Jogendra Singh v. State of U. P — 1983 DIGILAW 654 (ALL)

ORDER M.P. Mehrotra, J. - This application has been made by the petitioners in the writ petition. The prayer in the application is reproduced below : "It is, therefore, most respectfully prayed that the choice given by the opposite party No. 4 be not accepted and the land transferred by him in favour of the petitioners be not taken as excess land unless the land in possession of the original tenure holder is taken and the same is found to he insufficient. It is further prayed that proceedings for choice pending before the prescribed Authority be stayed during the pendency of this application." 2. It will be necessary to state certain facts for the disposal of the said application. One Krishna Kumar, who is the opposite party No. 4 in the aforesaid writ petition, was treated as the tenure holder and the notice under S. 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act was issued to him. He filed his objections. The petitioner Jogendra singh and others also filed their objections claiming that by means of two sale deeds dated 28-1-72 they namely Jogendra singh and others, had purchased some land from the said tenure holder and therefore, the said land should not be included in the holding of the said tenure holder. A similar objection was taken by the said tenure holder Krishna Kumar also in his objections. 3. The Prescribed authority did not accept the contention of the said tenure holder and the said transferees, Jogendra Singh and others, that the said two sale deeds were entitled to the benefit of Cl. (b) of the proviso to S. 5(6) of the Act. The prescribed authority, therefore, held that the sale deeds were liable to be ignored under S. 5(6) of the Act and the lands which were covered by the said sale deeds were included in the holding of the said tenure holder Krishna Kumar. It seems that the appeals were filed by the tenure holder and by the transferees against the said order of the prescribed authority. However, before the appellate court also the aforesaid contention made by the tenure holder and by the transferees in respect of the said two sale-deeds, failed. Thereafter, two writ petitions were filed in this court. Civil Misc Writ petition No. 5861 of 1980 was filed by the tenure holder and Civil Misc. However, before the appellate court also the aforesaid contention made by the tenure holder and by the transferees in respect of the said two sale-deeds, failed. Thereafter, two writ petitions were filed in this court. Civil Misc Writ petition No. 5861 of 1980 was filed by the tenure holder and Civil Misc. Writ petition No. 4498 of 1980 was filed by the said transferees. Jogendra Singh and others. Both these writ petitions were directed against the aforementioned order of the Prescribed Authority and against the appellate order. Both the writ petitions were decided by this court by its judgment dated 6-8-1981 which was delivered by me. The operative part of the judgment is reproduced below : "Therefore both these petitions are dismissed, but there will be no order as to costs. However, I should like to make it clear that hereafter it will be open to the tenure holder to give his fresh choice in regard to the land which is sought to be declared as surplus under S. 12-A of the Act and such choice, as far as possible, be accepted as laid down in the said provision of law provided the tenure holder has not lost his rights in such land in the proceedings under S. 14 of the Act." Subsequently, the transferees, Jogendra Singh and others, who were petitioners in the instant writ petition, namely Civil Misc. Writ petition No. 4498 of 1980, moved an application before me on 27-1-82 wherein the following prayer was made:- "It is, therefore, most respectfully prayed that the last portion in the judgment of this court quoted in paragraph 7 above he deleted and necessary modification be made in the judgment. It is, therefore, prayed that proceedings for choice be stayed during the pendency of the above application." On this application. 1 passed the following order on 10-2-1982. "The learned counsel for the petitioner prays that this application be kept pending so that the further developments in the proceedings concerning choice may be proceeded with and if necessary, this petition will he pressed at the appropriate stage. Aforesaid prayer is granted." 4. Thereafter, the said application remained pending and it was listed on 8-10- 1982 when it was dismissed in default, as no one appeared to press it. Thereafter, the instant application was moved on 15-7-1983 with the aforesaid prayer. Aforesaid prayer is granted." 