N.D.OJHA, J. - (1.) BY this writ petition the order of the Pres­cribed Authority dated January 6, 1975, and the appellate order dated April 8, 1975, passed by the 1st Addl. District Judge, Rampur, declaring some land to be surplus treating respondent No. 4 Moham­mad Yar Khan as its tenure-holder the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) are sought to be quashed.
(2.) IT was urged by counsel for the petitioners that Mohammad Yar Khan, respondent No. 4, had executed a sale deed on September 9, 1971, in respect of hig entire holding in favour df the petitioners and the names of the petitioners were also mutated over the land so transferred on June 8. 1972, and consequently respondent No. 4 was not a tenure-holder on June 8, 1973 the, relevant date contemplated by Section 5 (1) of the Act. According to counsel for the petitioners since respondent No. 4 was not a tenure-holder on June 8, 1972, no proceedings for declaration of surplus land could be initiated against respondent No. 4, the fact of a person being a tenure being the sine qua non for taking such proceedings. It was urged that the peti­tioners had filed an objection asserting that they were the purchasers of the land of which respondent No. 4 was the tenure-holder prior to the execution of the sale deed aforesaid dated September 9, 1971, and raising other pleas but it was not considered. In view of these facts it was submitted that Prescribed Authority should, in place of proceeding against respondent No. 4, have treated the petitioners as tenure-holders and decided their objection before declaring any por­tion of the land purchased by the petitioners as surplus. Reliance on the other hand was placed on Explanation II to sub-section (1) of Section 5 of the Act by the Standing Counsel and it was urged that in view of that Explanation the respondent No. 4 will still be pre­sumed to be the tenure-holder and consequently the proceedings against respondent No. 4 were valid. Having heard counsel for the parties I am of opinion_that the impugned orders cannot be sustained. Section 5(1) of the Act con­templates that on and from the commencement of the U.P. Imposi­tion of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh any land in excess of the ceiling area applicable to him.i The date of commencement of the aforesaid Amendments Act is June 8, 1973. In view of Section 3 (1) of the Act no tenure-holdeS was entitled to hold land in excess of the ceiling area applicable to him on and from June 8, 1973, but before the ceiling area could be determined of a person such person should be a tenure-holder. It is only in proceedings for determination of ceiling area of a tenure-holder that the question of considering as to whether a sale deed executed by the tenure-holder after January 24, 1971, should or, should not be ignored can arise. If no proceeding can be initiated for determination of ceiling area against a person because h© was not a tenure-holder on June 8, 1973, the question of consideration wher ther any sale deed executed by him after January 24, 1971, will not at all arise. Consequently if it is held that on June 8, 1973, respon­dent No. 4 was not a tenure-holder proceedings for determination of the ceiling area against him would be misconceived and so would be: misconceived the determination of the question as to whether the sale deed executed by him on September 9, 1971, fulfilled the require­ments of clause (b) of the Proviso to Section 5 (6) oif the Act or not Explanations I and II to Section 5(1) of the Act were inserted by U.P. Act No. 2 of 1973 with retrospective effect from June 8, 1973. Explanation I would apply only in proceedings for determination of the ceiling area applicable to a tenure-holder. If a person was a tenure-holder on June 8, 1973, and proceedings for determination of his ceiling area were initiated then in those proceedings all land held by him in his own name of ostensibly in the name of any other person shall be taken into account. But if he was not a tenure-hol­der at all on that date Explanation I may not apply. Explanation II, however, could be applied if the requirements of the said Explanation were established inasmuch as the said Explanation does not use the term 'tenure-holder' but uses the term 'person'. As such if the re­quirements of Explanation II were fulfilled respondent No. 4 shall be presumed unless contrary is proved to the satisfaction of the Prescribed Authority to be holding the land on June 8, 1973. The term 'tenure-holder' is defined in Section 3(17) of the Act. It means a person who is the holder of a holding. There is no dispute that the land which was transferred by respondent No. 4 to the petitioners by sale deed dated September 9, 1971, was a holding. If in view of Explanation II respondent is to be presumed to hold the said land which was a holding on June 8, 1973, he would be its tenure-holder on that date. The difficulty in treating respondent No. 4 to be the tenure-holder of the land in question on June 8, 1973, in view of Explanation II, however, arises in view of the fact that neither the Prescribed Authority nor the Additional District Judge have re­corded a categorical finding that the said respondent continued to be in. actual cultivatory possession of the land transferred on the re­levant date, namely, June 8, 1973. Their orders cannot therefore be sustained.
(3.) COUNSEL for the petitioners has made s statement before me that in case it is held by the Prescribed Authority that respondent No. 4 could be treated as the tenure-holder of the land on June 8, 1973, un­der Explanation II to Section 5(1) of the Act would be open to it to proceed to determine the area of surplus land treating the petitioners to be the tenure-holders of the land transferred in their favour by respondent No. 4 by sale deed dated September 9, 1971, in these very proceedings on the basis of the objection already filed by the peti­tioners before the Prescribed Authority and in that event the peti­tioners will not insist on a fresh notice under Section 10(2) of the Act being issued to them. In view of this statement it is mada clear that if the Prescribed Authority comes to the conclusion that respendent No. 4 was not in actual cultivatory possession of the land which was the subject matter of sale deed dated September 9, 1971, on June 8, 1973, and consequently he could not be treated to be its tenure-holder on that date so as to entitle it to initiate proceedings for determination of surplus land as against respondent No. 4, it would proceed to decide the objection of the petitioners treating them as the tenure-holders of the land transferred by the aforesaid sale deed on the basis of the objection already filed by them in these very proceedings and it would not be necessary for it to issue any fresh notice to the petitioners under Section 10(2) of the Act.;