http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 25  

PETITIONER: MAHENDRA LAL JAINI

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH AND OTHERS

DATE OF JUDGMENT: 07/11/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1019            1963 SCR  Supl. (1) 912  CITATOR INFO :  RF         1964 SC 381  (53)  D          1967 SC1480  (13,21)  RF         1967 SC1643  (118)  E          1968 SC 331  (12)  RF         1972 SC2205  (26)  RF         1974 SC1300  (35,41)  RF         1979 SC  25  (35)  R          1984 SC1260  (14A)  R          1985 SC1622  (16)  D          1988 SC1621  (4)

ACT: Compulsory  acquisition--Permanent  Lease-Statute  declaring transfer  void-No  provision  for  compensation-Statute,  if provides  for compulsory acquisition--Constitutionality  of- Doctrine  of eclipse-If not applicable to  post-Constitution statutes-U.P. Land Tenures Regulationof  Transfers)  Act, 1952 (U.P. 15 of 1952), s.3--Constitution of India Arts. 13, 31-Constitution (Fourth Amendment)Act 1955. Forest-Declaration  as reserve forest-Statute providing  for interim control-Constitutionality of-Indian Forest Act, 1927 (16  of 1927), Chs. II and V-Indian Forest  (U.P  Amendment) Act, 1956 (U.P. 5 of 1956), s. 3.

HEADNOTE: By  a registered lease dated June 14, 1952, one M granted  a perpetual   lease  of  certain  lands  to  the   petitioner. Formally  a large number of trees stood on these  lands  and the lease deed recited that the entire land had been cleared of the trees and possession given to the petitioner who  was made  a hereditary tenant of the land.  The U. P.  Zamindari Abolition and Land Reforms Act, 1951, ’hereinafter  referred to  as the Abolition Act) was made applicable from  July  1, 1952, In the meantime the U. P, Land Tenures (Regulation  of Transfers)  Act,  1952  (hereinafter  referred  to  as   the Transfer  Act)  was  passed  which  came  into  force   with retrospective effect from May 21 ,  913 1952.   By  this Act all transfers  made  by  intermediaries

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 25  

after May 21, 1952, were declared void.  The petitioner  was ordered  to  desist from clearing the land  and  from  doing anything  contrary to the U. P. Private Forests  Act,  1948. On  March  23, 1953, the respondent  issued  a  notification under s. 4 of the Indian Forests Act 1927, declaring that it had  been decided to constitute certain lands including  the lands in dispute a "reserve forest".  Later, a  proclamation under s. 6 was issued calling for objections from  claimants but  the petitioner did not file any objections.   In  March 1956,  the  Indian  Forest (U.   P.  Amendment)  Act,  1956, (hereinafter  referred to as the.Forest Amendment  Act)  was passed which introduced a new Ch.  VA consisting,ss. 38A  to 38G  in  the Forest Act.  A fresh  notification  was  issued prohibiting   various  acts  mentioned  in  s.   38B.    The petitioner  contended that the Transfer Act and  the  Forest Amendment   Act   were   unconstitutional   and   that   the restrictions          imposed upon him under  these two Acts were  illegal.  The respondent contended that the  two  Acts were  valid and that the petitioner acquired no right  under the lease and had no right to maintain a writ petition under Art. 32. Held, that so long as the lease stood, the petitioner had  a right  to maintain the petition.  The lease created a  right in presenti and not merely some future right.  The fact that the  nature  of the right was disputed did  not  affect  the right to maintain the petition. Held,  further, that the Transfer Act was  unconstitutional. It deprived the petitioner of his property without providing for  payment  of any compensation and contravened  Art.  31. The Transfer Act was law for acquisition of property when it was  passed in 1952 and the constitution (Fourth  Amendment) Act, 1955, which laid down that a law which did not  provide for the transfer of ownership or right to possession to  the State  was  not  a law for  the  compulsory  acquisition  or requisition  of  property, was not applicable  to  it.   The constitutionality of a law had to be judged on the basis  of the Constitution as it stood at the time the law was passed, subject to any retrospective amendment of the  Constitution. The Constitution (Fourth Amendment) Act, 1955, could not  be applied  to  the Transfer Act by virtue of the  doctrine  of eclipse.  This  doctrine was applicable to  pre-Constitution laws but not to post-Constitution laws. State  of  West Bengal v. Sabodh Gopal Bose,  [1934]  S.C.R. 587,  Saghir Ahmad v. The State of U. P., [1955] 1  S.C.  R. 707,  Karam Singh v. Nihal Khan, A. I. R. (1957)  All.  549. Bombay Dyeing and Manufacturing Co. Ltd. v. The State of 914 Bombay,  [1958] S. C. R. 1122, Behram Khurshed  Pesikaka  v. The State of Bombay, [1955] 1 S. C. R. 613, Keshavan Madhava Menon  v. The State of Bombay, [1951] S. C. R. 228,  Bhikaji Narain  Dhakras v. The State of Madhya Pradesh, [1955] 2  S. C.  R.  589  and Deep Chand v. The State  of  Uttar  Pradesh [1959] Supp. 2 S. C. R. 8, referred to. Held,  further,  that  the Forest  Amendment  Act  ,was  not unconstitutional.  Chapter VA introduced by Ch.  II in  the, Indian  Forest Act was ancillary to Ch. 11 and not  to,  Ch. V.  Chapter VA was a mere interim measure to deal  with  the situation arising after the Abolition Act while steps  were being  taken to constitute reserved forests under Ch.   II.. As originally enacted.  Ch.  VA was ancillary to Ch. 11  and gave  further powers of control besides those  contained  in Ch.   II.  during the period that proceedings under  Ch.  11 were  pending.  These provisions which were for the  interim protection of the forests pending declaration of forests  as reserved  forests  were  in the  interests  of  the  general

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 25  

public.  The Amendment Act of 1960 which enacted ss. 38H  to 38M  made no difference to the position that ss. 38A to  38G as originally enacted were ancillary to Ch.  II" Held,  further, that ss. 38A to 38G of the Forest  Act  were applicable  to  the lands in dispute.  Chapter 11  to  which these sections were ancillary, dealt inter alia with  forest and  waste  land  belonging to the  Government.   After  the Abolition Act. the proprietary rights in the land vested  in the Government and the petitioner who claimed to have become a bhumidar could not be a proprietor but only tenure-holder.

JUDGMENT: ORIGINAL JURISDICTION PetitiOn No. 59 of 1962. Petitioner  under Art. 32 of the Constitution of  India  for the enforcement of Fundamental Rights. C.B. Agarwala and K. P. Gupta, for, the petitioner. G. S. Pathak, K. S. Hajela and C. P. Lal, for the respondents 1962.  November 7. The judgment ’of the Court was  delivered by WANCHOO, J.-This petition under Art. 32 of the  Constitution challenges the constitutionality of 915 U.   P. Land Tenures (Regulation of Transfers) Act 1952, (U. P.  XV of 1952), (hereinafter called the Transfer  Act)  and the Indian Forest (U.  P. Amendment) Act 1956, (U.  P. V  of 1956),  (hereinafter  referred to as  the  Forest  Amendment Act.)  The  case  of the petitioner is that  he  obtained  a permanent  lease  from  the Maharaja  Bahadur  of  Nahan  of certain  land  known  as  "asarori"  land,  situate  in  the district  of ’Dehra Dun, in Uttar Pradesh.  The area  leased ’out to him was 1069.68 acres in Khewat No. 1, Mahal No.  8, Khasra Nos.  1A, 1B and 2. This land was originally a  Crown grant and had been free from revenue since 1866.  Initially, it   belonged  to  Major  P.  Innes  but  was   subsequently transferred  to the Maharaja Bahadur of Nahan.   On  January 25, 1951, an agreement was executed by the Maharaja  Bahadur in favour of the petitioner and one Virendra Goyal for lease of  this land for a consideration of an annual rent  of  Rs. 2,200/-  and  a premium of Rs. 64,000/-.   The  petitioner’s case  further is that the possession of the land in  dispute was delivered to him at the time the agreement to lease  was executed.   It appears that at that time a large  number  of trees  were standing on this land and  the-Maharaja  Bahadur had given a contract for the removal of the trees to another person  with a view to making the land culturable,  and  the intention  of  the  lessor was to demise  the  land  to  the petitioner  after  the  trees  were  removed,  so  that  the petitioner may carry on agricultural operations thereon.  On June  14,1952,  a registered was executed  by  the  Maharaja Bahadur  in favour of the petitioner and Virendra Goyal  and it was recited therein that the entire land had been cleared of the trees and had been in possession of the lessees  from the date of the agreement referred to above.  Therefore,  in fulfillment  of  the  agreement,  the  lease  was   executed demising  to the lessees the land in question on  an  annual rent of Rs. 2,200/-.  The lease was permanent, heritable and transferable.   The lease also provided that the lessor  had given the right of 916 hereditary  tenancy within the meaning of the U. P.  Tenancy Act,  1939 to the lessees.  The lessees were also given  the right  to put the land to any other use  whatsoever  besides agriculture  and  subterranean rights were  also  conferred.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 25  

