G.C. Mathur, J. - (1.) The following two common questions have been referred in these three special appeals for decision to this Bench at the instance of a Division Bench: 1. Whether for purposes of fixing, Under Sec. 4 of the U.P. Imposition of Ceiling on Land Holdings Act (U.P. Act I of 1961), the ceiling area in regard to land falling in areas described in Clauses (a) to (f) of Sec. 337 of the UP ZA and LR Act (Act No. 1 of 1951), the same should be computed in accordance with the provisions contained in Sec. 337 of the UP ZA and LR Act?
(2.) In case the answer to the above question be in the affirmative, whether the computation in the three appeals before us should be two acres for one acre as provided originally in Sec. 337 of the UP ZA and LR Act or it should be on the basis of one and a half acres for one acre as provided by the amendment of Sec. 337 by the U.P. Land (Amendment) Act (U.P. No. 4 of 1969)? 2. A preliminary objection has been raised by the learned Standing Counsel that these questions do not arise in any of the special appeals in which the references have been made and that we should decline to answer the questions. The principal contention raised by the Appellants is that, since the land in each one of these cases lies in Bundelkhand, each tenure -holder was entitled to retain 80 acres of Fair Quality Land as his ceiling area and not merely 40 acres as in other parts of the State. The learned Standing Counsel has pointed out that, in none of these cases, was this point raised either before the Prescribed authority or before the appellate authority, nor was this point raised before the learned Single Judges who heard the three writ petitions out of which the special appeals arise. Throughout the cases have proceeded on the footing that the ceiling area for the tenure -holders was 40 acres of Fair Quality Land. The question now is whether it is open to us and proper to say that the two questions referred do not arise in the special appeals and to decline to decide them on that ground.
(3.) Rule 6 of Ch. V of the Rules of Court provides: The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event, the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein. On the strength of this rule, it was urged by Sri V.K.S. Chaudhari, learned Counsel for the Appellants, that this Bench cannot go behind the order of reference and is bound to answer the questions referred. He has also relied upon the following observations of Desai, C.J. in State of U.P. v/s. Firm Deo Dutt Lakhan Lal : 1965 AWR 546: AIR 1966 All. 73: Sri S.N. Kaoker, appearing in Sp. As. Nos. 918 and 931, contended that there is conflict between the two Full Bench decisions and that, in any case, referring the special appeals to a larger Bench was not correct or justified. The special appeals have been referred to this Bench by an administrative order of the Chief Justice and it has no jurisdiction to consider its merits. It derives its jurisdiction over the special appeals from the order of the Chief Justice passed under Rules of Court and it has not been alleged that it is against any provision of Rules of Court. The Chief Justice passed the order on a Judicial order passed by a Bench that to resolve the conflict between the two Full Bench decisions, they may be referred to a larger Bench, e.g., a Bench of at least five Judges. It is not open to any member of this Bench to question that order of the Division Bench and I can only express surprise at the suggestion made by counsel that he can do so and that this Bench can hold that the order passed by the Chief Justice referring the special appeals to a Bench of five Judges was not proper or legal. Jagdish Sahai, Broome, Manchanda and Pathak, JJ., the other learned Judges who constituted the Bench, observed: We are in agreement with the conclusions drawn by the learned Chief Justice. It was strenuously contended by Mr. Khare that the Full Bench has been wrongly constituted inasmuch as the judgment of B.D. Gupta, J has been affirmed by a Division Bench of this Court consisting of V.G. Oak and Seth, JJ. but now that a Full Bench has been constituted, we do not think it is for us to enter into the question of the propriety of the constitution of this Bench. The learned Standing Counsel was unable to place any case before us in which a Full Bench has declined to answer a question of law referred to it for decision In these circumstances, we do not think that, we would be justified in declining to answer the questions referred to us for decision. It is for the Bench to see that the questions really arise in the case before it makes the reference. Once a question of law has been referred to a Full Bench, the Full Bench has to proceed on the assumption that the Bench was, at least, prima facie satisfied that it properly arises in the case. It goes without saying that, after it has received the answers given by the Full Bench and when it is disposing of the case finally, the Bench may still take the view that the question does not arise in the case or that it should not be allowed to be raised. It will avoid the making of an unnecessary reference if a decision in this regard is taken before making the reference. The learned Standing Counsel brought to our notice the following observations of a Full Bench of this Court in Durga Gita Vidyalaya Association v/s. State of U.P., 1962 AWR 243: We may observe that the relief by way of writ is a proceeding of an exceptional type. The Court should not allow it to be utilised by a party for the purpose of obtaining its opinion on hypothetical and abstract questions, not directly arising in the case before it, nor for the purpose of seeking declarations that are futile and irrelevant so far as the matter in issue is concerned. While exercising writ jurisdiction Under Article 226, the High Courts in India do not act in an advisory capacity and however fascinating might appear to be the form in which a party is able to present a legal question before the Court, the latter should resist the temptation of entering into this alluring region unless the legal question posed before it can be shown to be directly related to the specific right sought to be asserted or enforced in the writ petition itself. These observations should be kept in mind by Judges and Benches making references to larger Benches. We accordingly reject the preliminary objection.;