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Rambir v. Addl. Commissioner - WRIT - C No. 5151 of 1988  RD-AH 9450 (17 May 2007)
Civil Misc. Writ Petition No.5151 of 1988
Rambir Versus Addl. Commissioner, Agra Division Agra and others.
Hon'ble S.U.Khan J
Heard Sri M.K.Gupta learned counsel for the petitioner,learned standing counsel for respondents 1,2 and 3 and Sri Vinod Sinha learned counsel for Rajendra Singh and Karanvir Singh respondent No. 4 and 5 who are transferees from the petitioner .
In Ceiling proceedings against the petitioner under U.P Imposition of Ceiling on Land Holdings Act, 1960 an area of 18 Bigha 1 Biswa 14 Biswancy land was declared as surplus land. Petitioner had sold an area of 10 Bigha 7 Biswa land in favour of respondent No. 4 and 5 through registered sale deed dated 2.2.1972. The said land was also taken into consideration while determining the ceiling area. Thereafter, petitioner gave the choice of the surplus land. He indicated that 10 bigha 7 biswa land must be taken from plot No. 1657, (total area 28 bigha 4 biswa 15 biswancy land). This land of 10 bigha 7 biswa indicated to be taken as surplus land was the same land which petitioner had sold on 2.2.1972 to respondents 4 and 5. Petitioner further indicated that the remaining surplus land i.e. 7 bigha 14 biswa 15 biswancy land may be taken from his plot No. 1475 total area of which was 17 bigha. The area which was sold to respondents No. 4 and 5 was southern portion of plot No. 1657. The prescribed authority Khair district Aligarh refused to accept the choice of petitioner through order dated 3.2.1982, copy of which is annexure 2 to the writ petition. The said order was passed in case No. 33 of 1982 State Vs. Rambir. Against the order of prescribed authority, petitioner filed appeal No. 1 of 1982, Additional Commissioner, Agra division, Agra dismissed the appeal on 25.2.1988, hence, this writ petition.
Even though the copy of the petitioner's application for choice has not been filed however from recital of the contents thereof as given in the judgement of the appellate court, it is clear that firstly petitioner had prayed that 10 bigha 7 biswa land which he had sold to respondents No. 4 and 5 shall be taken as surplus land and the remaining surplus land i.e. 7 bigha 14 biswa 15 biswancy land shall be taken from plot No. 1475. In view of this the order passed by the prescribed authority as well as appellate court directing that total surplus land shall be taken from unsold portion of plot No. 1657 is erroneous in law. Absolutely no reason has been given for not accepting the choice of plot No. 1475.
However, as far as the findings of the court below that the southern portion of plot No. 1657 ad-measuring 10 bigha 7 biswa land which was sold by the petitioner to respondents No. 4 and 5 could not be taken as surplus land in view of section 12-A (d) of Ceiling Act are concerned they are perfectly in accordance with law. The said provision is quoted below:
"12-A (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 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 an 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.]
Accordingly writ petition is allowed in part. Both the impugned orders are set-aside to the extent to which they direct taking of surplus land from unsold area of plot No. 1657. It is directed that plot No. 1475 area 17 bigha shall at once be taken as surplus land. Remaining surplus area of 1 bigha 1 biswa 15 biswancy shall be taken form unsold portion of pot No. 1657. Petitioner is directed to hand over possession of plot No. 1475 to the State authorities on 30.7.2007 on which date he shall appear alongwith certified copy of this judgement before the prescribed authority / SDO concerned. On the said date an affidavit must be filed by the petitioner that he is surrendering entire plot No. 1475. On the same date petitioner shall indicate that from which side of unsold portion of plot No. 1657 he is surrendering the remaining surplus area of 1 bigha 1 biswa 15 biswancy land. Possession of that portion shall also be taken on the same date. If petitioner does not comply with the above condition then this order shall stand automatically vacated and writ petition shall be deemed to have been dismissed .
If unsold portion of plot No. 1657 taken as surplus land has been allotted to other persons then the said allotment shall stand cancelled. The said land shall immediately be delivered back by the State to the petitioner, in case petitioner is not in possession of that land. Land of plot No. 1475 may be allotted to the same allottees in lieu of land of plot No. 1657 which may have been allotted to them.
Writ petition is allowed in part accordingly.
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