They had also the right to sub-let and assign the land. The  petitioner’s  case further is that  Virendra  Goyal  is merely  a benamidar and has no right, title or  interest  in the land in dispute and that a suit for declaration in  that behalf  is pending in the Civil Court at Dehra  Dun  between the  petitioner  and  Virendra  Goyal.   A  day  after   the agreement  of  lease  was  executed,  the  U.  P   Zamindari Abolition and Land Reforms Act, No. 1 of 1951,  (hereinafter referred  to  as  the Abolition Act),  came  into  force  on January 26, 1951, and the land in dispute is land within the meaning of this Act.  The Abolition Act was actually applied to  this  area by a notification issued under s.  4  thereof from  July  1, 1952, shortly after the registered  lease  in favour  of  the petitioner and another had been  made.   The contention  of the petitioner is that in consequence of  the application   of  the  Abolition  Act  to  this  area,   the petitioner  became a bhumidhar of the land under s.  18  (d) (iii)  of the Abolition Act and that his  bhumidhari  rights still  subsist.   On July 5, 1952, the  petitioner  and  his employees  went  to  the  land  to  carry  on   agricultural operations, but they were stopped from doing so by the  City Magistrate,  Dehra  Dun  along with  the  Divisional  Forest Officer  and  the Tehsildar, Dehra Dun.  He was  ordered  to desist  from  clearing the land until further  orders.   The matter was then referred to the Government of Uttar Pradesh, and  the  petitioner  was  ordered  to  desist  from   doing anything,  which was contrary to the U. P.  Private  Forests Act  1948 (U.  P. VI of 1949).  It may be mentioned that  in the meantime the, Transfer Act which was passed on June  23, 1952,  came into force with retrospective  effect  from  May 21, 1952.  By this Act all transfers made by  intermediaries after May 21,                             917 1952,  were  declared void.  The  petitioner  was  therefore asked by the City Magistrate not to do anything contrary  to the  Transfer  Act until the orders of the  Government  were received  or the matter was decided by a court of law.   The petitioner’s case is that the land was no longer forest land when  the  registered lease in his favour was made  in  June 1952.   The  petitioner  then took up the  matter  with  the Government but his representation in that behalf was reject- ed in September 1952. Thereupon  in  November 1952, the petitioner  filed  a  writ petition-in  the  High Court at  Allahabad  challenging  the applicability  of the U. P. Private Forests Act to the  land in dispute and also challenging the constitutionality of the Transfer  Act.  An ad interim order was passed by  the  High Court  in  December 1952 restraining  the  respondents  from interfering  with the possession of the petitioner over  the land  in  dispute  and directing  that  the  parties  should maintain  the status quo.  In February 1955, the  petitioner withdrew  the petition filed in the High Court  for  various reasons into which it is unnecessary to go.  Thereafter  the petitioner requested the Collector, Dehra Dun, to allow  him to  carry  out  agricultural operations  over  the  land  in dispute and he supported this prayer by a further allegation that  he had at any rate become a sirdar within the  meaning of  s.  210 of the Abolition Act and was  thus  entitled  to retain  the land in dispute.  The Collector  again  informed the  petitioner  that the matter had been  referred  to  the Government  and  in the meantime the status  quo  should  be maintained.  In his present petition also, the petitioner in the alternative raises the plea that he has become a  sirdar of  the  land in dispute and as no steps were taken  by  the State to eject him within two years of the date of  vesting,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 25  

namely,  July  1,  1952,  he was.  entitled  to  retain  the possession of the land as sirdar. 918 On March 23, 1955, the Government of Uttar Pradesh issued  a notification under s. 4 of the Indian Forest Act, 1927, (XVI of  1927)  (  hereinafter referred to as  the  Forest  Act), declaring  that ’it had been decided to  constitute  Asarori village  including the land in dispute a "reserved  forest", and  appointing the, Forest Settlement Officer Dehra Dun  to call  for objections from claimants under Chap. 11 of  that, Act.  On April 26, 1955 , a proclamation was issued under s. 6 of the Forest Act, calling for objections, from claimants. The  petitioner,  however,  has  made no  claim  so  far  in pursuance  of  the  proclamation issued under s.  6  of  the Forest  Act, and his reason for this is that his matter  was still under the consideration of the Government as intimated to him by the Collector of Dehra Dun, and no orders had been passed by the Government thereon. On   December  3,  1955,  the  Governor  of  Uttar   Pradesh promulgated  an Ordinance, named as "The Indian  forest  (U. P.  Amendment)  Ordinance, 1955" adding Chap.   V-A  to  the Forest  Act,  and  a  notification  was  issued   thereunder restraining  the claimants as defined in s. 38-A from  doing acts prohibited under s. 38-B.  This Ordinance was made into an  Act  in  March 1956, namely,  the  Indian  Forest  (U.P. Amendment)  Act, 1966’ (U.  P. V of 1956) by which Chap  V-A was introduced into the Forest Act, and a fresh notification was issued under the Act prohibiting various acts  mentioned in  s.  38-B  thereof.  This is one of the  Acts  which  the petitioner  challenges as unconstitutional.  The  petitioner asserts  that  the  notification  of  March  17,  1956,  was cancelled on December 19, 1956, and thereupon he applied  to the  Collector again to allow him to reclaim the land.   The Collector  fold  him  in  reply  that  the  orders  of   the Government were awaited in that connection.  The  petitioner further  alleges  that in November 1957 the State  of  Uttar Pradesh  released over 293 acres out of the land in  dispute in favour of Virendra Goyal, his 919 benamidar.  The petitioner then made a representation to the Government in that behalf protesting against the release  of land  in  favour of Virendra Goyal, and  was  informed  that order  had been cancelled on August 14, 1958.  In May  1959, the legislature of Uttar Pradesh passed another Act known as the  Government  Grants (U.  P. Amendment) Act,  No.  IX  of 1959, and the petitioner contends that by virtue of this Act all other laws ceased to apply to the land in dispute but as this  Act was admittedly repealed by the  Government  Grants (U.    P.   Amendment)  Act,.   No.  XIII  of   1960,   with retrospective effect, nothing turns on this Act ’now, though the  petitioner  approached  the  Collector  of  Dehra   Dun immediately after U. P. Act No. IX of 1959 was passed to  be allowed  to carry on reclamation operations.  The  Collector however  told  him that he should do nothing  till  specific orders  were received from the Government or the matter  was decided by a court of law. Thereupon the petitioner filed a writ petition in this Court under  Art.  32 which was admitted in February  1960.   When this  writ petition came up for hearing on October 25  1961, this Court was informed that certain notifications had  been issued  under ss.38-B and 38-C of the Forest Amendment  Act. The  petitioner was there fore allowed on March 19, 1962  to withdraw that petition with liberty to present a fresh  writ petition  and  thereupon the present petition was  filed  in April 1962.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 25  

The  main contentions of the petitioner with respect to  the two Acts,, the constitutionality of which he challenges, are these.     He   contends   that   the   Transfer   Act    is unconstitutional, as it deprives the lessees of their lease- hold   rights   without,  any  provision  for   payment   of compensation in violation of Art. 31 (2) of the Constitution as   it   stood  before  the  Fourth,   Amendment   to   the Constitution.   In the alternative, he claims that  even  if the Transfer Act 920 is  valid,  he  has  become a sirdar under  s.  210  of  the Abolition  Act.   As  to the Forest  Amendment  Act,  it  is contended   that  it  is  unconstitutional  as  it   imposes unreasonable  restrictions on the fundamental right  of  the petitioner enshrined in Art. 19 (1) (f) of the Constitution. Besides  these two main objections, the  petitioner  further contends that the notification under s. 4 of the Forest  Act dated  March 23, 1955, was cancelled so far as the  land  in dispute  was  concerned and therefore would not  affect  the petitioner’s case.  It is also urged that as no notification under  s.20  of the Forest Act has been issued, it  must  be held  that  the purpose of the notification under s.  4  had been abandoned.  As to the notification under s. 38-B of the Forest   Amendment  Act,  it  may  be  mentioned  that   the petitioner  made no objections as required under  that  Act; but  he  claims that he could not do so because  before  the time  within  which he had to file objections  had  expired, U.P.  Act  IX  of 1959 had come into force and  it  was  not necessary for him to file any objection in view of that Act. The petitioner therefore prays that the Transfer Act and the Forest Amendment Act be declared ultra vires and all actions taken  thereunder  be  held  to  be  void  as  against   the petitioner.   He  further prays that he may  be  declared  a bhumidhar   or  in  the  alternative  a  sirdar  under   the provisions  of  the  Abolition Act and  the  respondents  be restrained from interfering with his possession of the land. He  also  prays that in case it is found that  he  has  been dispossessed, a writ in the nature of mandamus or any  other appropriate  direction  be issued  against  the  respondents directing  them to withdraw from possession of the  land  in dispute and to permit the petitioner to enjoy such rights to which he may be found entitled. The  petition  has been opposed on behalf of  the  State  of Uttar  Pradesh and it is maintained in the first place  that the  Transfer Act is valid and constitutional.  If  that  is held in favour of the respondent, 921 nothing else will survive, for no rights would then arise in favour of the petitioner under the registered lease of  June 1952.  Further.- it has been strenuously contended on behalf of  the state that the petitioner never obtained  possession over  the land in dispute.  It has also Seen contended  that the  land in dispute was never denuded of trees and that  it is  still forest land on which a large number of  trees  are standing.   The  petitioner’s  claim that he  has  become  a bhumidhar  under  the  Abolition Act is  also  denied.   His further claim that he has become a sirdar is also  repelled. The  case  of the State is that the petitioner  acquired  no rights  under the registered lease of June 1952 and  has  no right  to  maintain  the present  petition  in  consequence, irrespective  of  whether  the Transfer  Act  is  valid  and constitutional or not.  It is also contended that the Forest Amendment  Act  is  a  valid  and  constitutional  piece  of legislation  and the various notifications issued under  the Forest Act and the Forest Amendment Act are perfectly  good.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 25  

