Heard Sri Ramji Singh Patel, learned counsel for the petitioners, learned Standing Counsel for the respondent nos. 1, 2 and 3, Sri D.D. Chauhan, Advocate holding brief of Sri M.N. Singh learned counsel for the Gaon Sabha-respondent no. 14, and Sri Vijay Kumar Rai, learned counsel for the respondent nos. 4 to 13. The respondent nos. 15 to 17 are the heirs of the vendor of the contesting parties. They have not put in contest as the matter has been compromised between the petitioners and the contesting respondents, which forms part of the earlier judgment of this Court dated 14.02.2011. Whether the Board of Revenue, in exercise of its appellate powers under Section 331 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 read with the IInd Schedule appended thereto and the provisions of the U.P. Land Revenue Act, 1901, could refuse to record the compromise as directed by this Court and carve out a new case for disposing of the second appeal under the impugned order dated 02.06.2011 giving rise to this petition, is the short question which has to be answered by this Court. The said issue has been argued by the learned counsel for the parties which in the opinion of the Court does not require any exchange of affidavits as the entire material is already available on record. This matter arises out of a suit under Section 229-B of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as 'the 1950 Act') relating to two sale deeds dated 23.05.1978 and 08.06.1978 whereby the vendor had sold his entire holding of 21 Bighas and 10 Biswas of grove land. The suit was contested by the parties and ultimately the matter reached the Board of Revenue in a second appeal. The Board decided the matter against the petitioners, vide judgment dated 30.05.2005. The said judgment passed in second appeal was assailed in Writ Petition No. 45849 of 2005. During the pendency of the Writ Petition No. 45849 of 2005, a compromise application was filed by the contesting parties and the said writ petition was disposed of on 14.02.2011 setting aside the order of the Board of Revenue dated 30.05.2005 with a clear direction to decide the second appeal in terms of the compromise. The judment of this Court passed in the said writ petition is extracted hereinunder: "Hon'ble Vikram Nath, J.
This is an application jointly filed by the counsel for the petitioner and the respondent with a prayer to allow the writ petition in terms of the compromise, after setting aside the order passed by the Board of Revenue on 30.5.2005 in Second Appeal No. 22/2001-2002. The application is supported by an affidavit of large number of parties who are said to be the petitioners and the contesting respondents. Upon a query being made to the counsel for the parties, this is not a case where the parties want that the order of Board of Revenue be set aside and that of the lower appellate court be maintained. Learned counsel for the parties have stated that they want certain modifications in the order of lower appellate court also. In this view of the matter, this Court is of the view that the matter may be sent back to the Board of Revenue to decide the second appeal afresh in terms of the compromise arrived at between the parties. Accordingly, the judgement and order dated 30.5.2005 passed by the Board of Revenue in Second Appeal No. 22/2001-2002 is hereby set aside. The matter is remitted to the Board of Revenue to decide the said second appeal afresh in the light of the terms of the compromise arrived at between the parties. As the various affidavits of the parties have been filed before this Court along with this compromise application, it would be appropriate that counsel for the parties may obtain certified copy of the compromise application and the affidavit and file it before the Board of Revenue for appropriate orders being passed in the second appeal. The writ petition stands allowed with the observations as made above. The parties shall approach before the Board of Revenue within a month from today and thereafter Board of Revenue shall make an endeavour to decide the second appeal afresh expeditiously preferably within a period of three months from the date of production of certified copy of the order." An application, captioned as a compromise application dated 13.01.2011 supported by affidavits dated 26.12.2010, (Annexure-23 to the petition) was filed before the Board of Revenue and was registered as Misc. Compromise Application No. 2. Strangely enough in a very peculiar manner while passing the impugned order dated 02.06.2011, the learned Member, Board of Revenue began by reciting that the matter was not