R. Sivashanmugam and Others vs The State of Tamil Nadu and Others

K. Chandru, J.—In these writ petitions, the challenge is to the amendment brought in by the Tamil Nadu Act 11 of 1996 to the Tamil Nadu

Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1994 and a prayer is sought to declare them as ultra vires and

unconstitutional.

Sections 4 to 6 of the Amendment Act reads as follows:

Section 4. Tamil Nadu Act 58 of 1961, as subsequently modified, to have effect subject to modifications.- The principal Act shall, on and from the

6th day of April 1960, have effect, as if, Section 22 had been renumbered as Sub-section (1) of that section and after Sub-section (1) as so

renumbered, the following Sub-section had been added, namely:

For the purpose of Sub-section (1) if any transfer or partition has the effect of reducing the extent of surplus land in excess of the ceiling area,

such transfer or partition, whether bona fide or not, shall be construed as defeating the provisions of this Act.

Section 5. Validation.- Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court

or other authority, all acts done or proceedings taken in respect of cases falling u/s 22 of the principal Act by the authorized officer before the date

of the publication of this Act in the Tamil Nadu Government Gazette, which are in conformity with the provisions of section 22 of the principal Act,

as amended by Section 4 of this Act, shall, for all purposes be deemed to be, and to have always been, validly done or taken in accordance with

law, as if Section 22 of the principal Act as amended by Section 4 of this Act had been in force at all material times when such acts or proceedings

were done or taken.

Section 6. Reopening of certain cases.- Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or

order of any court or other authority, but subject to the provisions of Section 21-A of the principal Act, any proceeding taken or order passed

under the principal Act which has been disposed of before the date of the publication of this Act in the Tamil Nadu Government Gazette, contrary

to the provisions of Section 22 of the principal Act, as amended by Section 4 of this Act, shall be reopened and disposed of in accordance with

the provisions of Section 22 of the principal Act as so amended:

Provided that no such proceeding or order shall be reopened under this section after the expiry of a period of five years from the date of the

publication of this Act in the Tamil Nadu Government Gazette:

Provided further that no such proceeding or order shall be reopened unless the person affected has had a reasonable opportunity of being heard.

Before the amendment, the original Section 22 read as follows:

Section 22. Transfer or partition made on or after the date of the commencement of this Act, but before the notified date.-

(1) Where, on or after the date of the commencement of this Act, but before the notified date, any person has transferred any land held by him by

sale, gift (other than gift made in contemplation of death), exchange, surrender, settlement or in any other manner whatsoever except by bequest or

has effected a partition of his holding or part thereof, the authorized officer within whose jurisdiction such land, holding or the major part thereof is

situated may, after notice to such person and other persons affected by such transfer or partition and after such enquiry as he thinks fit to make,

declare the transfer or partition to be void if he finds that the transfer or the partition, as the case may be, defeats any of the provisions of this Act.

The statement of objects and reasons for bringing the amendment as set out in the original Bill may be usefully reproduced below:

Section 22 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Tamil Nadu Act 58 of 1961), provides that any transfer or

partition, made on or after the date of the commencement of the Act, but before the notified date, may be declared to be void by the authorised

officer, if he finds that such transfer or partition defeats any of the provisions of the Act. In many cases the authorised officers while implementing

the Act have passed orders u/s 22 holding that the transfers or partitions effected during the said period as void. The orders passed u/s 22 have

been taken on appeal to the Land Tribunal and the High Court by parties aggrieved. The High Court in a batch of cases in Civil Revision Petitions

No. 1824, 1825/65 and 44/66 has held that the transfer made during the said period can be declared void only if the authorized officer can come

to the conclusion that the transaction is sham, nominal and bogus. The above judgment of the High Court has been taken on appeal to the Supreme

Court by the State Government. However, during the pendency of appeal before the Supreme Court, the authorized officers and the Land

Tribunals have followed the judgment of the Madras High Court and in many cases the transfer effected during the said period have been held to

be valid.

