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PETITIONER: GURDIT SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT10/04/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.

CITATION:  1974 AIR 1791            1974 SCR  (3) 896  1974 SCC  (2) 260

ACT: Pepsu  Tenancy and Agricultural Lands Act, 1955--As  amended by Act 16 of 1962 introducing Sec.  32--DD(b)--Retrospective effect  of--Determination  of surplus  area--Previous  order declaring no surplus land on basis of judgment and decree of Civil  Court--Whether can be reviewed under Sec.  32-DD(b)-- Natural justice. Judgment--Connotation of--Interpretation of statutes--Object of  provision  is  circumscribed  by  the  language  of  the section.

HEADNOTE: The lands in question were bequeathed to appellants 2 and 3, sons  of the first appellant, by their  grandfather.   After the death of the testator mutations in favour of  appellants 2  and 3 were effected in the revenue records in 1939.   The first  appellant managed to get the mutation of the land  in his  name  in  1944 for the reason that  he  wanted  to  get licence  for a gun.  In 1955, when the Act came into  force, the first appellant was shown to be the owner of the land in the  revenue  records.   On October 30,  1956  the  Act  was amended so as to impose a ceiling on the holding of land. Appellants  2  and 3 filed a suit in the civil court  for  a declaration  that the land belonged to them and  that  there was  no  transfer of the land to the first  appellant.   The latter, who was the only defendant, did not contest the suit and  it  was decreed on February 14,  1961.  rhereafter,  in proceedings under the Act, by order dated March 28, 1961 the Collector  declared on the basis of the judgment and  decree of  the  civil court that there was no surplus land  in  the ownership and possession of the first appellant. The  ’Act  was amended by Act 16 of 1962 and  S.  32-DD  was introduced  into  the  Act with  retrospective  effect  from October  30, 1956, i.e. the date of the  earlier  amendment. Section  32-DD provided inter alia that for the purposes  of determining  the surplus area of any person,  any  judgment, decree  or order of a Court obtained after the  commencement of  the  amending  Act  of 1956 and  having  the  effect  of diminishing  the area of such person which could  have  been declared  as  his  surplus  area  shall  be  ignored.    The Collector,  acting purportedly under Sec. 15 of  the  Punjab Land  Revenue Code reviewed his order dated March 28,  1961.

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By order dated May 20, 1963 he refused to give effect to the judgment and decree by ignoring them as enjoined by  section 32-DD  and  included the land in the holding  of  the  first appellant. The  appellants filed a writ petition in the High  Court  to quash this order.  The High Court overruled the  contentions of the appellants and dismissed tile writ petition.   Before this  Court,  the appellants raised  the  same  contentions, namely  :  (i)  that the Collector had  no  jurisdiction  to review  his order dated March 28. 1961; (ii) that the  order in  review was passed without notice to the appellants;  and (iii)  that, in any event. the judgment of the  civil  court was not of the nature contemplated by section 32-DD. Allowing the appeal, HELD:(1)  The  order of the Collector dated  March  28, 1961, was in perfectly valid one when it was passed.  No one challenged that order and it became final for all  purposes. The  Collector could not have anticipated the  enactment  of the  section with retrospective effect and passed the  order conforming  to its provisions.  We cannot subscribe  to  the view  that  the order of the Collector passed on  March  28, 1961, became null and void merely because he failed to  take into account the provisions of Sec. 32-DD even if by  virtue of  the fiction it is to be assumed that the section was  on the statute book when he passed it.  We do not 897 think  that we can extend the ratio of the decision  in  the Anisminic  case  (infra)  to  a  case  where  the  provision overlooked  during the course of the enquiry was not on  the statute  book  but  was  begotten  and  brought  into  being subsequently, though with retrospective vitality.  The order of the Collector dated March 28, 1961 cannot, therefore,  be regarded  as null and void.  There was no provision  in  the amending  Act which enabled the Collector to review it.   We cannot  stretch the fiction of retrospectivity so far as  to make the order null and void without further ado. [899 D-900 B] Anisminic Ltd. v. Foreign Compensation Commission, [1967]  3 W.L.R. 382, distinguished. (II)we are also not satisfied that the Collector was acting in consonance with the principles of natural justice when he passed  the  order  dated  May  20,  1963,  as  he  gave  no opportunity to appellants 2 and 3 of being heard.  The  fact that  the  first appellant was heard before that  order  was passed is of no moment because the persons who were  vitally concerned  in  reopening the case were appellants 2  and  3. Admittedly, no notice of the proceedings to reopen the  case was  given to them.  If notice had been given to them,  they could  have  shown  the true nature  and  character  of  the judgment of the civil court upon which they relied. [900  B- D] (III)Not are we satisfied that every judgment which has the  apparent  effect of diminishing the area of land  of  a person  would  be  within the ambit of  S.  32DD(b).  )  The judgment of the civil court adjudicated on the rights of the parties as they existed before the suit and when it declared that  the  mutation  was  effected  not  with  the  idea  of transferring  the  property to the first appellant  but  for some  other reason, the effect of the declaration  was  that there was no real transfer of the property in favour of  the first appellant and that the property remained always in the ownership  of  appellants  2  and  3,  notwithstanding   the purported transfer evidenced by the mutation in the  revenue records.   It  is impermissible to give  the  wide  language employed in clause (b) of Sec. 32DD an unconfined operation.

