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Chander Sekhar Singh Bhoi Versus State of Orissa

1971 (11) TMI 167 - SUPREME COURT OF INDIA

Civil Appeal Nos. 854, 1028, 1033 and 1097 of 1968 and 1865 to 1867 and 2487 of 1969 - Dated:- 5-11-1971 - S.M. Sikri, C.J., G.K. Mitter, I.D. Dua, J.M. Shelat And Subimal Chandra Roy, JJ. For Appellant/Petitioner/Plaintiff: Somnath Chatterjee and G.S. Chatterjee, Advs. For Respondents/Defendant: C.B. Agarwala, and S.P. Nayar, Advs. for R.N. Sachthey, Adv. JUDGMENT 1. The appellant, Chander Sekhar Singh Bhoi, in Civil Appeal No. 854 of 1968, filed a petition under Article 226 of the Constitution .....

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on judgment dated 30th January, 1967 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 .....

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nd 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 by Act XIII of 1965 in Act XVI of 1960 intra vires; and (2) That Chapter IV as inserted by Act XIII of 1965 in Act XVI of 1960 is ultra vires the provisions of the second proviso to Article 31-A(1) of the Constitution. 5. In the other appeals the State urged .....

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The object of the legislation is given in the preamble which reads: WHEREAS it is necessary to enact a progressive legislation relating to agrarian reforms and land tenures consequent on the gradual abolition of intermediary interest; AND WHEREAS it is expedient to confer better rights on agriculturists to ensure increase in food production in the manner hereinafter appearing. 7. Section 1(3) of the Act provides : It shall come into force in whole or in part, on such date or dates as the Govern .....

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ated 17th August, 1965. By the Amending Act various pro-Visions of the Principal Act were amended and in particular for the original Chapters III and IV of the Principal Act new Chapters III and IV were substituted. 9. On September 25, 1965, a notification under Section 1(3) of the Principal Act was issued bringing the Act into force except Chapters III and IV. A further notification was issued under Section 1(3) of the Act bringing Chapter III of the Act as amended into force. No notification h .....

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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 .....

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rder to appreciate the contentions of the learned Counsel on the question of the validity of the provisions of Chapter III of the Act it is necessary to notice the relevant provisions of the Act bearing on this question. The following definitions were brought to our notice : 2(5) 'Ceiling area' means an extent of land equivalent to twenty standard acres; "2(17) 'Landlord' means a person immediately under whom land is held by a raiyat or a tenant; Explanation I-A raiyat or a .....

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r (c) by servants or hired labour on wages, payable in cash or in kind, but not in crop share, under one's personal supervision or the personal supervision of any member of one's family; "2(30) 'standard acre' means the unit of measurement of land equivalent to one acre of Class I land, or one acre and a half of Class II land, or three acres of Class III land, or four acres of Class IV land;" "2(31) 'tenant' means a person who has no rights in the land of a .....

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ated value partly in any of the ways described above and partly in another; 12. Chapter II deals 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 cu .....

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n 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 payable in the prescribed manner by the tenant which shall be determined in accordance with Sub-sections (2) and (3) of Section 28. Sub-section (2) enables the compensation to be fixed and paid .....

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such certificate to the authority competent to maintain the record-of-rights. Section 30 provides that the tenant shall with effect from the beginning of the year next following the date of the issue of the certificate under Section 29 become a raiyat in respect of the land for which compensation has been determined under Section 28. Sub-section (2) provides that the installments of the compensation amount together with interest due thereon shall remain a first charge on the land to which it re .....

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uch persons in respect of the land shall thereafter attach to the other lands of the landlord. Section 32 provides that the certificate issued under Section 29 shall be conclusive proof the correctness of the contents thereof in respect of all disputes between the tenant and the persons whose rights stand extinguished in pursuance of Section 31. Section 33 provides for determination of fair and equitable rent for non-resumable land and the persons to whom it is payable. Section 34 provides that .....

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her 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 sa .....

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Punjab Act were summarised by this Court thus: Thus, the Act seeks to limit the area which may be held by a land-owner for the purpose of self-cultivation, thereby, releasing "surplus area" which may be utilized for the purpose of resettling ejected tenants, and affording an opportunity to the tenant to become the land-owner himself on payment of the purchase-price which, if anything, would be less than the market value. 14. The argument addressed to us was answered by Sinha, J., as he .....

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. The Act modifies the landowner's substantive rights, particularly, in three respects, as indicated above, namely, (1) it modifies his right of settling his lands on any terms and to any one he chooses : (2) it modifies, if it does not altogether extinguish, his right to cultivate the "surplus area" as understood under the Act; and (3) it modifies his right of transfer in so far as it obliges him to sell lands not at his own price but at a price fixed under the statute, and not to .....

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ifies the landlord's substantive rights in various respects inasmuch as it enables the determination of resumable land which the land-owner would be entitled to cultivate himself and regarding the non-resumable land the tenant is given the right to acquire it on payment of compensation. This falls within the protection given 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 fo .....

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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 se .....

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w for the time being in force. Further it does not seem to us that the 5 acres of land mentioned above are under his personal cultivation. We have already set out the definition of the words "personal cultivation". Mr. C. B. Agarwala has drawn our attention to similar definitions in various Acts. 19. In The United Provinces Tenancy Act, 1959 "Khudkasht" means land (other than Sir) cultivated by a landlord, as under-proprietor or a permanent tenure-holder as such either himsel .....

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