Subsequently, the Supreme Court in the appeal preferred by the State Government referred to above and reported in Authorised Officer,

Thanjavur and Another Vs. S. Naganatha Ayyar and Others, has reversed the judgment of the Madras High Court and interpreted Section 22 of

the Act to the effect that if any transfer defeats the provisions of the Act by reducing the extent of surplus land in excess of the ceiling available from

any person such transaction, bona fide or not shall be void in the matter of computation of permissible area and the surplus area.

Based on the said judgment of the Supreme Court, many cases in which orders have been passed earlier holding the transaction as valid, have

been reopened and surplus land has been declared. All the past cases which have been re-opened, are now challenged before the Tamil Nadu

Land Reforms Special Appellate Tribunal on the ground that the Act does not confer any right or power on the authorized officer to review such

cases which have reached finality.

It has, therefore, been decided to amend Section 22 of the said Act so as to be in consonance with the principles laid down by the Supreme

Court in the case referred to above and to make it clear that if any transfer or partition, has the effect of reducing the extent of surplus land in

excess of the ceiling area, such transfer or partition whether bona fide or not, shall be construed as defeating the provisions of the said Act.

It has also been decided to make provisions for validating all acts done or proceedings taken by the authorised officer and to reopen the past

cases, based on the said judgment of the Supreme Court.

The Bill seeks to give effect to the above decision.

These writ petitions were admitted on various dates and on notice from this Court, counter affidavits have been filed by the State in all the writ

petitions. Pending the writ petitions, in most of the cases, stay of dispossession was granted by this Court. But, however, liberty was given to

proceed with the other proceedings. In some cases, there was an absolute stay granted by this Court.

Initially an objection was raised about the maintainability of the writ petitions as the declaratory relief was not made before the Tamil Nadu Land

Reforms Special Appellate Tribunal. Though the decision of the Supreme Court in L. Chandra Kumar Vs. Union of India and others, supports

such view, it was contended that the Tamil Nadu Land Reforms Special Appellate Tribunal was not having a Judicial Member and was functioning

only with an Administrative Member and, therefore, the Court should not refuse to entertain the writ petition. This Court, by an order dated

11.12.1997 permitted the writ petitions to be entertained by this Court in view of the fractured nature of the Appellate Tribunal. Subsequently it

must also be noted that the Tribunal itself had been abolished.

In W.P. No. 17115 of 1997, a miscellaneous petition was also filed seeking to raise certain additional grounds by the petitioner. But till date, no

steps were taken to get the petition ordered by this Court.

While one set of writ petitions came up for hearing on 04.11.2008, W.P. No. 4083 of 1999 came up on 19.12.2008. Since in all the writ

petitions, identical contentions have been raised, they were heard together and a common order is being passed.

When orders were passed by the Authorised Officer, the said matter came up for consideration in a revision petition before this Court. The

decision in the Civil Revision was rendered in S. Naganatha Ayyar v. Authorised Officer, Thanjavur and Anr. reported in (1970) 84 MLW 69.

This Court while allowing the revision petition held that the Land Reforms Act being confiscatory in nature, the public authority invested with the

power to enquire into and to invalidate a transfer should act reasonably, and that such a power should be construed beneficently in favour of the

subject who is affected by the statute. It was also held that the transactions entered into in anticipation of the Ceiling Act will not be hit by the

provisions preventing such transfers except where they are mala fide or colourable. It was also held by this Court that Section 22 covers only

sham, nominal and bogus transfers.

The relevant passage found in the judgment may be usefully extracted below:

...Section 22 seems to cover only those sham, nominal and bogus transfers which are only intended to defeat the provisions of the Act. If the

Legislative intention is also to invalidate all bona fide transactions during the relevant period, it would have made certain consequential provisions as

to what are the rights of the transferor and the transferee in relation to the property conveyed, and how the resultant equities between the transferee

and the transferor have to be worked out. This view that Section 22 will cover only transactions of sham, nominal and bogus characters which are

intended only to defeat the provisions of the Act will not the inconsistent with the object provided in Section 7.

Thus saying all the transactions other than those which come within the mischief of the section was allowed to go outside the purview of

Section 22. Therefore, any transfer of land which took place between 06.4.1960 and 02.10.1962 namely the period between the date of

commencement of the Act and the notified date respectively can be declared void by the Authorised Officer only if he found that the transfer had

defeated any of the provisions of the Act.

