Judgment

MATHEW, J.:- The first appellant is the father of appellants 2 and 3. The property in question belonged to the father of first appellant. By a will executed by him, he bequeathed the property to appellants 2 and 3. After the death of the testator, mutations in favour of appellants 2 and 3 were effected in the revenue records in the year 1996 B. K. (1939). The first appellant managed to get the mutation of the land in his name in 1944 for the reason that he wanted to get licence for a gun. In 1955, when the Pepsu Tenancy and Agricultural Lands Act (hereinafter referred to as the Act) came into force, the first appellant was shown to be the owner of the land in the revenue records. Chapter IV-A of the Act was inserted by Pepsu Act No.15 of 1956 on October 30, 1956 and by Section 32A of this chapter, ceiling was placed on the holding of land.

2. A suit was filed by appellants 2 and 3 for a declaration that the land belonged to them that the mutation of the land in the name of the first appellant in the revenue records was for the purpose of enabling him to obtain a gun licence and that there was no transfer of the land to first appellant. The first appellant was the only defendant in the suit. He did not contest the suit and it was decreed on February 14, 1961. A few weeks later, the question of declaration of the surplus area of the land in the hands of the first appellant came up for consideration before the Collector of Bhatinda. On the basis of the judgment and decree passed by the Civil Court that there was no transfer of the land to the first appellant, the Collector, by his order dated March 28, 1961, declared that there was no surplus land in the ownership and possession of the first appellant.

3. The Act was amended by Act No.16 of 1962 and Section 32-DD was introduced into the Act with retrospective effect from October 30, 1956. That section reads:

"32-DD. Future tenancies in surplus area and certain judgments etc. to be ignored - Notwithstanding anything contained in this Act, for the purposes of determining the surplus area of any person.

(a) a tenancy created after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, in any area of land which could have been declared as his surplus area of such person; and

(b) any judgment, decree or order of a court or other authority, obtained after the commencement of that Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored."

4. The Collector thereupon made a reference presumably under S.15 of the Punjab Land Revenue Code for sanction to the Commissioner of Patiala to review his order dated March 28, 1961, as it omitted to include the land in question in the holding of the first appellant on the basis of the judgment and decree. The sanction was given, the Collector reviewed the order and he refused to give effect to the judgment and decree by ignoring them as enjoined by S. 32-DD and included the land in the holding of the first appellant.

5. The appellants filed a writ petition in the High Court of Punjab to quash this order. Before the High Court, three contentions were raised by the appellants: (1) that the Collector had no jurisdiction to review his order dated March 28, 1961; (2) that the order is review was passed without notice to the appellants; and (3) that, in any event, the judgment of the civil court only made a declaration as regards rights of the parties on the date of the suit and it was not, therefore, a judgment of the nature contemplated by Section 32-DD. The High Court overruled all the contentions and held that the order of the Collector was rendered null and void by virtue of the provisions of S.32-DD and, therefore, the Collector had the power to determine by his order dated May 20, 1963, the surplus area after ignoring the judgment and decree. The High Court said that since mandatory provisions of S.32-DD which has retrospective operation