Mahenda Kaur vs Commissioner Lko.And And 3 Ors.
- Court
- Allahabad High Court
[A.F.R.]
Neutral Citation No. –
2026:AHC-LKO:79427
Reserved on: 15.09.2026
Delivered on:03.11.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 3000024 of 2008
Mahenda Kaur
…..Petitioner(s)
Versus
Commissioner Lko.and and 3 Ors.
…..Respondent(s)
Counsel for Petitioner(s) : V.k.pandey, Amit Dwivedi, Vinod
Kumar Mishra
Counsel for Respondent(s) : C.S.C., K.k.verma, V.k. Mishra
Court No. - 4
HON'BLE IRSHAD ALI, J.
1. Heard Shri Amit Dwivedi, learned counsel for the petitioner and
learned Standing Counsel for the respondents-State.
2. Vide order dated 15.9.2026, the notice upon respondent nos.6 and
7 are deemed to be sufficient.
3. By means of the present writ petition, the petitioner has prayed for
the following reliefs:
(i) Issue a writ, order or direction in the nature of Certiorari
quashing the impugned order dated 26.2.2008 passed by the
opposite party no.1 passed in Appeal No.36/43/07 as well as
impugned order dated 30.11.2004 passed by the opposite party
no.2 contained in Annexure Nos.1 and 2 to this writ petition.
(ii) Issue a writ, order or direction in the nature of Mandamus
commanding the opposite parties not to take the possession of the
disputed land No.51/10 area 950 of village-Ganjga Nagar
Pargana- Khairigarh Tehsil and District Kheri.
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(iii) Issue any other writ, order or direction which this Hon’ble
Court may deem fit and proper under the circumstances of the
case.
(iv) Allow the writ petition with costs."
4. Factual matrix of the case is that the disputed land no.51/10 area
9.50 acre of Village Gang Nagar, Pargana- Khairigarh Tehsil and District
Kheri originally belonged to the father of the opposite party no.4, Prithvi
Pal singh who in the year 1961 executed a registered sale deed in favour
of Fateh Singh and the said Fateh Singh executed sale deed in favour of
Bali Singh and Bali Singh executed sale deed in favour of Mahendra
Kaur (petitioner). Since the date of execution of sale deed the petitioner
and earlier her predecessor in interest has been in the possession.
On 4.3.1965, the Prescribed Authority declared the surplus land
from the holdings of said Prithvi Pal singh ( who has died and his son
namely Sarv Pal Singh has been arrayed as a party in all the lower court
proceedings as well as in the instant writ petition as opposite party no.4)
in view of the provisions of U.P. Imposition of Ceiling on Land Holdings
Act, 1960.
In the year 1973, section 12-A introduced vide U.P. Act No.18 of
1973. The petitioner filed objectiojn against the orders dated 4.3.1965
and 29.5.1975 before the Prescribed Authority, Ceiling which was
rejected on 30.06.1986.
Against the said order dated 30.6.1986, statutory appeals were
filed by the petitioner and other persons which were rejected by a
common order dated 13.11.1991 by Appellate Authority/ Additional
Commissioner, Lucknow Division. Special finding has been recorded
that transfer was irrevocable, in good faith and in lieu of adequate
compensation/ consideration.
The petitioner and others person preferred review applications
bearing No.108(88-897) U/S 13 Ceiling Act against the aforesaid order
dated 13.11.1991 passed by the Appellate Authority/ Additional
Commissioner, Lucknow Division which was disposed of remitting the
matter before the Prescribed Authority for considering the aspect of
declaring the land of original tenure holder not the land of transferee as
surplus, it was further provided that till then applications if in possession
shall not be dispossessed except in accordance with law.
The petitioner moved an application in pursuant to aforesaid order
dated 22.12.1999 which was also rejected by the Prescribed Authority
(Ceiling) on the premise that Section 12 A (d) was not there in the
Ceiling Act when the original order of surplus was passed.
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Against the aforesaid order dated 17.8.2001 the petitioner along
with other persons preferred statutory appeal before the Appellate
Authority/ Additional Commissioner, Lucknow Division which was
allowed vide order dated 31.10.2002 directing the Prescribed Authority
to follow earlier order dated 22.12.1999.
