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PETITIONER: SUKHRAM SINGH AND ANOTHER

       Vs.

RESPONDENT: SMT.  HARBHEJI

DATE OF JUDGMENT: 19/02/1969

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) MITTER, G.K.

CITATION:  1969 AIR 1114            1969 SCR  (3) 762  1969 SCC  (1) 609  CITATOR INFO :  F          1977 SC  94  (10,11)  RF         1991 SC 480  (6)

ACT: U.P. Zamindari Abolition and Land Reforms Act  1951-Sections 21 and 157-Amendment by Act 20 of 1954-Express provision for retrospective application of amended s. 21-No provision  for retrospective effect of s. 157-If s. 157 also deemed to have been  amended  retrospectively--Statement  by   Compensation Officer under section 240(F)-When final.

HEADNOTE: The respondent as Bhumidhar filed an objection under section 240(G)  of the U.P. Zamindari and Land Abolition Act,  1961, in  respect  of  a preliminary  statement  compiled  by  the Compensation  Officer  under  section  240(F)  showing   the appellants as Adhivasis of certain land.  The objection  was dismissed  by the Compensation Officer on October 25,  1956, who  held  that the appellants had Adhivasi rights  and  the objector  had  no interest in the  land.   The  Compensation Officer  decided  the matter without framing  an  issue  and referring  it  for  decision to a competent  Court.  in  the meantime,   in  consolidation  proceedings  the   respondent applied for correction of the records under section 10(1) of Consolidation  of  Holdings  Act,  but  her  objection   was dismissed by the Consolidation Officer.  However, on appeal, the  Settlement Officer, (Consolidation), reversed this  de- cision  holding  the,.  the  appellants  were  Asamis.   The Director   of  Consolidation,  U.P.  dismissed  a   revision application.    In  these  consolidation  proceedings,   the respondent claimed the advantage of the amendment of section 21(h)  and section 157 introduced by the U.P.  Land  Reforms Act,  XX  of  1954,  on the  ground  that  her  husband  was suffering  from  physical  infirmity and  was  incapable  of cultivating land.  The appellants’ contention was that while section 21 had been expressly amended to have  retrospective effect,  the  amendment  of section 157  was  not  effective retrospectively; the, respondent was therefore not  entitled to  claim the advantage from the amendment of  section  157. It was further contended by the appellants that the order of the  Compensation  Officer  made on October  25,  1956,  bad

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finally  decided the status of the appellants  as  Adhivasis and not having been appealed against, the question could not now be reopened. HELD   :  Section  157(1)  (a)  must,  be  read   to   apply retrospectively. If  the new s. 21(h) is to be read retrospectively from  the commencement  of Land Reforms Act, the amendment of  section 157(1)  which was made simultaneously must also  be  clearly intended  to operate with retrospection.  There would be  no point  in making the amendment of s. 21(h) retrospective  if the  other clauses were to apply prospectively for then  the force of the retrospectivity of clause (h) of s. 21 would be made neutral. [759 E-F] A  law  is  undoubtedly retrospective if  the  law  says  so expressly but it is not always necessary to say so expressly to  make it retrospective.  There are occasions when  a  law may be held to be retrospective in operation.  Retrospection is  not to be presumed for the presumption is the other  way but  many  statutes  have  been  regarded  as  retrospective without  a declaration.  Thus it is that  remedial  statutes are always regarded as                             753 prospective   but   declaratory  statutes   are   considered retrospective.    Similarly   sometimes  statutes   have   a retrospective effect when the declared intention is  clearly and unequivocally manifest from the language employed in the particular  law or in the context of  connected  provisions. It  is  always  a  question  whether  the  legislature   has sufficiently  expressed itself.  To find this one must  look at  the general scope and purview of the Act and the  remedy the legislature intends to apply in the former state of  the law and then determine what the legislature intended to  do. This line of investigation is, of course, only open if it is necessary. [758 H] Main v. Stark [1890] 15 A.C. 384 at 388; referred to. The order of the Compensation Officer under s. 240-F did not have that finality which was claimed for it.  That  finality attaches only to the order of the Assistant Collector  under s.  229-B on a reference of an issue from  the  Compensation Officer.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 666 of 1966. Appeal  by special leave from the judgment and order  dated September 20, 1963 of the Deputy Director of  Consolidation, U.P. Lucknow in Revision No. 91 of 1963. J.   P. Goyal and R. S. Gupta, for the appellants. S.   P. Sinha and M. I. Khowaja, for the respondents. The Judgment of the Court was delivered by Hidayatullah,  C.J. The parties in this appeal are the  same as in Civil Appeal No. 286 of 1966 which we declared to have become  infructuous because of the operation of S. 5 of  the Uttar Pradesh Consolidation Act’ The judgment in that appeal was delivered by us on February 7, 1969.  For the  narration of  facts  in  this appeal we  have,  however,  referred  to certain orders which were passed by the High Court from  the sister  appeal.  The parties to this appeal as in the  other appeal are Sukhram Singh and Laiq Singh of the one part  and Smt.   Harbheji of the second part.  These two parties  have been fighting a long drawn litigation over khata No. 271  of village  Shahgarh.   Two  separate  proceedings  took  place before  the Revenue Courts and reached this Court by way  of special  leave,  one of which has been disposed of  and  the