4. Thereafter, the said application remained pending and it was listed on 8-10- 1982 when it was dismissed in default, as no one appeared to press it. Thereafter, the instant application was moved on 15-7-1983 with the aforesaid prayer. It has been stated in para 11 of the said application that the tenure holder has, by means of his application dated 8-9-1982 moved before the Prescribed Authority prayed that the land which he sold to the transferees by the aforesaid sale deeds, should be declared as surplus land. The petitioners have stated in para 12 that they came to know of the said application dated 8-9-1982 on 7-7-1983 and thereafter, they filed their objections before the Prescribed Authority who is now seized of the controversy as to whether the land sold by the tenure holder in favour of the petitioners should or should not be declared as surplus land of the tenure holder. In the aforesaid background, the petitioners have moved the instant application with the aforesaid prayer. 5. In support of the application, I have heard Sri K. M. Sinha, learned counsel for the applicants-petitioners. In opposition, I have heard Sri Ashok Khare learned counsel for the tenure holder respondent No. 4. 6. Sri Khare submitted that the case law discloses a situation of conflict so far as the aforesaid controversy is concerned. In this connection he placed reliance on Puran Kaur v. State of U.P. (1977 All WC 91) and on the single judge pronouncement reported in Ranvir Singh v. District Judge, Etah (1981-7 All LR 222) : (1981 UPLT NOC 98). So far as the aforesaid Division Bench pronouncement is concerned, briefly, the facts were these. In the hands of the tenure holder certain land was declared as his surplus land in the ceiling proceedings against him. It seems that such land declared as surplus included some land (which) had been sold by the tenure holder after 24-1-1971. The transferees moved- a writ petition and sought a writ of certiorari for quashing the prescribed authority's order passed under S. 12 of the Act against the tenure-holder. They also sought the said writ seeking to have the appellate order passed against the tenure holder quashed. The transferees moved- a writ petition and sought a writ of certiorari for quashing the prescribed authority's order passed under S. 12 of the Act against the tenure-holder. They also sought the said writ seeking to have the appellate order passed against the tenure holder quashed. The ground of attack in the writ petition inter alia, was that there was violation of the second proviso of Article 31A of the Constitution of India inasmuch as the land in the personal cultivation of the petitioners was being taken away by the State without payment of any compensation and that the order of the Prescribed Authority adversely affected the rights of the petitioner. The Division Bench at Lucknow dismissed the petition, and inter alia, laid down as follows: "In the case on hand the three transfers were admittedly made by Harmam Singh the original tenure holder in favour of the petitioner after 24-1-71. The ceiling area of Harnam Singh has been determined by the prescribed authority. The surplus land has also been declared. This surplus land included the land which is the subject of the said transfers made by Harnam Singh in favour of the petitioner. Hence, the transfers, in so far as they relate to the land included in the surplus land are void. The petitioners have, therefore, no right in the surplus land declared by the Prescribed Authority. The declaration of surplus land by the Prescribed Authority cannot therefore, be got quashed by the petitioners who claim title to the land under a void transaction by invoking the extraordinary jurisdiction of this court under Article 226 of the Constitution. Their petition under Article 226 of the Constitution is, therefore not sustainable," The facts in (1981) 7 All LR 222 : (1981 UPLT NOC 98) were as follows: The tenure holder had transferred some land on 12-3-1973. It was his contention in the ceiling proceedings that the sale deed was entitled to the benefit of Cl. (b) of the proviso to S. 5(6) of the Act. In other words, it was claimed that the document was for adequate consideration and made in good faith. However, this plea failed, and the Prescribed Authority ignored the said transfer-deed and included the land of the said deed in the total holding of the tenure holder. The tenure holder gave in choice some land of the said sale deed as his surplus land. However, this plea failed, and the Prescribed Authority ignored the said transfer-deed and included the land of the said deed in the total holding of the tenure holder. The tenure holder gave in choice some land of the said sale deed as his surplus land. The Prescribed Authority accepted that choice by his order dated 21-6-1978. Thereafter, the transferee filed his objection under S. 11(2) of the Act on 7-8-1978. The Prescribed Authority rejected the said objections under S. 11(2) of the Act holding that the same was not maintainable. An appeal was filed against the said order and the same was dismissed. The appellate court held that the objections under S. 11(2) of the Act were time barred under the said provision and the benefit of S. 5 of the, Limitation Act was rightly not extended to the transferee by the Prescribed Authority. The transferee questioned the validity and the correctness of the said orders by a writ petition in this court and a learned Judge of this court dismissed the petition. It was observed : "I am not inclined to agree with this contention because on a consideration of the circumstances of the case, the appellate court has held that the petitioner had full knowledge of the proceedings." The learned Judge placed reliance upon the aforesaid Division Bench pronouncement for holding that the transfer deed will be treated as void where the transferred land is included in the surplus land of the tenure- holder. 