The Prescribed Authority vide order dated 30.11.2004 in an illegal
and arbitrary manner rejected the objection of the petitioner on the
premise that Section 12(a)(d) was not there in the Ceiling Act when the
original order of surplus was passed. Feeling aggrieved, the petitioner
filed the statutory appeal against the aforesaid order dated 30.11.2004
which has also been rejected vide order dated 26.2.2008. Hence this writ
petition.
5. Learned counsel for the petitioner submitted that the original
tenure holder- Prithvi Pal Singh executed a registered sale deed in favour
of Fateh Singh and Fateh Singh executed sale deed in favour of Bali
singh, Bali Singh executed a sale deed in favour of Mahendra Kaur and
since the date of execution of sale the petitioner has been in the
possession.
6. Learned counsel for the petitioner next submitted that without
notice to the predecessor in interest of the petitioner, her aforesaid
purchased land was included in the holdings of said Prithvi Pal Singh
and it was declared surplus vide orders dated 4.3.1965 and 29.5.1971.
7. Learned counsel for the petitioner next submitted that the
petitioner is entitled to the benefit of Section 12A (d) as the land in
question was transferred to one Fateh Singh vide sale deed executed in
the year 1961 by his original tenure holder for which specific satisfaction
in view of Section 5(6) of the Act has been recorded by the Appellate
Authority/ Additional Commissioner, Lucknow Dvision vide order dated
13.11.1991 and as such the petitioner is entitled to the benefit of Section
12A.
8. Learned counsel for the petitioner next submitted that the
petitioner by virtue of the sale deed dated 1961 which was executed by
the Bali Singh in favour of the petitioner stepped into the shoe of the
said Fateh Singh.
9. Learned counsel for the petitioner next submitted that the
aforesaid transfer of land by original tenure holder/ Prithvi Pal Singh
vide sale deed executed in the year 1961 in favour of Fateh Singh
(predecesor in interest of the petitioner) was irrevocable, in good faith
and in lieu of adequate compensation and in this regard specific
satisfaction in view of Section 5(6) of the Act has been recorded by the
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Appellate Authority/ Additional Commissioner, Lucknow Division vide
order dated 13.11.1991.
10. Learned counsel for the petitioner next submitted that a perusal of
the aforesaid Section 12-A(d) of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960 would reveal that in case the tenure holder is found
to have land in excess of the ceiling area including the land which is
subject matter of the transfer referred to in sub section 6 of Section 5, the
surplus land determined shall, as far as possible, be other than land
which is subject of such transfer.
11. Learned counsel for the petitioner next submitted that the
Prescribed Authority as well as the lower Appellate Court by
misconstruing the provisions of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960 held that the provisions of Section 12-A of the Act
are not applicable ignoring that the objections preferred by the petitioner
wer pending consideration before the Prescribed Authority Ceiling at the
time of insertion of Section 12-A.
12. Learned counsel for the petitioner next submitted that insertion of
Section 12-A in no way affects anything done by a party in the past and
provided for new remedies for enforcement of an existing right, will
apply to future as well as past causes of action, thus the provision may
be prospective in force but will have pass retroractive effect and as such,
orders dated 30.11.2004 and 26.02.2008 passed by the opposite party
nos.1 and 2 respectively are not sustainable.
13. Learned counsel for the petitioner submitted that the authorities
below, while recording the specific satisfaction under Section 5(6) of the
Act, failed to consider that operation of Section 12A is retroactive in
nature and therefore, its introduction vide Amendment Act No.UP Act
No.18 of 1973 will also apply to pending cases. He also submits that at
the time of insertion of Sectiojn 129A) the objection preferred by the
petitioner was pending and subsequently the order dated 30.06.1986 and
13.11.1991 were nullified and the matter was remitted back.
14. Learned counsel for the petitioner next submitted that Section 12A
was inserted for conferment of benefit to a set of persons without
inflicting a corresponding detriment to other persons then the
presumption would be that such a legislation giving it a purposive
construction would warrant it to be given a restorspective effect.
15. Learned counsel for the petitioner lastly submitted that in view of
Section 5 sub section 6(b) and Section 12(A)(d) of the Act, the petitioner
is entitled to retain the land which they have purchased would be ignored
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only for determining the ceiling area and is liable to be excluded from
surplus land.
