent No. 5. In said statement Maseeh Ahmad has stated before Prescribed Authority (Ceiling) that he had only 1/6th share in his ancestral property. Neither this statement nor the compromise decree was accepted by the ceiling authorities, as such in the opinion of this Court the compromise partition decree between Maseeh Ahmad and his nephews was nothing but a collusive decree which was obtained only to defeat the object of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act No. 1 of 1961). Said decree was neither accepted by the ceiling authorities nor appears to have been acted upon. As such, this Court finds that the respondent No. 1 (District Deputy Director of Consolidation, Haridwar) has erred in law in upsetting the concurrent finding of fact recorded by the Consolidation Officer and Settlement Officer of Consolidation that Maseeh Ahmad inherited half share in the land of his father Azimmuddin, which is succeeded by his widow Rasheedan (present petitioner). If the reasoning given by the District Deputy Director of Consolidation are accepted that the share declared in the suit No. 5 of 1973 operates as res judicata, this would reopen the case wherein 18 Bighas 14 Biswas of land of Maseeh Ahmad was declared surplus under the ceiling law as in the case Maseeh 9 Ahmad share is accepted as 1/6th, no land could have been declared surplus inherited by him. Said proceedings have already attained finality up to the highest court, as discussed above. (9) For the reasons as discussed above, this petition is allowed. The impugned order dated 30.05.2002, passed by District Deputy Director of Consolidation / Collector Haridwar, in Revision No. 40 of 2001, is set aside. The orders passed by the Consolidation Officer and Settlement Officer of Consolidation, are restored. (Prafulla C. Pant, J.) 31.07.2009 NS