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other is now before us.  The points involved in this  appeal are  short  but in view of the length of litigation  a  long narration is necessary. On  March 10, 1954 Smt.  Harbheji as bhumidar filed  a  suit (No.  38  of  1954)  under s.  202  of  the  U.P.  Zamindari Abolition and Land Reforms Act, 1955 against the other party in the court of the Assistant Collector, 1st Class, Aligarh. The  allegation in the suit was that Sukhram Singh and  Laiq Singh  were  Asamis who were leased the khata in  1947  from year to year.  Smt.  Harbheji asked for their ejectment from the  khata.   The  defence of the other side  was  that  the occupants were Adhivasis.  The 754 Land  Reforms  Act was passed in 1951.  Under  the  Act  the intermediaries  were  abolished and their rights  and  title vested  in the State from July 1, 1952.  The Act  was  later amended from time to time and we are concerned with one such amendment made by the U.P. Land Reforms Act XX of 1954 which came into force on October 10, 1954.  Reverting  to  the  facts,  the suit No.  38  of  1954  was dismissed by the Assistant Collector, 1st Class, Aligarh  on April  20, 1956 and it was held that Sukhram Singh and  Laiq Singh were not Asamis and therefore not liable to ejectment. On appeal the, Civil Judge of Aligarh allowed it on February 1, 1957 and declared Sukhram and Laiq Singh to be Asamis.  A second  appeal  in  the High Court  before  a  Single  Judge succeeded  on  February 19, 1958.  Sukhram  Singh  and  Laiq Singh were again declared to be Adhivasis.  A Letters Patent Appeal   was  filed  in  the  High  Court.   Meanwhile   the Consolidation of Holdings Act was brought into force in this area  and a notification under s. 4 of the Consolidation  of Holdings  Act  declaring village Shahgarh area to  be  under consolidation  was  published  on November  11,  1961.   The appeal  in the High Court was decided on February  8,  1962. It  appears  that the arguments were already heard  and  the case  was reserved for judgment when the  notification  came into  force.  The learned Judges did not apply s. 5  of  the Consolidation  of  Holdings  Act  which  provides  that   on notification issuing any suit, proceeding or appeal must  be taken  to have abated. lie Division Bench gave its  decision reversing  the  judgment of the Single Judge.  As  a  result Sukhram  Singh  and  Laiq Singh were again  declared  to  be Asamis.  An appeal was then brought to this Court by special leave  and it is that appeal which we declared  had  become infructuous  by reason of the abatement of the  suit.   This was  the  end of the proceedings under s. 202  of  the  Land Reforms Act. Meanwhile  Smt.  Harbheji as bhumidar was entitled  to  com- pensation  for  the  extinguishment  of  her  rights.    The Compensation Officer prepared a preliminary statement  under s.  240F  and  showed  Sukhram  Singh  and  Laiq  Singh   as Adhivasis.  Smt.  Harbheji filed an objection under s.  240G but  on the date of hearing (October 25, 1956) she  did  not appear  before  the Compensation officer who  dismissed  her objection  holding  that Laiq Singh and  Sukhram  Singh  had Adhivasi  rights  and the objector had no  interest  in  the land.   The statement of compensation was also confirmed  on the  same  date.  in  the  consolidation  proceedings   Smt. Harbheji  applied  for correction of the  records  under  s. 10(1) of the Consolidation of Holdings Act.  This matter was decided  by the Consolidation Officer III Khera  Narainsingh on March 7, 1963.  The objection filed by Smt.  Harbheji was dismissed.  On appeal the Settlement Officer (Consolidation) reversed the above 755