only heard between the parties but was also decided in the presence of few members of the Bar. It is not understandable as to why such hearing was required to be given by the learned Member, Board of Revenue when there was a clear direction of the High Court to decide the matter in terms of the compromise itself. The learned Member, Board of Revenue instead of deciding the matter as per the judgment of this Court, in paragraph 7 of the impugned order states as under: "7. It goes without saying that Hon'ble High Court expects and requires of the Board of Revenue to undertake due application of mind while passing appropriate orders in the light of the directions passed by the Hon'ble Court. The Hon'ble Court does not expect or require the Board of Revenue to accept the compromise filed by the parties in a mechanical manner, without due application of mind and without due examination of the law applicable." The aforesaid recital in the order of the learned Member-Sri Dinesh Singh is contrary to law and shows scant respect to the order of the High Court. In essence, the aforesaid recital is a clear defiance of the order of the High Court and is nothing short of interfering with the course of justice. The High Court had clearly directed that the second appeal has to be decided in terms of the compromise and not otherwise. It has to be noted, and as rightly contended by learned counsel for both the parties that litigation has to be brought to an end and not procrastinated. It is for this reason that this Court and the Apex Court has time and again held that in such writ petitions where a prayer of certiorari has been made in relation to a dispute decided by a statutory authority, a compromise between the parties can be entered into even in a writ petition. Reference is made to the decisions in the case of Surendra Nath Rai and another Vs. Prahlad Singh and others reported in 2002 (3) AWC 2301, Jamshed Harmusji Wadia Vs. Board of Trustees, Port of Mumbai and another reported in AIR 2004 SC 1815 and in the case of Commissioner of Endowments and others Vs. Vittal Rao and others reported in 2005 (2) AWC 1984 (SC). It is, therefore, clear that the High Court was well within its jurisdiction in recording the factum of the compromise having been entered into between the parties with a direction to the Board of Revenue to decide it in terms thereof. This having been done, the opinion of the learned Member, Board of Revenue that the High Court did not expect the Board of Revenue to accept the compromise is totally against the judgment of this Court. The learned Member had absolutely no authority in law to have proceed in the matter and frame fresh substantial questions of law which was not even agitated by either of the parties and as a matter of fact, no lis subsisted after the compromise had been entered into between the parties. The learned Member, Board of Revenue completely forgot the ingredients of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 which clearly indicates that even a court of competent civil jurisdiction has the power to accept a compromise between the contesting parties in accordance with law. Section 341 of the 1950 Act also makes the said provision applicable to Revenue Courts as well. A compromise is a joint promise that is mutual with an element of private consent. It is a settlement or an arrangement between contending parties, lined with concessions and surrender of one's position for the sake of coming to terms. It is an adjustment for practical purposes drawing a curtain over rival courses of action. It is something of remittance, give and take to end differences and conflicting claims. The intention, through mutual concessions, is to draw a close to an ongoing dispute that finally binds the parties to the terms of settlement. There are various theories on compromises and for an abstract study one can refer to John Morley's "On Compromise". In the instant case this intention appears to have been expressed clearly in terms of what is required under Rule 3 of Order XXIII, C.P.C. The learned Member appears to have gone amiss that the law declared by this Court in Writ Petition No. 45849 of 2005 inter-parties was binding on the Board of Revenue, which is a Tribunal subordinate to and under the supervision of the High Court under Article 227 of the Constitution of India. The learned Member, therefore, travelled beyond his authority to comment upon the order of the High Court and then proceeded to decide the second appeal as an original dispute. It appears that the learned Member laboured hard to exhibit his prowess in law. If he was so desirous