7. On the other hand, the learned counsel for applicants-petitioners Sri K. M. Sinha placed reliance on the following case law: 1. Hukum Singh v. State of U. P. (1979 All LJ 646) Paras 4, 5 and 6). 2. Beni Madho Dube v. Deputy Director. Consolidation (1978 All LJ 777). 3. Ramesh Shankar v. III Additional District Judge (1982 All LJ (NOC) 108). 4. Bhura v. State of U. P. (1979-5 All LR 257) : (1979 All LJ 339). 5. Saheblal Singh v. II Additional District Judge (1981 All WC 568):(1981All LJ 1133). 6. Rajesh Pachauri v. State of U. P. (1975 All WC 606 at page 609). 7. Om Prakash Agarwal v. I Addl. District and Sessions Judge. (1981 All WC 775). 8 In 1979 All LJ 646, learned Judge of this court observed as under (647-48) : "A perusal of Cl. 6. Rajesh Pachauri v. State of U. P. (1975 All WC 606 at page 609). 7. Om Prakash Agarwal v. I Addl. District and Sessions Judge. (1981 All WC 775). 8 In 1979 All LJ 646, learned Judge of this court observed as under (647-48) : "A perusal of Cl. (d) would show that while considering the choice made by the tenure holder the Prescribed Authority would, as far as possible try to exclude such land from the area declared as surplus which is subject matter of a transfer. Primarily, the choice of land to be declared as surplus or otherwise is to be made by the tenure holder himself. Keeping in mind the likely hardship to a transferee, the legislature appears to have provided that in case any part of the land transferred to him comes to be declared as surplus land of a tenure holder, the transferee would be able to claim refund of a proportionate amount of the consideration advanced to the transferor. Such amount has also been charged on the amount payable to the transferor under S. 17 of the Act as 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 S. 153 of the U. P. Act No. I of 1951. It is clear that sometimes the choice made by the tenure holder may result in great hardship to the transferee inasmuch as the land purchased by him may come to be included in the surplus area by reason of ignorance on the part of Prescribed Authority about availability of other land of the tenure holder for the purpose. The provisions of S. 12-A which confer the right of making a choice only upon the tenure holder must receive a construction which permits a transferee to seek the exclusion of the plots purchased by him from the surplus land of the tenure holder from whom he purchased them by pointing out to the authorities under the Act that plots other than those purchased by him are available for inclusion in the surplus area of the tenure holder. Such a construction will further the object of Cl.(d) of the proviso to S. 12A of the Act. Such a construction will further the object of Cl.(d) of the proviso to S. 12A of the Act. In these circumstances it is to he held that the view taken by the 1st Additional Civil Judge suffers from manifest error." 9. The learned Judge placed reliance on the well known decision of this court in Dilbagh Singh v. State of UP (1978 All WC 393) : (1978 All LJ 717). A reference was also made to Keshao Govind Begde v. State of Maharashtra (AIR 1976 Bombay 78). In the end the learned Judge concluded as follows (at P. 649 of All LJ 1979.) "In view of the above discussion it is apparent that the appellate authority erred in not giving the petitioner an opportunity of presenting his case regarding the inclusion by the Prescribed Authority of the plots transferred to him in the surplus land of the tenure holder Bhagwati Prasad. That part of the judgment of the appellate authority (annexure III to the petition) cannot be sustained and is quashed. The matter is remanded to the appellate authority for rehearing only in so far as it relates to the inclusion or otherwise of the plots transferred to the petitioner in the surplus land of Bhagwati Prasad, after notice to the petitioner. The petitioner thus succeeds in part. The petitioner will be entitled to his costs." In 1978 All LJ 776 the operative part in this case was passed in the following words (Para 6) : "In the result writ petition succeeds in part. The operative order of the appellate authority, in so far as it has rejected the choice of the petitioner in regard to the area declared as surplus is quashed. The matter will go back to the Appellate Authority to determine the surplus land after taking into consideration the application filed by the petitioner in the appeal in regard to his choice of the land which should be declared surplus. The Appellate Authority will take into account any other application put in by the transferee in which it may be stated whether the transferee has any objection to the land transferred to her being declared as surplus land. In the special circumstances of the case, there will be no order as to costs." 