Krishna Murari, J.

1. These writ petitions based on identical facts and common question of law have been clubbed together and are being decided by this common judgment.

2. Heard Sri A. P. Tiwari, learned Counsel for the petitioners and learned standing counsel for the State and Sri A. P. Singh for respondent No. 5.

3. In spite of time having been allowed on 22.2.2008 to show cause why the plots purchased by the petitioners by various sale deeds may not be included in the choice given by respondent No. 5, the heir of original tenure-holder, to be taken out as surplus land, neither the State respondents nor respondent No. 5 have shown any cause nor filed any counter-affidavit.

4. Facts giving rise to the dispute are as under:

Notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (for short the Act) was issued to Ram Pratap the original tenure-holder (now dead and represented by respondent No. 5) proposing to declare 19.31 acres in terms of irrigated land as surplus in his hand on the appointed day, i.e., 24.1.1971. The prescribed authority after contest by the tenure-holder confirmed the notice and held 19.31 acres in terms of irrigated land as surplus. The tenure-holder went up in appeal. Appellate authority vide order dated 24.8.1977 finding that he had made gift of 22 acres of land before the appointed date, te., 24.1.1971 to his daughter and daughters son held that the said area was not liable to be included in his holding and tenure-holder does not hold any land excess than the ceiling limit and accordingly, notices were discharged. The said order became final inasmuch as the State did not challenge the same. After the notices were discharged Ram Pratap executed two sale deeds dated 14.11.1980 in favour of the petitioners in Writ Petition Nos. 10494 of 2008 and 10498 of 2008. His daughter also executed two sale deeds on 2.8.1983 and 23.3.1983 in favour of the petitioners in Writ Petition Nos. 10500 of 2008 and 10497 of 2008.

5. On 9.8.1988, notices under Section 29 of the Act was again issued to Ram Pratap stating that he possessed 50.74/2 acres in terms of irrigated land and excluding 22 acres of land in pursuance of the decision of the appellate authority dated 24.8.1977 which was gifted away to his daughter and daughters son before the appointed date the ceiling area being only 18.20 acres he had 10.72-1/2 acres in terms of irrigated land as surplus in his hand. Ram Pratap having died in July, 1981 was substituted by his daughter Who filed objection. Prescribed authority vide order dated 29.11.1990 confirmed the notice and declared an area 10.72-1/2 acres in terms of irrigated land as surplus. The area transferred by Ram Pratap and his daughter in favour of the petitioners in these writ petitions was- also included while determining the surplus area. An appeal was filed by the daughter of Ram Pratap against the order dated 29.11.1990 which was dismissed on 28.2.1990. Writ petition filed by them challenging the order of the prescribed authority as well as appellate authority was also dismissed by this Court. Thereafter, the petitioners filed an objection under Section 11 (2) of the Act for. recalling the order dated 29.11.1990 of the prescribed authority on the ground that after having purchased the land their names were mutated over the same and the order was passed without any notice or opportunity of hearing. It was also pleaded in the objection that sale deed was executed in their favour after finalization of the ceiling proceedings against the tenure holder after receiving adequate consideration and as such the provision of Section 5(8) of the Act was not at all attracted. The prescribed authority vide order dated 21.6.2004 dismissed the application filed by the petitioners who went up in appeal. The appellate authority vide order dated 10.12.2007 dismissed the appeal preferred by the petitioners. Aggrieved the petitioners have approached this Court.

6. It has been contended by learned Counsel for the petitioners that the petitioners are bona fide purchaser for value and the land was purchased by them after finalization of the ceiling proceedings against the recorded tenure holder and the land transferred in their favour is not liable to be clubbed with the holding of the tenure holder while redetermining the surplus area in his hand. It has further been urged that the courts below have wrongly and illegally held the transfer made in favour of the petitioners to be void inasmuch as under Section 5(8) of the Act it is only transfer made during continuance of proceedings for determination of surplus land can be said to be void and in the present case the transfer was made after finalization of the ceiling proceedings.

7. In reply learned standing counsel has contended that since the order dated 29.11.1990, passed against the original tenure holder has become final against the original tenure holder with the dismissal of the writ petition as such there is no scope for interference and the objection filed by the petitioners has rightly been dismissed and area declared as surplus is liable to be taken out.

