Judgment

B.P. JEEVAN REDDY, J.:- First appellant-land holder filed a return of his holding under and as required by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (Act). After making the necessary inquiry, the Collector, Puna by his order dated 2nd January, 1969 held that the first appellants total holding of agricultural lands as on the relevant date was 124 acres 23 guntas ( converted into dry lands) whereas according to the Act and having regard to the number of members in his family he was entitled to hold 128 acres. Accordingly, he held that the first appellant was not a surplus holder. Notwithstanding the fact that the said order was in his favour, the first appellant filed an appeal before the Maharashtra Revenue Tribunal. His contention was that the finding of the Collector that he was holding 124 acres 23 guntas of land is not correct and that he must be held to be holding a far lesser extent. This appeal was dismissed summarily on 16-12-1971. The Tribunal did not think it fit to issue a notice even to the respondent in the said appeal. Sometime after the dismissal of the appeal, the Additional Commissioner, Puna Division issued a notice to the first appellant under S. 45 calling upon him to show cause as to why the order of the Collector, Poona dated 2nd January, 1969 be not revised and his holding be determined at 231 acres and why the surplus should not be directed to be surrendered. The first appellant submitted his objections wherein he inter alia raised an objection with respect to the validity of the said notice. The said objection was based upon the proviso to sub-sec. (2) of S. 45 viz., inasmuch as an appeal has been filed against the order of the Collector, the power of suo motu revision is no longer available to the Commissioner. This preliminary objection was overruled by the Additional Commissioner by his order dated 6-12-1971. He then went into the merits of the case and passed an order on 23-9-1974 holding that the total holding of the first appellant as on the relevant date is 202 acres and 31 guntas (when converted into dry crop land) and since he is entitled to retain only an extent of 160 acres, he is a surplus holder to an extent of 42 acres 31 guntas. He remitted the matter to the S.D.O. for delimiting the surplus area. It may be mentioned that before passing the said final order, the Commissioner had issued notices to and heard appellants 2 to 4, inasmuch as their rights were sought to be affected by him.

2. The appellants questioned the validity of the Commissioners order by way of a writ petition being Special Civil Application No. 439 of 1975 in the Bombay High Court. The main contention urged in the said writ petition was based upon the proviso to S. 45(2). It was that inasmuch as the order of the Collector was appealed against, it could no longer be revised by the Commissioner in view of the express bar contained in the said proviso. On merits, the only contention urged pertained to the inclusion of the lands transferred by him by way of exchange. Besides the lands he obtained by way of exchange, his lands given away under exchange were also included in his holding. This, according to the appellants, was unjust and illegal. Both the contentions were negatived by a Division Bench of the Bombay High Court whereupon the appellants have filed this appeal with the leave of this Court. The main contention urged before us by Sri P. H. Parekh, learned counsel for the appellants is again based upon the proviso to S. 45(2). His contention, properly elaborated, runs thus: for the purpose of determining whether a person/ family unit holds land in excess of the ceiling area, it is necessary for the Collector to determine the holding of such person/ family unit. Even where the Collector holds that the holding of a person/ family unit is below the ceiling limit, he has to and does determine the extent of holding of such person/ family unit. If one looks to S. 9, the relevance of such a fi