In support of his submissions, learned counsel for the petitioner
relied upon the following judgments:
"(i). Krishna Mohan v. District Judge, Pilibhit and others, 2007(3)
AWC 2152:: 2007 (11) RJ 1098.
(ii). Smt. Kamlesh Kumari v. State of U.P. and others, AIR 1982
Supreme Court 1248 :: 1981 ALL.L.J. 1139.
(iii) Smt. Prema Devi v. A.D.J., Hamirpur and another, 2005 (2)
AWC 1411.
(iv) Bholanath and Anr. v. State of U.P. and others (Writ Petition
No.14566 of 1995)
(v) Ashok Kumar and others v. State of U.P. and others (Writ-C
No.3000069 of 2003)
(vi) Mohd. Muste Hassan and others v. The Addl. Commissioner,
Meerut and others, 1995 RD 186
(vii) Dilip v. Mohd. Azizul Haq and another, AIR 2000 Supreme
Court 1976:: 2000 AIR SCW 1035.
(viii) Commissioner of Income Tax (Central Tax New Delhi) v.
Vatika Township Pvt. Ltd., 2015(1) SCC (1)."
16. Per contra, learned counsel for the respondents submitted that
proceedings were initiated against the original tenure holder- Prithvi Pal
Singh and the land in question has been declared surplus by the
Prescribed Authority. In the revenue records the land in question is not
registered in the name of the petitioner, hence no notice was required to
be given to the petitioner.
17. Learned counsel for the respondents next submitted that the land
in question has already been declared as surplus by orders dated
4.3.1965 and 29.05.1971 and the same is recorded in the revenue record
as surplus land and the petitioner moved the application under Section
12-A (d) of the Ceiling Act read with Sectiojn 151 C.P.C. which were not
maintainable as the Section 12A (d) as well as Section 5(2) of the
Ceiling Act is not applicable in the present case.
18. Learned counsel for the respondents lastly submitted that the
grounds taken by the petitioner are contrary to the facts and law and are
not tenable in the eyes of law and therefore, the writ petition being
devoid of merits is liable to be dismissed.
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19. Having heard the rival submissions of learned counsel for the
parties, I have perused the material available on record as well as law
reports cited by learned counsel for the petitioner.
20. To resolve the controversy involved in the present writ petition,
the operative portion of the judgment relied upon by learned counsel for
the petitioner are extracted hereinbelow:
(i) Krishna Mohan (supra):-
7. Interpreting the aforesaid provisions Supreme Court in Escorts
Farms Ltd. v. Commissioner, Kumanon Division, Naini-tal,
[(2004) 4 SCC 281 : AIR 2004 SC 2186.] has held that section 12-
A (d) was applicable to the sale deeds in between 24.1.1971 and
8.6.1973 and sale deeds after 8.6.1973 were void (section-9(2)
was added with effect from 8.6.1973). In the instant case sale deed
by Krishna Mohan to Sarla Devi was executed on 12.1.1972 i.e. in
between 24.1.1971 and 8.6.1973 hence Sarla Devi was entitled to
the benefit of section 12-A (d) of the Act. Even though Sarla Devi
sold the land to respondent No. 3 in 1974, however, the sale deed
cannot be held to be void for the reason that it was not executed
by petitioner. By virtue of the said deed of 1974 respondent. No. 3
stepped into the shoes of Sarla Devi. If the land had been sold by
the petitioner after 8.6.1973 then of course it would have been
void and petitioner could assert that he was entitled to give the
said land in choice. However, this is not the position in the instant
case.
8. Petitioner gave the sold land in choice. No notice was issued
either to Sarla Devi or to respondent No. 3 whose names had
already been mutated. On coming to know that the land purchased
by her had been given in choice by the petitioner to be taken as
surplus land, respondent No. 3 filed objections on the basis of
section 12-A(d) of the Act. The application filed by respondent No.
3 was registered as Ceiling Case No. 60 of 1974. Prescribed
Authority; Pooranpur/Sub-Divisional Officer decided the matter
in favour of respondent No. 3 on 2.9.1980. Against the said order
petitioner filed Ceiling Appeal No. 44 of 1980. District Judge,
Pilibhit dismissed the appeal on 6.3.1982 hence this writ petition.