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decision  on  June 14, 1963 holding that Sukhram  Singh  and Laiq   Singh   were   Asamis.   The   Deputy   Director   of Consolidation,  exercising  the powers of  the  Director  of Consolidation Uttar Pradesh dismissed the revision  petition on September 20, 1963 filed by Sukhram Singh and Laiq Singh. The  present  appeal is from the last  decision  by  special leave. Two  points were argued before us, namely, that  Smt.   Har- bheji was not entitled to the benefit of s. 21 as amended by Act  XX  of  1954  and  secondly  that  the  order  of   the Compensation  Officer made on October 25, 1956  had  finally decided  the  status  of Sukhram Singh  and  Laiq  Singh  as Adhivasis and not having been appealed against, the question cannot  now be reopened.  We shall take these points one  by one. The  U.P.  Zamindari  Abolition and  Land  Reforms  Act  was amended  in  1954  by  the above  amending  Act  in  several respects.   We are only concerned with the amendment of  ss. 21  and  157 and the addition of Chapter IX-A.   Section  21 leaving out portions not necessary for our purposes provides after the amendment as follows :               "Sec. 21.  Non-occupancy tenants,  sub-tenants               of  grove-lands and tenant’s mortgagees to  be               assamis.               (1)   Notwithstanding  anything  contained  in               this  Act,  every  person  who,  on  the  date               immediately  preceding  the date  of  vesting,               occupied or held as-               (h)   A tenant of sir land referred to in sub-               clause  (a) of clause (i) of  the  Explanation               under section 16, a sub-tenant referred to  in               sub-clause (ii) of clause (a) of Section 20 or               an  occupant referred to in sub-clause (i)  of               clause  (b)  of  the said  section  where  the               landholders  or  if there are  more  than  one               landholders,  all  of  them  were  person   or               persons belonging--               (b)   if  the land was let out or occupied  on               or after the ninth day of April, 1946, on  the               date  of letting or occupation, to any one  or               more  of the clauses mentioned in  sub-section               (1) of Section 157               shall be deemed to be an asami thereof."               756               Before the amendment the corresponding part of               the section read as follows:               "Section  21  (1).   Notwithstanding  anything               contained  in this Act, every person  who,  on               the  date  immediately preceding the  date  of               vesting, occupied or held land as-               (h)   a  tenant of sir or land referred to  in               sub-clause   (a)   of  clause   (i)   of   the               explanation under section 16, a sub-tenant  or               an  occupant referred to in section 20,  where               the  landholder or if there are more than  one               landholder all of them were person or  persons               belonging, both on the date of letting and  on               the  date  immediately preceding the  date  of               vesting,  to  any one or more of  the  classes               mentioned in sub-section (2) of section 1 0 or               clause (e) of subsection (1) of section 157.               shall be deemed to be an asami thereof."               The   difference  between  the  two   sections               material for our purposes lies in the  mention               of  all clauses of s. 157 sub-section 1  after

