Chander Sekhar Singh Boi Vs. The State
of Orissa [1971] INSC 305 (5 November 1971)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) SHELAT,
J.M.
DUA, I.D.
ROY, SUBIMAL CHANDRA MITTER, G.K.
CITATION: 1972 AIR 486 1972 SCR (2) 279 1972
SCC (1) 63
ACT:
Constitution of India, 1950, Art.
3LA--`Modification', scope of-Applicability of second proviso when provisions
regarding ceiling limit are not in force.
Courts-Jurisdiction to go into vires of
provisions not brought into force.
Bhagchar tenure, meaning of
HEADNOTE:
By the Orissa Land Reforms Act, 1965, the
Orissa Land Reforms Act, 1960, was amended by substituting new Chaps.
III and IV for the original Chaps. III
and-IV. By notifications issued under s. 1(3) of the Act, under which different
dates may be appointed by notification for the coming into force of different
provisions of the Act, the Act and Chap. III, as amended, were brought into
force; but no notification bringing into force the provisions of Chap.
IV dealing with ceiling was issued. The
appellant challenged the validity of the Act. The High Court held that Chap.
III was a valid piece of legislation but that Chap. IV was unconstitutional and
invalid.
in appeal to this Court it was contended (1)
that the provisions of Chap. III were invalid because they were not protected
by the provisions. of Art. 31 (A) (1) of the Constitution as 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; (2) if the provisions
of Chap. III amounted to acquisition market value was payable as. compensation
under the second proviso to the Article and not the compensation as fixed in s.
28 of the Act; (3) Chap.
IV was ultra vires the provisions of the
second proviso to Art. 31-A(1) of the Constitution.
Dismissing the appeal,
HELD : (1) The provisions of Chap. III of the
Act modify the landlord's substantive rights in various respects inasmuch as
they enable the determination of resumable land which the land owner would be
entitled to cultivate himself, and regarding non-resumable land, the tenant is
given a right to acquire it on payment of compensation. Therefore, these
provisions fall within the protection given by Art.
31-A(1) of the Constitution. [286 D-F] Atma
Ram v. State of Punjab, [1959] Supp. 1 S.C.R. 748 753;
767, followed.
(2) The second proviso to Art., 31A(1) is not
applicable because, no ceiling limit within the meaning of the proviso to Art.
31-A(1) has been fixed,. Till a notification under s. 1(3) of the Act is issued
bringing in force the provisions of Chap. IV it cannot be said that there is
any ceiling limit applicable to the appellant under any law for the time being
in force. Moreover the essence of personal cultivation as used in the proviso
is cultivation by or on behalf of the owner of the land. The appellant is the
owner of Bhagchar lands, and under this tenure the cultivator shares his crop
with the owner. A crop-sharer does not cultivate on behalf of the landlord and
therefore the Bhagchar lands are not under the appellant's person cultivation.
[287 B-D; 288 A-B] 280 (3) The High Court should not have gone into question of
the validity of Chap. IV 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, because, nobody could be
aggrieved by a provision of law which is dormant and which cannot be enforced.
Therefore, this Court would not go into the question whether the provisions of
Chap. IV were ultra vires or not [282 D-F] State of Orissa v. Chander Sekhar.
[1970] 1 S.C.R. 593, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 854, 1028, 1033 and 1097 of 1966, 1866 to 1867 and 2487 of 1969.
Appeals from the judgment and order dated
January 30, 1967 of the Orissa High Court in O.J.C. Nos. 329 of 1965 etc.
Somnath Chatterjee and G. S. Chatterjee, for
the appellant (in C.A. No. 854 of 1968) and respondent no. 2 (in C.A. No. 1867
of 1969).
C. B. Agarwala, S. P. Nayar for R. N.
Sachthey, for the respondent (in C.A. No. 854 of 1968) and the appellant (in
C.As. Nos. 1028, 1033 and 1097 of 1968, 1865 to 1867 and 2487 of 1969).
The Judgment of the Court was delivered by
Sikri, CJ. The appellant, Chander Sekhar Singh Bhoi, in Civil Appeal No. 854 of
1968, filed a petition under Art.
226 of the Constitution (No. O.J.C. 329/1965)
in the Orissa High Court, challenging the Orissa Land Reforms Act of 1960.
herein:after referred to as the Principal Act
(Act XVI of 1960) as amended by the Orissa Land Reforms Act, 1965 (Act XIII of
1965) hereinafter referred to as the Amending Act.
