Gopi Nath, J. - (1.) THIS is a writ petition under Article 226 of the Constitution arising out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act.
(2.) THE petitioner has challenged the orders passed by the Prescribed Authority and the appellate authority dated 6-4-1976 and 20-9-1976 respectively. THE main ground of challenge is that since in earlier proceedings under the old Act no land was found surplus with the petitioner, the present proceedings were barred by the principle of res judicata. THE appellate authority in the proceedings had by an order dated 31-5-1975 held that no land was surplus with the petitioner. Those proceedings were concluded before the amendment of the Principal Act by Acts 2 of 1975 and 20 of 1976. THE order dated 31-5-1975 it was pleaded bound the parties and the present proceedings were misconceived. THE authorities below however re-determined the ceiling area of the petitioner and declared an area of 12 bighas, 1 biswas and 5 biswansis as surplus. This was challenged as without jurisdiction. The facts giving rise to the petition were as follows : A notice under Section 10(2) of the Act was issued to the petitioner under the Principal Act as amended by Act 28 of 1973 proposing to declare an area of 12 bighas 1 biswa and 5 biswansis of land as surplus. The petitioner's holding included an area of 35 bigha 11 biswas and 10 biswansis of land, which he claimed as ancestral sir and khudkasht. It was alleged that the petitioner's son Shugan Chand and his grand sons Naresh Chand and Suresh Chand had a 1/2 share in it and after excluding their share, the petitioner's holding had no surplus land in it. This objection was repelled by the Prescribed Authority by an order dated 30-11-1974. On appeal the appellate authority accepted the petitioners' contention that his son and grand sons had a 1/2 share in the disputed holding which was ancestral sir and khudkasht. The ceiling area was, accordingly, determined, and no land was found as surplus with the petitioner. The order of the Prescribed Authority was set aside and the notice issued to the petitioner was discharged by the appellate Authority by an order dated 31-5-1975. The learned District Judge observed in his order that i was conceded on behalf of the State that an area of 35 Bighas 11 Biswas and 10 Biswansis held by the petitioner was his ancestral sir and Khudkasht, in which his son had a half share. Besides this concession, the appellate authority, on a consideration of the evidence on record, also found that the disputed holding was ancestral Sir and Khudkasht of the petitioner. The relevant evidence including the Khataunis of the settlement years 1324 F. & 1359 F. and C.H. Forms nos. 23 and 41 were referred. This order became final between the State and the petitioner. After the amendment of the principal Act by U. P. Act 20 of 1976, a fresh notice was issued to the petitioner under Section 10 (2) proposing again to declare an area of 12 Bighas 1 Biswa and 5 Biswansis of his land as surplus. The petitioner raised two main objections before the Prescribed Authority (1) that the present proceedings were barred by the principle of res judicata as the matter had already been heard and decided in favour of the petitioner on merits, and (2) that an area of 35 Bighas 11 Biswas and 10 Biswansis of the petitioner's land was ancestral Sir and Khudkasht, in which his son had half share, and that land could not be held as the petitioner's exclusive holding. The Prescribed Authority held that the proceedings were not barred by the principle of res judicata in view of the provisions of Sec. 38-B of the Act. Fresh determination of the ceiling area could, accordingly, be made by the proceedings in question in view of the amendment of the principal Act by Act 20 of 1976, and the finding recorded in the earlier proceedings could not bar a fresh determination of the issues involved. It held that the land claimed as ancestral Sir and Khudkasht by the petitioner was not such land, and the petitioner's son had no interest in it. An area of 12 Bighas 1 Biswa and 5 Biswansis was declared as surplus with the petitioner. On appeal, the appellate authority affirmed that order. It also held that the earlier proceedings did not bar the instant proceedings, and a fresh determination could be made of the ceiling area of the petitioner under the principal Act as amended by Act 20 of 1976. The finding recorded on the Sir and Khudkasht nature of a part of the petitioner's holding could, accordingly, be reopened in view of the provisions of Section 38-B of the Act. It went behind the order passed in favour of the petitioner in the earlier proceeding only on the ground that in proceedings under the Consolidation of Holdings Act, the objector had not pleaded that his son had half share in the holding, and, since he alone was found recorded as the Bhumidhar of the disputed land, it could be treated as his exclusive holding. The Consolidation proceedings accordingly by Section 49 of the Consolidation of Holdings Act barred a reopening of that question. The evidence produced by the petitioner was not examined, and only the bar of Section 49 was applied against him. It would be seen that the order of the Prescribed Authority was affirmed on two grounds-(1) that amendment of the Principal Act by Act 20 of 1976 reopened all old proceedings, and redetermination could take place as a mater of course, and (2) that the objection as to the ancestral Sir and Khudkasht character of the disputed holding was barred by Section 49 of the Consolidation of Holdings Act.
(3.) AGGRIEVED, the petitioner has come up to this Court. The petition concerns the true scope and construction of Section 38-B of the Act, by reference to the provisions of Section 31 of Act 20 of 1976. It also concerns the true scope and construction of the provisions of Section 49 of the Consolidation of Holdings Act. The first question to be considered is whether a redetermination of the ceiling area of a tenure-holder after the amendment of the principal Act by amending Act 20 of 1976 has to follow as a matter of course in respect of all the cases decided earlier by the authorities or it is confined to cases affected by the amendments incorporated. To put it in other words, whether a fresh notice for redetermination of surplus land was necessarily to be issued in all the cases decided earlier or only in those cases in which the amendments rendered redetermination necessary. We shall examine this question with reference to the transitory provisions of Section 9 of Act 2 of 1975 and Section 31 of Act 20 of 1976. Section 9 of the Act 2 of 1975 provides as follows : "Where an order determining the surplus land in relation to a tenure-holder has been made under the principal Act, before the commencement of this Act, the Prescribed Authority may at any time within a period of two years from the commencement of this Act, redetermine the surplus land in accordance with the principal Act as amended by this Act." ;