8. I have considered the argument advanced by learned Counsel for the parties and perused the record.

9. Section 5(6) of the Act reads as under:

(6) In determining the ceiling 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 and not taken into account:

Provided that nothing in this Sub-section shall apply to-

(a) a transfer in favour of any person (including Government) referred to in Sub-section (2);

(b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.

10. Similarly, Section 5(8) relevant for the purpose of the case 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 Sub-section (1) of Section 12, or as the case may be, under Section 13.

11. A conjoint reading of the aforesaid provisions makes it clear that sale deed executed by a tenure-holder after the appointed date, i.e., 24.1.1971 is to be ignored while calculating the ceiling area unless the transfer is in favour of either the Central Government etc. University, College, Bank etc. as specified in Sub-section (2) or such a transfer is not benami transfer but made in good faith but for adequate consideration. Similarly, any transfer made by a tenure-holder during continuance of the proceedings for determination of surplus land shall also be void. Explanation to Section 5(8) provides that the proceedings shall be deemed to commence with the publication of notice under Sub-section (2) of Section 9 and shall be deemed to have been concluded when an order has been passed either under Section 11 (1) or Section 12 (1) or Section 13.

12. In the case in hand, admittedly the order under Section 13 was passed against the original tenure-holder on 24.8.1977 when his appeal was allowed and it was held that he has no surplus land. After the finalization of the said proceedings sale deeds were executed by him and after his death by his daughter on 14.11.1980, 2.8.1980 and 23.3.1983. When the sale deeds were executed there was no proceeding pending for determination of the ceiling area. Admittedly, notice under Section 29 of the Act was issued on 9.8.1988, l.e., much after execution of the sale deeds in favour of the petitioners. Thus, none of the sale deeds executed in favour of the petitioners can be said to be during continuance of any ceiling proceedings so as to attract Section 5(8) of the Act. Section 5(6) also cannot be said to be attracted inasmuch as when the notices were discharged the transfer made by no stretch of imagination can be said to have been made to avoid ceiling. Section 5(6) of the Act also cannot be held to put a bar on the right of the tenure holder to transfer the land once the ceiling proceedings have been finalized against him.

13. In view of the aforesaid facts, the sale deeds in favour of the petitioners cannot be said to be hit either by Section 5(6) or Section 5(8) of the Act.

14. The scheme of the Act as provided under Sections 5(6), 5(8) and Section 12(A)(d) which provides that the surplus land determined shall, as far as possible, be land other than land which is the subject of such transfer or partition, is also indicative of the legislative intent that land purchased by bona fide purchaser is liable to be excluded from the land to be taken out as surplus land in the hands of the tenure-holders.

15. In such facts and circumstances, the choice given by respondent No. 5 of the land which was subject-matter of transfer in favour of the petitioners of these writ petitions as surplus land cannot be said to be justified and is not liable to be sustained and the prescribed authority as well as the appellate authority both have committed manifest error of law in holding otherwise while rejecting the application filed by the petitioners under Section 11 (2) of the Act.

16. In view of the aforesaid facts and discussions, the writ petitions stand allowed. The impugned orders dated 21.6.2004, passed by the prescribed authority as well as 10.12.2007, passed by the appellate authority is hereby quashed.

17. Plot No. 256 area 0.91 decimal which is subject-matter of sale deed dated 23.3.1983 in favour of the petitioners in Writ Petition No. 10497 of 2008, Plot Nos. 337, 267, 372 area 2.63 and 0.20 decimal subject-matter of sale deed dated 14.11.1980 in favour of petitioner in Writ Petition No. 10498 of 2008 and plot No. 337 area 0.83 decimal subject-matter of sale deed dated 14.11.1980 in favour of petitioners in Writ Petition No. 10494 of 2008 and plot No. 256 area 0.91 decimal subject-matter of sale deed dated 2.8.1983 in favour of petitioners in Writ Petition No. 10500 of 2008 are not liable to be taken out as surplus land on the basis of choice given by heir of original tenure-holder Ram Pratap Singh. It shall, however, be open to the State authorities to take possession of other plots of the original tenure holder as surplus land.