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If  the effect of the judgment is only to declare  that  the land  never belonged to the first appellant, it has not  the effect  of diminishing the area of land in  his  possession. The  object of this provision in an Act like the  one  under consideration is to prevent circumvention of its  provisions by dubious and indirect methods.  But that is no reason  why we  should  put a construction upon the  section  which  its language  can  hardly bear.  The High Court  went  wrong  in assuming  that the Collector was right when he  ignored  the judgment by his order dated May 20, 1963 on the ground  that it had effect of diminishing the area of the first appellant which could have been declared as his surplus. [900 F 901 G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1897  of 1967. From the Judgment and Order dated the 27th September,  1966, of  the  Punjab High Court at Chandigarh in Civil  Writ  No. 1371 of 1963. S.   K.  Mehta,  K.  R. Nagaraja, M.  Qamaruddin  and  Vinod Dhawan, for the     appellants. V.   C.  Mahajan, O. P. Sharma and R. N. Sachthey,  for  the respondents. The judgment of the Court was delivered by MATHEW, J. The first appellant is the father of appellants 2 and  3. The property in question belonged to the  father  of first  appellant.  By a will executed by him, he  bequeathed the  property to appellants 2 and 3. After the death of  the tastator,  mutations  in favour of appellants 2 and  3  were effected  in  the  revenue records in  the  year  1996  B.K. (1939).  The first appellant managed to get the mutation  of the land 898 in  his  name in 1944 for the reason that he wanted  to  get licence  for  a gun.  In 1955, when the  Pepsu  Tanancy  and Agricultural Lands Act (hereinafter referred to as the  Act) came  into  force, the first appellant was shown to  be  the owner  of the land in the revenue records.  Chapter IV-A  of the Act was inserted by Pepsu Act No. 15 of 1956 on  October 30,  1956 and by s. 32A of this chapter, ceiling was  placed on the holding of land. A  suit  was filed by appellants 2 and 3 for  a  declaration that  the land belonged to them, that, the mutation  of  the land  in  the  name of the first appellant  in  the  revenue records was for the purpose of enabling him to obtain a  gun licence and that there was no transfer of the land to  first appellant.   The first appellant was the only  defendant  in the suit.  He did not contest the suit and it was decreed on February  14,  1961.  A few weeks later,  the  question  of- declaration of the surplus area of the (and in the hands  of the,  first appellant came up for consideration  before  the Collector  of  Bhatinda.  On the basis of the  judgment  and decree passed by the Civil Court that there was no  transfer of  the land to the first appellant, the Collector,  by  his order  dated  March  28, 1961, declared that  there  was  no surplus  land in the ownership and possession of  the  first appellant. The  Act was amended by Act No. 16 of 1962 and s. 32-DD  was introduced  into  the  Act with  retrospective  effect  from October 30, 1956.  That section reads :               "32-DD.  Future tenancies in surplus area  and               certain   judgments   etc.  to   be   ignored-               Notwithstanding  anything  contained  in  this