10. In the body of the judgment the learned Judge made the following observations with regard to the scope of Cl. In the special circumstances of the case, there will be no order as to costs." 10. In the body of the judgment the learned Judge made the following observations with regard to the scope of Cl. (d) of the S. 12-A : - "The words as far as possible are to he found in S. 12A. Therefore, there is an area of discretion left with the Prescribed Authority and, therefore, also with the Appellate Authority to determine such lands as have been the subject matter of transfer as surplus land. Of course the normal rule is that such land shall not he declared as surplus". In 1982 All LJ NOC 108. 1 held that a sale deed executed after 24-1-1971, which is not covered by S. 5(8) of the Act, could not he said, to be a void document where it was liable to be ignored under S. 5(6) of the Act and further it was laid down that in view of Cl.(d) of the proviso to S. 12-A, such transferred land, as far as possible, could not be given in choice as surplus land by the heirs of the deceased tenure-holder. 11. In (1979) 5 All LR 257: (1979 All LJ 339), the facts were these. In the hands of the tenure-holder certain land was declared as surplus. A transferee from the tenure holder moved a belated objection before the Prescribed Authority contending that he had no knowledge of the earlier proceedings and that he had a right to explain the cause for delay in preferring his objection. Without considering the sufficiency of the cause attempted to he shown by the transferee, the Prescribed Authority and thereafter, the appellate court rejected his contention with the observation that he would not be put to any loss inasmuch as he would be able to get back the sale consideration from the transferor tenure holder under Cl. (d) of the proviso to S. 12A of the Act. Thereafter, the said transferee filed a writ petition in this court and the same was allowed by a learned Judge of this court. It was observed (at P. 339) : "This was not a correct approach to the case, if a transferee is entitled to retain his land, it is no answer to his claim that he can instead get back his money which he had paid for acquiring the land." 12. It was observed (at P. 339) : "This was not a correct approach to the case, if a transferee is entitled to retain his land, it is no answer to his claim that he can instead get back his money which he had paid for acquiring the land." 12. Reliance was placed upon the Division Bench pronouncement in Dilbagh Singh's case (1978 All LJ 717) for 'the proposition that even an unrecorded tenure holder can file an objection with the aid of S. 11(2) of the Act. It was further observed (at P. 339): "Moreover, it will at least be open to him to contend that the land, other than land covered by the sale deed in his favour should, as far as possible, be declared as surplus land as laid down in Cl. (d) of the said proviso to S. 12-A". 1981 All WC 568:(1981All LJ 1133) : It is a decision by me. I observed : (at P. 1134) - "The correct legislative intention is that the transfer deed ignored under S. 5(6) of the Act for the purposes of ceiling law should still subsist so far as the parties concerned, namely transferor, and transferees are concerned as far as possible. However, if it be not possible then the lands covered by such deeds or part thereof can be declared as surplus. In the instant case no objection can he taken to the Prescribed Authority's decision if he thought that it was possible to carry out the legislative intention and not to include the lands of the said sale deeds in the surplus area of the tenure holder." 