M.P. Mehrotra, J.
1. Both these petitions are connected. They arise out of the proceedings under the Urban Land (Ceiling and Regulation) Act 1976.
2. The facts in brief are these. The two petitioners in the two separate petitions are co-owners of plot No. 530/1 situated in the Allahabad Urban Agglomeration to the extent of 1/2 each. The proceedings took place under Section 6(1) of the Act and thereafter the draft-statement in the case of each petitioner were issued under Section 8(3) of the Act, to each of the two petitioners in case. Thereafter objections were filed and they were decided by the competent Authority. The relevant orders have been annexed to the writ petitions Thereafter, appeals were filed and they were decided by the Dist. Judge, Allahabad as the appellate authority. Both the appeals were dismissed. The appellate judgments are also on the record.
3. Feeling aggrieved, the two petitioners in their separate petitions have come up to this court under Article 226 of the Constn. and in support thereof, I have heard Sri K. N. Tripathi, learned counsel for the petitioners and in opposition the learned Standing Counsel has made his submissions.
4. Three contentions were pressed by the learned counsel for the petitioners before me. Firstly, it was contended that the areas which had been shown in the draft statements under Section 8(3) of the Act were incorrect, in and on the spot lesser areas were held by the petitioners. This contention was raised before the competent Authority and before the appellate Court but was rejected on the ground that in the relevant Khatauni for 1382 to 1387 Fs. the area of plot No. 539/1 was mentioned and the same area was shown in the draft statement. Apart from their assertion, the petitioners did not file any evidence to show that the area mentioned in the Khatauni was incorrect and that they were in possession of lesser areas. Accordingly the authorities below were justified in rejecting this contention.
5. The second contention was raised that under Section 20 of the Act the petitioners had applied for exemption and till the same was decided by the State Government, no orders could be passed by the Prescribed Authority. This contention again cannot be accepted. If theState Government so desires, it can grant the exemption under Section 20 of the Act despite the impugned orders. However, the mere fact that an application has been made under Section 20 of the Act will not take away the case from the jurisdiction of the competent Authority or the appellate Court. Therefore, this contention is also rejected.
6. The third and last contention was that the choice of the petitioners as expressed by them in their objections to the draft statements under Section 8(3) of the Act was binding upon the Competent Authority and the same could not be rejected. The appellate Court rejected this contention in these words :
'This third point is equally devoid of any merit inasmuch as in the statement filed by the appellant no choice was given and consequently the Competent Authority at his option could declare the surplus from any portion of the land possessed by the appellant'.
In my view the appellate Court was wrong in holding to the said effect. There is nothing in the Act which can be said to lay down that if the choice is not expressed under Section 6(1) of the Act then such choice regarding the vacant land to be retained and the vacant land to be surrendered, cannot be exercised at the subsequent stage when the objections under Section 8(3) to the draft statement are filed. The very fact that the person concerned is called upon to file his objection under Section 8(3) of the Act leads to the inference that it is open to the person concerned at that stage to express his choice so that instead of the land proposed to be taken as surplus land, some other land of the person concerned should be taken as surplus land. In my view this interpretation is also re-enforced by Part 'F' of From III which has been prescribed under Rule 5 of the Urban Land (Ceiling & Regulation) Rules 1976. The heading in Part F of this form is 'Particular of the extent (in hectares and square metres) and identity of the lands to be surrendered (as provisionally assessed).' The use of the word 'provisionally'' in the said heading is significant It clearly means that whatever has been stated in the draft statement is provisional and is subject to the objections of the person concerned. Lastly, I should like to place reliance on the Full BenchDecision of this Court in Yuveraj Datt Singh v. Prescribed Authority (1968 All LJ 292) : (AIR 1968 All 305) (FB) where it was laid down that under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 a tenure holder, who had not expressed his choice under Section 9, could still express his choice under Section 10 and such choice would be binding on the Prescribed Authority. Of course the position in the rural Ceiling Act was subsequently, by insertion of Section 12-A, made clear and the tenure holder was given the right to exercise his choice even in any subsequent proceedings i. e. proceedings subsequent to those under Section 9 of the said Act. The learned Standing Counsel contended that the said Full Bench decision should not be applied to the Urban Ceiling Law because the aims and objectives of the two enactments are different. In the case of Urban Ceiling the aim is to acquire the surplus vacant land with a view to use it as building site whereas under the Rural Ceiling the land acquired as surplus is agricultural land to be used as such. In my view, this distinction cannot be said to be relevant because the ratio of the Full Bench is that a Bhumidhar under the Rural Ceiling Law has complete dominion over his Bhumidhari land till his rights are lost under Section 14 of the U. P. Imposition of Ceiling on Land Holdings Act. The same reasoning can be said to be applicable to the persons governed by the Urban Ceiling Law because broadly speaking they also have right to deal with their lands which are sought to be acquired as surplus land. It is true that in certain lease-hold land such rights are circumscribed by the terms of the lease but these are rather exceptional cases and even in such cases also the lessees have very frequently right to transfer the lands though sometimes a clause is inserted that permission should be obtained from the lesson In my view, the general reasoning underlying the aforesaid Full Bench can be usefully applied to the provisions of the Urban Ceiling Law also.
7. Accordingly I allow both the petitions partly in the manner that excess vacant land of each petitioner shall be acquired on the basis of the choice given by the two petitioners in their respective objections under Section 8(3), of the Act. However, the State will haveright to claim a reasonable passage in the case of each petitioner to be included in the total area of the surplus vacant land with a view to enable it to have access over the back side lands which were given in choice by the petitioners. The case is remanded to the Competent Authority to work out the details of the lands to be taken as surplus in the light of the aforesaid direction. I further direct that the passage in each case shall not exceed in width more than 10 feet unless on account of relevant byelaws and regulations and other statutory provisions it becomes necessary to have a wider passage to enable the said directions to be implemented. In the circumstances, there will be no order as to costs.