JUDGMENT Krishna Murari, J.
1. Heard Sri N.B. Nigam, learned Counsel for the petitioner, learned standing counsel for respondents No. 1, 2 and 7 and Sri Rishikesh Tripathi for the contesting respondent No. 3.
2. Shorn of unnecessary details, the facts relevant for the purposes of the case as set up in the writ petition are as under;
3. One Prem Narain (now deceased), predecessor-in-interest of the petitioner and pro forma respondents No. 4 to 6 executed a registered sale deed dated 17.7.1959 in favour of Chandra Sen and Sheo Sen, predecessor-in-Interest of the contesting respondent No. 3. The name of the vendors were duly mutated in the revenue records vide order dated 29.12.1962. Notice under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act,1960 (for short the 'Act') was served on Prem Narain proposing to declare certain land as surplus. Proceedings were contested by filing objection on the ground inter alia that he has transferred certain area of land to various persons prior to cut off date i.e. 27.1.1971 and mutations have also been effected in the name of vendors as such the said area should be excluded from his holdings while calculating the surplus area. It is to be noted that objection with regard to land transferred by means of sale deed dated 17.7.1959 executed in favour of predecessor-in-interest of contesting respondent No. 3 was not taken. Prescribed Authority vide judgment and order dated 15.6.1976 held that said sale deed executed by tenure holder in 1970 was sham transaction and declared 31.60 acres in terms of irrigated land as surplus in the hands of tenure holder Prem Narain. Aggrieved, he filed an appeal. The appellate court vide order dated 2.11.1979 allowed the appeal and directed the Prescribed Authority to determine the surplus land after deducting the area of land which was subject matter of sale deed executed by him in 1970. In pursuance to the aforesaid direction of the appellate authority, the Prescribed Authority vide order dated 27.3.1980 after excluding the land which was subject matter of the said sale deed declared 12.72 acres in terms of irrigated land as surplus land. By the same order, the choice given by tenure holder Prem Naraln was also accepted. It is noteworthy that tenure holder Prem Narain along with other land gave plots which were transferred by him by sale deed dated 17.7.1959 also in choice. In the meantime, since the village was brought under consolidation operation as such possession of plots declared surplus land could not be taken. After close of the consolidation operation, a reference was prepared for taking over possession of plots declared surplus land which was accepted by the Prescribed Authority on 17.11.2004 and it included newly carved out chak No. 1887 which was allotted in the name of contesting respondent No. 3 during consolidation operation. Aggrieved by Inclusion of his chak In land declared surplus in the hands of tenure holder Prem Narain, respondent No. 3 filed an appeal against the said order. The appellate court vide order dated 24.7.2006 allowed the appeal on the ground that the land which was subject matter of sale deed dated 17.7.1959 could not have been declared surplus. He further remanded the case back to the Prescribed Authority to verify as to whether chak No. 1887 has been carved out from plots which were subject matter of sale deed dated 17.7.1959 and if that is so then the same could not have been given in choice by the tenure holder and the same cannot be declared as surplus land and in that eventuality the Prescribed Authority was directed to obtain fresh choice from the tenure holder. Aggrieved by the said order, the petitioner has approached this Court by filing instant writ petition.
4. It has been urged by the learned Counsel for the petitioner that since the transferees namely the predecessor-in-interest of contesting respondent No. 3 did not file any objection as such the transfer made in their favour is to be ignored and they cannot claim exclusion of said land from surplus land. It has further been urged that the order passed by the Prescribed Authority in 1980 had become final and which cannot be reopened.
5. The next submission made by the learned Counsel for the petitioner is that in view of explanation i of Section 5 of the Act, the land being ostensibly held by a tenure holder in the name of any other person shall be taken into account while determining the ceiling area.
6. In reply, it has been contended by the learned Counsel appearing for the contesting respondent that the sale deed executed in favour of his predecessor In 1959 is much before the cut off date as such the same cannot be ignored and the land which is subject matter of said transfer cannot be clubbed with the holding of the tenure holder while determining the ceiling area. It has also been contended that since the name of predecessor-in-interest of contesting respondent No. 3 came to be mutated in the revenue records in the year 1961, the land could not have been declared surplus without any notice.
7. I have considered the arguments advanced on behalf of the learned Counsel for the parties and perused the record.
8. It is undisputed that the sale deed was executed by the tenure holder on 17.7.1959 on the basis of which the name of the transferees i.e. predecessors-in-interest of contesting respondent No. 3 came to be mutated in the revenue records in 1961. Equally undisputed is the fact that no notice of the proceedings were ever issued to the person recorded in the revenue records over the disputed land. There is also no dispute about the fact that tenure holder Prem Narain gave plots which were subject matter of sale deed dated 17.7.1959 in choice.
9. Sub-section (6) of Section 5 of the Act provides that in determining the ceiling area applicable to a tenure holder, any transfer of land made after 24.1.1971, which but for the transfer would have been declared surplus under this Act, shall be ignored and not taken into account.
10. Admittedly, the sale deed in the present case was executed much before the cut off date and thus the same is liable to be ignored. The argument of ostensible ownership of the said land has been raised by the petitioner in this writ petition with oblique motive in order to protect the choice given by him. There is absolutely no material on record to indicate that even after execution of sale deed dated 17.7.1959, tenure holder Prem Narain continued to hold the land, which was subject matter of said sale deed, ostensibly.
11. From the undisputed fact of the case, it is clear that the land which was subject matter of sale deed dated 17.7.1959 could not have been given in choice by tenure holder Prem Narain nor the said land can be declared as surplus in his hands. Since, entire proceedings were drawn ex parte against the predecessor-in-interest of respondent No. 3 as well as respondent No. 3 himself, no finality can be attached to any order passed behind their back without any notice to them. The arguments advanced by the learned Counsel for the petitioner are not only bereft of any merits but are also misconceived and are not liable to be accepted.
12. The appellate Court has rightly remanded the case back to ascertain whether chak No. 1887 standing in name of contesting respondent No. 3 has been carved out from the plots which were subject matter of sale deed dated 17.7.1959 and if that is so the same are to be excluded and fresh choice may be obtained from the petitioner.
13. In these facts and circumstances, there is no illegality in the impugned order. The writ petition accordingly fails and is dismissed in limine.