Amritlal Das vs Govt. of Assam and Others

Ram Labhaya, J.—This petition under Article 226, Constitution of India, is directed against an order of the Additional Chief Secretary and Development Commissioner, dated 10-3-1949 by which a settlement of 5 bighas 2 kathas and 3 lechas of waste land in dag No. 68 (ka) of Ulubari in the town of Gauhati with the Petitioner Amrit Lal Das, was cancelled under Rule 26 of the Settlement Rules. The order also directed that the land may be settled if possible with needy and landless people.

The case of the Petitioner is that the land in question was settled with him by the Deputy Commissioner, Kamrup. The settlement was approved by the Commissioner on 27-2-1945. On 2-3-1945 the Deputy Commissioner passed his final order. A periodic patta was issued to him on 20-9-1946. This patta No. 201 was for 12 years. A sum of Rs. 1,660/- was realised from him as the premium. On 15-3-1949 he was informed by the Deputy Commissioner that the settlement of the land with him had been cancelled by the impugned order dated 10-3-1949 and he was directed to take back the premium he had paid. The Petitioner preferred an appeal from this order to this Court. This appeal was dismissed on 8-2-1951 by Thadani, C.J. in the exercise of the Revenue jurisdiction of this Court. He found that the order cancelling the settlement was an order of the Government of Assam and no revenue appeal lay to the High Court from the order of the Provincial Government. The validity of the order of the Additional Chief Secretary is now challenged by this petition mainly on two grounds, namely (1) that Rule 26 had no application to the facts of the case and (2) that the Development" Commissioner even when acting as Additional Chief Secretary had no power to cancel the lease under Rule 26.

The facts have not been fully stated in the petition. The original order of settlement in favour of the Petitioner was appealed from by one Prafulla Chandra Barua. His appeal was registered at number 158 in 1947. It came up before the Revenue Tribunal on 18-2-1948. The order of the Tribunal was passed on 27-2-1948. The Tribunal came to the conclusion that further enquiry as to the eligibility of the Appellant (Prafulla Chandra Barua) for settlement was necessary as he had also applied for the settlement of the land for starting a dairy farm. The case was sent back with the direction that his case should be considered along with others who have been or are being granted settlement. The status quo as to the settlement was ordered to be maintained for the interim period.

The necessary implication of the order is that the settlement made with Amrit Lal Das, the Petitioner before us, who was Respondent in the appeal before the Tribunal, was set aside and the whole case reopened. The matter had to be decided after a fresh enquiry as to the comparative merits of the claims of the parties who had applied for the settlement of the land in question. On 20-11-1951 on a petition of Amrit Lal, the present Petitioner, this Court in the exercise of the Revenue jurisdiction which had been transferred to it, ordered the Deputy Commissioner, Kamrup to make an enquiry into the matter as directed by the Revenue Tribunal by its order dated 18th February and to submit papers to this Court for a final decision. It was observed that the Development Commissioner had treated that order as a final order permitting him to deal with the question of settlement afresh. But he was not correct in this view of the matter. The proposal made by the Deputy Commissioner on a report submitted to him by the Sub-Deputy Collector after necessary enquiry was submitted to this Court. The Deputy Commissioner passed his order on 12-12-1948. He proposed to the Government that the settlement in favour of Amrit Lal be cancelled and the land reserved for allotment to landless people. His reason for this proposal was that Amrit Lal had done nothing to start the dairy farm for which land had been settled with him. After the receipt of this report the appeal came up for hearing on 10-11-1953. The Appellant Prafulla Chandra Barua asked for leave to withdraw the appeal. Amrit Lal who was a Respondent in that appeal, did not oppose the withdrawal. The appeal was allowed to be withdrawn and was dismissed.

Before the dismissal of Prafulla Chandra Barua''s appeal and on the recommendation of the Deputy Commissioner, dated 12-12-1948, the Additional Chief Secretary and Development Commissioner had ordered the cancellation of the settlement in favour of Amrit Lal, the Petitioner acting under Rule 26 of the Settlement Rules. Amrit Lal''s appeal from the order of the Additional Chief Secretary and Development Commissioner had already been dismissed on 8-2-51. Thadani, C.J. held that the order appealed from was art order of the Provincial Government and as such not appealable. Amrit Lal is now challenging the validity of the order of the Additional Chief Secretary cancelling the lease by his present peti-tion under Article 226, Constitution of India. Mr.

Medhi, the learned Government Advocate has resisted the petition mainly on the ground that the order against which the petition is directed was passed on 10-3-1949 before the Constitution came into force. Relief under Article 226 cannot therefore be allowed as this involves giving retrospective effect to the Constitution.

The Petitioner has already exhausted his remedies which were available to him under the Land Revenue Manual. He did not oppose the Withdrawal of the appeal by, Prafulla Chandra Barua in which he may have insisted as a Respondent that the Government had no right to reserve the land for allotment to the landless people after the cancellation of his settlement. He might have urged that if Appellant (Prafulla Chandra Barua) did not press his claim the settlement in his favour should not have been disturbed. He himself treated the order of the Provincial Government as an independent proceeding. His appeal against that order has already failed. He is now seeking relief under Article 226.