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             Act, for the purposes of determining the  sur-               plus area of any person-               (a)   a tenancy created after the commencement               of  the Pepsu Tenancy and  Agricultural  Lands               (Second  Amendment) Act, 1956, in any area  of               land  which  could have been declared  as  the               surplus area of such person; and               (b)   any judgment, decree or order of a court               or   other  authority,  obtained   after   the               commencement of that Act and having the effect               of  diminishing the area of such person  which               could  have been declared as his surplus  area               shall be ignored." The Collector thereupon made a reference presumably under S. 15  of  the  Punjab Land Revenue Code for  sanction  to  the Commissioner of Patiala to review his order dated March  28, 1961,  as it omitted to include the land in question in  the holding of the first appellant on the basis of the  judgment and decree.  The sanction was given, the Collector  reviewed the order and he refused to give effect to the judgment  and decree  by  ignoring  them  as  enjoined  by  s.  32-DD  and ;included the land in the holding of the first appellant. The  appellants filed a writ petition in the High  Court  of Punjab  to quash this order.  Before the High  Court,  three contentions were raised 899 by   the   appellants  :(1)  that  the  Collector   had   no jurisdiction  to review his order dated March 28, 1961;  (2) that  the order in review was passed without notice  to  the appellants-, and (3) that, in any event, the judgment of the civilcourt only made a declaration as regards rights of  the parties on the date of the suit and it was not, therefore, a judgment  of the nature contemplated by s. 32-DD.  The  High Court overruled all the contentions and held that the  order of the Collector was rendered null and void by virtue of the provisions of s. 32-DD and, therefore, the Collector had the power  to  determine by his order dated May  29,  1963,  the surplus  area after ignoring the judgment and  decree.   The High Court said that since mandatory provisions of s.  32-DD which  has  retrospective  operation  were  not  taken  into consideration,  the order passed by the Collector  on  March 28, 1961 was non est as being one made without  jurisdiction and that, the order dated May 20, 1963, must be deemed to be the order determining the holding of the first appellant for the purpose of the Act as amended. We are not satisfied that this is a correct approach to  the question.  The Collector purported to act under s. 15 of the Land  Revenue  Code, which, obviously, has  no  application. The  High  Court did not rest its decision on s. 15  of  the Punjab  Land  Revenue Code for holding  that  Collector  had jurisdiction to pass the order dated May 20, 1963.  When the Collector passed the order dated March, 28, 1961 determining the  surplus  area in the hands of the first  appellant,  he took  into consideration the effect of the judgment  of  the civil  court declaring that the mutation of the name of  the first  appellant in the revenue record was effected only  to enable him to obtain a gun licence.  That order of the  Col- lector  dated March 28, 1961 was a perfectly valid one  when it  was passed.  No one challenged that order and it  became final  for  all  purposes.  It was only when  s.  32-DD  was incorporated  in  the  Act with  retrospective  effect  from October 30, 1956 that the question arose whether that  order was valid.  The Collector could not have anticipated the en- actment of the section with retrospective effect and  passed the order conforming to its.provisions. It is rather curious

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that  the draftsman of the amending Act No. 16 of  1962  did not  incorporate  a provision for reopening  orders  already passed  before s. 32-DD came to be enacted as  that  section was  made  retrospective.  We cannot subscribe to  the  view that  the  order of the Collector passed on March  28,  1961 became  null and void merely because be failed to take  into account the provisions of s. 32-DD even if by virtue of  the fiction  it  is to be assumed that the section  was  on  the statute  book  when  he passed it.  We  are  aware  that  in Anisminic  Ltd.  v. Foreign Compensation  Commission(1)  the House  of  Lords  has  held that  even  if  a  tribunal  bad jurisdiction  to  enter upon an enquiry, the  fact  that  it overlooked  an applicable mandatory provision in the  course of  the enquiry Would denude it of its jurisdiction; but  we doubt  whether that principle has any application in a  case when the provision overlooked was not in actual existence at the  time when the inquiry was conducted and the  order  was passed.  In other words, we do not think that, we can extend the  ratio of the decision in that case to a case where  the provision overlooked during the course of the inquiry (1) (1967) 3 W.L.R. 382, 900 was  not  on the statute book but was begotten  and  brought into being subsequently, though with retrospective vitality. The  imagination  sometimes  has  to  boggle  before   stark reality.   The order of the Collector dated March 28,  1961, cannot,  therefore, be regarded as null and void.  It Was  a valid  order when it was passed, and there was no  provision in  the amending Act which enabled the Collector  to  review it.   We  cannot stretch the fiction so far as to  make  the order null and void without further ado. We  are also not satisfied that the Collector was acting  in consonance  with the principles of natural justice  when  he passed  the  order  dated  May  20,  1963,  as  he  gave  no opportunity to appellants 2 and 3 of being heard.  The  fact that  the  first appellant was heard before that  order  was passed is of no moment because the persons who were  vitally concerned  in  reopening the case were appellants 2  and  3. Admittedly, no notice of the proceedings to reopen the  case was  given  to  them.  It is not for us  to  speculate  what defences  were  available to them and whether  the  defences available would have materially affected the destiny of  the decision.   We do not think it necessary, to decide in  this case  whether the failure to observe the rule  audi  alteram partem  would per se vitiate an order or whether it is  also necessary to show prejudice to the person affected resulting from  the  failure to observe the rule.  Suffice it  to  say that  in the present case we are of the view that if  notice had  been  given to appellants 2 and 3, they could,  at  any rate,  have  shown  the true nature  and  character  of  the judgment of the civil court upon which they relied. It  is.  relevant to note that the judgment itself  was  not challenged  as collusive by the respondents.  We  are  quite aware  that the defendant in the suit in which the  judgment was  obtained,  namely,  the first appellant,  did  not  put forward any contention.  But it would be rash to jump to the conclusion  from  the  mere fact that  no  defence  was  put forward  by the first appellant in the suit that the  decree was obtained collusively.  Under s. 43 of the Evidence  Act, a  person who is not a party to a judgment can show that  it was  obtained  by fraud or collusion., No such  attempt  was made in this case. Nor  are  we  satisfied that every judgment  which  has  the apparent effect of diminishing the area of land of a  person would  be  within  the  ambit  of  s.  32-DD(b).   Generally

