Mahurilal Agarwalla vs Dusasan Sahu and Others

R.N. Misra, J.—Late Raja Hrudaya Chandra Deb of the ex-State of Talcher owned a house standing on plot No. 3071 within the municipal limits of Talcher Town. Petitioner was a monthly tenant in that house. According to Petitioner, Raja Hrudaya Chandra decided to sell the house to the Petitioner for a consideration of Rs. 25,000/- and received a sum of Rs. 5,000/- out of the consideration. The agreement of sale was executed by Raja Hrudaya Chandra''s eldest son Sri Soubhagya Chandra Deb. It was agreed that on receiving the balance amount of consideration money, the sale deed would be duly executed. Raja Hrudaya Chandra died on 11-9-1970 and in spite of several approaches, Soubhagya did not execute the sale deed on receiving the balance money. Petitioner continued to be in possession of the house as before.

In the meantime, opposite parties 1 to 5 instituted a proceeding u/s 7 of the House Rent Control Act before the Controller at Talcher for eviction of the Petitioner from the house on the allegation that they had purchased the house from Soubhagya under a registered sale deed dated 15-1-1972.

Petitioner contended in his written statement that he had ceased to be a tenant from the date of the agreement of purchase and his possession was not that of a tenant. During the pendency of the eviction proceeding, a ceiling proceeding under the Orissa Land Reforms Act (hereinafter referred to as the ''Act'') was initiated against Soubhagya and according to the Petitioner in the said proceeding the house in question was found to be surplus land and in terms of Section 45 of the Act, the house vested absolutely in the State Government free from all encumbrances. Therefore, the opposite parties had no locus standi to maintain the eviction proceeding.

The Controller as also the appellate authority under the Orissa House Rent Control Act have rejected the application of the Petitioner. Therefore, this application has been filed for a writ of certiorari to quash those orders and for a declaration that the house rent proceeding is no more maintainable.

Learned Counsel for the Petitioner places reliance on the provisions of Sections 39, 44(3) and 45 of the Act in support of Petitioner''s stand. Section 39 of the Act provides:

In determining the ceiling area in respect of a person, the following principles shall be followed, namely:

(a) ...

(b) the transfer of any land by sale, gift or otherwise or the partition thereof by a person during the period beginning with the 26th day of September, 1970 and ending with the commencement of the Orissa Land Reforms (Amendment) Act, 1973, shall, if such person was holding land on the said day in excess of the ceiling area, be deemed to be void, anything contained in any law or agreement or in any decree or order of any Court notwithstanding.

(bb) ...

(c) ...

(d) ...

Section 44(3) makes the following provision:

The draft statement as confirmed or as modified in appeal or revision, if any, shall be published by the Revenue Officer in such manner and for such period as may be prescribed, and on the expiry of the said period the statement shall be final, and conclusive, a copy whereof shall then be furnished to the persons concerned free of cost and another such copy to such authority, if any, as may be prescribed.

Under Section 45, provision has been made to the following effect:

With effect from the date on which the statement becomes final under Sub-section (3) of Section 44 the interests of the persons to whom the surplus lands relate and of all land-holders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances.

According to counsel, the alleged sale deed in favour of the opposite parties being date 15-1-1972 must be deemed to be void in view of Section 39(b) and the land in question was, therefore, includible for considering the ceiling area under the Act in the bands of Soubhagya. There is no dispute that the Revenue Officer determined the house in question to be beyond the ceiling area to which Soubhagya became entitled. There is also no dispute that Soubhagya carried no appeal or revision against the determination and after the lands vested in the State Government u/s 45 of the Act, Soubhagya is said to have delivered possession of the house as being surplus land u/s 45-A of the Act.

Before the House Rent Controller, opposite parties 1 to 5 took the stand that the order of the Revenue Officer holding the property in question to be surplus lands in the hands of Soubhagya is a nullity as the Revenue Officer had no jurisdiction to take into consideration land which was neither agricultural nor/used for a purpose incidental to agriculture. Therefore, in the ceiling proceeding, the disputed property should not have been considered at all. According to counsel for opposite parties, the Act intends to make provision for agrarian reforms and bring in changes in land tenures consequent upon gradual abolition of intermediary interests and the legislative intention is not to deal with urban property unconnected with agriculture under the Act. Reliance is placed on several provisions of the stature and of Rules of interpretation to support this stand.