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             the  amendment  whereas before  the  amendment               only clause (e) of sub-section 1 of s. 157 was               mentioned.   Section  157  also  was  amended.               Again for the purposes of this case it is  not               necessary  to  reproduce  the  whole  of   the               section.   It  read before  the  amendment  as               follows:               "Section  157(1).  A bhumidhar or a sirdar  or               an   asami  holding  the  land  in   lieu   of               maintenance  allowance under section  II,  who               is-               (a)   an  unmarried  woman,  or  if   married,               divorced  or separated from her husband, or  a               widow;               (b)   a minor whose father has died;               (c)   a lunatic or an idiot;               (d)   a  person  incapable of  cultivating  by               reason   of   blindness  or   other   physical               infirmity;               (e)   prosecuting  studies  in  a   recognised               institution  and does not exceed 25  years  in               age;               (f)   in the Military, Naval or Air service of               the Indian Dominion; or               (g)   under detention or imprisonment.               may let the whole or any part of his holding."               After the amendment it reads as follows:               "Section 157--Lease by a disabled  person.-(1)               A  bhumidhar or a sirdar or an  asami  holding               the land in               757               lieu of maintenance allowance under Section 11               who is-               (a)   an   unmarried  woman,  or  if   married               divorced  or  separated from  her  husband  or               whose   husband  suffers,  from  any  of   the               disqualifications  mentioned in clause (e)  or               (d) or a widow;               (b)   a minor whose father suffers from any of               the disqualifications mentioned in clause  (c)               or (d) or has died; and               (c)   a lunatic or an idiot;               (d)   a  person  incapable of  cultivating  by               reason   of  blindness,  or   other   physical               infirmity;               (e)   prosecuting  studies  in  a   recognised               institution  and does not exceed 25  years  in               age  and whose father suffers from any of  the               disqualifications  mentioned in clause (e)  or               (d) or a has died :"               "(f) in the Military, Naval, or Air service of               the Indian Dominion; or               (g)   under detention or imprisonment;               may let the whole or any part of his holding." The  difference  here is that a lease by a  woman’  although married  was  possible  if her husband  was  suffering  from insanity or idiocy or was a person incapable of  cultivating by  reason of blindness or other physical  infirmity.   Smt. Harbheji in her applications wished to take advantage of the amendments of ss. 21 and 157 on the ground that her  husband was  suffering from sinus and hence from physical  infirmity and  was incapable of cultivating the land.  The  difficulty arises  because the Legislature while making  the  amendment made the amendment in clause (h) of s. 21 retrospective from the  date of the passing of the Abolition Act but in s.  157

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it  did  not  expressly  state  that  the  amendments   were retrospective.  The short question that arises is another s. 157  when  read  with  s.  27  also  becomes   retrospective notwithstanding   that  there  are  no  express   words   of retrospectivity. The  second point is concerned with the addition of  Chapter IX-A  which  is  headed  Conferment  of  Sirdari  Rights  on Adhivasis.   The  grounds  on  which  the  ejectment  of  an Adhivasi  could be made are contained in s. 234 of the  Land Reforms  Act but none of the Pounds applies here.   Thus  if Sukhram  Singh and Laiq Singh were adhivasis they could  not be  ejected by Smt.  Harbheji but if they were  only  asamis then  the ejectment could take place because they were  only tenants from year to year.  Chapter IX-A added sections 240A to 240N.  It provides that the Government 758 may  by  a notification declare that the rights,  title  and interest  of the landholders in the land held  by  Adhivasis shall  cease  and vest in the State and  also  provides  for payment of compensation to the landlord whose rights,  title or  interest  in the land are  acquired.   The  compensation statement is required to be published under s.240F   and s.  240G  gives  a right to any person  interested  to  file objections.   Section  240H  deals with  the  procedure  for disposal of the objections under S. 240G.  It provides  that the  Compensation Officer shall frame an issue regarding  it and   refer  it  for  disposal  to  the  Court   which   has jurisdiction  to  decide a suit under s. 229B read  with  S. 234A  and that thereupon all the provisions relating to  the hearing  and  disposal  of  such suit  shall  apply  to  his reference as if it were a suit.  Section 229B provides that any person claiming to be an Asami of the whole or a part of it  may sue the landlord for a declaration of his rights  as Asami.   Subsection 3 of the same section provided that  the provisions  are  to apply mutatis mutandis to a  suit  by  a person claiming to be sirdar (Adhivasi).  Section 234A  then provides  that  the provisions of s.  229B  mentioned  above shall apply to an Adhivasi as if he were an Asami.  Schedule 11 to the Land Reforms Act in Item 34 appoints the Assistant Collector,  1st Class, as competent court for the  trial  of suits for declaration of rights under S. 229B.  The Schedule also  provides for an appeal to the Commissioner  from  the order and to the Board of Revenue by a second appeal. In the present case the Compensation Officer who passed the, order on October 25, 1956 was also Assistant Collector,  1st Class but he did not refer the case to himself after framing an  issue and hence his order has been treated to have  been passed by him in his capacity as a Compensation Officer. We  will  now  come  to the question  whether  S.  157  also operates  retrospectively with s. 21.  The latter  was  made retrospective  expressly.   The High Court in  the  Division Bench  decision held that S. 157 was also  retrospective  by implication.  The contention of the appellants is that  Smt. Harbheji  was  not  entitled  to take  the  benefit  of  the amendment  and to plead that she could let out her sir  land because her husband was suffering form an infirmity and  was not  able to look after the cultivation:’ If Smt.   Harbheji is  entitled to plead the amended section then under  s.  21 Sukhram  Singh  and  Laiq Singh must be  treated  as  Asamis because that is what s. 21 enacts.  If the unamended section is to be read with s.    21  then  the  contrary  result  is reached. Now  a law is undoubtedly retrospective if the law  says  so expressly but it is not always necessary to say so expressly to  make the law retrospective.  There are occasions when  a

