The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- Leave granted.
2. Heard the counsel for both the parties.
3. Respondent Phool Singh filed a declaration of his agricultural holding as required by and under the U.R Imposition of Ceiling on Land Holdings Act, 1960. After an appropriate inquiry, the Prescribed Authority determined his holding. According to the said determination, he was holding surplus land to the extent of 8.26 acres of irrigated land. While determining his, holding, it is necessary to mention, the lands transferred by him in favour of the appellant Ravindra Singh and his wife Smt Kamla Devi under sale deeds dated 2-9-1975 (in respect of 6 acres 66 decimals of land) and dated 3-9-1975 (in respect of 6 acres 67 decimals of land) were included in his holding, inasmuch as the said sale deeds were subsequent to 24-1-197 1. This was done following the provision in sub-section (6) of Section 5 of the Act, which reads as follows: "(6) In determining the ceiling area applicable to a tenure- holder, any transfer of land made after the twenty-fourth day of January, 197 1, which 253 but for the transfer 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) a transfer in favour of any person (including Government) referred to in sub- section (2);
(b) a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a 'Benami' transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.
Explanation 1.-For the purposes of this sub-section, the expression transfer of land made after the twenty-fourth day of January, 197 1, includes-
(a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971;
(b) any admission, acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner. Explanation 11.- The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."
4.When the stage of surrender of surplus land arrived, respondent Phool Singh sought to surrender land which was transferred in favour of the appellant and his wife, to which the Prescribed Authority did not agree oil the ground that it was a transferred land. Against the said non- acceptance of land surrendered by him, Phool Singh filed a writ petition in the Allahabad High Court which was dismissed oil 26-3-1979. Phool Singh carried the matter to this Court by way of SLP No. 4975 of 1979 which was dismissed by this Court oil 7-5-1981 under the following order:
"Special leave petition dismissed but the petitioner will be entitled to choice in respect of plots forming the subject- matter of the sale deed."
Treating the aforesaid order of this Court as an authority entitling him to surrender land of his choice, Phool Singh wanted the Authorities to accept the surrender of the land transferred in favour of the appellant and his wife. The Authority accepted the said surrender overruling the objections of the appellant. An appeal preferred by the appellant was dismissed by the Additional Commissioner and a writ petition filed by him in the Allahabad High Court (CMWP No. 9302 of 1986) was also dismissed.
5.In this appeal tile learned counsel for the appellant relies upon the provisions contained in clause (d) of the proviso to Section 12-A of the Act. Section 12-A reads as follows:
"12-A. In determining the surplus land under Section 11 or Section 12, the Prescribed Authority shall, as far as possible, accept the choice indicated by the tenure-holder to the plot or plots which he and other members of his family, if any, would like to retain as part of the ceiling area applicable to him or then under tile provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceeding:
Provided that-
(a) the Prescribed Authority shall have regard to the compactness of the landto be included in the ceiling area applicable to the tenure-holder;
(b) where the tenure-holder's wife holds any land which is aggregated with the land held by the tenure-holder for purposes of determination of the ceiling area, and his wife has not consented to the choice indicated by the tenure- holder as to the plot or plots to be retained as part of tile ceiling area applicable to them, then the Prescribed Authority shall, as far as possible, declare the Surplus land in such manner that the area taken Out of the land held by the tenure-holder's wife bears to the total surplus area the same proportion as the area originally held by her bore to the total land held by the family;
(c)where any person holds land in excess of the ceiling area including any land mortgaged to the State Government or to a bank as defined in clause (c) of Section 2 of the Uttar Pradesh Agricultural Credit Act, 1973 or to a cooperative land development bank or other cooperative society or to the Corporation or to a Government Company, the Surplus land to be determined shall, as far as possible, be land other than that so mortgaged;
(d)where any person holds land in excess of the ceiling area including land which is the subject of any transfer or partition referred to ill Sub-section (6) or Sub-section (7) of Section 5, the surplus land determined shall, as far as possible, be land other than land which is the Subject of Such transfer or partition, and if the Surplus land includes any land which is the subject of Such transfer or partition, tile transfer or partition shall, insofar as it relates to the land included in the surplus land, be deemed to be and always to have been void, and-
(i)it shall be open to tile transferee to claim refund of the proportionate amount of consideration, if any, advanced by him to the transferor, and such amount shall be charged on the amount payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950;
(ii)any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land 255 is included in surplus land of the said tenure-holder, shall be entitled to have the partition reopened."