9. Before the controversy in question arose it had conclusively
been decided that petitioner held 7.81 acres of surplus land which
he was required to surrender. In 1972 petitioner sold the land to
Sarla Devi and Sarla Devi on 3.12.1974 sold the same land to
respondent No. 3 - Smt. Harbhajan Kaur. Both the Courts below
held that by virtue of section 12-A (d) of the Act the land in dispute
which was purchased by Sarla Devi and thereafter by respondent
No. 3 could not be taken as surplus land.
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10. I do not find any error in the impugned orders. Respondent
No. 3 was fully entitled to the benefit of section 12-A(d) of the
Ceiling Act.
(ii) Smt. Kamlesh Kumari:-
The short point taken by Mr Ashoke Sen in support of the petition
is that even assuming that the finding of the prescribed authority
that the transfer was not bona fide 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 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.
(iii) Smt. Prema Devi (supra):-
9. 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, shall 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.
10. 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 be 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
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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.
11. 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.
12. 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.
13. 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., 1981 All
LJ 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 bona fide 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 12A(d) of the Act by
excluding the area which was the subject of transfer as far as
possible.”
(iv) Bholanath (supra):-
A learned Judge of this Court in Smt. Prema Devi Vs. Additional
District Judge, Hamirpur and another, 2005 (98) RD 567 while
interpreting the provisions of Section 12-A of the Act observed as
follows:-
"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, shall 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
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for some other cogent reason such land shall not be included in
the surplus land.
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 be 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 be 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 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.
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."
In coming to the aforesaid conclusion, the learned Judge has
placed reliance upon the decision of the Supreme Court in Smt.
Kamlesh Kumari Vs. State of U.P. and others, 1981 ALJ, 1139
wherein the Supreme Court 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 bona fide 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
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WRIC No. - 3000024 of 2008
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."
(v) Ashok Kumar (supra):-
10. Having heard the rival submissions of learned counsel for the
parties, I have perused the material on record as well as the
provisions contained in Section 12(A)(d) and Section 5 Sub-clause
6(b) of the U.P. Imposition of Ceiling On Land Holding Act, 1960.
11. To resolve the controversy involved in the present writ petition,
learned counsel for the petitioner relied upon the provision of
Section 5 Sub-clause 6(b) and Section 12(A)(d):
"Section 5 Sub-clause 6(b): a transfer proved to the satisfaction of
the Prescribed Authority to be in good faith and for adequate
considered and under an irrevocable instrument not being a
benami transaction or for immediate or deferred benefit of the
tenure-holder or other members of his family.
Section 12(A)(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,
insofar as it relates to the land included in the surplus land, be
deemed to be and always to have been avoid and
(i) it shall be open to the transferred to claim refund of the
proportionate amount of consideratiojn, if any, advanced by him
to the transferor, and such amount shall be charged on the amount
payable to the transferor under Sectiojn 17 and also on any land
retained by the transferor within the ceiling area, which shall be
liable to be sold in satisfaction of the charge, nothwithstanding
anything contained in Section 153 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950( Act No.1 of 1951);
(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."
12. Perusal of the above-extracted shows that a transfer proved to
the satisfaction of the Prescribed Authority to be in good faith and
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for adequate considered and under an irrevocable instrument not
being a benami transaction or for immediate or deferred benefit of
the tenure holder or other members of his family.
13. Perusal of the records shows that consolidation proceedings
started in the year and the dispute in respect of land of original
tenure holder Tahira Begam was finally adjudicated and by the
consolidation authorities also
final reports have been prepared in the year 1988 to the effect that
land of Gata No.163, 164, 177, 191 and 193 has been found to be
original tenure holder namely Tahira Begam. The petitioners have
purchased the land of area 10 acres out of the land of Gata
No.177 vide registered agreement to sale deed dated 17.8.1994
and sale deed was executed on 22.7.1995. Names of the petitioner
were also mutated in the revenue record.
14. It is not in dispute that land i.e. Gata No.163, 164, 177, 191
and 193
belongs to Tahira Begam and the petitioners purchased the said
plot from
Tahira Begam through registered sale deed in the year 1995,
therefore the land would not have been included to the surplus
land.
