COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) 4395/2001 (Old No. 11534 of 1993) Salwant Singh & Others …….Petitioners Versus State of U.P. through Collector, Nainital And Others …….Respondents With Writ Petition (M/S) 2910/2001 (Old No. 15081 of 1991) Manjit Singh & Others …….Petitioners Versus State of U.P. through Collector, Nainital And Others …….Respondents And Writ Petition (M/S) 4385/2001 (Old No. 11082 of 1993) Autar Singh & Others …….Petitioners Versus State of U.P. through Collector, Nainital And Others …….Respondents Sri M.C. Kandpal, learned Senior Advocate assisted by Sri S.S. Choudhary, learned Counsel for the petitioners. Sri H.M. Raturi, learned Standing Counsel for the State. None for the private respondents. 12th August, 2008 2 Hon’ble P.C. Verma, J. Since the controversy involved in all these writ petitions is common based on similar set of facts, hence these petitions are being decided by one and common order. For brevity, I will refer to the facts in writ petition no. 4395/2001, which has been filed against the common judgment and order dated 4.3.1993 passed in appeals under Section 13(1) of U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the ‘Act’), whereby the Appellate Authority has confirmed the judgment dated 22.9.1992 of the Prescribed Authority. 2. One Sri Shyam Swarup Bhatnagar was granted a lease with right to transfer in respect of 1033-71 acres of land situated in 8 villages on 22.4.1933. On 18.10.1943, Sri Bhatnagar transferred the entire land to late Sri Amar Nath Jetly (father of respondent no 6/1 to 6/3) and Shiv Narain Sharma (grandfather of respondent no. 4, Chetan Sharma and father of respondent no. 5, Gajendra Kumar). Both these persons had half-half share. Ceiling proceedings against Amar Nath Jetly were started and in the said proceedings, he was permitted to retain certain plots by the Prescribed Authority vide his order dated 30.8.1978. Thereafter, Amar Nath Jetly sold certain plots to the petitioners. Ceiling proceedings against Gajendra Kumar/respondent no. 5, son of Shiv Narain Sharma and Sri Satyendra Sharma, father of Chetan Sharma/respondent no. 4 were finally decided by the Prescribed Authority vide his judgment and order dated 20.6.1992. 3. By the aforesaid judgment and order dated 20.6.1992, Prescribed Authority declared the land in 3 dispute belonging to the petitioners as surplus. Petitioners filed objection under Section 11(2) of the Act. Prescribed Authority rejected the objection of the petitioners by his judgment and order dated 22.9.1992, contained in Annexure 8 to the writ petition. Appellate Authority, vide the judgment and order dated 4.3.1993, confirmed the aforesaid order of the Prescribed Authority. 4. Prescribed Authority vide the order dated 22.9.1992 accepted the choice of the original tenure holders and co- tenure holders in declaring the surplus land including the plots sold in the name of all these petitioners from the year 1981 to 1985 which were transferred by a registered sale deed. Section 12-A of the Act provides that the Prescribed Authority, as far as possible, shall accept the choice indicated by the tenure holder to the 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. 5. Service on the private respondents have been reported to be sufficient but none appears for them. 6. Respondents after selling the land to these petitioners which were earlier within the ceiling limits of their holdings, gave the choice for declaration of those plots as surplus land which are mentioned in the sale deed executed in favour of the petitioners. But the Prescribed Authority despite the objection of the petitioners declared those lands as surplus which were shown in the name of the petitioners, which is contrary to the letter and spirit of the provisions contained in clause (d) of the proviso appended to Section 12-A of the 4 Act, which provides that surplus land determined shall, as far as possible, be land other than land which is the subject of the transfer or 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. Therefore, the Prescribed Authority as well as the Appellate Authority both fell into error in accepting the choice of the respondents in declaring those plots which were transferred to the petitioners as surplus land. 7. For the reasons recorded above, the order of the Prescribed Authority dated 22.9.1992 and the order the Appellate Authority dated 4.3.1993 and the orders impugned in other writ petitions are hereby set aside. Matter is remanded back to the Prescribed Authority, who is directed to declare the surplus land of the respondents ignoring the land transferred by sale deed executed in favour of the petitioners from the year 1981 to 1985. Writ petitions are allowed accordingly. No order as to costs. (P.C. Verma, J.) 12.8.2008 Prabodh