ORDER M.B. Farooqi, J. - This petition under Article 226 of the Constitution is directed against an order passed on 31-12-74 by the Prescribed Authority and that passed on 13-2-76 by the appellate authority under the U. P. Imposition of Ceiling on Land Holdings Act, 1961. 2. Before me, the learned counsel for the petitioner urged the following three points. (1) That land sold ought to have been excluded from the holding of the petitioner. (2) That proper additional advantage has not been given to the petitioner. (3) That the appellate authority has not considered the petitioners choice of plots in demarcating the additional surplus land. 3. By virtue of a sale deed dated 16-11-1971 the petitioner had sold land measuring 3 Bigha 18 Biswa 18 Dhur in favour of Bhikhulla and Badulla for a sum of Rs. 7500/-. Alleging that the sale deed was executed bona fide and for adequate consideration, the petitioner claimed that the land sold ought to be excluded from his holding. The ceiling authorities repelled the plea after holding that the sale transaction was not bona fide. On the question of bona fides the case of the petitioner was that on account of the drought conditions he fell short of funds and needed money for family expenditure which prompted him to make the sale. The ceiling authorities found that there was no evidence to show that drought conditions had prevailed in the relevant year had concluded that the sale transaction was not made in good faith. The argument of the learned counsel is that the ceiling authorities have not considered the claim in its proper perspective. He urged that they have not considered the material point whether the petitioner needed money for family expenditure. I am unable to accept this argument. That question could arise only if it was found that drought conditions prevailed in the relevant year. The ceiling authorities have found otherwise. As such, the finding cannot be said to be vitiated. The first point fails. 4. On the second point the case of the petitioner was that his family consisted of seven members including his son, Satyanand and as such, he was entitled to an additional advantage of 4 hectares of land. The ceiling authorities have allowed him an additional advantage of two hectares only. The first point fails. 4. On the second point the case of the petitioner was that his family consisted of seven members including his son, Satyanand and as such, he was entitled to an additional advantage of 4 hectares of land. The ceiling authorities have allowed him an additional advantage of two hectares only. They have disallowed further additional advantage on the view that the strength of the family has to be considered as on 8-6-73, when U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 came into force, and that Satyanand was born in the year 1974, long after the aforesaid date. The argument of the learned counsel for the petitioner is that the ceiling authorities were not justified in refusing further additional advantage. Firstly, because Satyanand was in his mothers womb and very much in existence on the relevant date. Secondly, because the strength of the family has to be considered at the stage of calculating the ceiling area. 5. At no stage of the proceedings before the ceiling authorities it was alleged by the petitioner that Satyanand was in the womb of the mother on the relevant date. He vaguely alleged that his family consisted of seven members including Satyanand. Being a mixed question of law and fact the petitioner cannot be allowed to raise this point for the first time in this court. Leave that alone, there is nothing on record to support it. The ceiling authorities have found that Satyanand was born in the year 1974. From this it does not necessarily follow that he was conceived on or before the relevant date. Viewed of from any angle, the first argument fails. 6. The second argument raises an important question of law. The question is whether the strength of the family has to be considered as on 8-6-73 or as on the date when the ceiling area is actually calculated. In order to determine this question it will be necessary to notice some of the provisions of S- 5 of the Ceiling Act. Sec. 5 omitting portions not relevant, reads: - "Imposition of ceiling: - (1) On and from the commencement of the U. P. Imposition of Ceiling on land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout U. P. any land in excess of ceiling area applicable to him. Sec. 5 omitting portions not relevant, reads: - "Imposition of ceiling: - (1) On and from the commencement of the U. P. Imposition of Ceiling on land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout U. P. any land in excess of ceiling area applicable to him. (3) Subject to the provisions of sub-ss. (4), (5), (6) and (7) the ceiling area for purpose of sub-s. (1) shall be : - (a) in the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, who are either not themselves tenure-holders or who hold less than two hectares of irrigated land, subject to a maximum of 6 hectares of irrigated land, subject to a minimum of 6 hectares or such additional land; (b) In the case of a tenure-holder having family of more than five members, 7.30 hectares of Irrigated land (including land held by other members of his family), besides each of the members exceeding five and for each of his adult sons who are not themselves tenure-holders or who hold less than 2 hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares, subject to a maximum of 6 hectares of such additional land." 7. Sub-section (1) lays down the broad principle that with effect from 8-6-73, no person shall hold land in excess of the ceiling area. Sub-section (3) sets out the permissible limits of ceiling area. The permissible ceiling area for a family of not more than five members shall be 7.30 hectares of irrigated land. It can be higher if the family strength exceeds five. The strength of the family has to be considered at the stage of the commencement on the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act 1972. Any other view will militate against the express language of sub-section (3). The words "the ceiling area for purpose of sub-section shall be" used in sub-section (3) are significant. The strength of the family has to be considered at the stage of the commencement on the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act 1972. Any other view will militate against the express language of sub-section (3). The words "the ceiling area for purpose of sub-section shall be" used in sub-section (3) are significant. They unmistakably convey that the calculation of ceiling area should be directed towards giving effect to the requirements of sub-section (1) that can be so only if the ceiling area is calculated on the basis of the strength of the family as on the date when the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act 1972 came into force. In other, words, the strength of the family has to be considered as on 8-6-73 and not as on the date when the ceiling area is actually calculated. 8. The learned counsel however, placed reliance on a decision of this courts in Babu Lal v. State of U. P. (1963 All LJ 960). In that case it was held that the strength of family has to be considered at the stage of calculating the ceiling area. It was so held on the language of sub-section (1) of Section 4 of the unamended Ceiling Act. The language of this sub-section has undergone a material change in sub-section (3) of Section 5 of the Amended Ceiling Act. The use of words "ceiling area for purpose of sub-section (1)" in the present subsection (3) of Section 5 has driven it apart from sub-section (1) of Section 4 of the Unamended Act. They can no longer be placed in the same compartment. Accordingly sub-section (1) of Section 4 of the Unamended Ceiling Act cannot be a good guide for the construction of sub-section (3) of Section 5 of the Amended Ceiling Act. The decision does not help the petition. The second point too fails. 9. Adverting to the third point, learned counsel contended that appellate authority had declared more land as surplus land but never considered the choice already indicated by the petitioner. He urged that the appellate authority ought to have considered the choice and accepted the same unless there were compelling reasons for adopting a different course. He is right. Section 12-A clearly provides that the Prescribed Authority shall as far as possible, accept the choice indicated by the tenure holder. He urged that the appellate authority ought to have considered the choice and accepted the same unless there were compelling reasons for adopting a different course. He is right. Section 12-A clearly provides that the Prescribed Authority shall as far as possible, accept the choice indicated by the tenure holder. It is well settled that this section is mandatory. There is nothing in the judgment of the appellate authority to show that, it has considered the choice indicated by the petitioner and found it to be unacceptable. The appellate authority ought to have considered the choice and accepted it unless it found that the same was not acceptable for any good reason. His failure to do so vitiates his order in this respect. In the result this petition succeeds and is allowed in part. The order of the appellate authority is set aside. The appellate authority is directed to consider the choice indicated by the petitioner and if necessary alter the declaration of surplus land accordingly. Lest there should be any misunderstanding, let me make it clear that in other respects, the order of the appellate authority shall stand confirmed. The parties shall bear their own costs.