P.C.JAIN, J. - (1.) BY this writ petition, the petitioners have prayed for issuance of a writ, order or direction to quash the order of the Board of Revenue for Rajasthan, Ajmer, dated 7th March, 1977 (Annx. 4) and the judg -ment of the Additional Collector. Kota, dated 15th June, 1976 (Annx. 3) and also the judgment of the Authorised Officer (Ceiling), dated 19th April, 1976 (Annx. 2), whereby the petitioners were asked to surrender the excess land.
(2.) BRIEFLY stated the facts of the case are that Amar LalMeena, since deceased, was the Khatedar of 24.80 standard acres of land, Mool Chand is the Khatedar of 14.86 standard acres of land and MohanLalis the Khatedar of 15.30 standard acres of agricultural land and situated in villages Balvenkheri -and Binayaka. The SDO who was the competent offcer to deal with the ceiling cases under Chapter III -B of the Old Act after due enquiry, by this order dated 26th April, 1975 in cass file No. 443 of 1975 held that the petitioners did not possess land in excess of the ceiling limit, and, therefore, he decided that there was no surplus land available for being acquired under the Act. It may be stated here that the Old Act was repealed by New Act known as the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973(here in after referred to as the New Act), which came into force on 1st January, 1973. In the writ petition, the petitioners have averred that the Authorised Officer (Ceiling) issued a draft statement under Section 12 of the New Act against Amar Lal, who alone appeared and contested the draft statement. AmarLalproduced school certificates by which it was proved that Mool Chand and Mohan were his adult sons and, thus, they were entitled to separate units. It was also contended that since there were three units, as such, there was no surplus land in excess of the limit imposed under the New Ceiling Act. Under the New Ceiling Act, the decision was given on 19th April, 1976. The Authorised Officer (Ceiling) held that the land stood in the Khatedari of Amar Lal and his two sons Mool Chand and Mohan. He also held that in view of the second proviso to Section 4(1) of the New Ceiling Act, the petitioner was not entitled to the benefit of the New Act as he could not keep more land than the one to which they were entitled under the Old Ceiling Law. Under the Old Ceiling Law, the petitioners were entitled to have 3 standard acres of land and consequently, 24.95 acres of land was declared surplus. Feeling aggrieved by the order of the Authorised Officer (Ceiling) under the New Ceiling Act, the appellants preferred an appeal before the Additional Collector Kota who rejected the appeal of the appellants by his order dated 15th June, 1976. Second sppeal was preferred before the Board of Revenue for Rajasihan, Ajmer. The Board of Revenue dismissed the appeal of the appellants by order dated 7th March, 1977. Aggrieved by the judgment of the Board of Revenue for Rajasthan, Ajmer, the petitioners have filed this writ petition under Article 226 of the Constitution of India. The petitioners have assailed the judgments of the Board of Revenue for Rajasthan, Ajmer and other authorities mainly on the following grounds; [1] That an appeal was preferred against the order of the SDO. The order of the SDO dated 26th April, 1973 under the provisions of Chapter III -B of the Rajasthan Tenancy Act (Old Ceiling Law) became final and operated as res -judicata. It could not have been re -opened under the New Ceiling Act. It was the State Government only which could have re -opened the case by virtue of Section 15 of the New Ceiling Act; [2] That the Authorised Officer (Ceiling) and other authorities, namely the Additional Collector, Kota and so also the Board of Revenue for Rajasthan, Ajmer were fully aware of the fact that the case of the petitioners had already been decided by the SDO on 26th April, 1975. under the Old Ceiling Act and, thus, the petitioners were having no surplus land. In such circumstances, the proceedings initiated by the Authorised Officer (Ceiling) under the New Ceiling Act were com - pletely without jurisdiction; [3] That Mool Chand and Mohan were major sons of Amar Lal. In the circumstances, notices should have been issued to them before taking any proceedings under the New Ceiling Act; [4] That the interpretation which has been put by the Board of Revenue for Rajasthan, Ajmer with regard to Section 4(1) and its second proviso is not correct; [5] That one unit to which Boochi Lal was entitled was not