Case: Ravindra Singh Vs. Phool Singh and Another

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 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 sub-section (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 in sub-clause (1) of clause (d) 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. This 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 land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in 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 (d) 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 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 entitles the respondent Phool Singh to surrender such land as he chooses. We are of the opinion that they were not right in construing this Courts order in the above 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 this Court is not capable of nor can it be construed as overriding 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. 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. " *

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. A combined reading ofn (6) of Section 5 and clause (d) of the proviso to SectionA yields the following position (insofar as it is relevant for the purpose of this appeal)(a) In determining the ceiling area applicable to a, any transfer of land made after1 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 ton (6) of Section 5;(b) In the matter of surrender, however, the Prescribed Authority is entitled to insist that ther surrender land which is not ther of transfer referred to in Section 5(6);(c) If, however, surrender of surplus land by ther 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 inThe object of the above provisions is quite clear and consistent. Any transfer effected after1 shall be ignored for the purpose of determining the ceiling area of the, but in the matter of surrender, the Government does not want, as far as possible, to accept surrender of transferred land. This 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 land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned ine (i) of clause (d)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 ther 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 land, to the extent necessarywith 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 dated1 entitles the respondent Phool Singh to surrender such land as he chooses. We are of the opinion that they were not right in construing this Courts order in the above 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 ther 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 this Court is not capable of nor can it be construed as overriding or superseding the provisions of the Act. The choice referred to in the order of this Court is the choice referred to in Section) and not independent of it