The matter was taken on appeal by the State and heard by the Supreme Court. The Supreme Court allowed the appeal preferred by the

Authorised Officer vide its decision in Authorised Officer, Thanjavur and Another Vs. S. Naganatha Ayyar and Others, . The Supreme Court in

paragraphs 11 and 12 of the said judgment held as follows:

Para 11. The learned Judge seems to take a liberal view that transactions entered into in anticipation of the Ceiling Act will not be hit by the

provisions preventing such transfers except where they are mala fide or colourable. The reason partly turns on semantics and the court argues with

lexical support:

The word ''defeat'' normally means ''overcome, thwart, evade, frustrate, circumvent, bypass, disappoint, prevent the accomplishment of''...the

word ''defeat'' in Section 22 has to be taken as having been used to import sinister motive. Maxwell on the Interpretation of Statutes, twelfth Edn.,

after stating that the courts will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net, that the

statute has to be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may

have devised in the hope of falling outside the Act.

The conclusion categorically reached by the High Court virtually emasculates Section 22 as we understand its object and import. The learned

Judge winds up with these words:

On a due consideration of the matter, I hold that u/s 22 of the Act the authorised officer is entitled to declare as void only those transfers which are

sham and nominal entered into with the avowed object of defeating the provisions of the Act, without any bona fide intention to transfer title. So in

the light of the view expressed above the facts of each case have to be considered.

Section 22, literally read, leads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the Authorised

Officer ""if he finds that the transfer defeats any of the provisions of this Act"". There is not the slightest doubt that severally and cumulatively the

provisions of the Act seek to make available the maximum extent of land, in excess of the ceiling, to be vested in Government for fulfilment of its

purposes. Chapter II contains a fasciculus of provisions in this behalf and if any transfer carves out of the surplus area some land, pro tanto, the

provisions of the Act are defeated. Indeed, it is not seriously disputed that such will be the conclusion if we do not read into the provisions either

the condition that it does not apply to bone fide transfers, as Shri Ramamurthi would have it, or does not apply to any transfers other than sham,

nominal or bogus transfers, as the High Court would have it. A policy-oriented interpretation tallies with the literal construction in the present case.

The mischief rule in Heydon case and the grammatical construction which is the Golden Rule converge to the same conclusion in the present case.

Para 12. The policy of the law of land reform with drastic limit on holdings often drives large holders to evade by manouvres. They make gifts,

execute sales or settlements, enter into other dealings to save their properties from being taken by the State. May be in a few cases, the owner has

real necessity. But why sell only on the eve of land legislation? Why execute deeds, though for good purposes, only where the bill fixing ceilings is

round the comer? By and large, the strategies of extrication of holdings from the arm of the law is the reason that prompts sudden affection for

making gifts, sudden realisation of debts due and sudden awareness of family necessity. The legislature, astute enough not to be outwitted in its

objective, puts a blanket ban on transfers which, in effect, defeat its provisions. This may cause hardship to some but every cause claims martyrs.

Individual trauma is inevitable while ushering in a new economic order. This is the rationale of Section 22 of the Ceiling Act. To allow the sense of

the text and to mix alien concepts is to debase the statutory metal. Likewise, laws are not value-free and so he reads the symbols of words best

who projects in the process the values of the legislation as distinguished from his own. Reading other values into the legislators'' words may

judicially demonetize the statute and break the comity between constitutional instrumentalities.

It was concluded in paragraphs 16 and 17 of the Naganatha Ayyar''s case and the same may be usefully extracted below:

Para 16. In the interpretation of Section 22 we too are Portia men. For this reason we reverse the view of the High Court that Section 22 will not

apply to nullify any transaction of transfer or partition unless it is further shown that it is sham, nominal or bogus. Nor do we agree with Shree

Ramamurthi that even if a transaction defeats the ceiling provisions, it may still be valid if the transfer is, from an individual point of view bona fide.

The short reply is that from the community''s angle, especially the landless community''s angle hungering for allotment, the alienation, however

necessary for the individual, is not bona fide vis-a-vis the community.

