CHANDER SEKHAR SINGH BOI ETC. v. THE STATE OF ORISSA ETC. November 5, 1971 [S. M. SIKRI, C.J., J. M. SHELAT, I. D. DUA, S. C. Roy ANO G. K. MITTER, JJ.J c Constitution of India, 1950, Art. 3 JA-'Modification', scope of-Appli- cability 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, nieaning of. By the Orissa Land Reforms Act, 1965. the Ori~sa Land Rtforms Act, 1960, was amen<ji:d by substituting new Chaps. III and IV for tile original Chaps. JII 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. Ill, 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. llJ was ·1 valid piece of legislation but that Chap. IV was unconsti- tutional and invalid.
In appeal to this Court it was contendeJ : (I) that the provisions of Chap. III were invalid because they were not protected by the provisions of Art. 31(A)ll) of the Constitution as they do not provide for the acquisition by t.he State of any estate or of any rights therein or the ex- tinguishment or modification of any such rights; (2) if the 11rovisions of Chap. Jll amounted to acquisition market value was payable as com-
pensation under the second proviso to the Art_icfe and not the compen~ sation as fixed in s. 28 of the Act; (3) Chap. IV was ultra vir_, the provisions of the second proviso to Art. 31-A(l) of the Constitution. Dismissing the appeal,
HELD : ( 1) The provisions of Chap. III of the Act modify the land- lord's substantive ri,,ghts in various respects inasmuch as they enable the determination of resumable land which the land owner would be entitled to cultivate himself, and reg3.rding non-resumable land, the tl.!nant is given a right to acquire it on payment of compensatio~. Therefore, these provisions fall within the protection given by Art. 31-A(l) of the Con- stitution. f286 D·F]
Atma Ram v. State of Puniab, [19591 Supp. 1 S.C.R. 748 753; 767, followed. (2) The second proviso to Art.. 31A(l) is not applicable because .. no ceiling limit within the meaning of the proviso to Art. 31-A(l) has been fixecl.
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 cu1tivation as used in the proviso is cultivation by or on hehalf of the owner of the land. The appellant is the owner of Bbagchar lands, , and under· this tenure the cultivator shares his crop with the owner.
A crop-sharer does not cultivate on bem!f of the landlord and therefore the Bhagchar lands are not undelr the appellant'• person cultiva!fon. [287 B-D; 288 A-Bl (3) The High Court should not have gone into question of
the validity of Chap. IV Courts ordinarily ought not to go into ti>, question .if 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. no body could be aggrieved by a provision of Jaw wh_ich is dormant and which cannot be enforcod.
Therefore, this Court would not go into the question whether the provisions of Chap. IV were ultra vires or not /,282 O- State of Orissa y. Chander Sekhar, [1970] I 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. Agqrwa/a, S. P. Nayar for R. N. Sachthey, for the res- -pondent (in C.A. No. 854 of 1968) and the apJl'~llant (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, C.J. The appellan~, 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 1to 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 tho~ Amending Act. He alleged that he owned about 220 acres of self-cultivated land and that he had about 5 acres of Bhagchar !<ind. This petition was heard alongwith a number ol other petitions by the High Court, and the l;Iigh Court by its common judgment datr…d 30th January, 1967 disposed of all these petitions. The
High Court came to ~he conclusion that "Chapter III of the Amending Act is a valid piece of legislation or in other words, ·1t does not suffor 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 peti- tions in part and directed the State not to give effect to the provi- sions of Chapter IV of the Amending Act.
Th~ State filed a numbe; ?f. appeals against that judgment :and this Court (Shah and Va1dialmgam, JJ.) allowed 1the appeals c CHANDER SEKHAR v. ORISSA (Sikri, C.J.) and set aside the order passed by the High Court declaring Chapter IV of Act XIII of 1965 amending Act XVI of 1960 ul1ra vires (State of Orissa v. Chander Sekhar)(1). Civil Appeals No. 1028, 1033 & 1907/1968, 1865-67 & 248711969 are by the State of
Orissa (hereinafter referred to as the State apl?e~ls) but these could not be heard by this ~ourt (Shah and Va1d1almgam, JJ.). The present appeal ( C.A. No. 854 of 1968) was also not heard with the other appeals.