For the disposal of this application, two questions have got to be examined, namely:

(1) Once under the Orissa Land Reforms Act, the Revenue Officer comes to hold that the property is beyond the ceiling area, what is the effect of such a decision? and

(2) In view of the provisions of Section 45 of the Act, if it is competent for opposite parties 1 to 5 to maintain the application for the eviction of the Petitioner from the property.

Under the Act, jurisdiction has been conferred on the Revenue Officer to determine the ceiling area and elaborate provisions have been made as to the consequences of such determination. Finality attaches to the decision of the Revenue Officer in regard to the ceiling area subject to results of an appeal or revision. Therefore, when no appeal or revision is carried, the Revenue Officer''s decision becomes final. As a consequence of such determination, the surplus land vests in the State absolutely and free from all encumbrances. The ownership of the landholder or raiyat ceases. While counsel for opposite parties 1 to 5 does not dispute this analysis, his contention is that the property being a house located within the urban area and not being the case of the Petitioner that it was capable of being used for agriculture at purposes, the disputed property did not come within the ambit and purview of the Act and the Revenue Officer lacked inherent jurisdiction to deal with this property while proceeding to decide the ceiling and its size. In this view of the matter, the determination is a nullity, not-est in law and, therefore, the determination has no validity at all and finality contemplated under the Act would not attach to the decision land the sale in favour of the opposite parties by the admitted owner would not be affected.

The classical test indicated by Lord Esher M.R. in the case of The Queen v. The Commissioners for Special Purposes of The Income Tax (1888) 21 Q.B.D. 313", runs thus:

... When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may, entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more....

In the case of Anisminic Ltd. v. Foreign Compensation Commission and Anr. (1969) 2 A.C 147 (H. L.). the question of jurisdiction came to be examined. Lord Raid stated:

... But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or, it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account....

Lord Pearce added:

Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.

Mathew, J, in the case of Shri M.L. Sethi Vs. Shri R.P. Kapur, , observed:

The word jurisdiction is a verbal of may colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compn. Commission (1969) 2 A.C. 147 (H.L.), namely, the entitlement to enter upon the enquiry in question. If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denman in R. v. Bolton (1841) 1 Q.B. 60. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry....

It was pointed out by the Supreme Court in the case of Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others, :

... It was pertinently added that this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors.

There is no dispute at the Bar that if the Revenue Officer had jurisdiction to determine whether the house in dispute could be included in the ceiling, his decision is final, in the absence of an appeal or revision. But it is contended that the house being an urban property unconnected with the agricultural process, the Act did not apply and the Revenue Officer had no jurisdiction at all to deal with the property in a proceeding under the Act. This necessarily leads to an examination of the Act and its ambit.

It has always been said that a statute is an edict of the legislature and the conventional way of interpreting or construing a statute is to seek the intention of its maker. The Supreme Court in the case of R.M.D. Chamarbaugwalla Vs. The Union of India (UOI), , pointed out that a statute is to be construed according to the intention of them that make It. In the case of South Asia Industries Private Ltd. Vs. S. Sarup Singh and Others, , the Court ruled that the object of interpreting a statute is to ascertain the intention of the legislature enacting it. As has been pointed out by Professor Salmond in his Book on Jurisprudence, the appropriate approach is to determine the sententia legis. A statute as enacted cannot be explained by the individual opinions of the legislators, nor even by a resolution of the entire legislators. After the enacting process is over, the legislature becomes functus officio so far as that particular statute is concerned so that it cannot itself interpret it. It is true that the legislature can amend or repeal any previous statute or can declare its true meaning; but all these can be done only by fresh legislation. The intention of the legislature assimilates two aspects in one aspect it carries the concept of meaning, i.e., what the words mean, and in another aspect, conveys the concept of purpose and object or the reason and spirit pervading through the statute. The process of construction, therefore, combines both literal and functional approaches. Primarily the language employed in the statute is the determining factor of intention. Gagendragadkar, J. (as the learned Judge then was), speaking for the Court in the case of South Asia Industries Private Ltd. Vs. S. Sarup Singh and Others, , pointed out that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. Mukherjee, J. in the case of Poppatlal Shah Vs. The State of Madras, , observed that each word, phrase or sentence is to be construed in the light of the general purpose of the Act itself. Lord Porter, in the case of AIR 1940 82 (Privy Council) , ruled thus:

...a right construction of the Act can only be attained if its whole scope and object together with an analysis of its wording and the circumstances in which it is enacted are taken into consideration....