Lastly  it is contended that the notification under s. 4  of the   Forest  Act  has  never  been  withdrawn   though   no notification under s. 20 has yet been issued in deference to the fact that the writ petitions filed by the petitioner one after the other were pending either in the High Court or  in this Court.  The three main points therefore which arise for decision in the present petition are these :-               (1)   Has  the petitioner no right  whatsoever               to  any property by virtue of  the  registered               lease   deed  of  June  1952  in  his   favour               irrespective  of whether the Transfer  Act  is               valid and constitutional or not, and therefore               has  no locus standi to maintain  the  present               petition ?               (2)   Is  the  Transfer Act, 1952,  valid  and               constitutional ?               (3)   Is  the  Forest Amendment  Act  of  1956               valid and constitutional’,?               922 There  are  some  subsidiary points  with  respect   to  the notifications issued which also arise for consideration with which  we shall deal when considering the three main  points mentioned above. Re. (1). The petitioner bases his right to move this Court to protect his  fundamental right on the basis of the registered  lease in his favour of June 14, 1952.  There can be no doubt after a perusal of that lease which is not said to be a fictitious document,  that if various laws had not been passed and  had not  come into force that might have affected this land,  it would have conferred a right of property on the  petitioner, and  he would be entitled at least to be a permanent  lessee of the land in dispute with such rights as the lease confers upon  him.  It is therefore difficult to understand  how  it can  be said in the face of this lease that  the  petitioner has  no right to maintain the present petition.  It  may  be that  the  lease  may  be of no force  and  effect,  if  the Transfer  Act  is held valid-which is a  question  we  shall consider  later-; but once it is conceded that the lease  is not  fictitious, it does confer rights in the land  affected by  it on the petitioner.  We cannot see how the  petitioner would  have  no  right  to  maintain  the  present  petition irrespective  of  whether  the Transfer  Act  is  valid  and constitutional  or  not.  What rights are conferred  on  the petitioner  by this registered lease is a different  matter. The  petitioner claims that he has become a bhumidhar  under the  Abolition Act by virtue of this lease; in the  alterna- tive  he  claims that he has become a sirdar, as  he  is  in possession.   The State however denies that  the  petitioner has  become  a bhumidhar under the Abolition  Act;  it  also denies   that  the  petitioner  is  in  possession  and   in consequence  has become a sirdar, under the  Abolition  Act. The  petitioner  prays that his rights as a bhumidhar  or  a sirdar,  may  be decided in the present  petition.   We  are however of opinion that it                             923 will  not  be fair to either party to  decide  the  question whether or not the petitioner is either bhumidhar or  sirdar by  virtue of the registered lease or the possession of  the land demised which he claims, in "View of the provisions  of the  Abolition Act.  The petitioner’.-, status as  bhumidhar or sirdar will depend upon the decision of various questions of fact, and we do not think that it will be fair to  either party to decide those questions of fact merely on the scanty documentary   evidence   available  on   this   record,   in particular as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 25  

the question of possession is also  seriously disputed  and  further  there is a  serious  dispute  as  to whether  any  trees stand on this land even now  or  whether trees  had been cleared as recited in the registered  lease, before that lease was registered; these are all questions of fact  on which oral evidence will be necessary.  There is  a provision  in  the Abolition Act, s. 229-B, which  allows  a person claiming to be a bhumidhar or sirdar under it to file a  suit to establish that right.  We think, considering  the serious  dispute  as  to facts which  exists  in  this  case between the parties both as to the nature of the land and as to  the  possession of the petitioner, that  the  petitioner should  be left to establish his rights as bhumidhar  or  as sirdar  by  suit,  or it may also be  possible  for  him  to establish that right by filing objections in response to the proclamation under s.    6  of the Forest Act with which  we shall  deal in detail later.  Therefore- even though we  are not  prepared to decide the question whether the  petitioner is a bhumidhar or a sirdar, it seems to us that in the  face of the deed of lease in favour of the petitioner, it  cannot be  said  that  he. has no right  to  maintain  the  present petition (irrespective of whether the Transfer Act is  valid or not).  As we have already indicated, if the Transfer  Act is  valid, then the lease in favour of the  petitioner  will confer  no right on him and in that case his  petition  must fail.   But  if  the Transfer Act is not a  valid  piece  of legislation, the lease will stand and so long as it  stands, the petitioner would in our opinion be competent to maintain the present 924 petition, though we make it clear that we do not decide  in this  petition what right is conferred on the petitioner  by the  lease  and  whether he is a bhumidhar or  a  sirdar  by virtue of the lease and his alleged possession over the land demised  therein.  We are therefore of opinion that so  long as  the lease stands, the petitioner would have a  right  to maintain the present petition, though we express no  opinion as  to  the  nature  of  that right  and  leave  it  to  the petitioner to have that determined in a proper forum. It is also urged that no present tenancy right was conferred by  the lease on the petitioner though cl. (2) of the  lease purports  to  confer hereditary tenancy  rights  within  the meaning  of U. P. Tenancy Act, as the land was at  the  time covered  by  trees and was not fit  for  cultivation.   This again  raises the same question of fact, namely, the  nature of  land at the time of the execution of the lease.  It  may be  that no tenancy rights may be created in’ favour of  the petitioner  by  the lease, if it is found that the  land  in dispute was not land within the meaning of the U. P. Tenancy Act.   But  that again is a question which will have  to  be decided in the proper forum as indicated above by us.  There can  however  be  no doubt that the lease  did  create  some right, whatsoever be its nature, in presenti and though  the nature  of  that right may be disputed,, it is  not  a  case where   only  some  future  right  is  conferred.   In   the circumstances,  it cannot be said that no right whatever  in presenti  was  created  by  the  lease,  and  therefore  the petitioner is not entitled to maintain the present petition. Lastly,  it  is urged that the lease was in  favour  of  two persons, namely, the petitioner and Virendra Goyal, and  the present  petition has been filed only by the petitioner  and Virendra  Goyal  has not been made a party to  it,  even  as respondent.  It is urged therefore that the present petition is  not  maintainable on that ground also, and  reliance  in this connection is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 25  

925 placed  on  the analogy of suits, where all  co-owners  must join in a suit to recover property unless the law  otherwise provides,  and if some co-owners refuse to sue,  the  proper course to adopt as to the rest is to make them defendants in the  suit.   It  is  enough  to  say  that  this   principle applicable  to suits for possession can have no  application to  a  petition  under  Art. 32, which is  not  a  suit  for possession.  Besides the case of the petitioner is that  the other lessee was a mere benamidar and if that case is  right (on which again we express no opinion, as the matter is sub judice  in  a  civil  court  at  Dehra  Dun),  it  would  be unnecessary  to make Virendra Goyal even a  respondent.   If the petitioner has a right to maintain the present petition, the fact that he has not made another person who would  have equal right with him to maintain the petition, even a  party to  the petition, would not in our opinion entail  that  his petition  should be thrown out on that ground alone  and  he should not be granted any relief in the matter of  enforcing his fundamental right.  We are therefore of opinion that the petitioner  has  a right to maintain the  present  petition, though we express no opinion as to the nature of that right. Re. (2). The  Transfer  Act is a short Act of  three  sections.   The preamble to the Act says that as the Abolition Act has  come into  force  and  it  is  expedient  for  the  avoidance  of transitional   difficulties   consequent   upon   the   said enforcement  to  regulate  certain  transfers  of  land   by intermediaries,  the Act was enacted.  Section I  gives  the short  title,  the extent to which the Act extends  and  the date  from which it came into force, namely, May  21,  1952, though it was actually published on June 23, 1952.   Section 2 is the definition section.  Section 3 is the main section, which  lays down that notwithstanding anything contained  in any  law or contract to the contrary, a lease of land by  an intermediary either granted or registered on or 926 after May 21, 1952 shall be and is hereby declared null  and void from the date of the execution and the lessee shall for purposes of s. 180 of the U.P. Tenancy Act and s. 209 of the Abolition Act be deemed to be a person in possession of  the land otherwise than in accordance with the provisions of the law  for  the time being in force.  It is  further  provided that  a  transaction between an intermediary  and  a  tenant conferring  on  the tenant a right to transfer by  sale  his holding  or any part thereof either made or entered into  or registered  on or after May 21, 1952 shall be and is  hereby declared null and void from the date of execution.  It  will thus  be  seen  that the Transfer Act  makes  two  kinds  of transfers  made on or after May 21, 1952 null and  void  and thus  deprives  the transferee of the right which  he  would otherwise acquire under the transfer.  The contention of the petitioner  is that the Transfer Act contravenes Art. 31  of the Constitution, as it was at the time the Act was  passed, and therefore is unconstitutional, for though the transferee is deprived of his property, no compensation is provided  in the  Act  as  required by Art. 31(2)  of  the  Constitution. Reliance  in this connection is placed on the State of  West Bengal v. Subodh Gopal Bose(1), where dealing with Art.  31, the  majority  of the Court held that Art. 31  protects  the right to property by defining the limits on the power of the State  to take away private property.  It was  further  held that  clause  (1)  and  (2) of Art.  31  were  not  mutually exclusive in scope and content, but should be read  together and understood as dealing with the same subject, namely, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 25  

