Krishna Murari - (1.) HEARD Sri N. B. Nigam, learned counsel for the petitioner, learned standing counsel for respondent Nos. 1, 2 and 7 and Sri Rishikesh Tripathi for the contesting respondent No. 3.
(2.) SHORN of unnecessary details, the facts relevant for the purposes of the case as set up in the writ petition are as under : One Prem Narain (now deceased), predecessor-in-interest of the petitioner and pro forma respondent Nos. 4 to 6 executed a registered sale deed dated 17.7.1959 in favour of Chandra Sen and Sheo Sen, predecessor-in-interest of the contesting respondent No. 3. The name of the vendors were duly mutated in the revenue records vide order dated 29.12.1962. Notice under Section 10 (2) of U. P. Imposition of Ceiling on Land Holdings Act, 1960 (for short the 'Act') was served on Prem Narain proposing to declare certain land as surplus. Proceedings were contested by filing objection on the ground inter alia that he has transferred certain area of land to various persons prior to cut off date, i.e., 27.1.1971 and mutations have also been effected in the name of vendors as such the said area should be excluded from his holdings while calculating the surplus area. It is to be noted that objection with regard to land transferred by means of sale deed dated 17.7.1959 executed in favour of predecessor-in-interest of contesting respondent No. 3 was not taken. Prescribed Authority vide judgment and order dated 15.6.1976 held that said sale deed executed by tenure-holder in 1970 was sham transaction and declared 31.60 acres in terms of irrigated land as surplus in the hands of tenure-holder Prem Narain. Aggrieved, he filed an appeal. The appellate court vide order dated 2.11.1979 allowed the appeal and directed the Prescribed Authority to determine the surplus land after deducting the area of land which was subject matter of sale deed executed by him in 1970. In pursuance to the aforesaid direction of the appellate authority, the Prescribed Authority vide order dated 27.3.1980 after excluding the land which was subject-matter of the said sale deed declared 12.72 acres in terms of irrigated land as surplus land. By the same order, the choice given by tenure-holder Prem Narain was also accepted. It is noteworthy that tenure-holder Prem Narain alongwith other land gave plots which were transferred by him by sale deed dated 17.7.1959 also in choice. In the meantime, since the village was brought under consolidation operation as such possession of plots declared surplus land could not be taken. After close of the consolidation operation, a reference was prepared for taking over possession of plots declared surplus land which was accepted by the Prescribed Authority on 17.11.2004 and it included newly carved out chak No. 1887 which was allotted in the name of contesting respondent No. 3 during consolidation operation. Aggrieved by inclusion of his chak in land declared surplus in the hands of tenure-holder Prem Narain, respondent No. 3 filed an appeal against the said order. The appellate court vide order dated 24.7.2006 allowed the appeal on the ground that the land which was subject-matter of sale deed dated 17.7.1959 could not have been declared surplus. He further remanded the case back to the Prescribed Authority to verify as to whether chak No. 1887 has been carved out from plots which were subject-matter of sale deed dated 17.7.1959 and if that is so then the same could not have been given in choice by the tenure-holder and the same cannot be declared as surplus land and in that eventuality the Prescribed Authority was directed to obtain fresh choice from the tenure-holder. Aggrieved by the said order, the petitioner has approached this Court by filing instant writ petition. It has been urged by the learned counsel for the petitioner that since the transferees namely the predecessor-in-interest of contesting respondent No. 3 did not file any objection as such the transfer made in their favour is to be ignored and they cannot claim exclusion of said land from surplus land. It has further been urged that the order passed by the Prescribed Authority in 1980 had become final and which cannot be reopened.
(3.) THE next submission made by the learned counsel for the petitioner is that in view of Explanation I of Section 5 of the Act, the land being ostensibly held by a tenure-holder in the name of any other person shall be taken into account while determining the ceiling area. In reply, it has been contended by the learned counsel appearing for the contesting respondent that the sale deed executed in favour of his predecessor in 1959 is much before the cut off date as such the same cannot be ignored and the land which is subject-matter of said transfer cannot be clubbed with the holding of the tenure-holder while determining the ceiling area. It has also been contended that since the name of predecessor-in-interest of contesting respondent No. 3 came to be mutated in the revenue records in the year 1961, the land could not have been declared surplus without any notice.;