15. The petitioner took specific ground that he has purchased the
land by bonafide and genuine sale deed in the year 1995 and the
land purchased by the petitioner would have been excluded from
the zone of consideration land, but neither prescribed authority
nor appellate authority has considered this ground and has
outrightly passed the orders impugned which are per se illegal.
16. In view of the provision of Section 5 Sub-clause 6(b) and
Section 12(A)(d) of the U.P. Imposition of Ceiling On Land
Holding Act, 1960,
the petitioner after depositing of adequate satisfaction purchased
the land, therefore same is liable to be ignored while passing the
order impugned by the Prescribed Authority as well as by the
Appellate Authority. In this view of the matter, the impugned
orders passed by the Both the CourtsBelow is not just and valid
order and are liable to be quashed.
(vi) Mohd. Muste Hassan (supra):-
I have considered the submissions made by the learned counsel for
petitioners. Admittedly the respondents were not party in the
proceedings before the prescribed authority when the order
determining the land as surplus was passed and thus the order
cannot gain finality against them. Under the scheme of the Act
though the transfers made after 24.1.1971 are liable to be ignored,
under Section 5 (6) of the Act if the conditions mentioned therein
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WRIC No. - 3000024 of 2008
are not satisfied, however, the sale deed is ignored under the
aforesaid provision only for determining the ceiling area. The
legislature was aware of the situations that if the sale deeds are
ignored, the transferees from the tenure holders may suffer
irreparable loss and injury and to avoid this hardship they
provided provisions under Section 12 of the Act, the relevant
clause (d) whereof is very material for consideration which is
being reproduced below:
"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).....................................
(b).....................................
(c).....................................
(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.....
(i).........................…
(ii).........................…
A perusal of the aforesaid clause (d) shows that in case the tenure
holder is found to have land in excess of the ceiling area including
the land which is subject matter of the transfer referred to in sub-
section (6) of Section 5, the surplus land determined shall, as far
as possible, be other than land which is subject of such transfer.
The phrase 'as far as possible' has been interpreted by this Court
and also by the Apex court in several decisions and it has been
held that it means that unless it is impossible, the direction given
by the legislature should be complied with. Thus, the prescribed
authority was under obligation to apply its mind before
determining the plots in dispute as surplus as to whether it is not
possible to have any other plot from the holding of the tenure
holder. The order dated 24.4.1976, however, shows that the choice
indicated by. the tenure holder Mohd. Ali through his application
dated 11:3.1976 was accepted without any scrutiny. Section trans
A (d) contains a valuable protection extended to the transferee and
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he should not have been deprived of the same in the fashion as it
had been done by the prescribed authority. In my opinion, when -
the choice is indicated in respect of the land which is subject of
any transfer referred to in sub-section 5 (6) of the Act ans
Sopportunity of hearing ought to have been given to the transferee
before accepting the land as surplus. Admittedly, no such
opportunity was given in the present case The prescribed authority
by its ordur dated 31.3.1992 rejected the claim of the transferee
mainly on the ground that as the transfers were made after
24.1.1971 they are liable to be ignored. He failed to consider the
provisions of Section 12-A-(d) of the Act. In my opinion, the
demand of equity was that the tenure holder should have himself
taken care of the interest of ) the transferee from whom he had
accepted money in lieu of the land and he should not have
indicated the same land for being declared surplus. The action of
the tenure holder indicating choice in respect of the plots in
dispute cannot be said to be fair. In these circumstances, in my
opinion, the appellate authority has rightly allowed the appeal of
the transferees and has given them the benefit of Section 9-A (d) of
the Act. In the facts and circumstances of the case no interference
is called for under Article 226 of the Constitution.
(vii) Dilip (supra):-
7. In theory the appeal is only a continuation of the hearing of the
suit. Accordingly, the word “suit” in the Order has to be
understood to include an appeal. The result is that if at the time of
the institution of the suit for eviction clause 13-A was not in force,
but at the time of appeal such a clause is introduced, the tenant in
appeal becomes entitled to its protection. We draw support for
these propositions from the three decisions of this Court cited by
the learned counsel for the appellants. Therefore, we are of the
view that the High Court was not justified in holding that there
was no appeal filed or pending against the tenant. In this case,
although a decree for eviction had been passed in the suit, that
decree was under challenge in a proceeding arising out of that
suit in appeal and was pending in a court. Thus an appeal being a
rehearing of the suit, as stated earlier, the inference drawn by the
High Court that no proceedings were filed or pending against the
tenant as on the date would not be correct.