protection of the right to property by means of the  limita- tions, on the State power referred to above, the deprivation contemplated in cl. (1) being no-other than the  acquisition or  taking  possession of property referred to in  cl.  (2). The  decision in Subodh Gopal’s case(1) was referred  to  in Saghir  Ahmad v. The State of U. P.(2), and it  was  pointed out  that in view of the majority decision in that case,  it must  be taken to be settled that "’clauses (1) and  (2)  of article 31 are not (1) [1954] S.C.R. 587. (2) [1955] 1 S.C.R. 707.  927 mutually  exclusive in scope but should be read together  as dealing with the same subject, namely, the protection of the right  to  property by means of limitations on  the  State’s powers, the deprivation contemplated in clause (1) being  no other than acquisition or taking possession of the  property referred  to  in clause (2)".  Soon after  the  decision  in Subodh  Gopal’s  case(1),  Art. 31(2)  was  amended  by  the Constitution (Fourth Amendment) Act, 1955, and cl. (2A)  was introduced in Art. 31, the amendment being prospective.  The new  cl. (2-A) of Art. 31 lays down that "where a  law  does not  provide for the transfer of the ownership or  right  to possession of any property to the State or to a  corporation owned or controlled by the State, it shall not be deemed  to provide  for  the compulsory acquisition or  requisition  of property, notwithstanding that it deprives any person of his property." This amendment thus accepted the minority view of Das, J., as he then was, in Subodh Gopal’s case(1) and  made it  clear  that mere deprivation of  property,  without  the ownership  or right to possession being transferred  to  the State, would not attract the provisions of Art. 31(2).   The contention on behalf of the petitioner is that the amendment to  Art. 31 being not retrospective would not apply  to  the consideration of the constitutionality of the Transfer  Act, which  would  have  to be considered on  the  basis  of  the Constitution  as  it  stood in 1952.  It  is  not  seriously disputed   on  behalf  of  the  respondents  that   if   the Constitution as it stood in 1952 has to be applied to  judge the constitutionality of the Transfer Act, the case would be completely  covered  by  the  decision  in  Subodh   Gopal’s case(1),  and  the  Transfer Act  not  having  provided  for payment  of compensation, as required by Art. 31(2),  as  it stood  in 1952, would be unconstitutional. We are unable  to agree with the view taken by the High Court at Allahabad  in Karam  Singh  v.  Nihal Khan(2) insofar as  it  upholds  the validity of the Transfer Act. (1)  [1954] S.C.R, 587. (2) A.I.R. (1957) All. 549. 928 The  contention on behalf of the respondents in  support  of the constitutionality of the Transfer Act is, however,  two- fold.    In   the  first  place,  it  is  urged   that   the constitutionality of the Transfer Act must be judged on  the basis  of  the Constitution as it stood on the date  of  the present  petition  and not as it stood on the  date  of  the Transfer  Act.   Reliance in this connection  is  placed  on Bombay  Dyeing  and Manufacturing Co. Ltd. v. The  State  of Bombay  (1), where it was observed at p. 1131, that  it  was not  disputed  that the Constitution  Fourth  Amendment  Act which introduced cl. (2-A) in Art. 31 was not retrospective, and  that  the  rights of the parties  must  be  decided  in accordance with the law as on the date of the writ petition. It  is urged that this observation is an authority  for  the proposition  that in every case the constitutionality of  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 25  

Act has to be judged by the Constitution as it ’stood on the date  of  the writ petition.  We are of  opinion  that  this observation is not capable of this interpretation and  could not  have  intended to lay down any such  proposition.   The judgment in the Bombay Dyeing case (1) nowhere considers the question  whether the constitutionality of an Act has to  be judged  on the basis of the Constitution as it stood on  the date  on  which the Act was passed or on the  basis  of  the Constitution  as it stood on the date the writ petition  was made.   In  that  case it made  no  difference  whether  the Constitution a; it stood on the date the.  Act was passed or on  the date when the writ petition was filed, was  applied, for the writ petition was filed long before the Constitution Fourth *Amendment was enacted.  The observation therefore in that  case  that the constitutionality of an Act has  to  be judged on the basis of the Constitution as it stood on.  the date of the writ petition, cannot be given the meaning which the   learned  counsel  for  the  respondents  put  on   it, particularly, as the context shows that the amendment of the Article  by the Constitution (Fourth Amendment) Act was  not retrospective.  Now, if the constitutionality was to be (1)  [1958] S.C.R. 1122.  929 judged by the date of the writ petition, the result would be that  sometime the Fourth Amendment of Art. 31 would  become retrospective  and  sometimes it would not,  depending  upon whether  the  writ  petition was  filed  before  the  Fourth Amendment  Act was passed or after the said  amendment.   If the writ petition was filed before the Constitution  (Fourth Amendment)  Act,  the  same provision of  an  Act  would  be unconstitutional  while  if it was filed  after  the  Fourth Amendment  Act, it may be constitutional.  Such a result  is obviously impossible to accept and could not have been meant by the observation in Bombay Dyeing case (1).  It is in  our opinion absolutely elementary that the constitutionality  of an Act must be judged on the basis of the Constitution as it was  on  the  date  the  Act  was  passed,  subject  to  any retrospective amendment of the Constitution.  Therefore, the argument that the constitutionality of the Transfer Act must be  judged on the basis of the Constitution as it  stood  on the date of the present writ petition has no force and  must be  rejected.   We  have  already  indicated  that  if   the constitutionality  is  to  be judged on the  basis.  of  the Constitution as it stood when the Transfer Act was passed, it is not seriously disputed that the Transfer Act would  be unconstitutional., in view of the decision of this Court  in Subodh Gopal’s case (2). The  second contention on behalf of the respondents is  that even  if the Transfer Act was unconstitutional, when it  was passed   the  inconsistency  having  been  removed  on   the enactment  of  the Constitution (Fourth Amendment)  Act-  by which  Art.  31 was amended, the Transfer  Act  revived  and became  effective,  at  any rate from the  date  the  Fourth Amendment  Act  came into force.  This brings us to  a  con- sideration  of  the doctrine of eclipse, on which  the  con- tention is based.  This doctrine first came to be considered in Behram Khurshed Pesikaka v. The State of Bombay ()  where Venkatarama Aiyar, J. drew a (1) [1958] S.C.R. 1122.     (2) [1954] S.C.R. 587. (3)  [1955] 1 S. C. R. 613, 930 distinction between the invalidity arising out of lack     of legislative competence and that arising by reason of a check imposed upon the legislature by the provisions contained  in the Chapter on Fundamental Rights.  He relied on an  earlier

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 25  

decision  of  this Court in Keshavan Madhava  Menon  v.  The State of Bombay (1) and was of the view that the word "void" in  Art.  13  (1)  should be construed  as  meaning  in  the language  of the American jurists as "relatively void".   It may however be observed that the laws under consideration in Keshavan  Madhava  Menon’s  case (1) as well  as  in  Behram Khurshed  Pasikaka (2) were both pre-Constitution laws,  and the effect of Art. 13 (1) had to be considered with  respect to their constitutionality.  Be ram Khurshed Pesikaka’s ( 2) case  was  later referred to a larger Bench in view  of  the constitutional  questions  involved  and  in  the   majority judgment of the Constitution Bench, Mahajan, C. J., into out that  there  was  no scope for  introducing  terms  like   " relatively void", coined by American Jurists in con,  strung a  Constitution which is not drawn up in ˜similar  language. The  majority  also  observed that they  were  not  able  to endorse the ˜opinio expressed by ˜Venkatarama ˜Aiyar, J., ˜t at  ˜p declaration of unconstitutionality brought  about  by lack of legislative power stood on a different footing  from a declaration of unconstitutionality brought about by reason of  abridgement of fundamental rights, and that it  was  not correct to say that constitutional provisions in Part III of the Constitution ˜merely operated as a check on the exercise of  legislative power.  It was also observed that  when  the law˜making  power  of  a State is restricted  by  a  written fundamental law, then any˜- law enacted which is opposed  to the  fundamental  law  was in  excess  of  th˜;  legislative authorit˜y and was thus a nullity.  Both these  declarations of  unconstitutionality go to the root of the power  itself and  there  was no real dtstinctioi4 between them  and  they represent two aspects of want of legislative power. (1) [1951] S. C. R. 228. (2) [1955] 1 S. C. R. 613.  931 Finally,  it  was  added  that  a  mere  reference  to   the provisions  of  Art.  13  (2) and  Arts.  245  and  246  was sufficient  to  indicate  that there was  no  competency  in Parliament or a State legislature to make a law which  comes into  clash  with  part III of the  Constitution  after  the coming into force of the Constitution. Then came the decision in Saghir Ahmad’s case (1).  In  that case  the law under consideration had been passed after  the coming  into force of the Constitution, and the judgment  of the Constitution Bench was unanimous.  The question there to be  considered  was the effect of  the  Constitution  (First Amendment) Act, which was passed shortly after the Act under challenge   there   was  passed.   It  was   observed   that "’amendment  of the Constitution which came later cannot  be invoked  to  validate an earlier legislation which  must  be regarded  as unconstitutional when it was passed",  and  the observation  of Prof.  Cooley in his work on  Constitutional Limitations   to  the  effect  that  "a  statute  void   for unconstitutionality  is  dead and cannot be vitalised  by  a subsequent  amendment  of  the  Constitution  removing   the constitutional   objection  but  must  be  re-enacted"   was accepted  as  sound,  and the Court therefore  came  to  the conclusion  that the legislation in question which  violated the  fundamental right of the appellants under Art.  19  (1) (g) of the Constitution and was not shown to be protected by cl.  6  of  the  Article, as it stood at  the  time  of  the enactment  must be held to be void under Art. 13 (2) of  the Constitution.   The  Court further held that  the  Act  then under  consideration  also  violated  Art.  31  (2)  of  the Constitution,  and  thus  was  invalid.   It  will  be  seen therefore  that the doctrine of eclipse was not  applied  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 25  

