A subsequent notice issued by the Prescribed Authority under Section 31(3) of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976, annuls the earlier declaration of surplus land, even though an appeal against the earlier determination is pending.

K.M. Dayal, J.

The present petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act (Act of 1960). The Petitioner was issued a notice u/s 10(2) of the Act aforesaid and the Prescribed Authority declared 9 bighas 5 biswas and 6 biswansis of land as surplus on 6th January, 1975.

2. The Petitioner and the State Government both filed appeals against the Judgment of the Prescribed Authority. The 3rd Additional District Judge, Muzaffarnagar, by his order dated 20th September, 1975 partly allowed the appeal of the Petitioner and dismissed that of the State Government. The case was sent down to the Prescribed Authority for re-calculating the surplus area in accordance with the orders passed by the appellate court. A writ petition was filed before this Court but the same was dismissed summarily.

3. Subsequently the Prescribed Authority issued another notice to the Petitioner u/s 10(2) of the Act for re-determination of the surplus area. This notice was issued to the Petitioner under the provisions of sub Section (3) of Section 31 of U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976 (U.P. Act No. XX of 1976). Under the new notice the Prescribed Authority purported to claim 17 bighas of land of the Petitioner as surplus. This notice included the entire original land of the Petitioner. Objections were filed by the Petitioner. The Prescribed Authority by order dated 4th June 1976 declared 17 bighas 10 biswas 13 biswansis of land as surplus.

4. Again the Petitioner filed an appeal against the order of the Prescribed Authority which was numbered as Ceiling Appeal No. 392 of 1976; that appeal was decided along with another appeal, by the 3rd Additional District Judge, Muzaffarnagar on 13th January 1977. The appellate court allowed the appeal and held that the tenure holder had only 5 biswas and 6 biswansis of surplus land and notice in respect of the remaining was discharged and the judgment of the Prescribed Authority was modified.

5. It so appears that inspite of the second notice issued by the Prescribed Authority, it took action on the basis of the previous appellate order dated 20-9-1975 for recalculating the surplus area. The Petitioner was not issued any notice for re-calculation but calculation was made on 5th June 1976.

6. After decision of the appeal the State Government wanted to enforce the earlier determination according to the order of 3rd Additional District Judge dated 20th September, 1975 and order of Prescribed Authority dated 5-6-1976 recalculating the surplus area in accordance with the remand order.

7. The Petitioner filed objections which are filed with the present petition as Annexure 3. These objections have been rejected by the impugned order of the Prescribed Authority dated 28-12-1977. The Prescribed Authority held that it was merely a case for recalculation and, therefore, it was not necessary to hear the tenure-holder again. It further held that as the writ petition filed by the Petitioner against the order dated 20-9-1975 had been dismissed by the High Court, the matter became final and the order became enforceable.

8. The Prescribed Authority refused to follow the aforesaid judgment on the ground that the writ petition against the earlier judgment having been dismissed, the facts of the aforesaid case could not be made applicable to the present case.

9. The learned Counsel for the Appellant argued that the subsequent and final determination of surplus area on 13-1-1977 was binding on the parties and was the only determination which could be enforced. The learned Counsel argued that any earlier determination was impliedly abated and could not be enforced after re-determination was made under Sub-section (3) of Section 31 of U.P. Act No. XX of 1976.

10. We find sufficient force in the contention of the learned Counsel. Sub-section (3) of section 31 is reproduced below for ready reference:

Where an order determining the surplus land in relation to a tenure-holder h