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 It may be stated here that the Old Act was repealed by New Act known as the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973(here in after referred to as the New Act), which came into force on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 & 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 & 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.
3. We have given our thoughtfiul consideration to the respective submissios made by the learned Counsel for the parties.
4. 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 & 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.
5. The submission of Shri Ahmed Bux, learned Counsel for the petitioners, that it was the Government only which was competent to reopen the cases decided under the Old Ceiling Law by virtue of the powers given to the State Government under Section 15(2) of the New Ceiling Law. It is true that under Section 15(2) of the New Ceiling Law. power is vested with the Govern-ment to reopen the cases decided under the Old Ceiling Law. However, it does not take away the rights of the Authorized Officer to discharge his statutory obligation to proceed under Sections 11 and 12 of the New Ceiling Act or the obligation of the holder of the land to surrender excess land under Section 9 of the New Ceiling Law. In Smt. Amarjeet Kaur and Ors. v. Slate and Ors. 1987(2) WLN 833 a Division Bench of this Court considered this aspect of the matter where the facts were that proceedings were initiated under Ch. IH-B of the Rajasthan Tenancy Act, 1955 and the proceedings were ultimately dropped by order dated. 14-1-1971 by the SDO, Baran Thereafter, the Asstt. Collector Baran commenced the proceedings afresh under the New Ceiling Law who decided the case by order dated 28th February, 1976, against which an appeal was preferred before the Addl. Collector, Kota who remanded the case to the Asstt. Collector for determining the ceiling area afresh vide order dated 4th August, 1976. The aggrieved party again went in appeal against the fresh order before the Addl. Collector, Kota and the Addl, Collector decided the matter on 4th April, 1985, by remanding the case to the Asstt. Collector, Shahbad for deciding the matter afresh under the New Ceiling Law. In the mean while,the Deputy Secretary(Government) by order dated 5th Oct., 1978, re-opened the proceedings under Section 15(2) of the New Ceiling Law. The effect of this order was that the proceedings were started afresh by the Addl. Collector, Kota under the Ceiling Law. It was, in these circumstances, held that since the proceedings were pending before the Asstt. Collector, Shahbad, in pursuance of the remand order of the Asstt. Collector, Kota, dated 4th April, 1985, the same will continue and the Asstt. Collector would be competent to determine the ceilling area and, it was also held that the re-opening of the proceedings under the Old Act by the Deputy Secretary (Revenue) was without jurisdiction. Thus, in Amarjeet Kaur's case, it was clearly held that even after the decision under the old Ceiling law, proceedings under the new Ceiling Law could be commenced and pending proceedings under the New Ceiling Act, the proceedings could not have been re-opened even under the Old Act by resorting to the provisions of Section 15(2) of the Act.
6. In State of Rqjasthen v. Prithvi Singh and Ors. 1986(1) WLN 200, D.B. of this Court held that if proceedings are pending under the Old Ceiling Law. and not disposed of when the New Ceiling Law came into force, then the proceedings must be disposed of in accordance with the Old Ceiling Law. It was also held that if the proceedings were initiated' and disposed of before the New Ceiling Law came into force, the State Government was entitled to re-open such case under Section 15(2) of the New Ceiling Law. In Prithvi Singh's case (supra) the Division Bench of this Court was required to consider the scope and effect of proviso two to Sub-section (1) of Section 4 of the New Ceiling Law read with Section 40 and it was held that there is no difficulty in applying the provisions of the proviso even in a case initiated for the first time under the New Ceiling Law. In view of the decision in Prithvi Singh's case, there is no mistake in the judgment of the Board of Revenue for Rajasthan, Ajmer which had considered the effect of second proviso to Section 4(1) of the New Ceiling Act and directed to acquire the excess land held by the petitioners. The Authorised Officer came to the conclusion that under the New Act there were three units on 1st January, 1973 and, as such, the land in Khatedari was less than the ceiling area and nothing could be acquired from. the petitioners; but he applied second proviso to Section 4(1) of the New Ceiling Law and held thaf the petitioners were not entitled to more than 30 standard acres of land which they were entitled under the Old Ceiling Law. The Second Proviso to Sub-section (1) of Section 4 clearly provides that if the ceiling area applicable to any person or family exceeds the ceiling area applicable to such person or family according to the provisions of the law repealed by Section 40 in that case, the celling area applicable to such person or family will be the same as was under the provisions of the said repealed law. It is, thus, clear that if the ceiling area applicable to any person or family in accor-dance with the New Ceiling Law exceeds the ceiling area under the Old Ceiling Law, in that case, the ceiling area shall be determined as applicable under the Old Ceiling law, though, repealed by the New Ceiling Act. Thus, in view of the proposition of law laid down in Prithvi Singh's case (supra), to which we are in perfect agreemenet, no grievance can be made by the learned Counsel for the petitioners with regard to the view taken by the Board of Revenue.
7. The submission of Shri Ahmed Bux, learned Counsel for the peti-tioners is that the Board has wrongly mentioned in the judgment that no order was passed by the SDO, Kota on 26th April, 1975 and if such an order was there it was not produced before the lower Court. We are in agreement with the learned Counsel for the petitioners that the Board was wrong and the error is apparent on the face of the record. Ordinarily, on this basis, we would have remanded the case back to the Board of Revenue to decide the matter afresh for considering the effect of the judgment of the SDO dated 26th April, 1975 but we feel that it will not serve any useful purpose as we have ourselves taken into consideration the effect of the judgment of the SDO, Kota dated 26th April, 1975 as aforesaid and, thus, the plea for remand does not survive.
8. As regards the other objections referred to in grounds Nos. 3 & 5, we are satisfied that there is no merit in them. The claim of Boochi Lal was never raised during the ceiling proceedings either under the Old Act or under the New Act. His case was not taken into consideration even in the order dated 26th April, 1975, passed by the SDO. There is nothing on record to prove, who Boochi Lal was and whether he is alive or dead. We, therefore, hold that there is no substance in this regard. As regards failure to give notice to Mool Chand and Mohan Lal, sons of Amar Lal, we may observe that the First and the Second Appellate Courts considered their claims and, thus, no prejudice was caused to them in any manner. From the record, it is clear that on 1st January, 1973, the entire land was in the Khatedari of AmarLaland there were four members in his family. It was subsequent to 1st January, 1973 that by a collusive decree on the basis of compromise Amar Lal and his two sons got partition of the land. The law is settled that a compromise decree for partition obtained after the appointed date will have no effect on the ceiling proceedings. The up-shot of this discussion is that there is also no substance in this contention.
9. In the premises aforesaid, the writ petition fails and is dismissed. There shall, however, be no orders as to costs.