Case: Mahendra Lal Jaini Vs. The State Of Uttar Pradesh And Others


Decision:
1[ds]There can be no doubt after a persual of that lease which is not said to be a fictitious document, that if various laws had not been passed and had not come into force that might have affected this land, it would have conferred a right of property on the petitioner, and he would be entitled at least to be a permanent lessee of the land in dispute with such rights as the lease confers upon him. It is therefore difficult to understand how it can be said in the face of this lease that the petitioner has no right to maintain the present petition.It may be that the lease may be of no force and effect, if the Transfer Act is held valid - which is question we shall consider later-; but once it is conceded that the lease is not fictitious, it does confer rights in the land affected by it on the petitioner. We cannot see how the petitioner would have no right to maintain the present petition irrespective of whether the Transfer Act is valid and constitutional or not. What rights are conferred on the petitioner by this registered lease is a. different matter. The petitioner claims that he has become a bhumidhar under the Abolition Act by virtue of this lease, in the alternative he claims that he has become a sirdar, as he is in possession. The State however denies that the petitioner has become a bhumidhar under the Abolition Act; it also denies that the petitioner is in possession and in consequence, had become a sirdar, under the Abolition Act, The petitioner prays that his rights as a bhumidhar or a sirdar may be decided in the present petition. We are however of opinion that it will not be fair to either party to decide the question whether or not the petitioner is either bhumidhar or sirdar by virtue of the registered lease or the possession of the land demised which he claims, in view of the provisions of the Abolition Act. The petitioners status as bhumidhar or sirdar will depend upon the decision of various questions of fact, and we do not think that it will be fair to either party to decide those questions of fact merely on the scanty documentary evidence available on this record, in particular as the question of possession also seriously disputed and further there is serious dispute as to whether any trees stand on this land even now or whether trees had been cleared as recited in the registered lease, before that lease was registered; these are all questions of fact on which oral evidence will be necessary. There is a provision in the Abolition Act, S. 229-B, which allows a person claiming to be a bhumidhar or sirdar under it to file a suit to establish that right. We think, considering the serious dispute as to facts which exists in this case between the parties both as to the nature of the land and as to the possession of the petitioner, that the petitioner should be left to establish his rights as-bhumidhar or as sirdar by suit, or it may also be possible for him to establish that by filing objections in response to the proclamation under S. 6 of the Forest Act with which we shall deal in detail later. Therefore even though we are not prepared to decide the question whether the petitioner is a bhumidhar or a sirdar, it seems to us that in the face of the deed of lease in favour of the petitioner, it cannot be said that he has no right to maintain the present petition (irrespective of whether the Transfer Act is valid or not). As we have already indicated, if the Transfer Act is valid, then the lease in favour of the petitioner will confer no right on him and in that case his petition must fail. But if the Transfer Act is not a valid piece of legislation, the lease will stand and so long as it stands, the petitioner would in our opinion be competent to maintain the present petition, though we make it clear that we do not decide in this petition what right is conferred on the petitioner by the lease and whether he is a bhumidhar or a sirdar by virtue of the lease and his alleged possession over the land demised therein.We are therefore of opinion that so long as the lease stands, the petitioner would have a right to maintain the present petition, though we express no opinion as to the nature of that right and leave it to the petitioner to have that determined in a proper forumIt is enough to say that this principle applicable to suits for possession can have no application to a petition under Art. 32, which is not a suit or possession. Besides the case of the petitioner is that the other lessee was a mere benamidar and if that case is right (on which again we express no opinion, as the matter is sub judice in a civil court at Dehradun), it would be unnecessary to make Virendra Goyal even a respondent. If the petitioner has a right to maintain the present petition, the fact that he has not made another person who would have equal right with him to maintain the petition, even a party to the petition, would not in our opinion entail that his petition should