In the case of State of West Bengal Vs. Union of India, , the Supreme Court re-stated the position thus:

...The Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire Statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpret occurs....

In the case of A.G. v. H.R.H. Prince Ernest Augustus (1957) 1 A.E.R. 49 (L.H.) the rule ran thus:

The key to the opening of every law is die reason and the spirit of the law it is the animus imponentis, the intention of the law-maker, expressed in the law Itself, taken as a whole. Hence to arrive at the true meaning of any particular phrase is not to be viewed detached from the context-meaning by this as well the title and the preamble as the purview of enacting part of the statute.

Having thus indicated the guideline, we may now proceed to deal with certain relevant provisions of the statute. The long title runs thus:

An Act to reform the law relating to land tenures and to provide for matters connected therewith or incidental thereto.

and the Preamble further provides:

Whereas it is necessary to enact a progressive legislation relating to agrarian reforms and land tenures consequent on the gradual abolition of intermediary interest:

And whereas it is expedient to confer better rights on agriculturists to ensure increase in food production in the manner hereinafter appearing;....

Sub-sections (9-b), (12), (21)(c) and (31) of Section 2 defining different terms are relied upon. "Land" in Sub-section (14) is defined to mean:

...land of different classes used or capable of being used for agricultural purposes and includes homestead.

Sub-section (5-a) defines ''classes of land'' and Sub-section (13) provides the meaning of ''irrigated land''. Sub-section (31) defines ''tenant''. If a reference be made to the several provisions of the statute including Sections 14, 37-A, 37-B, 39 and 45-A of the Act, there can be no doubt that the legislative intention is to deal with agricultural lands, and lands and homesteads connected therewith, only. Unless within the definition of ''land'', the disputed property is covered, the Act would have no application at all.

As we have already indicated, the disputed property is a house within the Talcher Municipal area and Mr. Patnaik for opposite parties 1 to 5 has stated that the property has been assigned holding No. 135. In the absence of records of the House Rent Control proceeding, where this fact is stated to have been indicated, we are not in a position to verify the correctness of Mr. Patnaik''s statement. There is, however, no scope for doubt that the disputed property is a house situate within the town of Talcher and would not come within the definition of ''land'' unless it is established that the same is "homestead ordinarily used as a house site, ancillary or incidental to agriculture". According to the Petitioner, the house had been tenanted out to him for several years by late Hrudaya Chandra and he has been in occupation of the property ever since then. That being so, there is no room for the contention that the disputed house in a homestead within the meaning of Section 2(12) of the Act. It would follow that the house is not ''land'' within the definition of Section 2(14) and the Revenue Officer had no jurisdiction to deal with the property in the ceiling fixation proceeding and treat the same as surplus for the purposes of ceiling in the hands of Soubhagya. The determination by the Revenue Officer is thus without jurisdiction and consequently it is a nullity. That decision cannot affect rights of parties. The restriction imposed on transfer by the Act does not operate in respect of such property and, therefore, the Revenue Officer has no competency to render a decision which would adversely affect ownership of the property.

We find support for this conclusion from the fact that the Orissa State Legislature was a party to the resolution in terms of Article 252(1) of the Constitution consenting to Parliament enacting a law on urban ceiling. In term of such resolutions by eleven State Legislatures, the Urban Land (Ceiling and Regulation) Act, 33 of 1976, was enacted providing for ceiling limits in respect of vacant homestead lands in urban holdings. It is true that the Central Act does not extend to Talcher town at present, but that is of no consequence in the matter of finding out the legislative intention. The Orissa State Legislature was competent to enact a law on the same line as Central Act 33 of 1976 and when it was thought appropriate that a law of uniform application throughout the country would be more convenient, Parliament was authorised to make the law. When the State Legislature, aware of the existence of the Land Reforms Act and its ambit thought of an urban ceiling law, it is patently clear that the Land Reforms Act did not intend to deal with urban homestead (unless it was used or capable of being used for agricultural purposes).

On the analysis indicated, we have no doubt that the Controller as also the appellate authority came to the right conclusion. This writ application must accordingly be dismissed as it has no merit. We make no direction for costs.

The House Rent Control proceeding has been very much delayed on account of the debate on the preliminary question. We would now call upon the Controller to dispose of it in accordance with law within four months from now.

N. K. Das, J.

I agree.