He alleged that he owned about 220 acres of
self-cultivated land and Chat he had about 5 acres of Bhagchar land.
This petition was heard along with a number
of other petitions by the High Court, and the high Court by its common 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.
The State filed a number of appeals against
that judgment .and this Court (Shah and Vaidialingam, JJ.) allowed the appeals
281 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) (1). 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.
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 Art. 31A(1) of the Constitution.
In the other appeals the State urged that the
previous decision be followed and the judgment of the High Court set aside. On
behalf of the respondent in C.A. No. 1867 of 1969 it is urged that the judgment
of this Court is erroneous and needs reconsideration. We may mention that the
respondents in the other appeals have not entered appearance.
The Orissa Land Reforms Act, 1960, received
the assent of the President on October 17, 1960 and was published first in the
extraordinary issue of the Orissa Gazette dated November 11, 1960. 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." Section 1 (3) of the Act provides:
"It shall come into force in whole or in
part, on such date or dates as the Government may from time to time by
notification appoint, and different dates may be appointed for different
provisions of this Act." On June 20, 1964 by virtue of Constitution
(Seventeenth Amendment) Act, 1964, the Orissa Land Reforms Act. 1960 was (1)
[1970] 1 S.C.R. 593.
282 included in the 9th Schedule to the
Constitution as entry
52. On August 11, 1965 the Orissa Land
Reforms Amending Act 1965 (Act XIII of 1965) received the assent of the
President and was first published in the extraordinary issue of the Orissa
Gazette dated 17th August, 1965. By the Amending Act various provisions 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.
On September 25, 1965, a notification under
Sec. 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
has as yet been issued under Section 1(3) of the Act bringing the provisions of
Chapter IV into force. 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.
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. Nobody 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 appellant Chander Sekhar Singh was a party to the
decision in State of Orissa v. Chander Sekhar (1) and that judgment is binding
on him. He cannot ask us to review the judgment in this manner.
In order 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 (1) [1970] 1 S.C.R. 593.
283 "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 tenant shall be
deemed to be a landlord in relation to the tenant or tenants immediately under
him;
Explanation II--Government shall be deemed to
be the landlord in respect of the lands held directly under them either by a
raiyat or a temporary lessee or a tenant;" "2(22) 'personal
cultivation' with its grammatical variations and cognate expressions means to
cultivate on one's own account-(a) by one's own labour; or (b) by the labour of
any member of one's family; or (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 Il and, or one acre and a half of Class II land, or three
acres of Class III land, or four acres of Class TV land;" "2(31) 'tenant'
means a person who has no rights in the land of another but under the system
generally known as Bhag, Sanja or Kata or such similar expression or under any
other system, law, contract, custom or usage personally cultivates such land on
payment of rent in cash or in kind or in both or on condition of delivery to
that person(a) either a share of the produce of such land; or (b) the estimated
value of a portion of the crop raised on the land; or (c) a fixed quantity of
produce irrespective of the yield from the land; or (d) produce or its
estimated value partly in any of the ways described above and partly in
another;" 5-L500 Sup C 1/72 284 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 cultivation by a
landlord from a tenant. We are not concerned with S. 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 S. 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 S. 27 the Revenue Officer
determines the particulars of the resumable lands and the non-resumable lands.
Section 28 provides that while deciding matters under s. 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-ss. (2) and (3) of S. 28.
Sub-section (2) enables the compensation to
be fixed and paid in annual installments mentioned therein. Sub-s. (3) provides
for compensation for wells, tanks and structures of a permanent nature at the
market value thereof to be paid along with the compensation under sub-s. (2).
Under S. 29, after the disposal of appeal, if any, the Revenue Officer has to
issue a certificate in the prescribed form to the landlord and also to the
tenant specifying all matters to be determined under ss. 27 and 28. He is
further directed to send a copy of 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 relates and shall be recoverable to the
Revenue Officer by the person entitled thereto. Section 31(1) deals with the
persons entitled to receive compensation, and under sub-s. (2), with effect
from the date the tenant becomes a raiyat under S.30, he holds the land free
from all encumbrances, and the rights of all persons (not being Government or a
landholder) immediately or immediately under whom the land was being held shall
stand extinguished and the encumbrances, if any, created by such persons in
respect of the. land shall thereafter attach to the other lands of the landlord.