8. The High Court further concluded that the amendments have no
retrospective effect. The provision came into force when the
appeal was pending. Therefore, though the provision is
prospective in force, has “retroactive effect”. This provision
merely provides for a limitation to be imposed for the future which
in no way affects anything done by a party in the past and statutes
providing for new remedies for enforcement of an existing right
will apply to future as well as past causes of action. The reason
being that the said statutes do not affect existing rights and in the
present case, the insistence is upon obtaining of permission of the
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Controller to enforce a decree for eviction and it is, therefore, not
retrospective in effect at all, since it has only retroactive force.
(viii) Vatika Township Pvt. Ltd. (supra):-
27. A legislation, be it a statutory Act or a statutory rule or a
statutory notification, may physically consists of words printed on
papers. However, conceptually it is a great deal more than an
ordinary prose. There is a special peculiarity in the mode of verbal
communication by a legislation. A legislation is not just a series of
statements, such as one finds in a work of fiction/non-fiction or
even in a judgment of a court of law. There is a technique required
to draft a legislation as well as to understand a legislation.
Former technique is known as legislative drafting and latter one is
to be found in the various principles of “interpretation of
statutes”. Vis-à-vis ordinary prose, a legislation differs in its
provenance, layout and features as also in the implication as to its
meaning that arise by presumptions as to the intent of the maker
thereof.
28. Of the various rules guiding how a legislation has to be
interpreted, one established rule is that unless a contrary intention
appears, a legislation is presumed not to be intended to have a
retrospective operation. The idea behind the rule is that a current
law should govern current activities. Law passed today cannot
apply to the events of the past. If we do something today, we do it
keeping in view the law of today and in force and not tomorrow's
backward adjustment of it. Our belief in the nature of the law is
founded on the bedrock that every human being is entitled to
arrange his affairs by relying on the existing law and should not
find that his plans have been retrospectively upset. This principle
of law is known as lex prospicit non respicit : law looks forward
not backward. As was observed in Phillips v. Eyre [(1870) LR 6
QB 1] , a retrospective legislation is contrary to the general
principle that legislation by which the conduct of mankind is to be
regulated when introduced for the first time to deal with future
acts ought not to change the character of past transactions carried
on upon the faith of the then existing law.
29. The obvious basis of the principle against retrospectivity is the
principle of “fairness”, which must be the basis of every legal rule
as was observed in L'Office Cherifien des Phosphates v.
Yamashita-Shinnihon Steamship Co. Ltd. [(1994) 1 AC 486 :
(1994) 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations
which modified accrued rights or which impose obligations or
impose new duties or attach a new disability have to be treated as
prospective unless the legislative intent is clearly to give the
enactment a retrospective effect; unless the legislation is for
purpose of supplying an obvious omission in a former legislation
or to explain a former legislation. We need not note the
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cornucopia of case law available on the subject because aforesaid
legal position clearly emerges from the various decisions and this
legal position was conceded by the counsel for the parties. In any
case, we shall refer to few judgments containing this dicta, a little
later.
30. We would also like to point out, for the sake of completeness,
that where a benefit is conferred by a legislation, the rule against
a retrospective construction is different. If a legislation confers a
benefit on some persons but without inflicting a corresponding
detriment on some other person or on the public generally, and
where to confer such benefit appears to have been the legislators'
object, then the presumption would be that such a legislation,
giving it a purposive construction, would warrant it to be given a
retrospective effect. This exactly is the justification to treat
procedural provisions as retrospective. In Govt. of India v. Indian
Tobacco Assn. [(2005) 7 SCC 396] , the doctrine of fairness was
held to be relevant factor to construe a statute conferring a
benefit, in the context of it to be given a retrospective operation.
The same doctrine of fairness, to hold that a statute was
retrospective in nature, was applied in Vijay v. State of
Maharashtra [(2006) 6 SCC 289] . It was held that where a law is
enacted for the benefit of community as a whole, even in the
absence of a provision the statute may be held to be retrospective
in nature. However, we are (sic not) confronted with any such
situation here.
