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1978 DIGILAW 1122 (ALL)

Phoola Rani v. Prescribed Authority/Sub-Divisional officer, Orai

1978-11-21

M.P.MEHROTRA

body1978
ORDER M.P. Mehrotra, J. - This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960. 2. The petitioner was issued a notice under Section 10 (2) and she filed objections. The objections were decided by the Prescribed Authority and thereafter she filed an appeal and the appeal was heard and decided by the Civil Judge, Jalaun sitting at Orai. The appeal was dismissed. Now, the petitioner has come up in the instant petition and in support thereof I have heard Sri R. B. Mehrotra, learned counsel for the petitioner. In opposition the learned Standing Counsel has made his submissions. Learned counsel for the petitioner has raised two contentions. Firstly, he sought to contend about a gilt deed which was not accepted by the authorities below. However, in view of the Division Bench pronouncement in Fateh Mohd. v. District Judge (Writ Petn. No, 915 of 1975, decided on 8-5-1978) it has now become settled that a gift deed is not entitled to the benefit of Cl. (b) of the proviso to Section 5 (6) of the Act. The first contention accordingly fails. 3. Learned counsel next contended that the prescribed Authority and thereafter the appellate authority without giving any reason did not accept the choice of the petitioner which he had given before the prescribed Authority along with his objections under Section 10 (2). This contention seems to me to be correct. The Prescribed Authority accepted the choice in part but did not indicate the difficulty in accepting the full choice of the petitioner. It is true that under S, 12-A the language is that "as far as possible" the choice given by that tenure-holder is to be accepted. However, the use of the expression shall in the section makes it clear that the legislatures desire is that there should be a real effort to comply with the choice of tenure-holder. In such circumstances, the Prescribed Authority should have given some reason as to why the full effect could not be given to the choice of the petitioner. However, the use of the expression shall in the section makes it clear that the legislatures desire is that there should be a real effort to comply with the choice of tenure-holder. In such circumstances, the Prescribed Authority should have given some reason as to why the full effect could not be given to the choice of the petitioner. I accordingly, while I dismiss this writ petition direct that the Prescribed Authority shall re-determine the particular plots to be treated as surplus land in the light of the choice given by the petitioner in her objections and try to see that as tar as possible full effect should be given to such choice of the petitioner. If there be some difficulty in accepting such choice in full, then the prescribed Authority should state the reason why it cannot be done. In the circumstances, there will be no order as to costs.