the   case   of   a   post-Constitution   law,   which   was unconstitutional  as it was in violation of the Art. 17  (1) (g) and was not protected by Art. 19 (6) and also because it was in violation of Art. 31 (2).  Saghir Ahmad’s case (1) in effect completely demolishes the argument raised on (1)  [1955] 1 S.C.R. 707. 932 behalf of the respondents that a post-Constitution law which is  void under Arts. 19 (1) and 31 (2) of  the  Constitution and  is  thus  void  from birth can  be  revived  under  the doctrine of eclipse. The  respondents,  however, rely on the next  case  in  this series,  namely,  Bhikaji Narain Dhakaras v.  The  State  of Madhya  Pradesh (1).  That case was however dealing  with  a pre-Constitution  law and not with a post-Constitution  law. In that case an argument was put forward that Saghir Ahmad’s case(2) would apply.  But it was held that  would not be  so far  the  simple  reason that Saghir Ahmad’s  case  (2)  was dealing  with a post-,Constitution law, while that case  was concerned  with  a  pre-Constitution law.  It  was  in  that connection  that Art. 13 (1) came to be considered,  and  it was  observed  that  the true effect of the  Article  is  to render  an  Act, inconsistent with  a  fundamental  right,., inoperative  to  the extent of the  inconsistency.   It  was further observed that "it is overshadowed by the fundamental right  and  remains  dormant but is  not  dead".   With  the amendment made in the Constitution, it was pointed out,  the provisions of the particular Act were no longer inconsistent therewith and the result was that the impugned Act began  to operate once again from the date of such amendment.  In that connection,  it  was  observed at p.  599  that  "’the  true position  is  that  the  impugned law  became,  as  it  were eclipsed, for the time being, by the fundamental right.  The effect of the Constitution (First Amendment), Act, 1951, was to remove the shadow and to make the impugned Act free  from all blemish or infirmity".  It was further pointed out  that "the  American authorities refer only  to  post-Constitution laws  which  were inconsistent with the  provisions  of  the Constitution.   Such  laws  never  came  to  fife  but  were stillborn  as it were.  The American  authorities  therefore cannot  fully  apply to pre-Constitution  laws  which,  were perfectly valid before the Constitution".  The  respondents, however, (1) [1955] 2 S.C.R. 589. (2) [1955] 1 S.C.R. 707.  933 rely on the following passage at p. 599               "But apart from this distinction between  pre-               Constiution  and  post-Constitution  laws   on               which, however, we need not rest our decision,               it   must   be  held   that   these   American               authorities  can  have no application  to  our               Constitution.   All laws, existing or  future,               which are inconsistent with the provisions  of               Part  III  of  our Constitution  are,  by  the               express provision of article 13, rendered void               "to  the extent of such inconsistency’.   Such               laws  were not dead for, all  purposes.   They               existed  for the purpose  of  pre-Constitution               rights  and  liabilities  and  they   remained               operative,  even  after the  Constitution,  as               against  non citizens.  It is only as  against               the  citizens that they remained in a  dormant               or moribund condition". It  is true that the learned judges did say that  they  need

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 25  

not  rest  their decision on the  distinction  between  pre- Constitution and post-Constitution laws ; but the later part of these observations where the learned judges say that such laws  are not dead for all purposes shows that they  had  in mind  pre-Constitution  laws, for otherwise they  could  not have  said  that  they  existed  for  the  purpose  of  pre- Constitution  rights  and  liabilities  and  they   remained operative  even  after  the  Constitution  as  against  non- citizens.  We are therefore of opinion that the decision  in Bhikaji   Narain’s  case  (1)  must  be  confined  to   pre- Constitution  laws  to which the doctrine of  eclipse  would apply.   We are fortified in this opinion by the  fact  that the  learned judges in Bhikaji Narain’s  case(1)  themselves distinguished   the  earlier  decision  in  Saghir   Ahmad’s case(2),  to  which  Das  Acting C.  J,  who  delivered  the judgment in Bhikaji Narain’s case(1) was also a party. Next  we  come to the last case on the point,  namely,  Deep Chand  v. The State of Uttar Pradesh(3).  In that case,  the majority after referring to all these (1) [1959] 2 S.C.R. 589.           (2) [1955] 1 S.C.R. 707. (3) [1959] Supp. 2 S.C.R. 8. 934 cases  pointed out the distinction between Arts.  13(1)  and 13(2),  and  further held that the  limitations  imposed  by Chap.   III on legislative power were on the same  level  as the  competence  of  the  legislature  to  make  laws.   The following observations at p. 20 will bring out the  position clearly :-               "Parliament  and  the Legislatures  of  States               have  power to make laws in respect of any  of               the matters enumerated in the- relevant  Lists               in the Seventh Schedule and that power to make               laws  is  subject to the  provisions-  of  the               Constitution,  including Art. 13.,  i.e.,  the               power  is  made  subject  to  the  limitations               imposed by Part III of the Constitution.   The               general power to that extent is limited.   The               Legislature,  therefore, has no power to  make               any  law  in  derogation  of  the   injunction               contained  in Art. 13.  Art. 13(1) deals  with               laws in force in the territory of India before               the commencement of the Constitution and  such               laws insofar as they are inconsistent with the               provisions of Part, III shall to the extent of               such  inconsistency  be  void.   The   clause,               therefore, recognises the validity of the pre-               Constitution laws and only declares that  said               laws would be void thereafter to the extent of               their  inconsistency with Part III  ;  whereas               clause   (2)   of  that  Article   imposes   a prohibition o n the State making laws  ,taking               away or abridging the rights conferred by Part               III,   and   declares  that   laws   made   in               contravention  of  this clause  shall  to  the               extent of the contravention be void.  There is               a  clear distinction between the two  clauses.               Under   clause  (1)  a  pre-Constitution   law               subsists   except   to  the  extent   of   its               inconsistency with the provisions of Part III,               whereas  no post-Constitution law can be  made               contravening  the provisions of Part  III  and               therefore the law to that extent, though made,               is a nullity from its inception".               935 The  minority however thought that it was not  necessary  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 25  

decide  this  question in that case, and therefore  did  not finally express its views. A  review  of  these authorities therefore  in  our  opinion clearly  shows  that the doctrine of eclipse will  apply  to pre-Constitution  laws which are governed by Art. 13(1)  and would not apply to post-Constitution laws which are governed by  Art.  13(2).   It is, however, urged on  behalf  of  the respondents that on the language of Art. 13(1) and (2) there should be no difference in the matter of the application  of the  doctrine of eclipse.  It is said that Art. 13(1)  pres- cribes  that insofar as the existing laws  are  inconsistent with the provisions of Part III, they shall to the extent of such inconsistency be void.  Similarly,, Art. 13(2) provides that  any law made in contravention of this clause shall  to the  extent of the contravention be void.  The  argument  is two-fold.   In the first place, it is urged that  the  words "’to the extent of the inconsistency" or "’to the extent  of the  contravention"  mean  "’so long  as  the  inconsistency continues or so long as the contravention continues." We are of  opinion that this is not the meaning of these  words  in Art. 13(1) and (2).  Obviously, the Constitution makers when they  used  the words "’to the extent of"  in  both  clauses intended that the pre-existing law or the  post-Constitution law  should only be void as far as the inconsistency or  the contravention  went  i.e.  if only a part  of  the  law  was inconsistent or contravened the constitutional  prohibition, that  part alone would be void and not the entire law.   The obvious  intention  behind  the use of the  words  ""to  the extent  of" was to save such parts of a law as were not  in- consistent  with  or  in  making which  the  State  did  not contravene   the   prohibition   against   infringement   of fundamental  rights  and that  distinction  may  conceivably introduce  considerations  of severability ; it has  in  our opinion  no reference to the time for which the voidness  is to continue.  Where the Constitution 936 makers  intended  to refer to time they have  used  specific words for that purpose ; as, for instance, in Art. 251. That Article deals with "’inconsistency between lawsmade    by Parliament  under Articles 249 and 250 and laws made by  the Legislatures  of States’ , and provides  that...........  .. the  law made by Parliament, whether passed before or  after the law made by the Legislature of the State, shall prevail, and  the law made by, the Legislature of the State shall  to the  extent  of the repugnancy but so long only as  the  law made  by  Parliament  continues  to  have  effect,  be   in- operative."  If therefore the Constitution  makers  intended that the provisions in Art. 13(1) and (2) would only  affect laws  so  long as inconsistency continued  or  contravention lasted, they could have provided specifically for it.  On  a plain construction of the clause, the element of time,  must be excluded.  We cannot therefore accept the contention that the  words ""to the extent of" import any idea of time.   In our  opinion, they only import the idea that the law may  be void  either wholly or in part and that only  such  portions will  be  void  as are inconsistent with Part  III  or  have contravened Part III and no more. We  may in this connection also refer to the  difference  in the language and scope of Art. 13(1) and 13(2).  Art.  13(1) clearly  recognises  the existence of pre-existing  laws  in force  in  the  territory of India  immediately  before  the commencement  of the Constitution and then lays down that  i in  so far as they are inconsistent with the  provisions  of Part  III,  they  shall  be  void  to  the  extent  of  such inconsistency.    The   preConstitution  laws   which   were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 25  

