JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order 30.12.1976 passed by the Prescribed Authority, respondent No. 2, and the orders dated 14.11.1996 and 5.12.1997 passed by respondent No. 1.
2. The dispute relates in respect of plot No. 258 area 2.25 acres. The petitioner claims that he purchased this plot through a registered sale deed on 20.11.1974 executed by Chanan Singh, respondent No. 4. The proceedings for declaration of surplus land took place under the provisions of U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) against respondent No. 4. He was issued a notice under Section 10 (2) of the Act on 4.5.1974. He was served with the notice on 16.11.1974. On 20.11.1974, the petitioner purchased the disputed plot from him.
3. The Prescribed Authority declared an area of 8.77 acres of land as surplus land of respondent No. 4. He filed an application to recall the said order on 3.7.1976. The said restoration application was rejected by the Prescribed Authority on 14.7.1976. He filed appeal before the Additional Commissioner, respondent No. 1. Respondent No. 1 allowed the appeal by his order dated 26.8.1976 and remanded the case to the Prescribed Authority to determine the area of surplus land of respondent No. 4 after affording opportunity of hearing to him. The Prescribed Authority after remand of the case afforded opportunity of hearing to respondent No. 4 and passed the order on 30.12.1976 declaring 2.25 acres of land as surplus. Respondent No. 4 thereafter did not file any appeal against the order of Prescribed Authority dated 30.12.1976.
4. The petitioner filed an application before the Prescribed Authority in the year 1995, after a lapse of about 19 years, for recalling the order dated 30.12.1976 on the allegation that he had purchased plot No. 258 from respondent No. 4 before passing the order declaring the land of respondent No. 4 as surplus and he was not issued any notice before the order declaring the land of respondent No. 4 as surplus was passed. Respondent No. 2 rejected the said application by his order dated 14.11.1996. The petitioner filed an appeal against the said order before the Commissioner, Bareilly Division. Bareilly. The appeal has been dismissed by respondent No. 1 vide order dated 5.12.1997. These orders have been challenged in the present writ petition.
5. Sri S.S. Pandey, learned counsel for the petitioner, submitted that the petitioner should have been served with a notice before the order dated 30.12.1976 was passed and as he was not served with a notice, the order dated 30.12.1976 was liable to be set aside. He has referred to Rule 8 of U. P. imposition of Celling on Land Holdings Rules, 1961 which reads as under :
"8. As soon as may be, after the expiry of thirty days from the date of publication of the general notice in C.L.H. Form 1 in the official Gazette, the Prescribed Authority shall cause to be served upon every tenure-holder, who has failed to submit the statement in C.L.H. Form 2 or has submitted an incomplete or incorrect statement, a notice in C.L.H. Form 4 together with a copy of the statement in C.L.H. Form 3, prepared under Rule 6 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the aforesaid statement be not taken as correct :
Protected that where the statement in C.L.H. Form 3 also includes land ostensibly held in the name of any other person, the prescribed authority shall cause to be served upon such other person a notice in C.L.H. Form 4 together with a copy of the statement in C.L.H. Form 3 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the aforesaid statement be not taken as correct:
Provided further that in the case of a tenure-holder who is a member of the Armed Forces (Military, Naval or Air Force) of the Union of India, the period within which he will be called upon to show cause why the statement in C.L.H. Form 3 be not taken as correct, shall be ninety days from the date of service of the notice in C.L.H. Form 4."
This proposition is applicable only when the name of a person is recorded in the revenue record. The petitioner had purchased the land on 20.11.1974. His name is alleged to have been mutated on 22-1.1976. The tenure-holder was given the notice on 4.5.1974. In absence of the name of the petitioner on the record on the date when the notice was issued, the petitioner could not have given any notice.
6. Secondly, the petitioner had purchased the property after the notice was issued to the tenure-holder on 4.5.1974. Sub-section (8) of Section 5 provides that if a transfer has been made, in contravention of sub-sections (6) and (7) by a tenure-holder, that shall be treated as void. Sub-section (8) of Section 5 reads as under :
"(8). Notwithstanding anything contained in sub-sections (6) and (7), no tenure-holder shall transfer any land held by him during the continuance of proceedings for determination of surplus land in relation to such tenure-
holder and every transfer made in contravention of this sub-section shall be void.
Explanation.--For the purposes of this sub-section, proceedings for determination of surplus land shall be deemed to have commenced on the date of publication of notice under sub-section (2) of Section 9 and shall be deemed to have concluded on the date when an order in relation to such tenure-holder is passed under sub-section (1) of Section 11 or under subsection (1) of Section 12, or as the case may be, under Section 13."
Sub-section (6) of Section 5 provides that in determining the celling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored.
7. Learned counsel for the petitioner contended that the transfer was made in good faith and for adequate consideration and, therefore, such transfer was not to be ignored under the proviso to sub-section (6) of Section 5 of the Act. In this respect, it may be noted that sub-section (8) is exception to the proviso of sub-section (6) of Section 5 of the Act. In case the transfer has been made during the continuance of the proceedings for determining the surplus land in relation to the tenure-holder, the transfer shall be treated as void. The Explanation to sub-section (8) provides that the proceedings shall be treated to have been commenced on the date of publication of notice under sub-section (2) of Section 9 of the Act.
8. In Sanjai Kumar and others v. State of U. P. and others. 1995 RD 473, the Apex Court has held that when transfer is made during the continuance of proceedings for determining the surplus area, such transfer shall be treated as void. As the petitioner had obtained the sale deed during the continuance of proceedings for determination of surplus area, his sale deed is void.
9. The tenure-holder was given a notice on 4.5.1974. The petitioner has not stated that the date of publication of the notice under Section 9 (2) of the Act was after 20.11.1974. It is contended that the notice was not served on the tenure-holder on 16.11.1974. He had filed an application to recall the ex parte order dated 14.1.1975 and the said order was recalled. The date of service of notice is not relevant. It is the date of publication of the notice under subsection (2) of Section 9 of the Act which is relevant to determine the time of commencement of proceedings. The expression "during continuance of proceedings" does not mean that a tenure-holder could be free to transfer his land if no notice under Section 10 of the Act was served on him or if no proceeding for determination of celling area was pending against him. The proceedings will be deemed to continue on the publication of notice under subsection (2) of Section 9 of the Act. As the petitioner had purchased the land on 20.11.1974 during the continuance of proceedings, he will not be entitled to any benefit of the proviso to sub-section (6) of Section 5 of the Act.
10. The petitioner had filed an application that he had no knowledge regarding the order passed by the Prescribed Authority on 30.12.1976. His version has not been accepted by the Prescribed Authority and by respondent No. 1. This finding is based on assessment of evidence and does not suffer from any illegality.
11. The next submission of the learned counsel for the petitioner is that he having purchased the land from respondent No. 4, he is entitled for the benefit of Section 12A (d) of the Act which provides that where any person holds land in excess of the celling 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 for 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.
12. Section 12A (d) confers certain benefits to a transferee where the transfer or partition of land was liable to be ignored under sub-sections (6) and (7) of Section 5 of the Act but such benefits have not been conferred on a transferee who has purchased the land during the continuance of the proceedings for determination of surplus land because such a transfer is treated as void, The petitioner, on the facts and circumstances of the present case, cannot claim any benefit for exclusion of his land under Section 12A (d) of the Act.
13. There is no merit in the writ petition. It is accordingly dismissed.