Para 17. Therefore, we allow the appeal in the light of the interpretation we have adopted, restore the Tribunal''s holding and rule that if any

transfer defeats the provisions of the Act by reducing the extent of surplus land in excess of the ceiling available from any person such transaction,

bona fide or not, is void in the matter of computation of the permissible area and the surplus area. May be, that the transaction may be good for

other purposes or may not be. The Authorised Officer is within his power if he ignores it as void for purposes of Section 22 Section 7 and other

ceiling-related provisions.

In order to give effect to the said decision, the impugned amendment came to be made by the Legislature and it was also made to come into

effect from the date of the principal enactment. In the counter affidavit filed by the State it is stated that the amendments were given retrospective

effect as per the principles laid down by the Supreme Court in Naganatha Ayyar''s case (cited supra). It is also brought to the notice that the

amendments are made to give effect to the principles laid down in Article 39(b) and (c) of the Constitution and found in Part IV containing the

Directive Principles of State Policy. As the principal Act was also included in the IX Schedule to the Constitution, it is not liable for any judicial

review on the ground of violation of any of the Fundamental Rights in view of Article 31-B of the Constitution.

Mr. T.K.Seshadri, learned Senior Counsel appearing for some of the petitioners contended that the amendments are ultra vires the

Constitution. In this context, he referred to the judgment of the Supreme Court in P. Sambamurthy v. State of Andhra Pradesh, AIR 1987 SC 663

. Reliance was placed upon the following passage found in paragraph 4, which may be usefully reproduced below:

Para 4. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against

it, it would sound the death knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State

Government to defy the law and yet to get away with it. The proviso to Clause (5) of Article 371-D is therefore clearly violative of the basic

structure doctrine.

For the very same proposition, he also placed reliance upon the judgment of the Supreme Court reported in Belgaum Gardeners Cooperative

Production Supply and Sale Society Ltd. Vs. State of Karnataka, . The following passage found in paragraph 77 is relevant and it may be usefully

reproduced below:

Para 77...Hence any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such

Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to nullify the order

of the Tribunal passed on June 25, 1991 it impinges upon the judicial power of the State and is, therefore, ultra vires the Constitution.

Based upon these two judgments, the learned Senior Counsel submitted that since the Authorised Officer has the trappings of a Court and

already orders have been passed by the said Officer, which had become final, the same cannot be reopened. The decision rendered by the

Authorised Officer is a judicial order and the amendment, inasmuch as the impugned Act gives power to reopen such of those cases, should be

declared as unconstitutional.

Mr. Vijayakumar, learned Counsel appearing for M/s.T.R.Rajaraman, submitted that invalidating a bona fide transfer that too by a

retrospective amendment is wholly illegal. The State Legislature lacks legislative competence for enacting such an amendment. For this purpose, he

placed reliance upon the judgment of the Supreme Court in Shri Prithvi Cotton Mills Ltd. and Another Vs. Broach Borough Municipality and

Others, .

He also referred to the judgment of the Supreme Court in S.R. Bhagwat and others, Vs. State of Mysore, . After referring to paragraphs 15,

17 and 18, he submitted that once a decision made by the authority has become final and the State has not challenged the said decision before a

competent Court, the legislative power cannot be pressed into service to undo the binding effect of such orders passed by the Court.

He also placed reliance upon the judgment of the Supreme Court in State of Tamil Nadu Vs. M/s. Arooran Sugars Ltd., and wanted to

emphasize that even if the Legislature has power to make a retrospective legislation, it cannot invalidate the decisions which were rendered already.

For the very same purpose, he also placed reliance upon the judgment of the Supreme Court in ComMr. Karanataka Housing Board v. C.

Muddaiah reported in (2007) 7 SCC 689. Reliance was placed upon paragraph 20 of the said judgment, which reads as follows:

Para 20. In that case also, it was contended by the State that the petitioners were not entitled to consequential benefits in view of legislative

provision and overriding effect u/s 11 of the Act. The Court, however, negatived the contention. It observed that it is open to a competent

legislature to remove a defect in a legislation. Such enactment or validating statute could not be held unconstitutional or ultra vires. But it is equally

well settled that a binding judicial pronouncement between the parties cannot be made ineffective or inoperative with the aid of legislative power by

making a provision which, in substance and in reality, overrides and overrules a decision rendered by a competent court. Such process virtually

renders a judicial decision ineffective by indirectly exercising appellate power over a judicial forum which is impermissible....