perfectly  valid when they were passed and the existence  of which  is  recognised  in the opening words  of  Art.  13(1) revive  by  the removal of the  inconsistency  in  question. This  in effect is the doctrine of eclipse, which if we  may say  so  with  respect,  was  applied  in  Bhikaji  Narain’s case.(1) (1)  [1955] 2 S.C.R. 589.                             937 Art.  13(2) on the other hand begins with an  injunction  to the State not to make a law which takes away or abridges the rights   conferred   by   Part  III.   There   is   thus   a constitutional prohibition to the State against making  laws taking   away   or  abridging   fundamental   rights.    The legislative  power  of Parliament and ’the  Legislatures  of States under Art. 245 is subject to the other provisions  of the Constitution and therefore subject to Art. 13(2),  which specifically prohibits the State from making any law  taking away  or  abridging the fundamental rights.   Therefore,  it seems  to  us that the prohibition contained in  Art.  13(2) makes  the  State as much incompetent to make a  law  taking away  or  abridging the fundamental rights as  it  would  be where law is made against the distribution of         powers contained  in  the  Seventh  Schedule  to  the  Constitution between Parliament and the Legislatureof     a      State. Further, Art. 13(2) provides  that the law shall be void to the  extent of the contravention.  Now contravention in  the context takes place only once when the law is "made, for the contravention  is of the prohibition to make any  law  which takes away or abridges the fundamental rights.  There is  no question of contravention of Art. 13 (2) being a  continuing matter.   Therefore,  where there is a question of  a  post- Constitution  law, there is a prohibition against the  State from  taking away or abridging fundamental rights and  there is   a  further  provision  that  if  the   prohibition   is contravened  the  law  shall be void to the  extent  of  the contravention.   In view of this clear provision it must  be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the  prohibition contained  in Art. 13 (2) is a still,born law either  wholly or partially depending upon the extent of the contravention. ’Such  a law is dead from the beginning and there can be  no question of its revival under the doctrine of eclipse. plain reading therefore of the words in Art. 13(1) and Art.  13(2) brings out a 938 clear distinction between the two.  Art. 13(1) declares such pre-Constitution  laws as are inconsistent with  fundamental rights  void.  Art. 13 (2) consists of two parts; the  first part imposes an inhibition on the power of the State to make a law contravening fundamental rights, and the second  part, which is merely a consequential one, mentions the effect  of the breach.  Now what the doctrine of eclipse can revive  is the  operation  of  a  law which  was  operative  until  the Constitution  came  into  force and had  since  then  become inoperative  either  wholly or partially; it  cannot  confer power  on the State to enact a law in breach of  Art.  13(2) which would be the effect of the application of the doctrine of  eclipse  to post-Constitution laws.  Therefore,  in  the case  of  Art.  13(1) which applies  to  existing  law,  the doctrine  of eclipse is applicable as laid down  in  Bhikuji Narain’s  case (1), but in the case of a law made after  the Constitution came into force, it is Art. 13(2) which applies and the effect of that is what we have already indicated and which  was  indicated by this Court as far  back  as  Saghir Ahmvd’s case (2).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 25  

It  is however urged on behalf of the respondents that  this would give a different meaning to the word ’void" in Art. 13 (1).  as compared to Art. 13 (2).  We do not think so.   The meaning of the word "void" in Art. 13 (1) was considered  in Keshava Madhava Menon’s caseand  again in Behram  Khurshed Pesikaka’s caseIn   the  later  case, Mahajan,  C.  J., pointed out thatthe majority in Keshava Madhava  Menon’s case (3) clearly held that the word "void" in Art. 13(1) did not  mean  that  the statute stood  repealed  and  therefore obliterated from the statute book; nor did it mean that  the said statute was void ab initio.  This, in our opinion if we may  say so with respect, follows clearly from the  language of Art. 13(1), which presupposes that the existing laws  are good  except  to the extent of the  inconsistency  with  the fundamental rights.  Besides (1)  [1955] 1 S.C.R. 589  (2)  [1955] 1 S.C.R. 707. (3)  [1951] S.C.R. 288.   (4) [1953] 1 S.C.R. 613. 939 there  could  not be any question of an existing  law  being void  ab  initio on account of the inconsistency  with  Art. 13(1), as they were passed by competent legislatures at  the time when they were enacted.  Therefore, it was pointed  out that the effect of Art. 13(1) with respect to existing  laws insofar  as  they  were unconstitutional was  only  that  it nullified them, and made them "’ineffectual and nugatory and devoid  of any legal force or binding effect".  The  meaning of the word "void" for all practical purposes is the same in Art.  13(1)  as in Art. 13(2), namely, that the  laws  which were  void were ineffectual and nugatory and devoid  of  any legal  force  or binding effect.  But  the  pre-Constitution laws  could not become void from their inception on  account of  the  application of Art. 13(1) The meaning of  the  word ’,’void" in Art. 13 (2) is also the same viz., that the laws are  ineffectual and nugatory and devoid of any legal  force on  binding effect, if they contravene  Art.  13(2).   But there  is one vital difference between pre-Constitution  and post-Constitution laws in this matter.  The voidness of  the pre-Constitution laws is. not from inception.  Such voidness supervened  when  the Constitution came into force;  and  so they  existed  and  operated for sometime  and  for  certain purposes;  the  voidness of post-Constitution laws  is  from their  very inception and they cannot therefore continue  to exist  for  any  purpose.   This  distinction  between   the voidness  in one case and the voidness in the  other  arises from the circumstance that one is a pre-Constitution law and the other is a post-Constitution law; but the meaning of the word void" is the same in either case, namely, that the  law is ineffectual and nugatory and devoid of any legal force or binding effect. Then  comes  the  question as to what is the  effect  of  an amendment of the Constitution in the two types of cases.  So far ’as pre-Constitution laws ate  concerned the  amendment of  the  Constitution which removes the  inconsistency  will result 940 in  the  revival of such laws by virtue of the  doctrine  of eclipse,  as laid down in Bhikaji Narain’s case (1) for  the preexisting  laws were not still-born and would still  exist though eclipsed on account of the inconsistencyto govern_ preexisting matters.  But in the case of post-  Constitution laws, they would be still born tothe    extent   of    the centravention.  And it is this distinction which results  in the  impossibility  of applying the doctrine of  eclipse  to post-Constitution laws, for nothing     can be revived which never     had any valid  existence. We are therefore of  opinion

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 25  

that the meaning     of the word "void" is the    same  both in Art 13      (1)    and   Art.  13  (2),  and   that   the application of the  doctrine of eclipse in one case and  not in  the other case does not depend upon  giving a  different meaning  to the word "void’ in the two parts of Art. 13;  it arises from the inherent difference between Art. 13 (1)  and Art.  13 (2) arising from the fact that one is dealing  with pre-Constitution  laws, and the other is dealing with  post- Constitution laws, with the result that in one case the laws being  not  still-born the doctrine of  eclipse  will  apply while  in  the other case the laws being  still_  born-there will  be  no scope for the application of  the  doctrine  of eclipse.   Though  the, two clauses form part  of  the  same Article,  there  is  a  vital  difference  in  the  language employed in them as also in their content and scope.  By the first  clause the Constitution recognises the  existence  of certain  operating laws and they are declared void,  to  the extent of their inconsistency with fundamental rights.   Had there  been no such declaration, these laws would have  con- tinued   to  operate.   Therefore,  in  the  case  of   pre- Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration.  The law  thus  revives.   However, in the  case  of  the  second clause,   applicable   to  post   Constitution   laws,   the Constitution does not recognise their existence, having been made  in  defiance  of a prohibition  to  make  them.   Such defiance makes the (1)  [1955] 2 S.C.R. 589.  941 law  enacted void.  In their case therefore there can be  no revival  by an amendment of the Constitution, MO though  the bar  to make the law is removed, so far as the period  after the   amendment  is  concerned.   In  the  case   of   post- Constitution  laws,  it  would  be  hardly  appropriate   to distinguish  between  laws  which  are  wholly  void-as  for instance, those which contravene Art. 31-and those which are substantially  void but partly valid,-as for instance,  laws contravening Art. 1.9. Theoretically, the laws falling under the latter category may be valid qua non-citizens; but  that is  a  wholly unrealistic consideration and it seems  to  us that  such  nationally partial valid existence of  the  said laws   on  the  strength  of  hypothetical   and   pendantic considerations   cannot  justify  the  application  of   the doctrine  of  eclipse to them.  All post  Constitution  laws which  contravene the mandatory injunction contained in  the first part of Art. 13 (2) are void, as void as are the  laws passed  without legislative competence, and the doctrine  of eclipse does not apply to them.  We are therefore of opinion that  the  Constitution  (Fourth Amendment)  Act  cannot  be applied  to the Transfer Act in this case by virtue  of  the doctrine  of eclipse It follows therefore that the  Transfer Act is unconstitutional because it did not comply with  Art. 31  (2),  as it stood at the time it was  passed.   It  will therefore have to be struck down, and the petitioner given a declaration in his favour accordingly. Re. (3). We now come to the constitutionality of the Forest Amendment Act.   By this Act, Chap.  V-A was added to the Forest  Act, and  the main provision of it which has been attacked is  s. 38-B.   It  lays  down  that the  State  Government  may  by notification  regulate or prohibit in any forest situate  in or  upon  any land of a claimant the doing of  certain  acts where such regulation or prohibition appears necessary. 942 Claimant is defined in S. 38-A as meaning a person  claiming

