KRISHNA MURARI, J. ( 1 ) THESE are two connected writ petitions arising out of proceeding under the U. P. Imposition of ceiling on Land Holdings Act (for short the Act) between the same parties. ( 2 ) HEARD S/sri N. K. Saxena, R. R. Sheoharey and learned Standing Counsel appearing for respective parties in both the writ petitions ( 3 ) ONE Khuman Singh (petitioner in writ petition No. 9714 of 1988) is the tenure holder against whom proceeding for determination of surplus land was initiated. Smt. Prema Devi (petitioner in writ petition No. 16412 of 1984) is transferee of certain plots belonging to Khuman Singh under sale deed dated 15. 4. 1972. ( 4 ) THE facts are that objection filed by Khuman Singh was rejected by the prescribed authority on 2. 11. 1974 against which he filed an appeal which was allowed and the case was remanded back to the prescribed authority. After remand Smt. Prema Devi also filed objection claiming herself to be the transferee of certain plots under sale deed dated 15. 4. 1972. The prescribed authority vide order dated 27. 1. 1977 declared an area of 4. 03 acres in terms of irrigated land as surplus in the hands of Khuman Singh. It was also held that land transferred in favour of Smt. Prema Devi should not be declared surplus as there are other lands available with tenure holder which can be declared surplus. The appeal filed by tenure holder Khuman Singh was partly allowed and surplus area was reduced to 2. 73 acres. However, the finding of the prescribed authority that the land transferred in favour of Smt. Prema Devi should not be declared surplus was not disturbed by the appellate authority. Thereafter, the prescribed authority obtained choice from the tenure holder Khuman Singh and accepted the same vide order dated 26. 12. 1979. The tenure holder gave all the plots which was transferred by him through sale deed in favour of Smt. Prema Devi in choice to be declared as surplus. Naib Tehsildar (Ceiling) moved an application to recall the order accepting the choice on the ground that plots indicated by the tenure holder khuman Singh in choice are not free from encumbrances and are recorded in the name of vendee smt. Prema Devi. The prescribed athority vide order dated 9. 3. 1980 recalled the order dated 26. 12. Naib Tehsildar (Ceiling) moved an application to recall the order accepting the choice on the ground that plots indicated by the tenure holder khuman Singh in choice are not free from encumbrances and are recorded in the name of vendee smt. Prema Devi. The prescribed athority vide order dated 9. 3. 1980 recalled the order dated 26. 12. 1979 and declared certain other plots of the tenure holder Khuman Singh as surplus. Feeling aggrieved he filed an appeal which was allowed and the order of the prescribed authority dated 19. 3. 1980 was set aside and the earlier order dated 26. 12. 1979 was restored. This appellate order has been challenged by Smt. Prema Devi in writ petition No. 16412 of 1984. This court on 20. 11. 1984 stayed operation of the appellate order. After the stay order tenure holder Khuman singh was asked to give fresh choice and he again indicated the same plots which were transferred by him in favour of Smt. Prema Devi to be declared surplus. The prescribed authority called for a report and Naib Tehsildar again submitted a report that plots indicated by tenure holder Khuman Singh in his choice are recorded in the name of Smt. Prema Devi and are in her possession as such the choice is not liable to accepted. The prescribed authority on 27. 4. 1985 rejected the choice given by tenure holder Khuman Singh and directed to take possession of plots declared surplus vide order dated 19. 3. 1980. Khuman Singh again filed an appeal challenging this order which was dismissed on 12. 2. 1988 as not maintainable with a finding that possession of the plots declared surplus vide order dated 19. 3. 1980 has already been taken by the state. This appellate order has been challenged by Khuman Singh in writ petition No. 9714 of 1988. ( 5 ) IT has been urged by learned counsel for the petitioner in writ petition No. 16412 of 1984 that having regard to the purpose for which Section 12a and particularly, Clause (d) of the proviso were enacted, the land purchased by bonafide transferee for consideration is liable to be excluded from the surplus area of the tenure holder. It is only when the tenure holder has no other land available, the land transferred by him can only be declared as surplus. It is only when the tenure holder has no other land available, the land transferred by him can only be declared as surplus. It has next been contended that prescribed authority vide order dated 27. 1. 1977 while deciding the objection of the tenure holder Khuman Singh and Smt. Prema Devi directed that plots transferred in her favour by the tenure holder are not liable to be declared surplus and the said finding was affirmed by the appellate authority and the same became final between the parties. ( 6 ) LEARNED counsel for the petitioner in writ petition No. 9714 of 1988 has urged that once the order dated 19. 3. 1980 was set aside in appeal, the prescribed authority had no jurisdiction to declare the same plots as surplus again and the appeal filed by him has wrongly been dismissed by the appellate authority. It has further been contended that once the sale deed in favour of Smt. Prema Devi was not accepted as bonafide and in good faith and the plots transferred by him were included in his holding while Computing the ceiling area, the choice of the said plots indicated by him to be declared as surplus is liable to be accepted and cannot be ignored. ( 7 ) I have considered the arguments advanced by learned counsel for the parties and perused the record. Section 12-A of the Act lays down the guidelines for declaring the surplus land after determination of the ceiling area for the purpose of taking over possession by the State. The relevant provisions of said Section reads as under : "12-A. 