Appeal No 425 of 1957
Appeal from the judgment and order dated February 21 1956 of the Patna High Court in Misc
Judicial Case No 53 of 1955
B K P Sinha and D P Singh for the appellants
L K Jha and R C Prasad for the respondent
May 3
The Judgment of the Court was delivered by 688 SUBBA RAO J
This appeal by certificate raises the question of the construction of section 4h of the Bihar Land Reforms Act 1950 Act 30 of 1950 hereinafter referred to as the Act as amended by the Bihar Land Reforms Amendment Act 1959 Bihar Act 16 of 1959 hereinafter called the Amending Act
The facts giving rise to the appeal lie in a small compass
Plots NOW
383 and 1033 are tanks in village Lakshmipur alias Tarauni in the District of Darbhanga
The respondent claims to have taken settlement of the said plots in the year 1943 from the landlords of Raghopur Estate of which the said plots formed a part
After the coming into force of the Act the said Estate vested in the State of Bihar
Thereafter one Sheonandan Jha and some other villagers of Lakshmipur filed a petition before the Collector alleging that the alleged settlement was not true and that in fact the settlement was nominally effected only after January 1 1946
The Additional Collector Darbhanga in exercise of the powers conferred on him under section 4h of the Act held that the said settlement was actually made after January 1 1946 and that it was only a paper transaction having annulled the said settlement the Additional Collector by his order dated January 18 1955 called upon the respondent to give up possession of the said plots by January 30 1955
Aggrieved by the said order the respondent filed a petition in the High Court of Judicature at Patna under article 226 of the Constitution for a rule in the nature of a writ of mandamus or any other appropriate writ cancelling the order of the Additional Collector dated January 18 1955 and res training the appellants from interfering with his possession of the said two plots
That petition came to be decided by a division bench of the High Court and the learned Judges by their order dated February 21 1956 held that the Additional Collector had no jurisdiction to entertain and decide the question whether the settlement which was prima facie shown to have been made before January 1 1946 was actually made after that date
On the basis of that finding the order of the Additional Collector was set aside
689 The State of Bihar and the Additional Collector of Darbhanga have preferred the present appeal against the said order
Learned counsel for the State contends that section 4h of the Act has been amended with retrospective effect that under the amended section the Collector has power to decide whether a transfer is made before 1946 or thereafter and that therefore the order of the High Court can no longer be sustained
Learned counsel for the respondent while conceding the retroactivity of the amendment relies upon the second proviso added by the amendment to section 4h and contends that under the said proviso the order of the Collector cannot take effect nor possession taken thereunder unless the said order has been confirmed by the State Government and that in the instant case there has not been any such confirmation
Further he questions the constitutional validity of the said section on the ground that it infringes the fundamental right of the respondent under articles 14 19 and 31 of the Constitution and is not saved by article 31A thereof
The second contention of learned counsel for the respondent may be disposed of first
Under article 31A of the Constitution no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14 article 19 or article 31
The question is whether section 4h of the Act is such a law as to be hit by article 31A of the Constitution
Section 4h of the Act confers power on a Collector inter alia to make inquiries in respect of any transfer of any land comprised in an estate and to cancel the same if he is satisfied that such transfer was made any time after January 1 1946 with the object of defeating any provisions of the Act or causing loss to the State or obtaining compensation thereunder
It is said that the section ex proprio vigore does not provide for acquisition by the State of any estate or of 690 any rights therein or for the extinguishment or modification of any such rights and therefore is not protected by article 31A of the Constitution This argument in effect disannexes section 4h of the Act from the setting in which it appears and seeks to test its validity independently of its interaction on the other provisions of the Act
Section 4h is an integral part of the Act and taken out of the Act it can only operate in vacuum
Indeed the object of the section is to offset the anticipatory attempts made by landlords to defeat the provisions of the Act
Suppose the Collector cancels a transfer of land by the owner of an estate under the said section the said land automatically vests in the State with the result that the rights of the transferor and the transferee therein are extinguished
The said result accrues on the basis that the said land continued to be a part of the estate at the time the Act came into force
That apart the section is a part of the Act designed to extinguish or modify the rights in an estate and the power conferred on a Collector to cancel a transfer of any land in an estate is only to prevent fraud and to achieve effectively the object of the Act
This question was directly raised and answered by this Court in Thakur Raghubir Singh vs State of Ajmer 1
There the constitutional validity of the Ajmer Abolition of Intermediaries and Land Reforms Act 1955 Ajmer III of 1955 and section 8 thereof was attacked
Section 8 of the said Act conferred a power on the Collector to cancel a lease or contract if he was satisfied that it was not made or entered into in the normal course of management but in anticipation of legislation for the abolition of intermediaries
Repelling the said contention Wanchoo J speaking for the Court observed thus The provision is not an independent provision it is merely ancillary in character enacted for carrying out the objects of the Act more effectively
Such cancellation would sub serve the purposes of the Act and the provision for it therefore be an integral part of the Act though ancillary to its main object and would thus be protected under article 31A1a of the Constitution 1 1959 SUPP
1 SCR 478
691 The same reasoning applies to section 4h of the Act and for the same reasons we hold that section 4h of the Act is likewise protected by article 31A of the Constitution
The first question turns upon the interpretation of the relevant provisions of the Amending Act
To appreciate the argument it would be convenient to read the material provisions of the said Act
Section 3