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speaking,  a  judgment  adjudicates on .the  rights  of  the parties  as  they existed before the suit in  which  it  was obtained. A  judgment  is  an  affirmation of  a  relation  between  a particular predicate and a particular subject.  So, in  law, it  is the affirmation by the law of the legal  consequences attending a proved or admitted state of facts.  It is always a  declaration  that a liability, recognised as  within  the jural  sphere, does or does not exist.  A judgment,  as  the culmination  of  the action, declares the existence  of  the right, recognizes the commission of the injury, or negatives of the allegation of one or the other(1). A  judgment of a court is an affirmation, by the  authorised societal agent of the state, speaking by warrant of law  and in the name of the (1)  See Black on Judgments, Vol. I, 2nd ed., pp. 1-2. 901 state,  of  the  legal consequences attending  a  proved  or admitted state of facts.  Its declaratory, determinative and adjudicatory  function  is its  distinctive  characteristic. Its  recording  gives an official certification  to  a  pre- existing  relation or establishes a new one on  pre-existing grounds(1). The judgment of the civil court with which we are concerned, adjudicated  on  the rights of the parties as  they  existed before  the suit and when it declared that the mutation  was effected  not with the idea of transferring the property  to the first appellant but for some other reason, the effect of the  declaration was that there was no real transfer of  the property  in  favour  of the first appellant  and  that  the property  remained always in the ownership of  appellants  2 and  3, notwithstanding the purported transfer evidenced  by the mutation in the revenue records.  It is impermissible to give the wide language employed in clause (b) of s. 32-DD an unconfined  operation.  When a transfer or mutation is  made on account of fraud or mistake and if a suit is filed for  a declaration  that  the  transfer or  mutation  was  made  on account  of  fraud  or  mistake  and  a  judgment  obtained, certainly  the  judgment  would  not  have  the  effect   of diminishing  the  area  of a person which  could  have  been declared  as a surplus area within the meaning of  S.  32-DD (b).   The legal effect of such a declaration would be  that the transferee or the person in whose name the mutation  was effected  had no right in the property.  The land must  have belonged  to  the first appellant prior to the  judgment  in order that it might be postulated that the judgment has  the effect  of diminishing the total area in his hands.  To  put it  differently, prior to the judgment, the land  must  have belonged to him in order that it may be said that the effect of the judgment is to diminish the area of his holding.   If the effect of the judgment is only to declare that the  land never  belonged  to  the  first appellant, it  has  not  the effect of diminishing the area of land in his possession. We are  aware that the object of this provision in an Act  like the  one under consideration is to prevent circumvention  of its provisions by dubious and indirect methods.  But that is no reason why we should put a construction upon the  section which its language can hardly bear.  It would have been open to the respondents to allege and prove that the judgment was obtained  collusively.  But that could have been  done  only after notice to appellants 2 and 3 and after giving them  an opportunity of being heard.  Therefore, to say, as the  High Court has said, that no prejudice was caused to appellants 2 and 3 for want of an opportunity to them of being heard,  is neither here nor there.  We think the High Court went  wrong

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in assuming that the Collector was right when he ignored the judgment by, his order dated May 20, 1963 on the ground that it  had  the  effect of diminishing the area  of  the  first appellant which could have been declared as his surplus. We,  therefore,  set aside the order of the High  Court  and allow the appeal.  We ’make no order as to costs. S.B.W.               Appeal allowed. (1)  See Borchard, "Declaratory Judgments", 2nd ed., pp.  8- 10. 902