Jn Civil appeal No. 854 of 1968 the appellant urged: (ll (2) That the High Court erred in holding Chapter III of the Act as inserted by AC't XIII of 1965 in Act XVI of 1960 intra vires; and
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. 31-A( 1) of the Con- stitution. In the other appeals the State urged that the previous decision be followed and the judgment of the High Court sei 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 reconsidera- tion. We may mention that the respondents in the other appeals have noi 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 tq agrarian reforms and land tenures consequent on the gradual abolition of inter-mediary interest; AND WHEREAS it is expedient to confer better
rights on agriculturists to ensur:e increase in food pro- duction 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 Govern!Ilent may from time to time by notification appoint; and different dates may be ap- pointed 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 (I) [1970} I S.C.R. 593. [1972] 2 S.C.R .. 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 ~he President and was first published in the extraordinary issue of the Orissa Gazette dated 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 Chap- ters 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 fqrce except Chap- ters 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 !P 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 whic1' is dormant and which cannot be enforced. The Constitution has provided for an advisory opinion being given by the Supreme Court, when llhe 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 Chap- ter IV into force. However, the appellant Chander Sekhar Singh
was a party to the decision in State of Orissa v. Chander Sekhar(1) and thafjudgment is binding on him. He cannot ask us to reviP-w 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 ill 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 : (I) [1970] 1 S.C.R. 591. c c n CHANDER SEKHAR V. ORISSA (Sikri, C.J.) "2(5) 'Ceiling area' means an extent of land equiva- lent to twent;y 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 deem- ed to be a landlord in relation to the tenant or tenants
immediately under him; Explanation 11-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 super- vision of any member of one's family;"
"2 ( 30) 'standard acre' means the unit of measure- ment 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 another but under the system generally known as Bhag, Sanja or. Kata or such similar expres- sion 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 T/72 Chap'.er 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 accor- dance 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 pe1iod uf 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 pro- vides that while deciding matters under s. 27 the Revenue Officer shall determin~ 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 instalments 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 com- pensation 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 speci- fying 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 compensa- tion has been determined under section 28. Sub-section (2) provides that the instalments 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) mediately or immediately under whom the land was being held shall st.and extinguished and the encumbrances, if any, created by such per- sons in respect of t:Jie land shall thereafter attach to the other lands of the landlord. Section 32 provides that the certificate issued under s. 29 shall be conch,1sive proof the correctness of c
c CHANDER SEKHAR Ji. ORISSA (Sikri, C.1.) 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 detennination of fair and equit- able rent for non-resumable land and the persons to whom it is payable.
Section 34 provides that on the detennination 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 certi- ficate Ul_!der 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 detennine 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(l) because they do not provide for the acquisition by the State_ of any estate or of any rights therein or the extinguish- ment or modification of any such rights.
He said that the crea- tion_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 ~aid .to be extinguished.
We see no force in this contention, similar argument was addressed to this Court in Atma Ram v. State of Punjab ( 1). This Court was then dealing with the provi- sions 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-culti- vation, thereby, releasing "surplus area" which may be utilized for the purpose of re~ettfing 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." 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 riizht. In our opinion, it is not necessary to discuss this rather metaphysical argument, because, in our (1) [1959] Supp, (I) S.C.R. 748; 753; 767. (1972] 2 S.C.l{. opinion, it is enough for the purpose of this case. to hold that the ~revisions of the Act, amount to modification
of the Jantlowner's rights in the lands comprised in his "estate"· or "holding"'. The Act modifies the land- owner's substantive rights, particularly, in three res- pects, as indicated above, namely, (l) 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 accor- dance with the provisions of the Act, set out above.
Thus, there cannot be the least doubt that the provi- sions of the Act, very substantially modify the land- owner'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. 3 lA 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 landlord's subs- tantive rights in various respects inasmuch as it enables the deter- mination ot resumable land which the land-owner would be
entitled to cultivate himself and regarding the non-resumable lantl the tenant is given the right to acquire it on payment of compensation. This falls within the protection given by
Art. 31All). The leamed counsel then referred to the second proviso to Art. 31 A (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 Jaw relating to the acquisition of such land, building or structure provides for payment of compen-
sation 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('), he said that the provisions of Chapter Ill amounted (1) [1967] 2 S.C.R. 14~.
II c c ff CHANDER SEKHAR v: ORISSA (Sikri, C.J.) to acquisition and accordingly the niarket value was payable as compensation under the second proviso and not the compensa- tion 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 N,
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 pcoviso because till a notification under s. I (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 ~eem to us that the 5 acres of .land inentioned 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 defini- tions 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 pemrnnent, tenure-holder as such either himself or by servants or by.hired labour.
In the Delhi Land Reforms Act, I 954, "Khudkasht" has been defined thus : "'Khudkasht' means land (other than Sir) cultivat- ed by a proprietor either by himself or by servants or
by hired labour,- ( a) at the comme.ncement 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 conunericement, provided that it has not, at any time after having been so cultivated, been let out to a tenant." In the Bihar Land Refonns Act, 1950 "Khas possession" .means:
" 'Khas possessiqn' used with reference to the po.- session of a proprietor or to tenure-holder of any land used for agricultural or horticultural purposes means the .pos.session of such prop~etor or tenure-holder by
c.uluvatmg such. land or. carrymg on horticultural opera- tions thereon himself with his own stock or by his own servants or b)I hired labour or with hired stock." SUPREME OOURT REPORTS
(1972] 2 S.C.R. In 9ur view the words 'personal cultivation" in the Second proviso·to Art. 31A(l) 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 \enure known as Bhagchar, the cultivator shares his crop with the owner. So, when he grows the crop he grows it in bis own right and not on behalf of any person.
Therefore, it is difficult to hold that a crop-sharer 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 ~~~. c In the result, Civil Appeal No. 854 of 1968 is dismissed, but there will by no order as to costs. The other appeals are allow- ed, and the writ petitions filed by the responde.nts in the State appeals are dismissed.
There will be no order as to costs in these appeals. V.P.S.