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law   may  be  held  to  be  retrospective   in   operation. Retrospection  is not to be presumed for the presumption  is the other way but many statutes 759 have  been regarded as retrospective without a  declaration. Thus  it  is that remedial statutes are always  regarded  as prospective   but   declaratory  statutes   are   considered retrospective.    Similarly   sometimes  statutes   have   a retrospective effect when the declared intention is  clearly and unequivocally manifest from the language employed in the particular  law or in the context of  connected  provisions. It  is always a question whether the legislature has  suffi- ciently expressed itself. To find this one must look at the general  scope  and purview of the Act and  the  remedy  the legislature intends to apply in the former state of the law and  then  determine what the legislature  intended  to  do. This line of investigation is, of course, only open if it is necessary.   In  the  words of Lord’  Selborne  in  Main  v. Stark(1)  there might be something in the context of an  Act or  collected from its language, which might give  to  words prima   facie   prospective   a   large   operation.    More retrospectively,  is  not  to  be given  than  what  can  be gathered from expressed or clearly implied intention of  the legislature. Applying these tests to the statute we have in hand, we  are clear  that  section  157 (1 ) (a) must  be  read  to  apply retrospectively.   It is clear that s. 21(h) mentioned  only one  of the clauses viz. clause (e) as furnishing  a  ground for declaration.  After the amendment of clause (h)_ one  or more  of  the  clauses of s. 157(1) are  to  be  taken  into account.   Now  there  would  be  no  point  in  making  the amendment  of s. 21 (if) retrospective if the other  clauses were  to  apply-  prospectively for then the  force  of  the retrospective  of  clause  (h) of s.  21  is  made  neutral. Therefore  if the new s. 2 (h)is to be read  retrospectively from the commencement of Land Reforms Act, the amendment  of section  157(1) which was made simultaneously must  also  be clearly   intended  to  operate  with  retrospection.    The legislature  intended that at any given moment of time  from the commencement of the Lands Reforms Act all the clauses or one  or more them and not clause (e) alone were to be  taken note of.  The amendment of clauses (h) speaks of one or more clauses  and when we read the clauses of s. 157(1)  we  find them  altered also.  Therefore the new clauses must be  read and  not the old clauses.  The High Court was thus right  in its conclusion that the clauses of s. 157(1) as amended also operate retrospectively.  This disposes of the first point. The next point is about the finality of the order of October 25,  1956  passed by the Compensation  Officer.   We  cannot refer that order to his capacity as the Assistant Collector. An  act  would, no doubt be referrable to a  capacity  which would   give  it  validity.   But  the  law   required   the compensation  officer to frame an issue and refer it to  the competent  court.   He could not decide the  matter  without doing so.  One of the parties was before it and he (1)  [1890] 15 A.C. 384 at 388. 760 ought  to have asked that party to prove its case.   He  did nothing.   It  is, therefore, not wrong for  the  Settlement officer  and  the  Deputy Director to  treat  the  order  as proceeding  from  the Compensation Officer.   Further  since proceedings  under  S.  202 of the  Land  Reforms  Act  were already  pending for the decision of the identical  question the Compensation Officer ought to have stayed his hands.  In our opinion, the order of the Compensation Officer did not

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have  that finality which is claimed for it.  That  finality attaches  only to the order of the Assistant Collector on  a reference of an issue from the Compensation Officer.   There was thus no finality. The  order  of  the Deputy Director  cannot,  therefore,  be assailed.  The appeal must fail and is dismissed but in view of  the  fact  that an amendment of  the  law  deprives  the present  appellants of a valid plea we make no  order  about costs. R.K.P.S.                      Appeal dismissed. 761