Smt. Saraswati Devi vs Deputy Director of Consolidation and Others

B. Dikshit, J.—This writ petition arises out of proceedings u/s 12 of U.P. Consolidation of Holdings Act (in short ''Act'') for mutating the name of Smt. Saraswati.

The facts relevant for the purpose of present controversy are that Petitioner Smt. Saraswati Devi applied for mutation on the basis of a sale-deed dated 22.3.1979 executed by Chhotey Lal in respect of 1/4 share in plot Nos. 843/275, 844/272, 945/890, 846/-570, 853/112 and 952/174 total area 2.293 acres. There is no dispute between parties that Chhotey Lal by said sale-deed transferred whole of his share in said holding. An objection was filed by opposite party Akchhaibar, who is a co-tenure holder with Chhotey Lal, that the transfer is bad in law and sale-deed cannot be given effect as no prior permission of Settlement Officer Consolidation required to be taken u/s 5(1)(c)(ii) of the Act was obtained by transferor before executing the sale-deed. The Consolidation Officer, after hearing the parties, rejected the mutation application holding that the sale-deed is bad in absence of prior permission of Settlement Officer Consolidation. The Petitioner preferred an appeal against the order passed by Consolidation Officer. The Assistant Settlement Officer, Consolidation, Azamgarh by order dated 16.7.1984 allowed the appeal and directed mutation in favour of Petitioner. He held that Chhotey Lal transferred his whole share in the Khata in dispute for which no prior permission was necessary. The contesting opposite parties preferred revision. The Deputy Director of Consolidation by order dated 17.8.1987 reversed the finding recorded by Assistant Settlement Officer Consolidation. He held that prior permission of Settlement Officer Consolidation was necessary before executing the sale-deed. He allowed the revision and restored the order of Consolidation Officer. Aggrieved, the Petitioner has come up before this Court in writ petition.

The learned Counsel for Petitioner argued that Section 5(1)(c)(ii) of the Act puts an unreasonable restriction on the right of bhumidhar and, therefore, it is ultra vires. He relied upon the case of Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, , in support of his argument that the validity of the aforesaid provision cannot be allowed to be challenged by Petitioner on the ground of unreasonableness which means violation of Article 14 of the Constitution of India. Section 5(1)(c)(ii), as it stands for present controversy, has been incorporated by Section 5 of Uttar Pradesh Land Laws Amendment Act, 1974, which is under protective umbrella provided by Article 31B of the Constitution as it stands incorporated in Ninth Schedule of the Constitution of India and, therefore, it cannot be challenged on the ground that it is unreasonable. The case of Bhim Singh Ji v. Union of India (supra) is distinguishable. The majority judgment of that case held Section 27(1) of Urban Land (Celling and Regulation) Act, 1976 invalid in so far as it imposed restriction on transfer of any urban or urbanisable land with a building in ceiling area. From the judgment cited, it appears that the provision having protection against challenge on the ground of violation of fundamental right enshrined in Chapter III of the Constitution was declared invalid on the ground of Legislative incompetency. It has not been declared ultra vires on the ground of unreasonable restriction which means violation of Article 14 of the Constitution. In view of the majority judgment, that provision was outside Legislative competence of Parliament, which enacted the law, the provision has been declared ultra vires. This is not case here as U.P. Legislature is competent to enact the law in question.

The next contention which is on merit and requires consideration is as to what is the effect of Section 5 of Uttar Pradesh Land Laws Amendment Act, 1991, whereby Section 5(1)(c)(ii) of the Act has been omitted with effect from 19.2.1991. The learned Counsel for Petitioner argued that the provision is retrospective and, therefore, even if the sale-deed was initially invalid for want of prior permission of Settlement Officer Consolidation, as the Act has been amended during pendency of writ petition and the amendment in question is amendment in procedural law, therefore, the change in law being made during pendency of writ petition has to be taken into consideration. According to him, It has to be given effect and, therefore, the Petitioner is entitled for relief in this writ petition. To support his argument that the provision is retrospective in operation, the learned Counsel for Petitioner argued that as no benefit accrues to anyone by transfer while the chaks were carved out before the sale was made and Chhotey Lal has transferred whole of his share, the transfer is to be protected. For proposition that procedural law is retrospective, the counsel for Petitioner relied on cases of Jose Da Costa and Another Vs. Bascora Sadasiva Sinai Narcornim and Others, ; Gurbachan Singh Vs. Satpal Singh and others, and Lalta Prasad Srivastava v. IXth Additional District Judge, Agra 1996 UPCRC 370 . He also relied upon the statement of objects of amending Act in support of his argument and submitted that as the provision has been omitted to prevent corruption and ensure quick disposal of cases, the statute has been passed for protecting the public against evil and abuse and, therefore, it has to be given retrospective effect. In support of his argument that if a statute is passed for the purpose of protecting public against some evil or abuse, then it is to be deemed to be effective retrospectively, the learned Counsel for Petitioner cited case of Sree Bank Ltd. Vs. Sarkar Dutt Roy and Co.,