6. A combined reading of sub-section (6) of Section 5 and clause (d) of the proviso to Section 12-A yields the following position (insofar as it is relevant for the purpose of this appeal):
(a)In determining the ceiling area applicable to a tenure-holder, any transfer of land made after 24-1-1971 shall be ignored and such transferred land shall be included in the holding of the transferor except where such transfer is saved by the proviso to subsection (6) of Section 5;
(b)In the matter of surrender, however, the Prescribed Authority Is entitled to insist that the tenure-holder surrender land which is not the subject-matter of transfer referred to in Section 5(6);
(c)If, however, surrender of surplus land by the tenure-holder is not possible or feasible without including the transferred land, then the Prescribed Authority will accept such surrender, in which event transfer of such land shall be deemed to be null and void;
(d)Where the Prescribed Authority accepts the Surrender of transferred land, the transferee is entitled to compensation and other rights as are provided ill Sub-clause (1) of clause (co of the proviso to Section 12-A.
The object of the above provisions is quite clear and consistent. Any transfer effected after 24-1-1971 shall be ignored for the purpose of determining the ceiling area of the tenure-holder, but in the matter of Surrender, the Government does not want, as far as possible, to accept surrender of transferred land. Tills may be for the reason that acceptance of Surrender of transferred land is likely to lead to complications and disputes; the Government wants to accept the surrender of lands which are free of any such controversy. But if that does not prove possible, the Government will accept the surrender of transferred land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title ill the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned in sub-clause (i) of clause
7. In the light of the above provisions, the Authorities ought to have examined the offer of Surrender made by the respondent, Phool Singh in accordance therewith. He Must be asked to Surrender lands which are not the subject-matter of transfer. Only where the Prescribed Authority is satisfied that surrender of surplus land is not possible without including the transferred land, will he accept the surrender of transferred land, to the extent necessary-with the necessary consequences flowing therefrom. The High Court and Authorities under the Act, however, have not followed this course because they felt that the order of this Court dated 7-5-1981 entities the respondent Phool Singh to surrender such land as he chooses. We are of the opinion that they were not right in construing this Court's order in the above 256 manner. Firstly, the appellant herein was not heard (he says that he was not even a party to the said SLP) before passing such order. Secondly, the said order cannot be understood as laying down a proposition contrary to law. All that it says is that the petitioner therein, i.e., respondent Phool Singh "will be entitled to choice in respect of plots forming the subject-matter of the sale deed". The said words are not capable of being construed as authorising Phool Singh to surrender the transferred land even if he is in a position to comply with the requirement of surrender of surplus land without touching the transferred land. To repeat, the order of this Court cannot and should not be construed in a manner inconsistent with the provisions of the Act. This Court could not have contemplated passing an order contrary to the provisions of the Act or to authorise the respondent Phool Singh to surrender surplus land contrary to the provisions of the Act. We are, therefore, of the opinion that the said order of this Court is not capable of nor can it be construed as over-riding or Superseding the provisions of the Act. The choice referred to in the order of this Court is the choice referred to in Section 12-A(d) and not independent of it.
8.The view taken by us is supported by an order of this Court in Kamlesh Kumari v. State of U.P I It is a short order and it reads thus:
"The short point taken by Mr Ashok Sen in support of the petition is that even assuming that the finding of the Prescribed Authority that the transfer was not bona fide is correct, the Prescribed Authority was in error in not excluding the land said to have been transferred from the surplus area. The land which was the subject-matter of transfer was covered by Plot No. 460. The contention is well founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the Prescribed Authority and remit the case to the Prescribed Authority to decide the surplus land in accordance with Section 12-A(d) of the Act by excluding the area which was the subject of transfer as far as possible.
2. The appeal is disposed of accordingly. Order accordingly."
9.For the above reasons, the appeal is allowed, the orders impugned herein are set aside, and the Prescribed Authority is directed to consider the respondent Phool Singh's proposal to surrender surplus land in accordance with Section 12-A of the Act and in the light of this judgment. A decision in that behalf shall be taken as expeditiously as possible having regard to the fact that this matter has been pending over a long number of years. No costs. 1 (1982) 3 SCC 315: 1981 All LJ 11 39 257