be thrown out on that ground alone and he should not be granted any relief in the matter of enforcing his fundamental right.We are therefore of opinion that the petitioner has a right to maintain the present petition, though we express no opinion as to the nature of that rightWe are unable to agree with the view taken by the High Court at Allahabad in Maram Singh v. Nihalkhan, (S) AIR 1957 All 549   in so far as it upholds the validity of the Transfer ActWe are of opinion that this observation is not capable of this interpretation and could not have intended to lay down any such proposition. The judgment in the Bombay Dyeing case, 1958 SCR 1122  : (AIR 1958 SC: 328) nowhere considers the question whether the constitutionality of an Act has to be judged on the basis of the Constitution as it stood on the date on which the Act was passed or on the basis of the Constitution as it stood on the date the writ petition was made. In that case it made no difference whether the Constitution as it stood on the date the Act was passed or on he date when the writ petition was filed, was applied, for the writ petition was filed long before the Constitution Fourth Amendment was enacted. The observation therefore in that case that the constitutionality of an Act has to be judged on the basis of the Constitution as it stood on the date of the writ petition, cannot be given the meaning which the learned counsel for the respondents put on it, particularly, as the context shows that the amendment of the Article by the Constitution (Fourth Amendment) Act was not retrospective. Now, if the constitutionality was to be judged by the date of the writ petition, the result would be that sometime the Fourth Amendment of Art. 31 would become retrospective and sometimes it would not, depending upon whether the writ petition was filed before the Fourth Amendment Act was passed or after the said amendment. If the writ petition was filed before the Constitution (Fourth Amendment) Act, the same provision of an Act would be unconstitutional while if it was filed after the Fourth Amendment Act, it may be constitutional. Such a result is obviously impossible to accept and could not have been meant by the observation in Bombay Dyeing case, 1958 SCR 1122  : (AIR 1958 SC 328  ). It is in our opinion absolutely elementary that the constitutionality of an Act must be judged on the basis of the Constitution as it was on the date the Act was passed, subject to any retrospective amendment of the Constitution. Therefore, the argument that the constitutionality of the Transfer Act must be judged on the basis of the Constitution as it stood on the date of the present writ petition has no force and must be rejected. We have already indicated that if the constitutionality is to be Judged on the basis of the Constitution as it stood when the Transfer Act was passed, it is not seriously disputed that the Transfer Act would be unconstitutional, in view of the decision of this Court in Subodh Gopals case, 1954 SCR 587  : (AIR 1954 SC 92  )It may however be observed that the laws under consideration in Keshavan Madhava Menons case, 1951 SCR 228  : (AIR 1951 SC 128  ) as well as in Behram Khurshid Pesikaka, (1955) SCR 613: ((S) AIR 1955 SC 123  ) were both pre-Constitution laws, and the effect of Art. 13 (1) had to be considered with respect to their constitutionality. Behram Khurshid Pesikakas case, (1955) 1 SCR 613  : ( (S) AIR 1955 SC 123  ) was later referred to larger Bench in view of the constitutional questions involved and in the majority judgment of the Constitution Bench, Mahajan C. J. pointed out that there was no scope for introducing terms like "relatively void", coined by American Jurists in construing a Constitution which is not drawn up in similar language. The majority also observed that they were not able to endorse the opinion expressed by Venkatarama Aiyar J. that a declaration of unconstitutionality brought about by lack of legislative power stood on a different footing from a declaration of unconstitutionality brought about by reason of abridgement of fundamental rights, and that it was not correct to say that constitutional provisions in Part III of the Constitution merely operated as a check on the exercise of legislative power. It was also observed that when the law-making power of a State is restricted by a written fundamental law, then any law enacted which is opposed to the fundamental law was in excess of the legislative authority and was thus a nullity. Both these declaration of unconstitutionality go to the root of the power itself and there was no real distinction between them, and they represent two aspects of want of legislative power. Finally, it was added that a mere reference to the provisions of Art. 13(2) and of Arts. 245 and 246 was sufficient to indicate that there was no competency in Parliament or a State legislature to make a law which comes into clash with Part III of the Constitution after the coming into force of the Constitution0. A review of these