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 25  

to  be  entitled  to  the  land  or  any  interest   therein acquired,  owned, settled or possessed or purported to  have been  acquired, owned. settled or possessed  whether  under, through  or by any lease or licence executed prior  to.  the commencement of the Abolition Act or under and in accordance with   any  provision  of  any  enactment,,  including   the Abolition  Act.  It may be added that in 1960 there  was  an amendment  to this Act by which certain other sections  have been added in Chap.  V-A.  We shall deal with the effect  of that  amendment later; for the present we are  dealing  with the attack on S. 38-B.  It is contended that the  regulation or  prohibition  contemplated in S. 38-B is of  a  permanent nature and interferes even with forestry operations.  It  is also  contended  that  it  takes  away  rights  without  any provision  for compensation.  In short, the attack on  Chap. V-A,  as originally enacted., is based on a contrast of  its provision  with Chap.  V of the Forest Act.  Now if this  is really  so,  there  may  be  something  in  favour  of   the petitioner’s contention that certain parts of Chap.  V-A, as originally   enacted,   are   unconstitutional.    But   the contention on behalf of the respondents is that Chap.   V-A, as  originally  enacted  (i.e.  ss. 38-A  to  38-G)  is  not supplementary to Chap.  V, but is supplementary to Chap.  II of  the  Forest  Act, and is thus intended  to  serve  as  a temporary   provision  for  protection  of   forests   while proceedings   under  Chap.   II  are  going  on.   If   this contention  on  behalf of the- respondents is  correct,  the attack  of  the  petitioner on  Chap.   V-A,  as  originally enacted,  would lose all force because that attack is  based on  the assumption that Chap.  V-A, as  originally  enacted, allows the State to make permanent orders under it and  then the  contrast between Chap.  V-A as originally  enacted  and Chap.  V would bring out the infirmities in Chap.  V-A. It  is necessary therefore to I look at the scheme of  Chap. II of Forest Act, which contains sections 3  943 to  27 and deals with reserved forests.  Section 3  provides that the State Government may constitute any forest land  or waste land which is the property of Government or over which the  Government has proprietary rights, or to the  whole  or any  part of the forest produce of which the  Government  is entitled,  a  reserved forest.  Section 4 provides  for  the issue  of  a  notification declaring the  intention  of  the Government to constitute a reserved forest.  Section 5  bars accrual of forest rights in the area covered by notification under  s. 4 after the issue of the notification.  Section  6 then inter alia gives power to the Forest Settlement Officer to  issue  a proclamation fixing a period of not  less  than three  months  from  the  date  of.  such  proclamation  and requiring every person claiming any right mentioned in s.  4 and  s 5 within such period either to present to the  Forest Settlement Officer a written notice specifying or to  appear before him and state the nature of such right and the amount and  particulars  of the compensation (if  any)  claimed  in respect  thereof.   Section  7 gives  power  to  the  Forest Settlement Officer to make investigation himself to discover these rights.  Section 8 prescribes the powers of the Forest Settlement  Officer, and lays down inter alia that  he  will have  the same powers as a civil court has in the  trial  of suits.  Section 9 inter alia provides for the extinction  of rights where no claim has been made under s. 6 on the making of  a  notification under s. 20.  Section II (1)  lays  down that "in the case of a claim to a right in or over any land, other than a right-of way or right of pasture, or a right to forest-produce  or  a water-course,  the  Forest  Settlement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 25  

Officer shall pass an order admitting or rejecting the  same in whole or in part." Section 11(2) lays that "if such claim is  admitted  in  whole or in part,  the  Forest  Settlement Officer  shall either (i) exclude such land from the  limits of  the proposed forest, or (ii) come to an  agreement  with the owner thereof for the surrender of his rights ; or (iii) proceed  to acquire such land in the manner provided by  the Land Acquisition Act, 1894." 944 Sections  12 to 16 provide for the determination  of  rights other than rights in or over any land, including commutation by the payment of a sum of money or by the grant of land, or in such other manner as he thinks fit.  Section 17  provides for appeals from orders passed under ss. 11, 12, 15 and  16, while  s. 18(4) provides for revising an appellate order  by the State Government.  Section 19 permits lawyers to  appear before the Forest Settlement Officer or in appeal.  When all these  proceedings  are over, the State  Government  has  to publish a notification under s. 20 specifying definitely-the limits of the forest, which is to be reserved and  declaring the  same  to  be  reserved  from  the  date  fixed  by  the notification, and from such date the forest shall be  deemed to be a reserved forest.  We need not refer to the remaining sections  which  provide  for ancillary  matters  after  the notification under s. 20. It is clear from this review of the provisions of Chap.   II that  it  applies inter alia to forest land  or  waste  land which  is the property of the Government or over  which  the Government  has  proprietary rights.   By  the  notification under  s. 4, the Forest Settlement Officer is  appointed  to inquire into and determine the existence, nature and  extent of any right-.; alleged to exist in favour of any person  in or over any land comprised within such limits, or in or over any forest produce, and to deal with the same as provided in this Chapter.  Section II then provides for the adjudication of  rights in or over land, and provides that if it is  held that rights in or over land exits, the land may be  excluded from the limits of the proposed forest or there may be  some agreement between the owner of that right and the Government with  respect  to it, or the Forest Settlement  Officer  may proceed  to acquire such land in the manner provided in  the Land  Acquisition6n  Act.  It will be clear  therefore  that Chap.  II contemplates that where forest land or waste  land is the property of Government or over which the, 945 Government  has  proprietary rights, the  Forest  Settlement Officer shall proceed to determine subordinate rights in the land before a notification under s. 20 is issued making  the area  a  reserved  forest.  In the  determination  of  these rights,  the Forest Settlement Officer has the same  powers as a civil court has in the trial of suits, and his order is subject  to  appeal  and finally to revision  by  the  State Government.  Section 5 also shows that after a  notification under  s.  4,  no  further forest  rights  can  accrue.   It appears,  however,  that after the Abolition Act  came  into force,  it  was  felt that more powers should  be  taken  to control  forests than was possible under s. 5 as  under  the Abolition Act all lands to which the- Abolition Act  applied had  vested in the State and become its property.   That  is why,  according to the respondents,the Forest Amendment  Act was  passed  in  1956, and though there  is  no  express  or specific  provision  therein  to  show  that  as  originally enacted   it  was  a  mere  provision  to  tide   over   the difficulties arising during the time proceedings under Chap. II  were  pending,  it appears that there is  force  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 25  

contention  of the respondents that this was a mere  interim measure  to  deal  with  the  situation  arising  after  the Abolition  Act came into force while steps were being  taken to constitute reserved forests under Chap.  II, as all lands had  become the property of the State in the area  to  which the  Abolition  Act applied.  This is in our  opinion  ’Made clear  by the definition of the word "claimant" in s.  38-A, and  the rest of the Chapter, as originally  enacted,  deals with  claimants.  The heading of the Chapter does appear  to be  somewhat  ambiguous  in as much as  it  says  ""-of  the Control over Forests of Claimants." The idea one gets  prima facie  from  this  heading is that  the  forests  belong  to claimants  and  the intention is to  control  such  forests. This heading is in line with the heading of Chap.  V of  the Forest Act, which is ""of the control over Forests and Lands not  being  the property of Government", and  so  the  first impression  created on one’s mind is that just as  Chap.   V deals With 946 forests  and  lands not being the  property  of  Government, Chap.  VA also deals with forests which are not the property of  Government  but  of claimants.  But  the  definition  of "claimant"  in  s.  38-A clearly  shows  that  the  claimant therein  is a person making a claim and not a  person  whose claim  has been recognised.  Therefore it would not  in  our opinion  be incorrect to connect Chap.  V-A,  as  originally enacted,  with  Chap. 11 of the Forest  Act,  which  clearly deals   with  claims  and  has  here  and  there  used   the word ."claimant" (as for instance in s. 11(b) ), though  the word  "claimant" has not been defined in that  Chapter.   It seems to us therefore that Chap.  V-A, as originally enacted (ss. 38-A to 38- ) was only dealing with claimants who  were making  claims  under Chap.  II and whose  claims  would  be dealt  with  thereunder, and so the heading  of  Chap.   V-A really  means control of forests in respect of which  claims are made by claimants.  If these claims are with respect  to rights in or over land, they would be dealt with under S. 11 and  if they are claims with respect to other matters,  they would be dealt with under ss. 12 to 16.  It seems to us that if  the  claimant  defined in s. 38- A was  not  the  person making  a claim under Chap.  II, Chap.  V-A,  as  originally enacted,  would  have  little  sense,  for  it  provides  no ’Machinery  for dealing with claims of claimants.   Further, it  is on this basis that one can understand the use of  the word "Prohibition" in s. 38-B, which even restricts  genuine forestry  operations.   It  seems  to  us  unthinkable  that genuine forestry operations should be restricted permanently without any procedure for deciding the claims of  claimants. Therefore Chap.  V-A, as originally enacted, is ancillary to Chap.   II and gives further power of control besides  those contained  in Chap.  II, during the period that  proceedings under  Chap.  II are pending.  Looked at in this  way  Chap. V-A  as originally enacted would be constitutional,  ,as  it will be in the interest of the general public to provide for interim protection of the forests pending disposal of claims  947 under  Chap.   II  and  the declaration  of  the  forest  as reserved forest under s. 20 thereof. But  it  is urged that the amendment in Chap.   V-A  by  the Indian Forest (U.P. Amendment) Act 1960, (U.P. XXI of  1960) destroys  this  character of the Forest  Amendment  Act,  as originally  enacted.  By this ’amendment, ss. 38-H  to  38-M were  added  to Chap.  V.A. Section 38-H  (1)  provides  for taking over the     management  of any particular forest  or forest land for     a  period not exceeding  fifteen  years.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 25  