13. In 1975 All WC 600, the Division Bench answered for questions which were referred to it. Question I was framed with reference to Article 31-A( 1) of the Constitution. Question No. 3 was framed with reference to Article 31-B of the Constitution and question 4 was framed with reference to Article 31-C of the Constitution. Question No. 2 was as follows: "Whether ignoring transfers made after 24th Jan. Question I was framed with reference to Article 31-A( 1) of the Constitution. Question No. 3 was framed with reference to Article 31-B of the Constitution and question 4 was framed with reference to Article 31-C of the Constitution. Question No. 2 was as follows: "Whether ignoring transfers made after 24th Jan. 1971, other than those excepted under proviso to S. 5(6) of the Act, both in relation to the determination of ceiling and surplus area, would amount to acquiring any portion of land under personal cultivation within the ceiling limit applicable to a person under the ceiling law for the time being in force?" All the four questions were answered in the affirmative in favour of the tenure holder and against the State. While dealing with S. 5(6) of the Act read with Cl. (d) of S. 12A. the Division Bench observed: "Under this provision, the Prescribed Authority has to include, the land, which is the subject of transfer, as far as possible, in the ceiling area to be retained by the tenure holder and only when, even after that inclusion some land out of the land transferred remains, it is to he included in the surplus area. - - - - - It is important to note that the transfers, which are ignored, have not been declared to be void, except to the extent of the land comprised therein which falls in the surplus areas. Therefore the transfer in respect of the land, which is included in the ceiling area of the tenure holder, remains a good and effective transfer and the transferee thereof remains the owner or tenure holder thereof. This means that, in effect, the tenure holder is really left with an area of land which is 18 acres minus the land included in his ceiling area out of the transferred land." 14. It is true that this Division Bench pronouncement of the Court was overruled by the Supreme Court in it case reported in 1977 All WC 180 : AIR 1977 SC 915 ) State of U. P. v. Rajesh Panhauri. However. it should he pointed out that the Supreme Court dealt only with the answer returned to the third question and overruling the Division Bench in its answer to the third question, felt that it was not necessary to discuss the other questions which were dealt with by the Division Bench. 15. However. it should he pointed out that the Supreme Court dealt only with the answer returned to the third question and overruling the Division Bench in its answer to the third question, felt that it was not necessary to discuss the other questions which were dealt with by the Division Bench. 15. In 1981 All WC 775, the Division Bench laid down that the benefit of Cl. (d) of the proviso to S. 516) of the Act would be available even to the transfer deeds executed in the period between 8-6-1973 and the date on which the general notice under S. 9(2) of the Act is issued by the Prescribed Authority. The Division Bench observed : "If we accept the argument of the learned counsel we will have to read in the Act an implied provision for treating all transfers effected on and after 8-6-1973 as void. Such an implied provision cannot be read when the Act itself contains a specific date from which all the transfers are to be treated as void. This date is specified in sub-sec. (8) of S. 5." It is not possible for me to accept the contention of Sri Khare that the transfer deeds executed after 24-1-1971 should be treated to he void. The two Division Bench pronouncements to which I have made a reference, namely, 1975 All WC 606 and 1981 All WC 775, have specifically laid down that such transfer deeds are not void even if they are ignored under S. 5(6) of the Act. They are ignored for the purposes of calculating-the total area of the tenure- holder and his surplus land. But as I emphasised in my decision in 1981 All WC 568 : (1981 All LJ 1133). Cl. (d) of proviso to S. 12-A of the Act clearly shows the legislative intention that as far as possible the transfer deeds should subsist so far as the parties are concerned, namely transferor and the transferee, and that is why the provision has been made that as far as possible the land, other than the transferred land should he declared as surplus land. The Division Bench pronouncement in 1977 All WC 91 on which Sri Khare placed reliance, does not lay down that all documents which are ignored under S. 5)6) of the Act should he treated as void. The Division Bench pronouncement in 1977 All WC 91 on which Sri Khare placed reliance, does not lay down that all documents which are ignored under S. 5)6) of the Act should he treated as void. The Division Bench has only laid down that when the transferred land is included in the surplus land of the tenure holder then the sale deed to the extent concerned becomes void. It is obvious that if no land of the transfer deed is included in the surplus land then the document cannot be treated to he void to any extent. In AIR 1976 Bom. 78 while dealing with certain parallel provisions in the Maharashtra Agricultural Land (Ceiling on Holdings) Act of 1961 it was laid down as follows: "It has to he noted that though under S. 10, the land will be taken into consideration after calculating the transferred land, it does not mean that the transfer is to he entirely