Amendment of section 4 of Bihar Act XXX of 1950
In section 4 of the said Act iv in clause h a the words figures and commas made at any time after the first day of January 1946 shall be omitted and shall be deemed always to have been omitted b after the words if he is satisfied that such transfer was made the words figures and commas at any time after the first day of January 1946 shall be inserted and shall be deemed always to have been inserted and c the words and with the previous sanction of the State Government shall be omitted v to clause h as amended above the following provisos shall be added namely Provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order shall lie to the proscribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure Provided further that no order annulling a transfer shall take effect nor hall possession be taken in perursuance of it unless such an order has been confirmed by the State Government After the said amendment the relevant part of the section reads The Collector shall have power to make inquiries in respect of any transfer including the settlement  if he is satisfied that such transfer was made at any time after th e first day of January 1946 with the object of defeating any provisions of this Act or causing loss to tile State or obtaining higher 692 compensation thereunder the Collector may after giving reasonable notice to the parties concerned to appear and be heard and with the previous sanction of the State Government annul such transfer dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable
The main differences material to the present enquiry between the section as it was before
the amendment and thereafter are that under the unmended section it was a moot point whether the Collector had the power to set aside a transfer whether it was effected before or after January 1 1946 whereas under the amended section such a power is clearly and expressly conferred on him while under the original section the Collector had to take the previous sanction of the State Government before he made the order annulling a transfer and dispossessing the person claiming under it under the amended section the order made by the Collector shall neither take effect nor can he take possession before his order is confirmed
The short question is whether the second proviso added by the Amending Act is retrospective in operation that is whether the order of the Collector made before the Amending Act though made with the previous sanction of the State Government would still require for its taking effect a subsequent confirmation by the State Government
Learned Counsel for the State contends that the amendments made by section 3iva and b are retrospective but the amendment made by section 3v of the Amending Act is prospective
This contention appears to be sound both in letter as well as in spirit
The different phraseology used in cls
a and b of subs
iv of section 3 of the Amending Act in the matter of omissions supports it
While in cl
a the omission hall be deemed always to have been omitted in cl
c the words mentioned therein shall only be omitted indicating by contrast that the omission in the former is expressly made retrospective while in the latter it is necessarily prospective
 If that be the true con struction the condition of previous sanctions would 693 continue to operate in respect of the Collector s order made before the amendment came into force
If the proviso be given a retrospective operation it directly comes into conflict with the result brought about by cl
c of sub section
iv of section 3 of the Amending Act
An order with the previous sanction of the Government may have been passed and possession also taken by the Collector yet a further confirmation by the Government should be sought for to revalidate it
This construction would not only attribute to the Legislature redundancy but would also enable a party to seek for restoration of the land taken possession of by the Collector on the basis of a technicality
Even in a case where possession has not been taken by the Collector the said anomaly would persist for two sanctions would be required
The alternative construction makes the working of the section smooth and avoids the introduction of the said incongruity and therefore we prefer to accept it particularly when it is consistent with the plain meaning of the words used in the section
The result is that in respect of an order already made by the Collector before the Amending Act the previous sanction obtained would suffice and in respect of an order made after the Amending Act a subsequent confirmation by the State Government is required
Even so it is argued by learned counsel for the respondent that the High Court presumably in view of its acceptance of the respondent s preliminary point did not consider the question whether the inquiry had been made by the Collector in strict compliance with the provisions of the section and whether the previous sanction of the State Government was obtained before he made the said order
In the affidavit filed in support of the petition in the High Court there is no specific allegation that no such inquiry has been made or that no such sanction has been obtained
Nor did the counsel for the appellant raise the said question in the arguments before the High Court
In the circumstances we do not think that this Court is justified in allowing 88 694 the respondent to raise the said question for the first time before us
We therefore reject this plea
In the result we set aside the order of the High Court and allow the appeal
But in the circumstances of this case we direct the parties to bear their own costs here and in the High Court
Appeal allowed


Summary:
Section 4h of the Bihar Land Reforms Act 1950 as amended by the Bihar Land Reforms Amendment Act 1959 which empowers the Collector to annul anticipatory transfers of land designed to defeat the object of the Act is protected by article 31A of the Constitution although it does not by itself provide for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights and its constitutional validity cannot be questioned under articles 14 19 and 31 of the Constitution since the Act of which it is an integral part is itself directed to that end and is protected by that Article
Thakur Raghubir Singh vs State of Ajmer 1959 Supp 1 SCR 478 applied
On a true construction of section 3 of the Amending Act the second proviso to section 4h cannot be retrospective in operation and therefore in respect of an order of annulment made by the Collector before the Amending Act came into force the previous sanction obtained from the State Government would be sufficient but subsequent confirmation by the State Government would be necessary in the case of an order made after the Amending Act came into force