counted. Shri Ahmed Bux, learned Counsel for the petitioners submitted that the judgment of the Board of Revenue for Rajasthan, Ajmer is required to be quashed on the ground that there is an error apparent on the face of the record in as much as the learned Board of Revenue did not consider the judgment of the SDO dated 26th April, 1975 and observed that' the said judgment was not produced before the lower courts when in fact, this observation is wrong as the fact is that the said judgment which was given by the SDO finds place in the judgment of the Additional Collector, Kota, who decided the first appeal on 15th June, 1976. Shri Ahmed Bux, learned Counsel for the petitioners argued on the above referred points and prayed that the judgments of the Board of Revenue, the Additional Collector, Kota and the Authorised Officer (Ceiling) be quashed, or in the alternative the case be remanded back to the Board of Revenue of giving a fresh decision after taking into consideration the judgment of the SDO dated 26th April, 1975, which was given by him under the Old Ceiling Act. Shri Pareek, learned Additional Government Advocate submitted that the objections raised by the petitioners in the writ petition and referred to above are without any merit.The submission of Shri Pareek is that the petitioner was not entitled to keep the land in excess of the ceiling limit either under the provisios of the Old Ceiling Act, or under the provisions of the New Ceiling Act and, since the petitioner was holding land in excess of the ceiling limit prescribed under the New Ceiling Act, a notice was given to him under the New Ceiling Act. He has further submitted that in view of the statutory action taken under the New Ceiling Act, the question of res -judicata does not arise. We have given our thoughtfiul consideration to the respective submissios made by the learned Counsel for the parties.
(3.) THE main thrust of the argument of the learned Counsel for the petitioners is that in view of the judgment of, the SDO, who was competent officer to deal with the ceiling cases under the provisions of the Old Ceiling Act, which became final and binding, on the parties, whereby it was held that the petitioners did not possess any surplus land to be acquired under the Old Act, no proceedings under the New Act could be commenced. It is true that the SDO, Kota by his order dt. 26 -4 -1975 in case No. 443/75 had held that the petitioners were having no surplus land which could be acquired under the Old Ceiling Act and no appeal was preferred against that judgment and the judgment became final. However, the question is, whether of the coming into force of the New Ceiling Act with effect, from 1st January, 1973, the ceiling proceedings could be started under the provisions of the New Ceiling Act. A critical study of the provisions of the New Ceiling Act would reveal that it was imperative on the part of the land holder to declare any land which is surplus and, in case, he fails to give a declaration in this regard, the Authorised Officer is competent to issue notice under Section I of the New Ceiling Act. In the instant case the Authrorised Officer (Ceiling) found' that the petitioner Amar Lal, was holding 75 Bighas 5 Biswas of land in his Khata and his two sons, Mool Chand and Mohanlal were respectively having 55 Bighas 3 Biswas and 57.5 Bighas of land. There is no denial of the fact that the petitioner did not file any return and, as such, a draft statement was filad under Section 12 of the New Ceiling Act. In this view of the matter, we are of the opinion that there was nothing wrong in proceeding against the petitioners under the New Ceiling Act, as admittedly the petitioners were holding land in excess of the ceiling limit. Under the provisions of the Ceiling Law, if there is any land in excess of the ceiling area, the same ceases to belong to the owner with effect from the appointed date under provisions of the Old as well as under the New Ceiling Act. Thus, after coming into force of the New Ceiling Act, the Authorised Officer could not be precluded from taking appropriate procee -dings under Section 11. Of the Act, if the petitioners held land in excess of the ceiling area. Thus, there is no merit in the submission of Shri Ahmed Bux, learned Counsel for the petitioners that the order passed by the SDO dated 26th April, 1975 operates as res judicata, and the Authorised Officer under the New Ceiling Act was not competent to proceed under provisions of the New Ceiling Act.;