Mr. A.Sivaji, learned Counsel appearing for some of the petitioners thereafter contended that since the principal Act was included in the IX

Schedule, the Supreme Court in Naganatha Ayyar''s case (cited supra) did not go into the violation of Fundamental Rights. To his knowledge, the

Amended Act had not been included in the IX Schedule and, therefore, there is no impediment for this Court to go into the constitutional validity of

the amendment and have a fresh look on the same.

For this proposition, he relied upon the Division Bench judgment of this Court in Rajasheriff v. Government of Tamil Nadu and Anr. reported

in 2001 (4) CTC 577. The learned Counsel stated that though the said judgment was rendered in the context of Section 23A of the Land

Acquisition Act, 1894 brought in by a Tamil Nadu Amendment Act, the reasoning given therein is applicable to the impugned amendment also.

The learned Counsel also submitted that the retrospective nature and effect of the Benami Transactions (Prohibition) Act, 1988 came up for

consideration before the Supreme Court in its decision in R. Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini

Chandrasekharan (deceased by legal representatives), . There the Supreme Court held that the Act will not have any retrospective operation and

will not apply to pending suits already filed and entertained prior to the coming into force of Section 4 of the Benami Transactions (Prohibition)

Act. He also stated that when a declaration is made by the Legislature it is not conclusive and at times it may be amending the law and, therefore,

need not be retrospective in character.

Therefore, all the learned Counsel for the petitioners have submitted that since in the respective cases as there were no finding by the

Authorised Officer that the transfers effected were not bona fide and those orders were not under challenge in the manner known to law, the

amendment cannot create any right on the part of the State to reopen the concluded orders. Hence to the extent the impugned law should be

struck down as invalid.

Before venturing into the rival submission by the State, it must be stated that the proviso to Section 6 of the Amended Act impugned in the writ

petition as extracted above clearly sets out that by virtue of the amendment no proceeding or order shall be reopened under the section after the

expiry of the period of five years from the date of publication of this Act in the Tamil Nadu Government Gazette. The Act was published in the

Tamil Nadu Government Gazette (Extraordinary) Issue No. 224 on 10.5.1996. Further, the Authorised Officer must also give reasonable

opportunity to the affected parties before reopening a case. Therefore, the Legislature itself thought it fit to safeguard the interest and prevent any

uncertainty by enabling the Authorising Officer to reopen the orders made already. They are necessary legislative safeguards made by the State.

Mr. R.P.Kabilan, learned Additional Advocate General submitted that the amendment was made only to give effect to the Supreme Court

judgment in Naganatha Ayyar''s case (cited supra). During the relevant period, by virtue of the decision of the Division Bench, the Authorised

Officers were forced to accept all transfers unless there was fraudulent transaction. Once the Supreme Court rendered a judgment upholding a

particular provision, it is as if the said provision was always in the statute book. The judgment did not make any prospective overruling. Therefore,

Section 22 as enacted in the year 1961 and interpreted by the Supreme Court will apply to acts of parties. The amendment is a mere reiteration of

the judgment of the Supreme Court. Therefore, no one can claim that any right vested on them was taken away by the impugned amendment.

In this context, the learned Additional Advocate General referred to the judgment of the Supreme Court in State of Haryana and others Vs.

The Karnal Co-op. Farmers'' Society Limited, etc. etc. and others, . This is for the purpose of showing that the Legislature has legislative power to

render ineffective the earlier judicial decision by removing or altering or neutralising the legal basis in the unamended law on which such decisions

were founded even retrospectively. He also submitted that this is not a case where the earlier judicial decisions have been rendered ineffective by

using legislative power.

The learned Additional Advocate General also referred to the judgment of the Supreme Court in State of Gujarat Vs. Vora Saiyedbhai

Kadharbhai and others, . The argument was that a social welfare legislation even if it affects some citizens, will not make the law unconstitutional. In

the light of the same, he sought for dismissal of the writ petitions.

