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PETITIONER: STATE OF BIHAR AND ANOTHER

       Vs.

RESPONDENT: UMESH JHA

DATE OF JUDGMENT: 03/05/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. KAPUR, J.L. HIDAYATULLAH, M. SHAH, J.C. DAYAL, RAGHUBAR

CITATION:  1962 AIR   50            1962 SCR  (2) 687  CITATOR INFO :  F          1962 SC1044  (12)  R          1965 SC 632  (11)  RF         1972 SC2097  (6)

ACT: Land  Reform-Vesting  of estate in the  State-Enactment  em- Powering  collector  to set aside  anticipatory  settlement- Constitutional validity-Amendment-Effect--Bihar Land Reforms Act,  1950  (Bihar  30 of 1950, as amended  by,  Bihar  Land Reforms  (Amendment) Act, 1959 (Bihar 16 of 1959), S.  4(h)- Constitution of India, Arts. 14, 19, 31, 31A.

HEADNOTE: Section 4(h) of the Bihar Land Reforms Act, 1950, as amended by  the  Bihar  Land Reforms (Amendment)  Act,  1959,  which empowers  the Collector to annul anticipatory  transfers  of land designed to defeat the object of the Act, is  protected by  Art.  31A of the Constitution although it  does  not  by itself  provide  for  the acquisition by the  State  of  any estate or of any rights therein or for the extinguishment or modification  of  any  such rights  and  its  constitutional validity  cannot be questioned under Arts. 14, 19 and 31  of the  Constitution since the Act of which it is  an  integral part,  is  itself directed to that end and is  protected  by that Article. Thakur  Raghubir  Singh v. State of Ajmer,  [1959]  Supp.  1 S.C.R. 478, applied. On  a  true construction of S. 3 of the  Amending  Act,  the second  proviso  to  S.  4(h)  cannot  be  retrospective  in operation and therefore, in respect of an order of annulment made  by  the Collector before the Amending  Act  came  into force   the  previous  sanction  obtained  from  the   State Government would be sufficient, but subsequent  confirmation by the State Government would be necessary in the case of an order made after the Amending Act came into force.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 425 of 1957. Appeal from the judgment and order dated February 21,  1956, of  the Patna High Court in Misc.  Judicial Case No.  53  of 1955. B.   K. P. Sinha and D. P. Singh, for the appellants. L.   K. Jha and R. C. Prasad, for the respondent. 1961.  May 3. The Judgment of the Court was delivered by 688 SUBBA RAO, J.-This appeal by certificate raises the question of  the  construction of s. 4(h) of the Bihar  Land  Reforms Act,  1950 (Act 30 of 1950) (hereinafter referred to as  the Act), as amended by the Bihar Land Reforms (Amendment)  Act, 1959 (Bihar Act 16 of 1959) (hereinafter called the Amending Act). The facts giving rise to the appeal lie in a small  compass. Plots  NOW.  383 and 1033 are tanks  in  village  Lakshmipur alias Tarauni in the District of Darbhanga.  The  respondent claims  to  have taken settlement of the said plots  in  the year 1943 from the landlords of Raghopur Estate of which the said  plots formed a part.  After the coming into  force  of the  Act,  the  said Estate vested in the  State  of  Bihar. Thereafter,  one Sheonandan Jha and some other villagers  of Lakshmipur  filed a petition before the  Collector  alleging that  the alleged settlement was not true, and that in  fact the settlement was nominally effected only after January  1, 1946.   The Additional Collector, Darbhanga, in exercise  of the  powers conferred on him under s. 4(h) of the Act,  held that the said settlement was actually made after January  1, 1946,  and  that  it was only a  paper  transaction;  having annulled  the said settlement, the Additional Collector,  by his order dated January 18, 1955, called upon the respondent to give up possession of the said plots by January 30, 1955. Aggrieved by the said order, the respondent filed a petition in  the High Court of Judicature at Patna under Art. 226  of the  Constitution  for  a rule in the nature of  a  writ  of mandamus or any other appropriate writ cancelling the  order of the Additional Collector dated January 18, 1955, and res- training the appellants from interfering with his possession of the said two plots.  That petition came to be decided  by a  division bench of the High Court; and the learned  Judges by  their  order  dated February 21,  1956,  held  that  the Additional  Collector had no jurisdiction to  entertain  and decide the question whether the settlement, which was  prima facie  shown to have been made before January 1,  1946,  was actually  made  after  that  date.  On  the  basis  of  that finding,  the  order  of the Additional  Collector  was  set aside. 689 The State of Bihar and the Additional Collector of Darbhanga have preferred the present appeal against the said order. Learned  counsel for the State contends that s. 4(h) of  the Act  has been amended with retrospective effect, that  under the  amended  section  the Collector  has  power  to  decide whether  a transfer is made before 1946 or  thereafter,  and that,  therefore, the order of the High Court can no  longer be sustained. Learned  counsel  for the respondent,  while  conceding  the retroactivity  of  the  amendment, relies  upon  the  second proviso added by the amendment to s. 4(h) and contends  that under  the  said proviso the order of the  Collector  cannot take effect nor possession taken thereunder, unless the said order has been confirmed by the State Government and that in the  instant case there has not been any such  confirmation. Further he questions the constitutional validity of the said section  on  the ground that it  infringes  the  fundamental