The learned Counsel for contesting opposite parties opposed the petition and contended that the sale is void ab initio as it violates Section 5(1)(c)(ii) of the Act. He also argued that the omission of said section by Section 5 of Uttar Pradesh Land Laws Amendment Act, 1991 does not give it retrospective operation and relying on the case of Coates v. Diment 1951 (1) All ER 890, argued that the contracts which were void from inception under repealed section are not to be accepted valid when statutory provision declaring such transaction as void are repealed. He relied upon following portion of judgment of Coates case (supra) to substantiate his argument:

I do not consider that Section 33(3) of the Act of 1947 means more than that Section 50 of the Act of 1923 is to cease to have effect with respect to any future contracts. In future the tenant''s rights are to be governed by Section 33 (1) and (2) notwithstanding any agreement to the contrary, but no contrary intention is indicated with regard to earlier contracts which have already been rendered void by repealed section, and I am unable to accept that a clause in an agreement long ago rendered void at the moment of its inception springs into life when the statutory provision declaring it void is itself repealed. By virtue of Section 50 of the Act of 1923 declaring Clause 1 void in part, the tenant had long ago acquired a right or privilege from being ejected without notice rom the whole or part of his holding under Clause 1, and, in my opinion, Section 38(2) of the Interpretation Act, 1889, preserved that right or privilege notwithstanding the repeal of Section 50 of the Act of 1923.

The learned Counsel for Petitioner is not right in his submission that Section 5 of Uttar Pradesh Land Laws Amendment Act, 1991 has a retrospective effect as it is procedural law. Section 5(1)(c)(ii) puts a fetter on the right of a bhumidhar to transfer his holding during consolidation operations without prior permission of Settlement Officer, Consolidation. A law which affects a right to transfer without seeking permission affects substantive right and is not a procedural law. The procedural part in seeking permission is confined to the procedure to be adopted for obtaining permission. As it puts fetter on the power of a bhumidhar to transfer his holding, which affects a substantive right, it cannot be given effect retrospectively. From reading of Uttar Pradesh Land Laws Amendment Act, 1991, the said section is not retrospective. There is neither any express provision nor there is anything to indicate impliedly that the Section 5(1)(c)(ii) has been omitted by Amending Act, 1991 with intention to give effect to Uttar Pradesh Land Laws Amendment Act, retrospectively. So far the cases of Jose De Costa (supra) and Gurbachan Singh (supra) wherein it has been laid down that procedural law is retrospective, the Petitioner does not get any benefit, as I am of the opinion that said section of Uttar Pradesh Land Laws Amendment Act, 1991 amends substantive law and not procedural law.

The learned Counsel for Petitioner has cited case of Sree Bank Ltd. v. Sarkar Dutt Roy (supra) to support his argument that Amending Act has been framed for preventing corruption and therefore, it is to be given effect retrospectively. He has also relied on the statement of objects of said Amending Act. So far Section 5 of Uttar Pradesh Land Laws Amendment Act, 1991 is concerned, one of the reason assigned in statement of objects is that the amendment was being made for preventing corruption but even this being one of the reasons for omitting Section 5(1)(c)(ii) of the Act, yet Petitioner does not get any benefit. The principle of law which is being relied on in the case of Sree Bank Ltd., (supra) has been dealt with by Crales in Statute Law, 6th Edition at page 395, wherein he said that "If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right." The prevention of corruption referred to in Amending Act appears to be only to do away with the evil which was being seen in implementation of procedure in seeking permission. It did not say anything for evil or abuse which has already taken place. It has only provided for protection to tenure-holder so that they need not apply for permission in future. It nowhere saved transaction which was void from inception and, therefore, such a provision cannot be given retrospective effect.

So far Lalta Prasad Srivastav''s case (supra) is concerned, the Petitioner is not having any support from that case wherein the transaction was held to be invalid. Thus, after considering the arguments advanced and in the light of case law cited, I am of the opinion that the sale-deed is void from inception and no life can be given to it despite amendment of Section 5(1)(c)(ii) by Uttar Pradesh Land Laws Amendment Act, 1991.

During the course of argument, another question which has arisen in this case is whether after repeal of Section 5(1)(c)(ii), it can be considered that the said section was never there on the statute book. In view of Section 6 (c) of U.P. General Clauses Act, the validity of the sale-deed is to be decided on the basis of law which existed at the time when the sale-deed was executed. Section 6 (c) of U.P. General Clauses Act does not permit on repeal of a statute for taking away of any right which already accrued to any one and that position is maintained despite repeal.

While answering to argument of learned Counsel for contesting opposite party, learned Counsel for Petitioner tried to argue that the Petitioner is entitled for benefit u/s 43 of Transfer of Property Act and, therefore, also after close of consolidation operation, the sale-deed became effective the moment consolidation closed. It is not necessary for me to express any opinion on the merit of this argument for the reason that it is a new plea raised for the first time in this writ petition. So far writ petition is concerned, the only question which is to be examined by the Court is whether there is any manifest error in the judgment of the consolidation authorities. As the argument was not raised before the consolidation authorities, it cannot be allowed to be raised here in writ petition for the first time.

As I am of the opinion that the sale-deed is in violation of Section 5(1)(c)(ii) of the Act, there is no manifest error committed by consolidation authorities in rejecting the application for mutation of Petitioner. They have done what the law required to do and they have rightly denied mutation on the basis of an invalid transaction.

For aforesaid reasons the writ petition fails and is dismissed.