Sub-section (2)     thereof says that no notification  under sub-s.  (1)  shall be issued unless notice is  issued  to  a claimant,  owner  or tenure-holder of the forest  or  forest land.   Obviously, therefore, the provisions of s. 38-H  and the  subsequent sections are, wider than the  provisions  of ss.38-A to 38-G, which were originally enacted.  We are  not actually  concerned with the provisions of  s.38-H  onwards, for no action has been taken under those provisions; nor has the  petitioner  alleged that there is any  threat  of  such action.   The argument, however is that this  new  provision shows that ss.38-A to 38-G are not connected with Chap II  , and  really  go with this new provision.  We  cannot  accept this argument, for, in the first place, the legislature when it  passed ss. 38-A to 38-G never had ss. 38-H to  38-M  in- mind.  In the second place, s. 38-H also deals with the land of  claimants  though  it further deals with  the  lands  of tenure-holders  or  owners.   So far as  the  claimants  are concerned,  the  position still remains that there  must  be some  provision  for  deciding  their  claims  and  no  such provisions  are  found up to s. 38-M, and we  are  therefore thrown  back  on  Chap.   II so far  as  the  claimants  are concerned.  It must therefore be held that the enactment  of new ss. 38-H to 38-M made no difference to the position that ss. 38-A to 38-G as originally enacted, are supplementary to Chap.   II,  though s. 38-H onwards may not be  so  and  may stand by themselves, so far as owners or tenure-holders  are concerned.  There is no doubt, however, that ss. 38-A 948 to 38-G are ancillary to Chap.  II and must be read as  such and   in  this  view  their  constitutionality  as   interim provisions cannot be successfully assailed. It is next urged that even if ss. 38-A to 38-G are ancillary to Chap.  II, they would not apply to the petitioner’s land, as  Chap.   II deals inter-alia with waste  land  or  forest land,  which is the property of the Government and not  with that land which is not the property of the Government, which is  dealt with under Chap.  V. That is so.  But  unless  the petitioner can show that the land in dispute in this case is his  property and not the property of the State,  Chap.   II will apply to it.  Now there is- no dispute that the land in dispute belonged to the Maharaja Bahadur of Nahan before the Abolition   Act  and  the  said  Maharaja  Bahadur  was   an intermediary.  Therefore, the land in dispute vested in  the State  under  s.  6  of the Abolition  Act  and  became  the property  of the State.  It is however, contended on  behalf of  the petitioner that if he is held to be a  bhumidhar  in proper  proceedings,  the  land would be  his  property  and therefore  Chap.   V-A,  as originally  enacted,  if  it  is ancillary  to  Chap.   II would not apply  to  the  land  in dispute.   We are-of opinion that there is no force in  this contention.  We have already pointed out that under s. 6  of the Abolition Act all ’property of intermediaries  including the  land  in  dispute vested in the  State  Government  and became  its property.  It is true that under s. 18,  certain lands were deemed to be settled as bhumidhari lands; but  it is clear that after land vests in the State Government under s. 6 of the Abolition Act, there is no provision therein for divesting of what has vested in the State Government.  It is however urged on behalf of the petitioner that he claims  to be  the  proprietor of this land as a bhumidhar  because  of certain   provisions  in  the  Act.   There  was   no   such proprietary  right  as        bhumidhari  right  before  the Abolition  Act.   The  Abolition  Act  did  away  with   all proprietary 949

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 25  

rights  in the area to which it  applied and created  three classes  of tenure by s. 129: bhumidhar, sirdar  and  asami, which were unknown before.  Thus bhumidhar, sirdar and asami are all tenure-holders under the Abolition Act and they hold their tenure under the State in which the proprietary  right vested  under s. 6. It is true that bumidhars have  certain wider  rights  in  their tenures  as  compared  to  asirdars similarly sirdars have wider rights as compared to asamis  ; but  nonetheless all the three are mere tenure  holders-with varying  rights under the State which is the proprietor  of the  entire  land in the State to which  the  Abolition  Act applied.  It. is not disputed that the Abolition Act applies to  the  land  in dispute and therefore the  State  ’is  the proprietor of the land in dispute and the petitioner even if he  were  a  bhumidhar  would  still  be  a   tenure-holder. Further, the land in dispute is either waste land or  forest land  (for it is so far not converted to  agriculture)  over which the State has proprietaryrights   and    therefore Chap. II will  clearly applyto  this  land  and  so  would Chap. V-A.     It is  truethat  a  bhumidhar has  got  a heritable and  transferableright  and  he  can  use   his holding for any purpose including industrial and residential purposes,  and if he does so that part of the  holding  will lie demarcated under s. 143.  It is also true that generally speaking,  there is no ejectment of a bhumidhar and no  for- feiture of his land He also pays land revenue (s.241) but in that  respect he is on the same footing as a sirdar who  can hardly  be called a proprietor because his interest  is  not transferable  except  as  expressly permitted  by  the  Act. Therefore,  the fact that the payment made by the  bhumidhar to  the State is called land revenue and not rent would  not necessarily make him of a a proprietor, because sirdar  also pays land Revenue though his rights are very much lower than that   bhumidar.   It  is true that  the  rights  which  the bhumidar has to a certain extent approximate to the   rights which a proprietor used to have before the Abolition Act was passed; but it is. clear that rights of 950 a  bhumidhar  are in many respects less and  in  many  other respects restricted as compared to the old proprietor before the Abolition Act.  For example, the bhumidhar has no  right as  such  in the minerals under the sub-soil.   Section  154 makes  a  restriction on the power of a  bhumidhar  to  make certain transfers.  Section 155 forbids the bhumidhar,  from making   usufructury  mortgages.   Section  156  forbids   a bhumidhar, sirdar or asami from letting the land to  others, unless  the  case  comes under s.  157.   Section  189  (aa) provides that where a bhumidhar lets out his holding or  any part thereof in contravention of the provisions of this Act, his right will be extinguished.  It is clear therefore  that though’  bhumidhar  have  higher  rights  than  sirdars  and asamis,  they are still mere tenure-holders under the  State which  is the proprietor of all lands in the area  to  which the Abolition Act applies.  The petitioner therefore even if he  is  presumed  to be a bhumidhar can of  claim  to  be  a proprietor  to  whom Chap.  II of the’ Forest Act  does  not apply,  and  therefore Chap.  V-A,  as  originally  enacted, would  not apply: (see in this connection, Mst.  Govindi  v. The State, of Uttar Pradesh)(1).  As we have already pointed out ss. 4 and 11 give power for determination of all  rights subordinate  to those of a proprietor, and as the  right  of the bhumidhar is that of a tenure-holder, subordinate to the State,  which is the proprietor, of the land in dispute,  it will  be open to the Forest Settlement officer  to  consider the claim made to the land in dispute by the petitioner,  if

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 25  

lie  claims to be a bhumidhar.  This is ’in addition to  the provision  of s.229-B of the Abolition Act.  The  petitioner therefore  even if he is a bhumidhar ’cannot claim that  the land  in dispute is out of the provisions of Chap.   II  and therefore Chap.  V-A, even if it is ancillary to" Chap.II  would  not  apply.  We must  therefore  uphold  the constitutionality  of Chap.  V-A, as originally enacted,  in the  view we have taken of its being supplementary to  Chap. II,  and we further hold that Chap.  II and Chap.  V-A  will apply to the land in dispute even (1) A.I.R. (1952) All. 88.                      951 if  the petitioner is assumed to be the bhumidhar,  of  that land. The  only  other question that remains to be  considered  is whether the notification under s. 4 is still in force.  That notification was issued under Chap.  II of the Forest Act on March 23, 1955 and thereafter a proclamation under s. 6 ibid was issued on April  26, 1955.  The petitioner contends that the notification under s. 4 was withdrawn so far as his land was concerned by notification dated December 19, 1956.  That is  however  not  a  notification at  all.   It  is  a  mere government  order  issued to all  Conservators  of  Forests, Divisional Forest Officers and District Officers as well  as the  Secretary,  Board of Revenue, and all  that  is  stated there  is that a number of representations had been made  to the  Government  by  claimants  of  lands  situated  in  the erstwhile  private forests under agreements executed  before July  1952 by them with their owners, and the  Governor,  on careful  consideration, had decided that all such  lands  in respect  of  which  valid  legal  reclamations  leases  were executed  by the owners should be released in favour of  the lessees.   It  was also pointed out that if  such  land  was included  in any of the notifications issued under s.  4  of the  Forest Act, it should be deemed to have  been  excluded from  that  notification.   It may be  mentioned  that  this government  order was cancelled by a later government  order dated  July  7, 1958, which was also not published.   Now  a notification under s. 4 of the Forest Act is required to  be published  in the Gazette and unless it is so published,  it is  of no effect.  The notification of March 23,  1956,  was published  in  the  Gazette  and  was  therefore  a   proper notification.  It is also not disputed that in view of s. 21 of  the  U.  P.  General  Clauses  Act  (No.1  of  1904)   a notification issued under s. 4 could have been cancelled  or modified but it could be done in the like manner and subject to the like sanction and conditions, i.e. by notification in the gazette. 952 The  Government  order  of December  1956  therefore  cannot amount  to excluding anything from the  notification  issued under  S.  4,  for it was never published;  it  was  a  mere departmental instruction by Government to its officers which was  later withdrawn.  The notification therefore stands  as it was originally issued and the petitioner cannot claim any benefit of the government order of December 1956, which  was later cancelled .  Further in view of the fact that we  have held that Chap.  V-A, as originally enacted, is valid, being a  measure  supplementary  to Chap.   II,  the  notification issued under Chap.  V-A mu-St also be upheld. In  the  result therefore the’ petition is allowed  to  this extent  that the Transfer Act No. XV of 1952 is struck  down as unconstitutional and of no force and effect.  We may add, however, that learned counsel for the respondents has stated before  us that if a claim is made even now under Chap.   II

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 25  

by  the petitioner within thirty days of our judgment,  even though  it’  may  be time-barred as from  the  date  of  the proclamation  issued  under  S.  6,  the  Forest  Settlement Officer will entertain it and consider the claim as required under Chap.  II. We therefore allow the petition in part and strike down  the U. P. Land Tenures (Regulation of Transfers) Act, No. XV  of 1952  as unconstitutional.  The rest of the prayers  in  the petition are rejected, subject to the petitioner being  free to take such steps as may be open to him in law to establish his  right whatever it may be under the registered lease  of June  1952  and  subject to the State having  the  right  to contest  the said claim.  In the circumstances, the  parties will bear their own costs oft this petition.                           Petition allowed in part.  953