JUDGMENT Hon’ble Prakash Krishna, J.—The present writ petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1961. A notice under section 10 (2) of the aforesaid Act was issued to Om Prakash, the tenure holder who is respondent No. 3 herein for declaration of proposed surplus land measuring 16.70 acres. An objection to the said notice was filed by the tenure holder. The Prescribed Authority by the order dated 27th of February, 1976 determined the 14.75 acres of land as surplus. The surplus land was proposed to be taken out from plot Nos. 79, 84, 96, 77 and 81 under the aforesaid order. The said order was challenged unsuccessfully in civil appeal No. 68 of 1976 by the tenure holder. He further challenged the two orders against him by way of writ petition in the High Court which was allowed and the matter was remanded back to the First Appellate Authority for reconsideration who by the order dated 12th of August, 1990 found that the surplus land of the tenure holder, respondent No. 3, stands reduced to 12.47 acres and directed the Prescribed Authority to obtain the choice from the landholder within 15 days and then proceed further in the matter in accordance with law. 2. Thereafter, before the Prescribed Authority, applications were filed by Ashok Kumar, respondent No. 4 herein and Subhash Chandra, the respondent No. 5 herein separately under section 11 (2) of the Act on the pleas inter alia that the tenure holder Om Prakash ceased to have any right, title or interest in respect of the plot No. 84 area 9.22 acres. They came out with the case that the said land was sold by Om Prakash, the tenure holder on 14.2.1972 to Ashok Kumar. There were some outstanding government dues against Ashok Kumar and the said plot was auctioned sold by the District Magistrate for a sum of Rs. 7,000/- in favour of Subhash Chandra. In substance it was pleaded that Subhash Chandra, respondent No. 5 herein being the auction purchaser has matured his right in plot No. 84 and as such the said plot should be excluded from the consideration of the choice given by the tenure holder. 7,000/- in favour of Subhash Chandra. In substance it was pleaded that Subhash Chandra, respondent No. 5 herein being the auction purchaser has matured his right in plot No. 84 and as such the said plot should be excluded from the consideration of the choice given by the tenure holder. The Prescribed Authority by the order dated 8.6.1982 found that the said plot was sold by the tenure holder before the appointed date i.e. 8.4.1973 and as such the said sale was for valuable consideration and in good faith, therefore, the area of the said plot is liable to be excluded from the hands of the tenure holder. Resultantly, the Prescribed Authority reduced the surplus land from 12.47 acres to 3.69 acres by the order dated 8.6.1982. In appeal being Civil Ceiling Revenue Appeal No. 68 of 1982 the said order has been confirmed by the Court below on 25.10.1983. Challenging the legality and validity and propriety of the aforestated two orders dated 8.6.1982 and 25.10.1983, the present writ petition has been filed. 3. In the writ petition it has been stated that even if the sale deed executed by the tenure holder in favour of Ashok Kumar is considered a bonafide transaction, though it was after the appointed date, the authorities below, while excluding the 8.78 acres from the hands of Om Prakash, should have declared the surplus land measuring 8.78 acres from other plots of Om Prakash. 4. In spite of time granted to the respondents, no counter affidavit has been filed. None appeared at the time of hearing of the writ petition on behalf of the respondents to oppose it. 5. The learned Standing Counsel submits that while considering the choice of the tenure holder, the Prescribed Authority or, as a matter of fact, any other authority cannot reduce the surplus area already declared. In other words, the learned Standing Counsel submits that the order declaring 12.47 acres as surplus land of the respondent No. 3 to the tenure holder had attained finality and the Prescribed Authority committed illegality in modifying the said order by declaring 3.69 acres as surplus. 6. Considered the submission of the learned Standing Counsel and perused the record. In other words, the learned Standing Counsel submits that the order declaring 12.47 acres as surplus land of the respondent No. 3 to the tenure holder had attained finality and the Prescribed Authority committed illegality in modifying the said order by declaring 3.69 acres as surplus. 6. Considered the submission of the learned Standing Counsel and perused the record. It is not in dispute, as noticed by the learned Additional District Judge in the impugned order that in pursuance of the remand order passed by the High Court, the Additional District Judge, Moradabad in M.A. No. 68 of 1976 decided on 12th of August, 1980 held that the surplus land of the tenure holder, namely, Om Prakash shall stand reduced to 12.47 acres and the matter was further remanded to the Prescribed Authority with the direction to obtain the choice of the landholder within 15 days and then proceed to declare the surplus land. The aforestated order passed by the learned Additional District Judge was not an open order of remand. Only for a limited purpose i.e. to take the choice of the tenure holder with regard to the surplus land, the matter was restored back to the Prescribed Authority. The Prescribed Authority being lower in hierarchy was bound by the order passed by the learned Additional District Judge declaring that the surplus land of the tenure holder is 12.47 acres. If the petitioner or any other person was aggrieved by the said order, they should have challenged the same before a higher forum as permissible under law. It was not desirable nor appropriate for the Prescribed Authority to reopen the question so far as the question of area of the surplus land is concerned. The order dated 12.8.1980 declaring 12.47 acres as surplus land having attained finality could not have been challenged on any ground before the Prescribed Authority. The Prescribed Authority and the Court below, therefore, committed manifest error of law in entering into the question with regard to the surplus land of the tenure holder, namely, respondent No. 3. This is one aspect of the matter. The learned Standing Counsel is right in his submission that even if the sale deed executed by the tenure holder is taken to be a genuine transaction, the same will not reduce the surplus area so far as the tenure holder is concerned. This is one aspect of the matter. The learned Standing Counsel is right in his submission that even if the sale deed executed by the tenure holder is taken to be a genuine transaction, the same will not reduce the surplus area so far as the tenure holder is concerned. Plea that he has sold away the plot No. 84 could have been or ought to have been taken by him in the earlier proceedings which he failed to do so. He cannot be permitted to raise a plea at the subsequent stage of the proceedings that too at the stage of the question of giving choice for retaining the land within the ceiling area. Even otherwise also, the order declaring 12.47 acres as surplus land having attained finality, the authorities below could have at the most excluded plot No. 84 while considering the choice given by the tenure holder. It does not mean that the area of the plot No. 84 should be excluded for all purposes from the surplus land of the tenure holder. To put it simply, the corresponding area 8.78 acres of plot No. 84 be taken from the remaining plots of the respondent No. 3, even if the sale deed executed by the tenure holder is treated as a genuine document. It may be noticed that the appellate Court has rightly noticed that the sale deed is dated 24.2.1972 i.e. after 24th of January, 1971, the material date under the U.P. Imposition of Ceiling on Land Holdings Act. The said observation in the impugned order is perfectly legal and justified. 7. The appellate Court as well as the prescribed authority went wrong by excluding the area of plot No. 84 from the total surplus land of the tenure holder. 8. In view of the above discussion, I find sufficient force in the writ petition. The writ petition succeeds and is allowed. The impugned orders dated 25.10.1983 passed by the opp. party No. 1 and order dated 8.6.1982 passed by opp. party No. 2 are hereby quashed. The Prescribed Authority is directed to take the possession of 8.78 acres of land also from the remaining plots of the respondent No. 3 who may given his option within one month if he so likes from the date of judgment. 9. No order as to costs. ————