IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WPMS NO. 730 OF 2008 Anurag Goel & others. ……….Petitioners. Versus Prescribed Authority, Ceiling District Haridwar and Others. ………………Respondents. Mr. Arvind Vashisth, learned counsel for the petitioners. Mr. H.M. Raturi, learned Standing Counsel & Mr. Sudhir Kumar, Brief Holder for the respondents. 20th August, 2008 Hon’ble P.C.Verma, J This writ petition is directed against the order dated 29.2.2008 and 28.2.2007 passed by the Commissioner Garhwal Division, Pauri, Camp at Dehradun in Review Application and Ceiling Appeal No. 1 of 2005-06 Anurag Goel and others Vs. Prescribed Authority and the order dated 28.4.2006 passed by the Prescribed Authority (Ceiling)/Additional District Magistrate, Haridwar on the application of petitioners in Original Case No. 327 of 1975 State Vs. Jagat Ram. 2. A notice under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act was served upon Jagat Ram (grandfather of the petitioners) by the Prescribed Authority. Pursuant to said notice, a Case No. 327 of 1975 State Vs. Jagat Ram under Section 10(2) of Imposition of Ceiling on Land Holdings Act was registered. On behalf of Jagat Ram, objections were filed in the said proceedings. Thereafter, the Prescribed Authority vide order dated 3.6.1976 declared 70 Bigha 4 Biswa and 7 biswansi land of the grand-father of the petitioners as surplus land. Against the said order, Lala Jagat Ram filed a Ceiling Appeal No. 68 of 1976 Jagat Ram Vs. State of U.P. The 2 same was allowed by order dated 9.10.1976 and land measuring 9 Bigha, 17 Biswa and 17 Biswansi as irrigated land or 13 Bigha, 3 Biswa, 16 Biswansi as unirrigated land was declared as surplus land. After the said order, Jagat Ram submitted his options for excluding the declared surplus land of 13 Bigha 3 Biswa, 16 Biswansi in terms of un-irrigated land as surplus situated at Khasra No. 1200/23/6 and thereafter, the said land was mutated in the name of State Government and possession was given to the State. The State Government moved an application in the aforesaid Ceiling Appeal No. 68 of 1976 Jagat Ram Vs. State of U.P. purporting to be filed under Section 151 & 152 of the C.P.C., for rectification and prayed for declaring the surplus area be increased further from 9 Bighat 17 Biswa and 17 Biswansi to 19 Bigha, 13 Biswa and 7 biswansi. On the said application, IV Additional & Sessions Judge, Saharanpur pleased to pass an order dated 13.7.1979, whereby the operative part of judgment dated 9.10.1976 was modified to the extent declaring total area 19 Bigha, 13 Biswa instead of 9 Bigha, 17 Biswa and 17 Biswansi of land. Petitioner has further alleged that in pursuance of the order dated 13.7.1979, the tenure holder late Jagat Ram was also provided an opportunity of disclosing his options to the particulars and to be taken as surplus land. Late Jagat Ram submitted his option dated 26.10.1979 on which the Prescribed Authority Roorkee passed order dated 16.11.1979, on which the Prescribed Authority, Roorkee passed order dated 16.11.1979 and in respect of land recorded in Khasra No. 1200/23/6/2 area 4-0-0 Bigha and Khasra No. 1200/23/6/3 area 6-6-13 1/3 towards east and Khasra No. 1200/23/6/4 area 4-00 and Khasra No. 1200/23/6/5 area 0-06-11 2/3 towards east total area 14-13-5 (7-38 acres (area 9-15-10 in irrigated terms) was excluded as surplus land and the Amal Daramad was issued but no possession was taken by the 3 Government nor the same was entered into the revenue records. After the death of late Lala Jagat Ram (grand father of the petitioners) and Shri Ramendra Kumar Goel (father of the petitioners), petitioners got their names mutated in the revenue records. After mutation of the names, the petitioner came to know about the order dated 13.7.1979, whereby the additional 10 Bigha land was declared as surplus land, but neither the said land is recorded in the name of the State nor the State Government has taken possession thereof, therefore, the petitioners remained in continuous possession thereof. Petitioners have alleged that no notification under Section 14(1) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to the petitioners for finally taking the possession of the surplus land. Thereafter, on 13.10.2004, petitioners filed an application under 12-A of the U.P. Imposition of Ceiling on Land Holdings Act thereby submitting their options for excluding the land declared as additional surplus land measuring 10 Bigha from Khasra No. 94, 95, 284/1, 284/2, 295, 314/1, 314/2, 327, 362, 292/1, 297, 294 and 266 situated at Mauja Karondi, District Haridwar. Against the said application, State of Uttarakhand filed objections on 22.11.2004 and 12.5.2004. The Prescribed Authority, after hearing both the parties, rejected the application of the petitioners under Section 12-A of U.P. Imposition of Ceiling on Land Holdings Act vide order dated 28.4.2006 holding that the land proposed by the petitioners under Section 12-A is mostly a river bed and is not suitable for agricultural purpose. 3. Aggrieved by the said order, the petitioner preferred an appeal being Ceiling Appeal No. 1 of 2005 Anurag Goel and others Vs. State before the Commissioner, Garhwal Mandal, Pauri Garhwal, Pauri Camp, Dehradun. This 4 appeal was dismissed by the Commissioner, Garhwal Division, Pauri Camp at Dehradun on 28.2.2007. Against the said order, the petitioners preferred a review application and it was also dismissed on 29.2.2008. 4. Against the said order, the petitioner has preferred this writ petition. 5. Learned counsel for the petitioner has confined his prayer to the extent that the petitioner may be afforded an opportunity to declare different land in his possession to be surplus under Section 12-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. For convenience Section 12-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 is reproduced as under:- “[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 them under the provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceedings : Provided that— (a) the Prescribed Authority shall have regard to the compactness of the land to 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 the 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 co-operative land development bank or 5 other co-operative 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 of partition referred to in 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 of partition, and if the surplus land includes any land which is the subject of such transfer or partition, the transfer or partition 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 and – (i) it shall be open to the 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 is included in surplus of the said tenure-holder shall be entitled to have the partition re-opened.]” 6. Further learned counsel for the petitioner has submitted that under Section 14 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, until a notification is made out, the tenure holders shall have a right to change the option. 7. In view of aforesaid quoted Section 12-A (d) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 as well as the submission made by the counsel for the petitioner, I am of the view that the petitioners are entitled to be afforded an opportunity for declaring the land of their choice as surplus. Therefore, respondents / Competent Authorities are directed to afford an opportunity to the petitioner to give choice for declaring a different land, which is in their possession, as surplus, but 6 the same should not be a disputed one. The orders dated 29.2.2008, 28.2.2007 and 28.4.2006 are quashed. 8. With the aforesaid directions, writ petition is allowed. No order as to costs. (P.C.Verma, J.) 20.8.2008 Rathour