SHALIABI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Is the Maharashtra Act No. 26 of 1976 by which the words "the possession of such land has not been taken under sub-section (4) of section 21" in section 45(2) of the Maharashtra Agriculture Lands (Ceiling on Holdings) Act, 1961 (the Principal Act), have been deleted void for want of Presidents assent is the sole point to be determined in this Letters Patent Appeal. Section 45(2) as it stood before this amendment read thus :

(2.) Undisputed broad position is : Sou motu power of revision under section 42(2) of Principal Act, has been exercised by the Commissioner-a delegate of the State Government under section 45(3) after the possession of the Land delimited as surplus under section 21(1) has been taken under section 21(4). The Principal Act which relates to acquisition of land and passed on 16-6-1961 having been reserved for the assent of the President has received the assent as per the mandate of old Article 31 of the Constitution which has now been omitted by the Constitution (44th Amendment Act, 1976. The Principal Act was put in 9th Schedule made under Article 31-B. By Act No. 32 of 1965, original sub-section (2) of section (2) of section 45 was substituted by new sub-section (2) and (3). By Act No. 21 of 1975, the revisional power under section 45(2) in so far as it related to enquiry and order about distribution of surplus land under section 27 was withdrawn. By Act No. 2 of 1976 sub-section (3) dealing with the power of State to delegate was amended. All these three amending Acts were reserved for the assent of the President and had received it. By Act No. 26/1976, section 45 is amended fourth time. It has not received the Presidents assent. It is brought into force from 5th August 1976. Following three conditions precedent were attached to exercise of revisional jurisdiction :

(3.) Heart of the matter is whether the above condition (b) was an inextricable part of the process of acquisition or not and whether it could be removed without Presidents assent ? In our view this call for examination of the scheme of the Principal Act so far as it relates to the process of acquisition. The Principal Act impose the maximum limit on the holding of agricultural land and provides for acquisition and distribution of lands held in excess of the ceiling limit. The term land is defined under section 2(16). Chapter II deals with the lowering of the Ceiling on Holdings; Chapter III with restrictions on transfer and acquisition, consequences of contraventions etc. and Chapter IV with the surplus land. A return of holdings has to be submitted by the land holder in terms of section 12. Section 14 contemplates enquiry by the Collector. Section 16 deals with selection of land within ceiling limit for retention by the landholder. Section 17 to 20 deals with manner of holding enquiry. Section 21 deals with the declaration regarding surplus land etc. and consequences thereof. Section 21(1) mandates the Collector to make a declaration. Section 21(2) mandates the preparation of a statement in the prescribed form giving details of the area description and full particulars of the land which is delimited as surplus land and also of the land therefore, the right, title and interest in which is to be forfeited to the State Government. On the date of making declaration under section 21(1), the right, title and interest in the land which is liable to forfeited to stand forfeited and vests in the Government after which transfer of land in any manner is prohibited. Sub-section (3) which is most material reads thus:---