JUDGMENT

K. RAMASWAMY, J.:—This appeal by special leave arises against the judgment of the single Judge of the Bombay High Court at Aurangabad in Writ Petition No. 1903 of 1980 dated June 23, 1983 : (reported in 1984 Mah LR 1). The facts lie in short compass, are stated hereunder.

The respondent filed his declaration under S. 12 of the Maharashtra Agricultural Land (Ceiling and Holdings) Act, (27 of 1961) as amended from time to time, for short the Act. The Surplus Land Determination Tribunal, Partur, after enquiry under S. 17 declared that out of 63 acres 8 guntas of dry lands in Survey Nos. 29, 312 and 11 situated in Shrishti Village Partur Taluka, Parbhani District, the respondent was holding 9 acres 8 guntas surplus land. On appeal the Maharashtra Revenue Tribunal, at the request of the respondent and conceded by the representative of the State, held that instead of resuming surplus land from Survey No. 11, the same be resumed from Survey No. 29 on the western side. With that modification the Appellate Authority by its judgment dated April 13, 1976 upheld the order. The Addl. Commissioner, when the records were placed before him, on perusal thereof found that on the demise of the father of the respondent he and his mother being only heirs, are entitled to equal shares in 92 acres 29 guntas, in Survey Nos. 91, 337, 338 and 86 of his father. He found mutations of those lands in the names of several persons were not genuine and valid. The respondent did not disclose the lands of his half share in the declaration, and therefore, the Addl. Commissioner issued a show cause notice to the respondent on May 22, 1977. The respondent appeared in person and submitted his written arguments. On consideration thereof for the reasons recorded in his order dated June 9, 1980, he remitted the case to the primary Tribunal to examine the case once over and then determine the surplus land. While upholding the surplus land of 9 acres 8 guntas as confirmed by the Appellate Tribunal, he directed redetermination and delimitation which was challenged in the writ petition. The High Court held that once an appeal having been preferred by the declarant under the Act, and an order thereon was made, the Commissioner or the State Govt. is devoid of jurisdiction to determine the ceiling area. Accordingly it quashed the order in the impugned judgment. Feeling aggrieved, the State Govt. filed the appeal.

2. The only question that arises for decision is whether the Commissioner or the State Govt. has been devoid of the jurisdiction to direct the primary authority to reopen the determination of the surplus area under S. 17. S. 45 of the Act reads thus:

"45. Control. (1) In all matters connected with this Act, the State Govt. shall have the same authority and control over the officers authorised under S. 27, the Collectors and the Commissioners acting under this Act, as they do in the general and revenue administration.

(2) The State Govt. may, suo motu or on an application made to it by the aggrieved persons, at any time, call for the record of any inquiry or proceedings under Ss. 17 to 21 (both inclusive) for the purpose of satisfying itself as to the legality or propriety of any inquiry or proceedings (or any part thereof) under those sections and may pass such order thereon as it deems fit, after giving the party a reasonable opportunity of being heard :

Provided that, nothing in this sub-section shall entitle the State Govt. to call for the record of any inquiry or proceedings of a declaration or part thereof under S. 21 in relation to any land, unless an appeal against any such declaration or part thereof has not been filed within the period provided for it, and a period of three years from the date of such declaration or part thereof has not been filed within the period provided for it, and a period of three years from the date of such declaration or part thereof has not elapsed

Provided further that, no order shall be passed under this section so as to affec