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) xxxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxxxx (c) xxxxxxxxxxxxxxxxxx (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 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, 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 returned 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 Informs 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. ( 8 ) A bare reading of the aforesaid provision indicates that prescribed authority shall, as far as possible, accept the choice of plots indicated by tenure holder which he or other members of his family would like to retain with them. The use of words as far as possible by the legislature in the enacting part of Section 12-A indicates that choice indicated by the tenure holder is not absolutely binding upon the prescribed authority but the same is liable to be accepted as far as possible. ( 9 ) THE proviso to the Section lays down the guidelines to be followed by the prescribed authority while dealing with the choice indicated by the tenure holder. Relevant for the purposes of the present case are the guidelines contained in Clause (d) which provides while considering the choice made by the tenure holder the prescribed authority would as far as possible try to exclude such land from the surplus land which is subject matter of transfer or partition. Relevant for the purposes of the present case are the guidelines contained in Clause (d) which provides while considering the choice made by the tenure holder the prescribed authority would as far as possible try to exclude such land from the surplus land which is subject matter of transfer or partition. ( 10 ) THE broad legislative intent appears to be where a tenure-holder holding land in excess of ceiling area has transferred or partitioned land after the appointed day, the surplus land shall be so carved out that, so far as possible, land subject matter of such transfer or partition, snail not be included in the land to be declared surplus. In other words unless sufficient land is not available with the tenure holder to be declared surplus or it is not possible to exclude the land covered under transfer or partition for some other cogent reason such land shall not be included in the surplus land. ( 11 ) THE aforesaid intention of the legislature becomes further clear from conjoint reading of section 5 (6) and Clause (d) of proviso to Section 12-A. Section 5 (6) provides that any transfer made after the appointed day is liable to be ignored and not taken into account for the purpose of determining the ceiling area. Under this Section the transfer made by a tenure holder has not been declared to be void unlike Section 5 (8) where any transfer made during continuance of ceiling proceedings are to be treated as void. Thus, though under Section 5 (6) of the Act the transfer made after the appointed day is to be ignored for the purpose of computing the ceiling area but the same remains valid and operative so far as transferor and transferee are concerned. However, in view of Clause (d) of proviso to Section 12-A the moment any land which is subject matter of transfer or any part thereof is to he included in surplus land such transfer of land or such part thereof shall be deemed to be void. The mere fact that transfer made after appointed day have not been declared to be absolutely void unless the area or part thereof gets included in the surplus land goes to show that legislature always intended so far it was possible to exclude the land which is subject matter of transfer from being included in surplus land. The mere fact that transfer made after appointed day have not been declared to be absolutely void unless the area or part thereof gets included in the surplus land goes to show that legislature always intended so far it was possible to exclude the land which is subject matter of transfer from being included in surplus land. ( 12 ) THE rights conferred upon the tenure holder of making a choice by enacting part of Section 12-A has to be balanced with the right of a transferee to seek exclusion of the plots purchased by him for a valuable consideration from the surplus land in case plots other than those purchased by him are available for being declared surplus. Only such a construction of Section 12-A of the act will further the object of Clause (d) of proviso to the said Section and any other construction will make it redundant. ( 13 ) THUS the normal rule is that land forming subject matter of transfer shall not be included in the surplus land unless the tenure holder is left with no other land or the area available with him falls short of area declared surplus. ( 14 ) REFERENCE at this stage may be made to a decision of the Apex Court in the case of Smt. Kamlesh Kumari v. State of U. P, and Ors. , 1981 ALJ 1139 wherein it was observed as follows : "the short point taken by Mr. Ashok Sen in support of the petition is that even assuming that the finding of the prescribed authority that the transfer was not bonafide is correct, the prescribed authority was in error in not excluding the land said to have been transferred from the surplus area. The land which was the subject matter of transfer was covered by plot No. 460. The contention is well founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the prescribed authority and remit the case to the prescribed authority to decide the surplus land in accordance with Section 12-A (d) of the Act by excluding the area which was the subject of transfer as far as possible. In these circumstances, we set aside the judgment of the High Court and that of the prescribed authority and remit the case to the prescribed authority to decide the surplus land in accordance with Section 12-A (d) of the Act by excluding the area which was the subject of transfer as far as possible. " ( 15 ) IN the present case since the tenure holder Khuman Singh had sufficient land available with him which could have been taken over as surplus as such there was no necessity to include the plots transferied by him in favour of Smt. Prema Devi in the surplus land. The choice of plots indicated him, which was subject matter of transfer deed executed by him for valuable consideration to be included in the surplus land was nothing but a malafide intention on his part. ( 16 ) IN view of the aforesaid interpretation of provisions of Section 12-A and the law laid down by the Honble Apex Court, it is clear that the plots transferred by Khuman Singh in favour of smt. Prema Devi are not liable to be included in the surplus land. ( 17 ) AS a result, the writ petition No. 16412 of 1984 filed by Smt. Prema Devi stands allowed and the appellate order dated 25. 8. 1984 is quashed. The writ petition No. 9714 of 1988 filed by tenure holder Khuman Singh is dismissed. ( 18 ) THE appellate authority while dismissing the appeal filed by tenure holder Khuman Singh in the order dated 12. 2. 1988 has recorded a finding that possession of plots declared surplus by the prescribed authority vide order dated 19. 3. 1980 has already been taken by the State. However, in case the possession has not been taken it is hereby directed that prescribed authority shall proceed to take possession of the said land forthwith. ( 19 ) HOWEVER, in the facts and circumstances of the case, there shall be no order as to costs. . .