ignored for all purposes." Therefore, in my view the said; contention made by Sri Khare cannot be sustained. However, I have seriously thought whether it is necessary to make a reference to a larger Bench in the aforesaid state of law. In my view, it is not necessary to do so. The Division Bench pronouncement in 1977 All WC 91 cannot be interpreted as laying down that the Prescribed Authority in the choice proceedings under S. 12-A is entitled to ignore the provisions contained in Cl. (d) of the proviso, which is clear and explicit that as far as possible the surplus land determined shall be land other than the land which is the subject matter of a transfer ignored under S. 5(6) of the Act. The Division Bench was not called upon to deal with any proceedings relating to choice and the manner in which such proceedings dealing with the choice, should be decided by the Prescribed Authority under S. 12A of the Act. The Division Bench had to deal with it case where after the proceedings had become final in the hands of the tenure holder upto the appellate stage some transferees from the tenure holder directly filed a writ petition in this court seeking the quashing of the orders passed by the Prescribed Authority and affirmed by the appellate court in relation to the tenure holder. In the said orders, certain transferred lands had also been declared as surplus land of the tenure holder. The challenge in the writ petition was based on Article 31A of the Constitution. The Division Bench laid down that if the land of the transfer deed has been included in the surplus land of the tenure holder, then on account of the latter part of Cl. (d) of the proviso to S. 12A of the the Act, the transfer would be treated as void and would be deemed to have beet always void. The Division Bench was not called upon to consider the earlier part of Cl. (d) of the said proviso which enjoins that in these choice proceedings the Prescribed Authority shall as far as possible, not include that land in the surplus land which has been sold by a document ignored under S. 5(6) of the Act. In this view of the matter, it will not be correct to extend the ratio of the said decision to circumstances which are not identical, for example, in the instant case the choice proceedings are pending before the Prescribed Authority. He has to decide in the light of S. 12-A as to how and in what manner the choice given by the tenure holder should or should not be accepted. The aforesaid Division bench pronouncement is not attracted to such a situation. I may further point out that the division Bench decision cannot be construed as laying down that in no circumstances can a transferee ventilate the grievance after the declaration of the surplus land in the hands of the tenure holder. It is well known that there are circumstances where this court has held that the transferees will have a locus standi and will have a course open to them to raise their grievance. I may refer to the Full Bench decision in Shantanu Kumar v. State of UP (1979 All LJ 1174). It should he seen that it was also a case of a transferee who had acquired the land from his father by a deed dated 1-1-1972. The father was treated as the tenure holder and the ceiling proceedings were finalised in his hands. It should he seen that it was also a case of a transferee who had acquired the land from his father by a deed dated 1-1-1972. The father was treated as the tenure holder and the ceiling proceedings were finalised in his hands. The transferee came to this court with a grievance that under R. 8 of the Rules framed under the Ceiling Act, he was entitled to a notice inasmuch as he was recorded on 8-6-73 in the revenue papers and as he was sought to be treated as the ostensible owner of the land sold to him which was included in the holding of his father treating the latter as the real tenure holder of the land he as the ostensibly recorded person was bound to he given an opportunity to show cause under the said R. 8 and as this was not done, the ceiling proceedings finalised in the case of his father were null and void. This contention was accepted by the Full Bench. It is therefore, at least clear on the authority of the Full Bench that in a situation where there is an infringement of the R. 8, the transferee will have a locus standi despite the declaration of surplus land in the hands of the transferor and inclusion of the transferred land in the surplus land of the transferor. Such a transferee cannot be put off on the plea that his sale deed should always be deemed to he void after his land was included in the surplus land of the transferor. 