to interpret the law, he ought to have taken help of some revenue lawyer or the Government Panel Lawyer to understand the provisions of Section 168-A of the 1950 Act. The learned Member did not even care to look into the conversion chart of the area from bighas to hectares in order to find out as to whether the said provision was attracted or not. The law for applying the provisions has been elaborately explained in the case of Goverdhan Singh Vs. Board of Revenue, 1992 RD 117, which in turn relies on an Apex Court decision and another decision of this Court referred to therein. A little effort would have allowed the learned Member to have a better and deep insight into the issue, if he was honestly desirous of at least knowing the law for the benefit of the litigant. His hasty approach to frame the questions simultaneously and answer them forthwith clearly explains his determinant and malicious state of mind to undo the compromise that had brought to an end to the litigation. One needs to remember what F.R. Bienenfeld in his famous work "Rediscovery of Justice" states, while discussing the theories of the 19th century German idealist Immanuel Kant, in Part Two Chapter I (at page 60), "Stability is the Soul of the Law of Property." In a property dispute, like the one presently involved, a compromise is a lawful method to voluntarily and mutually end a dispute, without violating the statute. The learned Member appears to have been conducting himself so determinatively that he shut out every reason and provision of law, making justice look literally blind. He did not exercise the power conferred for the purpose for which it was meant as is evident from the background of the litigation. This is what is known as malice in law as explained by the Apex Court in a large number of decisions including those reported in AIR 1976 SC 1207 (State of Uttar Pradesh Vs. V.K.S. Chaudhary etc.) (Paragraph 207), (2008) 7 SCC 53 (Girias Investment Private Limited and another Vs. State of Karnataka and others), (2004) 2 SCC 65 (Bahadursingh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and others) (Paragraphs 24 & 25), (1980) 2 SCC 471 (State of Punjab and another Vs. Gurdial Singh and others) (Paragraph 9). Learned counsel for the petitioners and the contesting respondents both have invited the attention of the Court to the conversion table as contained in the directory issued by the Board of Revenue of which the learned Member was a presiding officer. The same is extracted hereinunder: Ñf"k x.kuk ¼2010&11½ ¼jktLo ifj"kn] mŸkj izns'k ds vf/kdkj ls izdkf'kr½ ifjf'k"V&14 Vscqy ua0&06 ¼1 ch?kk = 3025 oxZ xt½ ch?kk ls gsDVs;j esa ifjorZu djus dh rkfydk ch?kk gsDVs;j fcLok gsDVs;j 1 ch?kk + fcLok 2 ch?kk + fcLok 3 ch?kk + fcLok 4 ch?kk + fcLok fcLoaklh gsDVs;j 1 0.253 1 0.013 0.266 0.519 0.771 1.024 1 0.0006 2 0.506 2 0.025 0.278 0.531 0.784 1.037 2 0.0013 3 0.759 3 0.038 0.291 0.544 0.797 1.050 3 0.0019 4 1.012 4 0.051 0.304 0.556 0.809 1.062 4 0.0025 5 1.265 5 0.063 0.316 0.569 0.822 1.075 5 0.0032 6 1.518 6 0.076 0.329 0.582 0.835 1.088 6 0.0038 7 1.770 7 0.089 0.341 0.594 0.847 1.100 7 0.0044 8 2.023 8 0.101 0.354 0.607 0.860 1.113 8 0.0051 9 2.276 9 0.114 0.367 0.620 0.873 1.126 9 0.0057 10 2.529 10 0.126 0.379 0.632 0.885 1.138 10 0.0063 20 5.059 11 0.139 0.392 0.645 0.898 1.151 11 0.0070 30 7.558 12 0.152 0.405 0.658 0.911 1.163 12 0.0076 40 10.117 13 0.164 0.417 0.670 0.923 1.176 13 0.0082 50 12.646 14 0.177 0.430 0.683 0.936 1.189 14 0.0089 60 15.176 15 0.190 0.443 0.696 0.948 1.201 15 0.0095 70 17.705 16 0.202 0.455 0.708 0.961 1.214 16 0.0101 80 20.234 17 0.215 0.468 0.721 0.974 1.227 17 0.0107 90 22.764 18 0.228 0.481 0.733 0.986 1.239 18 0.0114 100 25.293 19 0.240 0.493 0.746 0.999 1.252 19 0.0120 1000 252.929 20 0.253 0.506 0.759 1.012 1.265 20 0.0126 ifjf'k"V&14 Vscqy ua0&07 ifjorZu rkfydk&,dM+ ls gsDVs;j ¼1,dM+&4840 oxZ xt½ Mslhey lsV gsDVs;j Mslhey lsV gsDVs;j Mslhey lsV gsDVs;j Mslhey lsV gsDVs;j 0.01 0.004 0.31 0.125 0.61 0.247 0.91 0.368 0.02 0.008 0.32 0.130 0.62 0.251 0.92 0.372 0.03 0.012 0.33 0.134 0.63 0.255 0.93 0.376 0.04 0.016 0.34 0.138 0.64 0.259 0.94 0.380 0.05 0.020 0.35 0.142 0.65 0.263 0.95 0.384 0.06 0.024 0.36 0.146 0.66 0.267 0.96 0.388 0.07 0.028 0.37 0.150 0.67 0.271 0.97 0.393 0.08 0.032 0.38 0.154 0.68 0.275 0.98 0.397 0.09 0.036 0.39 0.158 0.69 0.279 0.99 0.401 0.10 0.040 0.40 0.162 0.70 0.283 1 acre 0.405 0.11 0.045 0.41 0.166 0.71 0.287 2 acres 0.809 0.12 0.049 0.42 0.170 0.72 0.291 3 acres 1.214 0.13 0.053 0.43 0.174 0.73 0.295 4 acres 1.619 0.14 0.057 0.44 0.178 0.74 0.300 5 acres 2.023 0.15 0.061 0.45 0.182 0.75 0.304 6 