Ranbir Singh vs Prescribed Authority & Another

Manoj K. Tiwari, J

By means of this writ petition, petitioner has sought following relief:-

Issue a writ, order or direction, in the nature of mandamus commanding the Prescribed Authority to accept the proposal of choice as contemplated under Section 12-A of the Act as extended by the petitioner for declaring the land as surplus in pursuance to the appellate court's order and then to take a decision on the application submitted by the petitioner.

Mr. P.S. Bisht, learned Standing Counsel for the State, by referring to para 3 of the counter affidavit filed by Additional District Magistrate, Revenue and Finance, Udham Singh Nagar, submits that petitioner has not filed any application indicating his choice, as contemplated under Section 12-A of the U.P. Imposition of Ceiling Act on Land Holdings Act, 1960 (in short 'Act'). Paragraph 3 of the counter affidavit is extracted below:-

"3. That the contents of para 1 of the writ petition need no comments as these are matters of record. But so far as the contention of the petitioner regarding proposal of his choice under section 12-A of UP Imposition of Ceiling on Land Holdings Act, 1960 is concerned it is submitted in this regard that the petitioner has not filed any application before the Prescribed Authority Ceiling for choice."

Before proceeding further in the matter, Section 12-A of the aforesaid Act, which is relevant to the present case, is extracted below:-

"12. Determination of the surplus land by the Prescribed Authority where an objection is filed. -

(1) .....

12A. 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 laird 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 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 or 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 or partition, and if the surplus land includes any land which is the subject of such transfer a partition, the 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 the transferee to claim refund of the proportionate amount of consideration, if any, advance by him to the transferor, and such amount shall be charge 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 re-opened.]"

A perusal of the aforesaid provision indicates that a valuable right has been conferred upon the tenure holder to retain a plot of his choice. Petitioner is claiming this statutory right. However, it is not clear whether possession of the land has been taken by the State Government or not, because of ambiguity in paragraph-5 of the counter affidavit filed by ADM, Revenue and Finance, Udham Singh Nagar.

Learned counsel for the petitioner has placed reliance upon a judgment dated 23.04.2014 rendered by coordinate Bench of this Court in WPMS No. 1888 of 2013, M/s Kesar Sugar Works Ltd. Vs State of Uttarakhand & others in which right of tenure holder to give choice till possession remains with him, has been recognized.

In such view of the matter, the present writ petition is disposed of with liberty to the petitioner to make application under Section 12-A of the Act, within 15 days from today. The Prescribed Authority shall take decision on the said application, in accordance with law, within four months thereafter.

Let certified copy of this order be supplied to learned counsel for the parties on payment within 48 hours.