The remedy which Article 226 provides in cases covered by it was not available to the Petitioner when the order was passed. The question arises whether it is open to the Petitioner to avail of this remedy in the circumstances of this case. Mr. F. Ahmed has pointed out that the remedy is available to him as the Tribunal by its order dated 18th February allowed the status quo as regards the settlement to be maintained pending the enquiry that was ordered. He urges that Petitioner is still in possession of the property and would now be deprived of it if the order of the Additional Chief Secretary and Development Commissioner is allowed to take effect. His contention virtually is that the proceeding is still pending or at least was pending on the date the Constitution came into force and therefore the application of Article 226 is attracted.

It is true that the appeal of Prafulla Chandra Barua against the Petitioner (Number 158 of 1947) was pending when the Constitution came into force. His own appeal by which settlement in his favour was cancelled was also pending. Both the appeals were disposed of after the Constitution came into force. No appeal under the Land Revenue Manual is now pending, though the fact that he is still in possession of the land is not disputed. His grievance therefore is that he will now be dispossessed of the land in pursuance of an order passed in March, 1949 and he is entitled to resist enforcement of this order if he can bring his case within the ambit of Article 226 of the Constitution.

In order to bring the case under Article 226, it is argued that the order passed on 10-3-1949 involves an infringement of the fundamental right of the Petitioner. It is also urged that the order is without jurisdiction. Writs in the nature of certiorari, mandamus and prohibition have been applied for. It is common ground that the remedy made available by Article 226 was not in existence when the impugned order was passed. The contention is that as the question whether settlement in his favour should stand or not had not been finally decided when the Constitution came into force. Article 226 became applicable and the Petitioner got a fresh remedy under the Constitution. This contention would involve giving retrospective effect to Article 226 and would be opposed to a clear pronouncement from their Lordships of the Supreme Court made in-- Keshavan Madhava Menon Vs. The State of Bombay, . In this case, their Lordships toy a majority held that every statute was prima facie prospective unless it was expressly or by necessary implication made to have retrospective operation. This recognised rule of interpretation was held to be applicable for purposes of interpreting the Constitution. It was further laid down that:

before the ''Constitution came into force, there was no such thing as a fundamental right. As the fundamental rights became operative only on and from the date of the Constitution, the question of inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. Therefore Article 13(1) can have we retrospective operation but is wholly prospective. If an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void, with respect to the exercise of any of the fundamental rights the inconsistent law is not wiped out so far as the past act is concerned.

As a result of this, it was found that proceedings u/s 18(1), Press (Emergency Powers) Act 1931 pending at the date of the Constitution were not affected. What was expressly and emphatically laid down was that the enforcement of the Constitution did not affect pending proceedings even though there was a violation of fundamental rights. Pending proceedings could be affected only if the Constitution or any part of it" was given in express terms or by necessary intendment any retrospective effect.

The decision''reported in-- Keshavan Madhava Menon Vs. The State of Bombay, was followed in-- Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, and it was reaffirmed that there can be no question of infringement of the fundamental rights under Article 14 before the coming into force of the Constitution. The provisions of the Constitution relating to fundamental rights had no retrospective operation. In--''Rajaram Dadu v. The State'' AIR 1951 Nag 443 (FB) (C) a Full Bench decision of the Nagpur High Court, it was held that:

Articles 226 and 227 of the Constitution do not relate to matters of procedure but confer a power upon High Courts to interfere in certain cases. This power cannot be invoked by a person aggrieved by a decision of Court or a tribunal arrived at before these provisions came into force.

In-- The State Vs. Judhabir Chetri, it was held that Article 227 had no retrospective operation. Giving of retrospective effect is necessarily involved if these articles are applied to pending proceedings, for it would be conferring remedies on the parties which were not available to them when the proceedings started. As held in the cases referred to above, even Article 226 cannot be given any retrospective operation even though there may be an infringement of a fundamental right, for there were no fundamental rights before the Constitution came into force. In this view of the matter, this peti-tion must fail on this ground alone.

There is another reason also why relief under Article 226 may not be allowed to the Petitioner. He got a settlement in the year 1945. The order of cancellation of the settlement was passed in 1949. His own appeal against cancellation order was disposed of on 8-2-1951. The appeal against the'' order settling the land with him was disposed of on 10-11-1953. If the settlement had full effect he would be entitled to remain in possession for another six years. He has not still been dispossessed. It is not a case in which any urgent or immediate relief is necessary. If Petitioner�s contention is correct that the order of the Additional Chief Secretary and Development Commissioner was wholly without jurisdiction, he would not be without a remedy.

It is not suggested that no other remedy is available to him. It would be open to him to institute a suit which could give him adequate and effective relief. Remedies made available by'' Article 226 may not be permitted to be utilised as substitutes for ordinary remedies available at law. The extraordinary jurisdiction of the High Court tinder this Article may be invoked in cases where no adequate remedy is available to an aggrieved party and a writ or order under Article 226 alone affords a convenient and effective mode of redress. This is not the case here. Mere defect of jurisdiction in the impugned order, assuming that it does exist, does not make it obligatory on the Court to exercise this jurisdiction. A necessary condition for the exercise of this jurisdiction is lacking. The Petitioner may, if so advised, pursue any other remedy that may be available to him.

In the circumstances of this case, we do not feel justified in issuing any high prerogative writ. The petition fails and is dismissed. The Rule is discharged.

Deka, J.

I agree.