acres 2.428 0.16 0.065 0.46 0.186 0.76 0.308 7 acres 2.833 0.17 0.069 0.47 0.190 0.77 0.312 8 acres 3.238 0.18 0.073 0.48 0.194 0.78 0.316 9 acres 3.642 0.19 0.077 0.49 0.198 0.79 0320 10 acres 4.047 0.20 0.081 0.50 0.202 0.80 0.324 20 acres 8.094 0.21 0.085 0.51 0.206 0.81 0.328 30 acres 12.141 0.22 0.089 0.52 0.210 0.82 0.332 40 acres 16.187 0.23 0.093 0.53 0.214 0.83 0.336 50 acres 20.234 0.24 0.097 0.54 0.218 0.84 0.340 60 acres 24.281 0.25 0.101 0.55 0.223 0.85 0.344 70 acres 28.328 0.26 0.105 0.56 0.227 0.86 0.348 80 acres 32.375 0.27 0.109 0.57 0.231 0.87 0.352 90 acres 36.422 0.28 0.113 0.58 0.235 0.88 0.356 100 acres 40.469 0.29 0.117 0.59 0.239 0.89 0.360 1000 acres 101.685 0.30 0.121 0.60 0.243 0.90 0.364 10000 acres 1016.856 The land of the petitioners which was being claimed under the compromise with the contesting respondents and was subject matter of the sale deeds, was of the entire holding of 21 Bighas and 10 Biswas. The issue of fragmentation did not arise at all and there was no occasion to frame any such substantial question of law on the facts of the case. Even otherwise if at all the requirement of law was to be fulfilled by framing fresh questions of law, the appeal could not have been disposed of on the same day without admission and hearing thereon. As a matter of fact, the appeal appears to have been posted on the date fixed on the compromise application. What will amount to fragmentation is defined in Section 3(8-A) (b) of the 1950 Act quoted hereinbelow: "3 (8-A). "fragment" means land of less extent that-
(b). 3.125 acres in the rest of Uttar Pradesh excluding Kumaun Division." The transfer of land less than the area prescribed would amount to fragmentation, and a transfer of such an area of a holding would be invalid and will also involve divesting of the property. Section 168-A of the 1950 Act is quoted below: "168-A. 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 tenure-holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder 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 Sub-section (1) shall be void. (3) When a bhumidhar has made any transfer in contravention of the provisions of Sub-section (1) the provisions of Section 167 shall mutatis mutandis apply." Apart from this, the learned Standing Counsel suggests that it appears that since the area of the petitioners was 5 Bighas and 6 Biswas, therefore, the learned Member proceeded to calculate the same in order to invoke the provisions of Section 168-A of the 1950 Act. This was also erroneous keeping in view the conversion chart referred to hereinabove, inasmuch as, the optimum limit as prescribed for the purpose of fragmentation is 3.25 acres, which comes 1.26 hectares. The land of the petitioners under the sale deed is 5 Bighas and 6 Biswas = (1.265 + 0.063 = 1.328 hectares) which is above 1.26 hectares. The very same issue of an erroneous application of Section 168-A was unnecessarily reflected in the operative part of the order of the Board of Revenue dated 30.05.2005 that was quashed by this Court vide judgment dated 14.02.2011. It is surprising that the same question of law was again framed by the learned Member who has passed the impugned order. In such a situation, the learned Member neither on facts nor in law was justified in framing substantial questions of law and then answering them. This is a clear defiance of the order of the High Court. The order, therefore, is unsustainable by not only being illegal but also being clearly malicious in law. The learned Member has exceeded his authority by trying to overreach the order of the High Court and, therefore, liable to be severely deprecated. Here the parties to the litigation want to end the litigation whereas the learned Member has proceeded to compel the parties to again approach this Court. In such circumstances, the conduct of the learned Member cannot be appreciated. The impugned order nowhere reflects action taken in good faith and clearly amounts to defiance of law. The impugned order dated 2nd June, 2011 is, therefore, unsustainable and is hereby quashed. The writ petition is allowed. Let a copy of this judgment be sent to the Chief Secretary, Government of Uttar Pradesh and the learned Chairman, Board of Revenue for information. The Board of Revenue shall now proceed to implement the order of the High Court dated 14.02.2011 and decide the matter within a period of six weeks from the date of presentation of a certified copy of this order before him without any further delay. A certified copy of this order be provided to the learned Chief Standing Counsel free of charges. Dt. 30.09.2011 Akv