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right  of  the respondent under Arts. 14, 19 and 31  of  the Constitution and is not saved by Art. 31A thereof. The second contention of learned counsel for the  respondent may   be  disposed  of  first.   Under  Art.  31A   of   the Constitution,  no-law providing for the acquisition  by  the State  of  any  estate  or of  any  rights  therein  or  the extinguishment  or modification of any such rights shall  be deemed  to  be void on the ground that  it  is  inconsistent with, or takes away or abridges any of the rights  conferred by Art. 14, Art. 19 or Art. 31.  The question is whether  s. 4(h)  of the Act is such a law as to be hit by Art.  31A  of the Constitution.  Section 4(h) of the Act confers power  on a Collector, inter alia, to make inquiries in respect of any transfer  of any land comprised in an estate and  to  cancel the same if he is satisfied that such transfer was made  any time after January 1, 1946, with the object of defeating any provisions  of  the  Act or causing loss  to  the  State  or obtaining  compensation  thereunder.  It is  said  that  the section  ex proprio vigore does not provide for  acquisition by the State of any estate or of 690 any rights therein or for the extinguishment or modification of  any such rights and therefore, is not protected by  Art. 31A  of the Constitution This argument in effect  disannexes s. 4(h) of the Act from the setting in which it appears  and seeks to test its validity independently of its  interaction on  the  other provisions of the Act.  Section  4(h)  is  an integral  part of the Act, and taken out of the Act  it  can only  operate in vacuum.  Indeed, the object of the  section is to offset the anticipatory attempts made by landlords  to defeat  the  provisions of the Act.  Suppose  the  Collector cancels  a transfer of land by the owner of an estate  under the  said section; the said land automatically vests in  the State, with the result that the rights of the transferor and the  transferee therein are extinguished.  The  said  result accrues  on the basis that the said land continued to  be  a part  of  the estate at the time the Act  came  into  force. That  apart,  the section is a part of the Act  designed  to extinguish or modify the rights in an estate, and the  power conferred on a Collector to cancel a transfer of any land in an   estate  is  only  to  prevent  fraud  and  to   achieve effectively  the  object  of the  Act.   This  question  was directly  raised  and  answered  by  this  Court  in  Thakur Raghubir   Singh  v.  State  of  Ajmer  (1).    There,   the constitutional   validity   of  the   Ajmer   Abolition   of Intermediaries  and  Land Reforms Act, 1955  (Ajmer  III  of 1955) and s. 8 thereof was attacked.  Section 8 of the  said Act conferred a power on the Collector to cancel a lease  or contract,  if  he  was satisfied that it  was  not  made  or entered  into  in the normal course of  management,  but  in anticipation   of   legislation   for   the   abolition   of intermediaries.  Repelling the said contention, Wanchoo, J., speaking for the Court, observed thus:               "The   provision   is   not   an   independent               provision; it is merely ancillary in character               enacted  for carrying out the objects  of  the               Act  more effectively...... Such  cancellation               would  sub-serve the purposes of the Act,  and               the provision for it therefore be an  integral               part of the Act, though ancillary to its  main               object, and would thus be protected under Art.               31A(1)(a) of the Constitution." (1)  [1959] SUPP. 1 S.C.R. 478. 482. 691 The  same reasoning applies to s. 4(h) of the Act,  and  for

