TMI Blog1971 (11) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of all these petitions. The High Court came to the conclusion that Chapter III of the Amending Act is a valid piece of legislation or in other words, it does not suffer from any invalidity; but Chapter IV of the Amending Act is unconstitutional and invalid and accordingly it is struck down. The High Court accordingly allowed the petitions in part and directed the State not to give effect to the provisions of Chapter IV of the Amending Act. 3. The State filed a number of appeals against that judgment and this Court (Shah and Vaidialingam, JJ.) allowed the appeals and set aside the order passed by the High Court declaring Chapter IV of Act XIII of 1965 amending Act XVI of 1960 ultra vires (State of Orissa v. Chander Sekhar) [1970]1SCR593 . Civil Appeals No. 1028, 1033 1907/1968, 1865-67 2487/1969 are by the State of Orissa (hereinafter referred to as the State appeals) but these could not be heard by this Court (Shah and Vaidialingam, JJ.). The present appeal (C.A. No. 854 of 1968) was also not heard with the other appeals. 4. In Civil appeal No. 854 of 1968 the appellant urged : (1) That the High Court erred in holding Chapter III of the Act as inserted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. This fact was also noticed in the judgment of this Court in State of Orissa v. Chander Sekhar(1) but the Court nevertheless went into the question of validity of Chapter IV of the Act as amended because the High Court had held Chapter IV to be ultra vires. 10. It seems to us that the Courts ordinarily ought not to go into the question of the validity of an Act or a provision of an Act unless it has been brought into force. Till then, such a question would be academic. No body can be aggrieved by a provision of law which; is dormant and which cannot be enforced. The Constitution has provided for an advisory opinion being given by the Supreme Court, when the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court. The High Court should not have embarked upon an academic question. In view of this we are not inclined to go into the question whether the provisions of Chapter IV were rightly held to be intra vires by this Court. The respondents in the State appeals can raise this question if so advised when the notification is issued under Section 1 (3) of the Act bringing Chapter IV into force. However, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with Raiyats and Tenants. The heading of Chapter III is Resumption of Land for Personal Cultivation. Section 24(1) gives a right to the landlord and the tenant to have the resumable and non-resumable lands determined in accordance with the provisions of the Chapter. The expression resumable land , by virtue of the Explanation, refers to land which can be resumed for personal cultivation by a landlord from a tenant. We are not concerned with Section 24(2). Section 25 fixes the extent of the resumable land which shall not be more than one-half of the lands in respect of each tenant, measured in standard acres only. Section 26 enables the landlord to make a selection under Section 25 and apply on the basis of the selection to the Revenue Officer in the prescribed manner and form. It also enables a tenant to apply to the Revenue Officer within the period of three months in the prescribed form and manner. Under Section 21 the Revenue Officer determines the particulars of the resumable lands and the non-resumable lands. Section 28 provides that while deciding matters under Section 27 the Revenue Officer shall determine, the compensation in respect of the non-resumable lands payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the certificate under Section 29. Section 35 provides for the contingency when both the landlord and the tenant in respect of any land fail to apply in accordance with the provisions of Section 26, and enables the Revenue Officer to determine resumable and non-resumable lands and other matters required to be determined under Sections 27 and 28. Section 36 provides for eviction of a landlord and a tenant who fail to personally cultivate the land without sufficient cause. 13. The learned Counsel challenged the provisions of Chapter III on the ground that they are not protected by the provisions of Article 31A(1) because they do not provide for the acquisition by the State., of any estate or of any rights therein or the extinguishment or modification of any such rights. He said that the creation of a similar and identical right in another person does not amount to extinguishment of such rights. According to him, a right must vanish by the provisions of the Act before it can be said to be extinguished. We see no force in this contention. A similar argument was addressed to this Court in Atma Ram v. State of Punjab [1959] Su (1) S.C.R. 748; 753; 767. This Court was then dealing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Article 31A(1). 16. The learned Counsel then referred to the second proviso to Article 31A(1) which reads : Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such l and, building or structure provides for payment of compensation at a rate which shall not be less than the market value thereof. 17. Relying on the majority judgment in Ajit Singh v. State of Punjab [1967] 2 S.C.R. 142, he said that the provisions of Chapter ITI amounted to acquisition and accordingly the market value was payable as compensation under the second proviso and not the compensation as fixed in Section 28. He urged that five acres of Bhagchar land are lands under his personal cultivation within the meaning of the words personal cultivation in the second proviso. He further sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
