JUDGMENT :

H.L. Agrawal. C.J.

1. This application arises out of a proceeding initiated under the Orissa Land Reforms Act, 1960 (for short, "the Act") determining the area within the limits of the celling to be retained by the land holder.

2. The question that arises for consideration is as to within the Act provides for any cut-off date, i.e. the date with with reference 'to which the right of the land holder to retain the extent of the area is to be determined.

3. The Petitioner had filed the return in Form XII as required under Chapter IV of the Act in the year 1973. At that time his family consisted of himself, his wife and three children. But by the time the draft statement as required u/s 43 was published in the year 1979, two more children were born to him. Opposite party No. 3, however, treating the constitution of the family as mentioned in the return, i.e., five members only allowed only 10 standard acres to the Petitioner and disallowed his claim for 4 more standard .acres at the rate of 2 standard acres for each additional member as provided u/s 37-A.

4. The Petitioner filed an appeal for this relief, but the appellate authority also rejected his claim by his order in Annexure-2 and held that the right of the land holder pad to be determined with reference to the facts prevailing at the time of enforcement of Chapter IV of the Act, and therefore, the subsequent increase ill the number of the family members could not be taken into account for allotment of the ceiling area.

5. The Petitioner then filed a revision before the District Collector who also by the impugned order dated 30-10-1980 (Annexure-3) rejected the same leading to the filing of the present writ application.

6. In order to appreciate the contention of the Petitioner, it is necessary to refer to the relevant provisions of the Act.

Chapter IV deals with "Ceiling and disposal of surplus land". Section 37-B prohibits a person to hold land in excess of the ceiling area "on and from the commencement of the Orissa Land Reforms (Amendment) Act, 1973 which came into force with effect from 2-10-1973. Similarly, Section 40 prohibits disposition of land by way of transfer partition and otherwise with respect to the lands held in excess of the ceiling area by any person after the commencement of the said amending Act of 1973 either by sale, gift of otherwise or by partition "until the surplus land, which is to vest in the Government u/s 45 has been determined and taken possession of by or on behalf of the Government". The Act "any transaction made in violation of this prohibition" was to be treated as void except when it was made with the written permission of the Revenue Officer or covered under the exemptions provided therein. Section 40-A imposes an obligation upon every person holding land to file a return before the .expiry of 90 days from the date of commencement of the 1973 Amending Act in these words:

40-A. Submission of returns- (1) . Every person holding land (which shall include lands transferred by sale gift or otherwise or partitioned by him after the 26th. day of September, 1970) either as land bolder or raiyat in excess of the ceiling area at the commencement of the Orissa Land Reforms (Amendment) Act 1973 shall before the expiry of ninety days, from such commencement submit to the Revenue Officer, in such form and in such manner as may be prescribed, a return indicating the parcels of land which he wishes to I retain and the parcels of land in excess of the ceiling area (hereinafter referred to as "surplus land") and furnish in the said returns such other particulars as may be prescribed:

Provided that a person who has made any transfer or effected any partition in contravention of the provisions of Sub-section (1) of Section 40 shall not have the right to indicate the parcels of land which he wishes to retain and the parcels Of land in excess of the ceiling area but shall have to file the return furnishing the particulars of all the lands held by him as afor