authorities therefore in our opinion clearly shows that the doctrine of eclipse will apply to pre-Constitution laws which are governed by Art. 13(1) and would not apply to post-Constitution laws which are governed by Art. 13(2)We are of opinion that this is not the meaning of these words in Art. 13(1) and (2). Obviously, the Constitution makers when they used the words "to the extent of in both clauses intended that the pre-existing law or the post-Constitution laws should only be void as far as the inconsistency or the contravention went i.e., if only a part of the law was inconsistent or contravened the Constitutional prohibition that part alone would be void and not the entire law. The obvious intention behind the use of the words "to the extent of" was to save such parts of a law as were not inconsistent with or in making which the State did not contravene the prohibition against infringement of fundamental rights and that distinction may conceivably introduce considerations of severability; it has in our opinion no reference to the time for which the voidness is to continue. Where the Constitution-makers intended to refer to time they have used specific words for that purpose; as, for instance, in Art. 251.That Article deals with "inconsistency between laws made by Parliament under Arts. 249 and 250 and laws made by the Legislatures of States", and provides that"..........the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy but so long only as the law made by Parliament continues to have effect, be in operative." If therefore the Constitution makers intended that the provisions in Art. 13(1) and (2) would only affect laws so long as inconsistency continued or contravention lasted, they could have provided specifically for it. On a plain construction of the clause, the element of time must be excluded. We cannot therefore accept the contention that the words "to the extent of import any idea of time. In our opinion, they only import the idea that the law may be void either wholly or in part and that only such portions will be void as are in consistent with Part III or have contravened Part III and no moreWe do not think so. The meaning of the word "void" in Art. 13(1) was considered in Keshava Madhava Menons case, 1951 SCR 228  : (AIR 1951 SC 128  ), and again is Behram Khurshid Pesikakas case, (1955) 1 SCR 613  : ((S) (AIR 1955 SC 123  ). In the later case, Mahajan C. J. pointed out that the majority in Keshava Madhava Menons case, 1951 SCR 228  : (AIR 1951 SC 128  ), clearly held that the word "void" in Art. 13(1) did not mean that the statute stood repealed and therefore obliterated from the statute book; nor did it mean that the said statute was void ab initio. This, in our opinion, if we may say so with respect, follows clearly from the language of Art. 13(1), which pre-supposes that the existing laws are good except to the extent of the inconsistency with the fundamental rights. Besides there could not be any question of an existing law being void ab initio on account of the inconsistency with Art. 13(1), as they were passed by competent legislatures at the time when they were enacted. Therefore, it was pointed out that the effect of Art. 13(1) with respect to existing laws in so far as they were unconstitutional was only that it nullified them, and made them "ineffectual and nugatory and devoid of any legal force or binding effect." The meaning of the word "void" for all practical purposes is the same in Art. 13(1) as in Art. 13(2), namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force or binding effect. But the pre-Constitutional laws could not become void from their inception on account of the application of Art. 13(1). The meaning of the word "void" in Art. 13(2) is also the same viz., that the laws are ineffectual and nugatory and devoid of any legal force or binding effect, if they contravene Art. 13(2). But there is one vital difference between pre-Constitution and post-Constitution laws in this matter. The voidness of the pre-Constitution laws is not from inception. Such voidness supervened when the Constitution came into force; and so they existed and operated for sometime and for certain purposes; the voidness of post-Constitution laws is from their very inception and they cannot therefore continue to exist for any purpose. This distinction between the voidness in one case and the voidness in the other arises from the circumstance that one is a pre-Constitution law and the other is a post-Constitution law; but the meaning of the word "void" is the same in either case, namely, that the law is ineffectual and nugatory and devoid of any legal force or binding effectSo far as pre-Constitution laws are concerned, the amendment of the Constitution which removes the inconsistency will result in the revival of such laws by virtue of the doctrine of eclipse as laid down in Bhikaji Narains case, (1955) 2 SCR 589  : ((S) AIR 1955 SC 781  ), for the pre-existing laws were not still-born and would still exist though