16. It may further he pointed out that in the Division Bench pronouncement in Dilbagh Singh's case (1978 All LJ 717). this court has laid down that even unrecorded tenure holders i.e. those who claimed to he real tenure holders but whose names are not recorded on 8-6-1973, have a right to take recourse to S. 1 l (2) of the Act and this proposition has been based on the Full Bench decision of this court in Upper Ganges Sugar Mills Ltd. v. Civil Judge (1969 All LJ 55,61: ( AIR 1970 All 130 ). Therefore, in my view, it will not be correct to interpret the Division Bench pronouncement in 1977 All. Therefore, in my view, it will not be correct to interpret the Division Bench pronouncement in 1977 All. WC 91 as laying down a broad and general proposition that a transferee loses his locus standi in every set of circumstances whatsoever after the land transferred to him has been included in the surplus land of the transferor. One can well appreciate that such a broad proposition in likely to cause maximum hardship to the transferees. Very often they are ignorant of the ceiling proceedings which are being taken against the transferor tenure holder, and, apart from a case which comes under R. 8 of the Rules framed under the Act, such transferees being unrecorded tenure holders are not given any notice of the ceiling proceedings. In this situation, - if an interpretation were placed on the Division Bench pronouncement of 1977 All. WC 91. in the manner as indicated then in my view as I observed above, big detriment will he caused to many genuine transferees who would like to have a say in the matter and to whom such say is assured in view of the Full Bench pronouncement of this court in Upper Ganges Sugar Mills Ltd. followed by the Division bench pronouncement in Dilbagh Singh's case. Of course, such transferees in case they take recourse to S. 11 (2) of the Act, will have to satisfy the Prescribed Authority with the requirements laid down in the said provision. Apart from the said aspect of the matter, in my view, where the choice proceedings are pending, it is always open to a transferee to come before the Prescribed Authority and point out that the land is available in the hands of the tenure-holder for being declared as surplus land and that lands transferred to him by the tenure holder by a document which has been ignored under S. 5 (6) of the Act, should, as far as possible he not declared as surplus land of the tenure holder. 17. In the instant case accordingly. I think that the prayer which has been made by the transferees in the instant application deserves to he substantially allowed. I think it would be proper that the Prescribed Authority should not feel that it is a situation of some kind of suspense or uncertainty. 17. In the instant case accordingly. I think that the prayer which has been made by the transferees in the instant application deserves to he substantially allowed. I think it would be proper that the Prescribed Authority should not feel that it is a situation of some kind of suspense or uncertainty. This has become also necessary because while disposing of the aforementioned two writ petitions by my aforementioned judgment dated 6-8-19,41. in the operative part of the said judgment I gave a direction that the choice to he given by the tenure holder should, as far as possible, he accepted by the Prescribed Authority, in accordance with S. 12-A of the Act. In giving the said direction. I really meant that the Prescribed Authority should decide the choice proceedings in the light of the said section taken in its entirety. In other words, I really meant that not only the opening part of the said section was to he followed but also the various clauses of the proviso including Cl. (d) thereof, were to he taken into consideration and followed. Since this position was not made very explicit there may be a danger that the Prescribed Authority may interpret my direction as enjoining upon him to accept the choice of the tenure holder irrespective of the consideration involved in Cl. (d) of the proviso to S. 12-A of the Act. This was not what I contemplated should be the result of my direction given in the operative part of the said judgment dated 6-8-1981. Therefore, in the interest of justice. I think that I should give a further direction (which is really be by way of clarification of my previous direction given in the said judgment dated 6-8-1981 to the Prescribed Authority in the choice proceedings pending before him under S. 12-A that he shall declare such land as surplus of the tenure holder Krishna Kumar which is not included in the land of the two transfer deeds in question in favour of the applicants before me. However, if this be not fully possible then only the land of the transferees shall be declared as surplus. However, if this be not fully possible then only the land of the transferees shall be declared as surplus. It is made further clear that even the land within the ceiling areas of the tenure holder shall he declared as surplus before the lands of the two transfer deeds will be sought to be declared as the surplus land of the tenure holder. The application is accordingly disposed of and there will be no order as to costs.