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TMI Blog1989 (8) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... 4426, 4430, 4449, 4459, 4463, 4464, 4465, 4466, 4469, 4474, 4476, 4480, 4481, 4482, 4499, 4505, 4511, 4512, 4514, 4515, 4516, 4517, 4518, 45!9, 4522, and 4524 of 1988 and 5,6,10,26,32,34,35,37,38,39,41,42,47,48, 51,53,55,65,66,76,80,82,83,85,89,91,92, 93,97,98,99,100,109,116,118,120,124,131, 133, 135, 137, 144, 152, 154, 155, 156, 157, 158, 164, 165, 167, 170, 172, 173, 176, 177, 178, 186, 187, 192, 193, 194, 195, 202, 205, 206, 207, 208, 218, 222, 224, 226, 228, 229, 231, 232, 234, 235, 236, 243, 249, 250, 255, 256, 262, 269, 272, 273, 276, 277, 279, 280, 281, 282, 283, 284, 289, 291, 305, 306, 308, 347, 355, 368, 370, 375, 387, 388, 389, 394, 397, 404, 413, 416, 417, 419, 432, 441, 443, 460, 461, 470, 482, 486, 490, 494, 495, 497, 499, 500, 501, 503, 505, 514, 507, 520, 529, 530, 543, 546, 547, 548, 549, 553, 554, 555, 556, 557, 558, 559, 560, 562, 566, 567, 568, 569, 570, 573, 599, 607, 616, 618, 624, 636, 639, 650, 654, 657, 682, 685, 686, 687, 696, 698, 737, 740, 752, 753, 771, 788, 799, 820, 832, 836, 837, 841, 842, 933, 970, 977, 984, 997,1008,1009,1012,1014,1025,1059,1072, 1078, 1094, 1103, 1104, 1106, 1107, 1108, 1109, 1123, 1146, 1147, 1148, 1150, 1158, 1159, 1160, 1164, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of three months from the appointed day, a return containing requisite information. Section 10 of the Act empowers the competent authority to require any person to furnish return of land held in excess of the ceiling area in case he fails to submit the return. By Section 11(1) of the Act, the competent authority is required to prepare a draft statement in respect of each person holding land in excess of the ceiling area. Sub-section (3) of Section 11 of the Act provides for publication and service of the draft statement in the manner prescribed. It further provides that any objection to the draft statement received within 30 days of the publication, shall be considered by the competent authority who shall pass an order after giving the objector an opportunity of being heard. Sub-section (4) of Section 11 of the Act lays down that while considering the objections or otherwise, if the competent authority finds that any question has arisen regarding the title of a particular holder and such question has not already been decided by a Court of competent jurisdiction, the competent authority shall proceed to enquire summarily into the merits of the question and pass such orders as it thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Court shall not prevent the competent authority from disposing of the cases under this Act, notwithstanding any stay granted or other process issued by the Civil Court debarring the competent authority for doing so. (3) If the final disposal of the case pending before the Civil Court results in declaration of the title of land to a person other than the holder of the land who had filed return under this Act, such person shall not be entitled for the land of which he had claimed the title, if such land already stands distributed in accordance with the provisions of this Act and in that event, the said person shall be paid market value of the said land calculated in such manner as may be prescribed. Section 11-B inserted by the Amending Act, reads as under : 11- B. If the final disposal of the case before the Appellate Authority or Revisional authority results in- (i) declaration of title of land to a person other than the holder of the land who has filed return under this Act; or (ii) declaration of land to be exempted from the provisions of this Act; or (iii) entitlement of holder or person other than holder under any of the provisions of this Act; Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, in the impugned provisions, is cured by the declaration made in Section 2 of the Amending Act that the said Act is for giving effect to the policy of the State towards securing principles specified in Clauses (b) and (c) of Article 39 and Article 46 of the Constitution of India. The question as to whether the provisions of the Amending Act have the protective umbrella of Article 31(c), need not detain us because even assuming it to be so, it would only bar challenge to the validity of the provisions of the Amending Act on the ground that they are violative of the provisions of Articles 14 and 19 of the Constitution. But the challenge of the petitioners to the validity of the impugned provisions is not based on the ground that they are inconsistent with or that they take away or abridge any of the rights conferred by Article 14 and 19 of the Constitution. The grievance of the petitioners is that these provisions make a direct inroad into the judicial powers of the State and are, therefore, violative of the Rule of law which is a basic and essential of our Constitution. It is, therefore, necessary to examine this aspect of the matter. Now what is meant by judicial power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Section 42-A inserted by the Amending Act, lays down that the stay granted by the appellate authority before 1st of November 1988 shall, on 1st November, 1988 stand vacated. No doubt the power to grant stay by a Civil Court or by an appellate or revisional authority in any case arising under the Act has been taken away by the Amending provisions, but these provisions have been brought into force with effect from 1-11-1988. We shall later on deal with the question as to whether the provisions of the Amending Act taking away with effect from 1-11-1988 the power of the Court or the appellate authority or revisional authority to grant stay, are or are not valid. But in any event, prior to 1-11-1988, the Civil Court and the appellate or revisional authority had power to grant stay. Section 11A(2) and the proviso to the Section 42-A, as inserted by the Amending Act, enables the competent authority to flout an order passed by a Civil Court or an appellate or revisional authority in exercise of judicial power. In our opinion, it is not permissible for the Legislature to say that an order of a Court or Tribunal properly constituted and passed in exercise of its judicial powers in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not bind it. Similarly, by a bare declaration in the proviso to Section 42-A, the legislature has enacted that the stay granted by the appellate or revisional authority before 1-11-1988 shall stand vacated. This amounts to exercise of judicial power by he legislature because the effect of these provisions is to render the order of stay properly passed by a Civil Court or by an appellate or revisional authority under the Act inoperative. These provisions cannot but be held to be violative of the Rule of law which is a basic and essential feature of the Constitution. These provisions, therefore, deserve to be struck down. Let us now turn to the provisions of Sub-section (3) of Section 11-A, Section 11-B and the proviso to Sections 41 and 42 of the Act, as amended by the Amending Act. The effect of these provisions is that notwithstanding any order or decision by a Court or an appellate authority, a person shall not be entitled to land, but only to compensation. These provisions, therefore, have the effect of modifying an order or decision given by a Court or a Tribunal in exercise of judicial power so that even of a person becomes entitled to land by virtue of an order pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where a strong prima facie case is made out, then even if ultimately the impugned order passed by the competent authority declaring any land as surplus is set aside, restitution would be practically impossible if the land in question has already been distributed to other persons, as provided by the Act. For the effective exercise of appellate jurisdiction, an appellate authority grants stay. That is why it has been observed by the Supreme Court in Income Tax Officer, Cannanore v. M. K. Mohammad Kunhi AIR 1969 SC 430 that the appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. In order that an appellate authority may not excise this power in a routine way, the statute may provide that no order for stay be passed unless certain conditions are satisfied so that the appellate authority acts rightly and fairly towards all the parties concerned. But by prohibiting an appellate or revisional authority from passing an order staying the order of the competent authority, whose order is the subject-matter of appeal or revision, the decision of the appellate or revisional authority setting aside the order of the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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