eclipsed on account of the inconsistency to govern pre-existing matters. But in the case of post-Constitution laws, they would be still-born to the extent of the contravention. And it is this distinction which results in the impossibility of applying the doctrine of eclipse to post- Constitution laws, for nothing can be revived which never had any valid existence. We are therefore of opinion that the meaning of the word "void" is the same both in Art. 13(1) and Art. 13(2), and that the application of the doctrine of eclipse in one case and not in the other case does not depend upon giving a different meaning to the word void" in the two parts of Art. 13; it arises from the inherent difference between Art. 13(1) and Art. 13(2) arising from the fact that one is dealing with pre-Constitution laws and the other is dealing with post-Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being still-born there will be no scope for the application of the doctrine of eclipse. Though the two clauses form part of the same Article, there is a vital difference in the language employed in them as also in their content and scope. By the first clause the Constitution recognises the existence of certain operating laws and they are declared void, to the extent of their inconsistency with fundamental rights. Had there been no such declaration, these laws would have continued to operate. Therefore, in the case of pre-Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration. The law thus revives. However, in the case of the second clause, applicable to post-Constitution laws, the Constitution does not recognise their existence, having been made in defiance of a prohibition to make them. Such defiance makes the law enacted void. In their case therefore there can be no revival by an amendment of the Constitution, though the bar to make the law is removed, so far as the period after the amendment is concerned. In the case of post-Constitution laws, it would be hardly appropriate to distinguish between laws which are wholly void - as for instance, those which contravene Art. 31 and those which are substantially void but partly valid - as for instance, laws contravening Art. 19. Theoretically, the laws falling under the latter category may be valid qua non-citizens; but that is a wholly unrealistic consideration and it seems to us that such notionally partial valid existence of the said laws on the strength of hypothetical and pedantic considerations cannot justify the application of the doctrine of eclipse to them. All post-Constitution laws which contravene the mandatory injunction contained in the first part of Art. 13(2) are void as void as are the laws passed without legislative competence, and the doctrine of eclipse does not apply to them. We are therefore of opinion that the Constitution (Fourth Amendment) Act cannot be applied to the Transfer Act in this case by virtue of the doctrine of eclipse, it follows therefore that the Transfer Act is unconstitutional because it did not comply with Art. 31(2), as it stood at the time it was passed. It will therefore have to be struck down, and the petitioner given a declaration in his favour accordinglyBy this amendment, Ss. 38-H to 38-M were added to Chap V-A. Section 38H(1) provides for taking over the management of any particular forest or forest land for a period not exceeding fifteen years. Sub-section (2.) thereof, says that no notification under sub-s. (1) shall be issued unless notice is issued to a claimant, owner or tenure-holder of the forest or forest land. Obviously therefore, the provisions of S. 38-H and the subsequent sections are wider than the provisions of Ss. 38-A to 38-G, which were originally enacted. We are not actually concerned with the provisions of S. 38-H onwards for no action has been taken under those provisions nor has the petitioner alleged that there is any threat of such actionWe cannot accept this argument, for, in the first place, the legislature when it passed Ss. 38-A to 33-G never had Ss. 38-H to 38-M in mind. In the second place, S. 38-H also deals, with the land of claimants though it further deals with the lands of tenure-holders or owners. So far as the claimants are concerned, the positions still remains that there must be some provision for deciding their claims and no such provisions are found up to S. 38-M, and we are therefore thrown back on Chap. II so far as the claimants are concerned. It must therefore be held that the enactment of new Ss. 38-H to 38-M made no difference to the position that Ss. 38-A to 38-G as originally enacted, are supplementary to chap. 11, though S. 38-H onwards may not be so and may stand by themselves, so far as owners or tenure-holders are concerned. There is no doubt, however, that Ss. 38-A to 38-G are ancillary to Chap. II and must be read as such and in this view their constitutionality as interim provisions cannot be successfully assailedBut unless the petitioner can show that the land in dispute in this case is his property and not