Section 32 provides that the certificate
issued under S. 29 shall be conclusive proof the correctness of 285 the
contents thereof in respect of all disputes between the tenant and the persons
whose rights stand extinguished in pursuance of s. 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 on the determination of the
resumable lands the tenant on such land shall cease to have the right to continue
in cultivation thereof with effect from the date of expiry of the year next
following the date of issue of the certificate under s. 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 S. 26, and enables the
Revenue Officer to determine resumable and non resumable lands and other
matters required to be determined under ss. 27 and 28. Section 36 provides for
eviction of a landlord and a tenant who fail to personally cultivate the land
without sufficient cause.
The learned counsel challenged the provisions
of Chapter III on the ground that they are not protected by the provisions of
Art. 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(1). This Court was then
dealing with the provisions of the Punjab Security of Land Tenure Act, 1953.
The provisions of the 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 t
enant to become the land-owner himself on payment of the purchase-price which,
if anything, would be less than the market value." The argument addressed
to us was answered by Sinha, J., as he then was, thus :
"In this connection, it was further
argued that extinguishment of a right does not mean substitution of another
person in that right, but total annihilation of that right. In our opinion, it
is not necessary to discuss this rather metaphysical argument, because, in our
(1) [1959] Supp. (1) S.C.R. 748; 753; 767.
286 opinion, it is enough for the purpose of
this case to hold that the provisions of the Act, amount to modification of the
landowner's rights in the lands comprised in his "estate" or
"holding". 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 any one but to specified persons, in accordance with the
provisions of the Act, set out above. Thus, there cannot be the least doubt
that the provisions of the Act, very substantially modify the landowner's
rights to hold and dispose of his property in any estate or a portion thereof.
It is, therefore, clear that the provisions of Art. 31A save the impugned Act
from any attack based on the provisions of Arts. 14, 19 and 31 of the
Constitution." It seems to us that this Act also modifies the landlords
substantive rights in various respects inasmuch as it enables the determination
of resumable land which the landowner 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 Art.
31A(1).
The learned counsel then referred to the
second proviso to Art. 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 applicabl e 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 land, building or structure
provides for payment of compensation at a rate which shall not be less than the
market value thereof." Relying on the majority judgment in Ajit Singh v.
State of Punjab(1), he said that the provisions of Chapter III amounted (1)
[1967] 2 S.C.R. 142.
287 to acquisition and accordingly the market
value was payable as compensation under the second proviso, and not the
compensation as fixed in S. 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 said that
although no notification under s. 1(3) of the Act had been issued bringing the
provisions of Chapter IV, which dealt with ceiling the ceiling limit applicable
to him would be the ceiling limit as provided in Chapter IV.
It seems to us that there is no ceiling limit
applicable to him within the meaning of the proviso because till a notification
under s. 1 (3) is issued it cannot be said that there is any ceiling limit
applicable to him under any law 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.
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 himself or by
servants or by hired labour.
In the Delhi Land Reforms Act, 1954,
"Khudkasht" has been defined thus :
" 'Khudkasht' means land (other than
Sir) cultivated by a proprietor either by himself or by servants or by hired
labour,(a) at the commencement of this Act, or (b) at any time during the
period of five years immediately before the commencement of this Act, whether
or not it was so cultivated at such commencement, provided that it has not, at
any time after having been so cultivated, been let out to a tenant." In
the Bihar Land Reforms Act, 1950 "Khas possession" means " 'Khas
possession' used with reference to the possession of a proprietor or to
tenure-holder of any land used for agricult ural or horticultural purposes
means the possession of such proprietor or tenure-holder by cultivating such
land or carrying on horticultural operations thereon himself with his own stock
or by his own servants or by hired labour or with hired stock." 288 In our
view the words 'personal cultivation" in the Second proviso to Art. 31A(1)
must bear a similar meaning. The essence of "personal cultivation"
seems to be cultivation by or on behalf of the owner of the land. It is quite
clear that under the tenure known as Bhagchar, the cultivator shares his crop
with the owner. So, when he grows the crop he grows it in his own right and not
on behalf of any person. Therefore, it is difficult to hold that a cropsharer
cultivates on behalf of the landlord.
In the result we hold that the High Court was
right in holding that Chapter III of the Act is valid. We further hold that the
High Court should not have gone into the question of the validity of Chapter IV
and we accordingly set aside that part of the judgment.
In the result, Civil Appeal No. 854 of 1968
is dismissed, but there will be no order as to costs. The other appeals are
allowed, and the writ petitions filed by the respondents in the State appeals
are dismissed. There will be no order as to costs in these appeals.
V.P.S.
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