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the same reasons we hold that s. 4(h) of the Act is likewise protected by Art. 31A of the Constitution. The  first  question turns upon the  interpretation  of  the relevant provisions of the Amending Act.  To appreciate  the argument  it  would  be  convenient  to  read  the  material provisions of the said Act. Section 3. Amendment of section 4 of Bihar Act XXX of 1950.- In section 4 of the said Act,-               (iv)  in clause (h)-               (a)   the  words, figures and commas "made  at               any  time  after  the first  day  of  January,               1946,"  shall be omitted and shall  be  deemed               always to have been omitted;               (b)   after the words "if he is satisfied that               such  transfer was made," the  words,  figures               and commas "at any time after the first day of               January, 1946," shall be inserted and shall be               deemed always to have been inserted; and               (c)   the   words  "and  with   the   previous               sanction  of  the State Government"  shall  be               omitted;               (v)   to  clause  (h) as  amended  above,  the               following provisos shall be added, namely:-               "Provided  that an appeal against an order  of               the Collector under this clause, if  preferred               within sixty days of such order, shall lie  to               the proscribed authority not below the rank of               the Collector of a district who shall  dispose               of  the  same  according  to  the   prescribed               procedure:               Provided  further  that no order  annulling  a               transfer   shall   take   effect   nor   &hall               possession  be  taken  in  perursuance  of  it               unless such an order has been confirmed by the               State Government."               After the said amendment the relevant part  of               the section reads:               The   Collector  shall  have  power  to   make               inquiries in respect of any transfer including               the  settlement..... if he is  satisfied  that                             such  transfer was made at any time  after  th e               first day of January, 1946, with the object of               defeating  any  provisions  of  this  Act   or               causing loss to tile State or obtaining higher               692               compensation  thereunder, the  Collector  may,               after giving reasonable notice to the  parties               concerned to appear and be heard and with  the               previous  sanction  of  the  State  Government               annul  such  transfer, dispossess  the  person               claiming under it and take possession of  such               property  on such terms as may appear  to  the               Collector to be fair and equitable. The main differences material to the present enquiry between the  section as it was before. the amendment and  thereafter are  that  under the unmended section it was  a  moot  point whether the Collector had the power to set aside a transfer, whether  it  was effected before or after January  1,  1946; whereas  under the amended section such a power  is  clearly and  expressly  conferred on him: while under  the  original section, the Collector had to take the previous sanction  of the  State Government before he made the order  annulling  a transfer  and  dispossessing the person claiming  under  it, under  the amended section the order made by  the  Collector

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shall neither take effect nor can he take possession  before his  order is confirmed.  The short question is whether  the second proviso, added by the Amending Act, is  retrospective in  operation, that is, whether the order of  the  Collector made before the Amending Act, though made with the  previous sanction  of the State Government, would still  require  for its  taking  effect a subsequent confirmation by  the  State Government. Learned  Counsel for the State contends that the  amendments made  by  s.  3(iv)(a) and (b) are  retrospective,  but  the amendment   made  by  s.  3(v)  of  the  Amending   Act   is prospective.   This contention appears to be sound, both  in letter as well as in spirit.  The different phraseology used in  cls. (a) and (b) of subs. (iv) of s. 3 of  the  Amending Act  in the matter of omissions supports it.  While  in  cl. (a)  the  omission  ,%hall be deemed  always  to  have  been omitted,  in cl. (c) the words mentioned therein shall  only be  omitted indicating by contrast that the omission in  the former  is expressly made retrospective while in the  latter it  is  necessarily prospective., If that be the  true  con- struction, the condition of previous sanctions would                             693 continue to operate in respect of the Collector’s order made before  the  amendment came into force.  If the  proviso  be given  a  retrospective operation, it  directly  comes  into conflict with the result brought about by cl. (c) of  sub-s. (iv)  of  s.  3  of the Amending Act.   An  order  with  the previous sanction of the Government may have been passed and possession  also  taken  by the  Collector,  yet  a  further confirmation  by  the  Government should be  sought  for  to revalidate  it.  This construction would not only  attribute to the Legislature redundancy but would also enable a  party to  seek for restoration of the land taken possession of  by the  Collector  on the basis of a technicality.  Even  in  a case  where possession has not been taken by the  Collector, the  said anomaly would persist, for two sanctions would  be required.  The alternative construction makes the working of the  section smooth and avoids the introduction of the  said incongruity   and,  therefore,  we  prefer  to  accept   it, particularly when it is consistent with the plain meaning of the  words  used  in the section.  The  result  is  that  in respect of an order already made by the Collector before the Amending Act, the previous sanction obtained would  suffice, and  in respect of an order made after the Amending  Act,  a subsequent confirmation by the State Government is required. Even so, it is argued by learned counsel for the  respondent that the High Court, presumably in view of its acceptance of the  respondent’s  preliminary point, did not  consider  the question whether the inquiry had been made by the  Collector in strict compliance with the provisions of the section, and whether  the previous sanction of the State  Government  was obtained  before he made the said order.  In  the  affidavit filed in support of the petition in the High Court there  is no specific allegation that no such inquiry has been made or that  no  such  sanction has been  obtained.   Nor  did  the counsel  for  the appellant raise the said question  in  the arguments before the High Court.  In the circumstances we do not think that this Court is justified in allowing 88 694 the respondent to raise the said question for the first time before us.  We, therefore, reject this plea. In  the result we set aside the order of the High Court  and allow  the appeal.  But, in the circumstances of this  case, we  direct the parties to bear their own costs here  and  in

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the High Court. Appeal allowed.