31. In such cases, retrospectivity is attached to benefit the persons
in contradistinction to the provision imposing some burden or
liability where the presumption attaches towards prospectivity. In
the instant case, the proviso added to Section 113 of the Act is not
beneficial to the assessee. On the contrary, it is a provision which
is onerous to the assessee. Therefore, in a case like this, we have
to proceed with the normal rule of presumption against
retrospective operation. Thus, the rule against retrospective
operation is a fundamental rule of law that no statute shall be
construed to have a retrospective operation unless such a
construction appears very clearly in the terms of the Act, or arises
by necessary and distinct implication. Dogmatically framed, the
rule is no more than a presumption, and thus could be displaced
by outweighing factors.
32. Let us sharpen the discussion a little more. We may note that
under certain circumstances, a particular amendment can be
treated as clarificatory or declaratory in nature. Such statutory
provisions are labelled as “declaratory statutes”. The
circumstances under which provisions can be termed as
“declaratory statutes” are explained by Justice G.P. Singh
[Principles of Statutory Interpretation, (13th Edn., LexisNexis
Butterworths Wadhwa, Nagpur, 2012)] in the following manner:
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“Declaratory statutes
The presumption against retrospective operation is not applicable
to declaratory statutes. As stated in Craies [ W.F. Craies, Craies
on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and
approved by the Supreme Court [Ed. : The reference is to Central
Bank of India v. Workmen, AIR 1960 SC 12, para 29] :‘For
modern purposes a declaratory Act may be defined as an Act to
remove doubts existing as to the common law, or the meaning or
effect of any statute. Such Acts are usually held to be retrospective.
The usual reason for passing a declaratory Act is to set aside what
Parliament deems to have been a judicial error, whether in the
statement of the common law or in the interpretation of statutes.
Usually, if not invariably, such an Act contains a Preamble, and
also the word “declared” as well as the word “enacted”.’ But the
use of the words ‘it is declared’ is not conclusive that the Act is
declaratory for these words may, at times, be used to introduced
new rules of law and the Act in the latter case will only be
amending the law and will not necessarily be retrospective. In
determining, therefore, the nature of the Act, regard must be had
to the substance rather than to the form. If a new Act is ‘to
explain’ an earlier Act, it would be without object unless
construed retrospective. An explanatory Act is generally passed to
supply an obvious omission or to clear up doubts as to the
meaning of the previous Act. It is well settled that if a statute is
curative or merely declaratory of the previous law retrospective
operation is generally intended. The language ‘shall be deemed
always to have meant’ is declaratory, and is in plain terms
retrospective. In the absence of clear words indicating that the
amending Act is declaratory, it would not be so construed when
the pre-amended provision was clear and unambiguous. An
amending Act may be purely clarificatory to clear a meaning of a
provision of the principal Act which was already implicit. A
clarificatory amendment of this nature will have retrospective
effect and, therefore, if the principal Act was existing law which
the Constitution came into force, the amending Act also will be
part of the existing law.”
The above summing up is factually based on the judgments of this
Court as well as English decisions.
33. A Constitution Bench of this Court in Keshavlal Jethalal Shah
v. Mohanlal Bhagwandas [AIR 1968 SC 1336 : (1968) 3 SCR 623]
, while considering the nature of amendment to Section 29(2) of
the Bombay Rents, Hotel and Lodging House Rates Control Act as
amended by Gujarat Act 18 of 1965, observed as follows : (AIR p.
1339, para 8)
“8. … The amending clause does not seek to explain any pre-
existing legislation which was ambiguous or defective. The power
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of the High Court to entertain a petition for exercising revisional
jurisdiction was before the amendment derived from Section 115 of
the Code of Civil Procedure, and the legislature has by the
amending Act not attempted to explain the meaning of that
provision. An explanatory Act is generally passed to supply an
obvious omission or to clear up doubts as to the meaning of the
previous Act.”