It must be stated that the Supreme Court in its judgment in State of Tamil Nadu Vs. M/s. Arooran Sugars Ltd., held as follows:

Para 16. The scope of a non obstante clause and of Validating Act has been examined by this Court from time to time. Reference in this

connection be made to the judgment in the case of Shri Prithvi Cotton Mills Ltd. and Another Vs. Broach Borough Municipality and Others, ,

where Hidayatullah, C.J. speaking for the Constitution Bench said: (SCC pp.286-87, para 4)

When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for

ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that

the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative

competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in

exercise of judicial power which the legislature does not possess or exercise. A court''s decision must always bind unless the conditions on which it

is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be

invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction.

Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact

removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before.

Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand

under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by

legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may

neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law.

The same view was reiterated in the cases of West Ramnad Electric Distribution Co. Ltd. Vs. State of Madras, ; Udai Ram Sharma v. Union of

India AIR 1968 SC 1138 ; Tirath Ram Rajindra Nath, Lucknow Vs. State of U.P. and Another, ; Krishna Chandra Gangopadhyaya and Others

Vs. The Union of India and Others, ; Hindustan Gum and Chemicals Ltd. Vs. State of Haryana and Others, ; Utkal Contractors and Joinery (P)

Ltd. and Others Vs. State of Orissa, ; D. Cawasji and Co., Mysore Vs. State of Mysore and Another, and Bhubaneshwar Singh and Bimla Devi

Poddar and Others Vs. Union of India (UOI) and Others, . It is open to the legislature to remove the defect pointed out by the court or to amend

the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by

the legislature over the power of the judiciary. A court''s directive must always bind unless the conditions on which it is based are so fundamentally

altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in

the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective

effect. This is what has happened in the present case. The judgment of the High Court in Writ Petition No. 1464 of 1974, dated 8-10-1976 was

solely based on the amendments which had been introduced by Act 7 of 1974. If those amendments so introduced have been effaced by Act 25

of 1978 with retrospective effect saying that it shall be deemed that no such amendments had ever been introduced in the Principal Act, then full

effect has to be given to the provisions of the later Act unless they are held to be ultra vires or unconstitutional.

Therefore, from the above it is clear that the legislature has a power to enact a retrospective legislation for the purpose of clarifying certain

ambiguity that has been created by the judgment of the Court. It is only with a view to neutralise the decision rendered in this regard. In the present

case, the decision of the Division Bench in Naganatha Ayyar''s case (cited supra) was reversed by the Supreme Court which gave the true nature

of Section 22. Once such a decision is rendered it must be deemed that it has always been in the statute book as interpreted by the Supreme

Court. The present amendment did not make a new amendment to the provision but only gave statutory backing to the interpretation given by the

Supreme Court in Naganatha Ayyar''s case (cited supra).

Therefore, if an Authorised Officer had given an order in favour of any of the petitioners ignoring the legal provision, such an order can only be

a nullity as it had not taken note of the true legislative meaning as well as the intent and purport of Section 22. Section 22(2) as amended by the

impugned Amendment Act has restored the correct meaning and the spirit of the Act. The petitioners cannot attack the said amendment as if it has

taken away their vested right. The truth of the matter is that they have no vested right in making a transfer to defeat the very purpose of the

legislative injunction over such transfers. Further, the amendment itself has put an embargo by prescribing a limitation for reopening the issues

beyond five years from the date of the gazette notification. Hence, it cannot be said that the legislation is arbitrary or it had taken away judicial

decisions.

After the nine Judges'' bench judgment of the Supreme Court in J.R. Coelho (dead) by LRs v. State of Tamil Nadu reported in 2007 AIR

SCW 611, it has been held that notwithstanding Article 31-B of the Constitution, any legislation included in the IX Schedule still can be judicially

reviewed if it infringes basic structure of the Constitution. But in the present case, no such argument was advanced to go into the immunity

conferred by Article 31-B.

The decisions cited by the learned Counsel for the petitioners referred to above do not advance the cause of the petitioners. In the light of the

above, the challenge to the impugned amendment stands rejected. All the writ petitions will stand dismissed. However, there will be no order as to

costs. All the miscellaneous petitions stand closed.