RANVIR SINGH Vs. DISTRICT JUDGE ETAH

JUDGEMENT

(1.) This petition under Article 226 arises out of proceed ings under the U P. Imposition of Ceiling on Land Holdings Act (hereafter 'the Act' ). Indra Singh, respondent No. 4 was recorded tenure-holder in village Syourai, Pergana Marhera, District Etah. He was served with a notice and the statement under Section JO (2) of the Act. He filed an objection to that notice in which one of the contentions taken was that he had transferred 13 plots comprising an area of 9. 78 acres of his holding in favour of Ranvir Singh and seven others, who are the petitioners before this Court, by means of several sale deeds executed on 12- 3-1973. It was claimed that the transfers were made for consideration and the tranferees were in cultivatory possession of the plots transferred and hence the same could not be treated as a part of his holding. That objection was repelled by the Prescribed Authority and it declared 3. 89 acres as surplus land. That order appears to have become final against Indra Singh. He, however, while indicating his choice mentioned plots Nos 1238, 1245, 1247 and 1248 also out of the plots which he had transferred in favour of the petitioner, from which he wanted the surplus area to be taken and the Prescribed Authority accepted that choice by its order dated 21-6-1978. The petitioners thereon filed an objection under Section 11 (2) of the Act on 7-8-1978. It was stated in that objection that the petitioners had come to know on 5-8-1978 only that surplus area was going to be taken from some of the plots which have been mentioned above and there was a prayer for condonation of delay in filing the objection made therein. The Prescribed Authority, by its order dated 18-12-1978, dismissed that objection as not maintainable. Being aggrieved, the petitioners filed an appeal which came up for hearing before the District Judge, Etah. The learned District Judge has taken the view that the petitioners should have made separate application under Section 5 of the Limi tation Act for condonation of delay. Apart from that the circumstances explain ing the delay had not been stated in the objection and lastly that since two of the petitioners had been examined by the*tenure-holder to prove the validity of the transfers, it would be taken that the petitioners had full knowledge of those proceedings and, therefore, benefit of Section 5 of the Limitation Act could not be given to them. The appeal has been accordingly dismissed. These orders form the subject matter of challenge in the present petition. It has been submitted before me on behalf of the petitioners that the view taken by the appellate Court was erroneous in law in as much as the circumstances explaining the delay were mentioned in the objection itself. I am not inclined to agree with this contention because on a consideration of the circum stances of the case, the appellate Court his held that the petitioner had full knowledge of the proceedings. Apart from that the question arises as to whether the tenure-holder could, while indicating his choice as to the plots which he wanted to retain as a part of the ceiling area, mention some of the plots which he had already transferred and the transfer had not been accepted and those plots had been treated as part of his holding An almost similar question had come up for consideration in Smt. Girja Devi v. State of U. P 1979 A. L. R. 208 in that case one of the contentions raised by the tenure-holder in his objection was that a family settlement hail taken place whereby a part of the land shown in her holding had been allotted to respondents 2 to 4. That family settlement was not accepted and the appellate Court, in operative portion of its judgment gave a direction that the Prescribed Authority while considering the tenure-holder's application on choice of plots, would as far as possible exclude the plots allotted to respondents 2 to 4. An objection was taken to that direction in the writ petition by the tenure-holder and it was accepted. The observation made was; "once the family settlement was not accepted and it was held that the tenure-holder was rightly proceeded against in respect of the entire hold ing, then he was free to give his choice and the same, as far as possible was liable to be accepted under Section 12-A. " There is a decision by a Bench of this Court as well in Pooran Kaur v. State 1977 A. W. C. 91, While considering the scope of Section 12-A (d), it was observed that if the surplus land includes any land which is the subject mat or of transfer, the transfer shall in so far as it relates to the land included in the surplus land be deemed to be and always to have been void. Similarly if during the pendency of proceedings for determination of surplus land any transfer of land is made by a tenure-holder in contravention of sub-section (7) of Section 5 of the Act it shall be void. It was further observed that a transferee claiming title to the land included in the surplus land under a void transfer will, therefore, have no right to such land, hence it would not be open to him to contend that the land which he claimed to have acquired under a void transfer should not have been taken into account while determining the ceiling area of the transferor and should not have been, therefore, included in the surplus land. The declaration of the surplus land having been made under a valid law cannot be challenged by such a transferee who has no title to such land inasmuch as the transfer made in his favour, so far as that land is concerned, is and has always been void in view of clause (d) of the proviso to Section 12 A of the Act. In my opinion, therefore, the petitioners could not object to the indication of choice by the tenure- holder for surplus area to be taken from some of the plots transferred when he had been proceeded on the assumption that those plots formed part of his holding. As for the remedy of the petitioners, safeguard has been made in sub-clause (i) of clause (d) of the proviso itself and it is that they are entitled to claim refund of the amount of consideration paid by them to the transferor and such amount shall be a charge on the amount payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area. In view of the above discussion, the petition fails and is dismissed, but there will be no order as to costs .