21. Perusal of the above-extracted judgments reveals that 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.
22. Perusal of the material available on record shows that one Prithvi
Pal Singh against whom the proceedings under Ceiling Act were
initiated who executed a registered sale deed in favour of Fateh Singh
and Fateh Singh executed sale deed in favour of Bali Singh and Bali
Singh executed a sale deed in favour of Mahendra Kaur (petitioner), in
pursuant to agreement to sale dated 15.4.1959 on 1961 and since the date
of execution of sale deed, the petitioner has been in the possession.
23. I have examined the material available on record in the light of the
judgments relied upon by the learned counsel for the petitioner.
24. On examination, it is found that without notice to the predecessor
in interest of the petitioner, her aforesaid purchased land was included in
the holdings of said Prithvi Pal Singh and it was declared surplus vide
orders dated 4.3.1965 and 29.5.1971. In this view of the matter, this
Court is of the view that the petitioner is entitled to the benefits of
Section 12A (d) as the land in question was transferred to one Fateh
Singh vide sale dated 1961 by his original tenure holder (which is much
prior to 24.01.1971, limitation set out by Section 5(6) of the Act) and as
such, Mahendra Kaur was entitled to the benefit of Section 12A.
25. Perusal of Section 12-A (d) of the U.P. Imposition of Ceiling on
Land Holdings Act, 1960 reveals that in case the tenure holder is found
to have land in excess of ceiling area including the land which is subject
matter of the transfer referred to in sub section (6) of Section 5, the
surplus land determined shall, as far as possible, be other than the land
which is subject of such transfer.
26. It is also found that the Prescribed Authority as well as the Lower
Appellate Court by misconstruing the provisions of the U.P. Imposition
of Ceiling on Land Holdings Act, 1960 held that the provisions of
Section 12-A of the Act are not applicable ignoring that the objections
preferred by the petitioner were pending consideration before Prescribed
Authority Ceiling at the time of insertion of Section 12-A and on
insertion of Section 12-A in no way affects anything done by a party in
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the past and provided for new remedies for enforcement of existing
right, will apply to future as well as past causes of action, thus the
provision may be prospective in force, but will have has retroactive
effect and as such impugned orders passed by the opposite party nos.1
and 2 are not sustainable.
27. In the aforesaid view of the matter, the respondents have failed to
consider that Section 12-A is retroactive in nature and therefore, its
introduction vide Amendment Act No./U.P. Act 18 of 1973 will also
apply to the pending cases.
Here it is relevant to submit that at that time the objection
preferred by the petitioner was pending and therefore, the orders
impugned dated 30.06.1986 and 13.11.1991 passed by the respondents
are nullified.
28. Section 12-A was inserted for conferment of benefit to a set of
persons without inflicting a corresponding detriment to other persons
then the presumption would be that such a legislation giving it a
purposive construction would warrant it to be given a retrospective
effect.
29. The right 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.
30. The normal rule is very much clear 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. In view of the aforesaid, the
objection filed by the petitioner before the Prescribed Authority under
Section 12-A of the Act should have been considered. In the
circumstance, the judgments relied upon by the learned counsel for the
petitioner are fully applicable to the facts and circumstances of the case.
31. At this juncture, it is important to note that while passing the
orders impugned, the respondents must take into account the various
factors viz. (i) outcome of consolidation proceeding wherein the dispute
in respect of original tenure holders has been adjudicated by the
consolidation authorities (ii) while passing the impugned orders, finding
on the specific objection of the petitioner that once the petitioner
purchased the land before the appointed date, the land purchased by the
petitioner would have been declared surplus, must be return. (iii) the
orders impugned would have been passed by following the provisions of
Section 5 Sub-clause 6(b) and Section 12(A)(d) of the U.P. Imposition of
Ceiling On Land Holding Act, 1960.
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32. Considering in totalities of facts and circumstances of the case,
this writ petition succeeds and is hereby allowed . Impugned order dated
26.2.2008 passed by the opposite party no.1 passed in Appeal
No.36/43/07 as well as impugned order dated 30.11.2004 passed by the
opposite party no.2 contained in Annexure Nos.1 and 2 to this writ
petition is quashed.
33. No order as to costs.
(Irshad Ali,J.)
November 3, 2026
GK Sinha
Digitally signed by :-
GAUTAM KUMAR SINHA
High Court of Judicature at Allahabad,
Lucknow Bench