the property of the State, Chap. II will apply to it Now there is no dispute that the land in dispute belonged to the Maharaja Bahadur of Nahan before the Abolition Act and the said Maharaja Bahadur was an intermediary. Therefore, the land in dispute vested in the State under S. 6 of the Abolition Act and became the property of the State. It is however, contended on behalf of the petitioner that if he is held to be a bhumidhar in proper proceeding, the land would be his property and therefore Chap. V-A, as originally enacted, if it is ancillary to Chap. II would not apply to the land in dispute. We are of opinion that there is no force in this contention. We have already pointed out that under S. 6 of the Abolition Act all property of intermediaries including the land in dispute vested in the State Government and became its property. It is true that under S. 18, certain lands were deemed to be settled as bhumidhari lands, but it is clear that after land vests in the State Government under S. 6 of the Abolition Act, there is no provision therein for divesting of what has vested in the State GovernmentThe Abolition Act did away with all proprietary rights in the area to which it applied and created three classes of tenure by S. 129; bhumidhar, sirdar and asami, which were unknown before. Thus bhumidhar, sirdar and asami are all tenure-holders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under S. 6. It is true that bhumidhars have certain wider rights in their tenures as compared to sirdars; similarly sirdars have wider rights as compared to asamis, but nonetheless all the three are mere tenure-holders - with varying rights-under the State which is the proprietor of the entire land in the Stale to which the Abolition Act applied. It is not disputed that the Abolition Act applies to the land in dispute and therefore the State is the proprietor of the land in dispute and the petitioner even if he were a bhumidhar would still be a tenure-holder. Further, the land in dispute is either waste land or forest land (for it is so far not converted to agriculture) over which the State has proprietary rights and therefore Chap. II will clearly apply to this land and so would Chap. V-A. It is true that a bhumidhar has got a heritable and transferable right and he can use his holding for any purpose including industrial and residential purposes and if he does so that part of the holding will be demarkated under S.143. It is also true that generally speaking, there is no ejectment of a bhumidhar and no forfeiture of his land. He also pays land revenue (S.241) but in that respect he is on the same footing as a sirdar, who hardly be called a proprietor because his interest is not transferable except as expressly permitted by the Act. Therefore the payment made by the bhumidhar to the State is called land revenue and not rent would not necessarily make him a proprietor, because sirdar also pays land-revenue, though his rights are very much lower than that of a bhumidhar. It is true that the rights which the bhumidhar has to a certain extent approximate to the rights which a proprietor used to have before the Abolition Act was passed; but it is clear that rights of a bhumidhar are in many respects less and in many other respects restricted as compared to the old proprietor before the Abolition Act. For example, the bhumidhar has no right as such in the minerals under the sub-soil. Section 154 makes a restriction on the power of a bhumidhar to make certain transfers. Section 155 forbids the bhumidhar from making usufructuary mortgages. Section 156 forbids a bhumidhar, sirdar or asami from letting the land to others, unless the case comes under S. 157.Section 189 (aa) provides that where a bhumidhar lets out his holding or any part thereof in, contravention of the provisions of this Act his right will be extinguished. It is clear therefore that though bhumidhars have higher rights than sirdars and asamis, they are still mere tenure-holders under the Slate which is the proprietor of all lands in the area to which the Abolition Act applies. The petitioner therefore even if he is presumed to be a bhumidhar cannot claim to be a proprietor to whom Chap. II of the Forest Act does not apply, and therefore Chap. V-A, as originally enacted would not apply : (see in this connection, Mst. Govindi v. State of Uttar Pradesh, AIR 1952 All 88  .) As we have already pointed out Ss. 4 and 11 give power for determination of all rights subordinate to those of a proprietor, and as the right of the bhumidhar is that of a tenure-holder, subordinate to the State, which is the proprietor of the land in dispute, it will be open to the Forest Settlement Officer to consider the claim made to the land in dispute by the petitioner, if he claims to be a bhumidhar This is in addition to the provision of S. 229-B of the Abolition Act. The petitioner therefore even if he is a bhumidhar cannot claim that the land in dispute is out of the provisions of Chap. II and therefore Chap. VA, even if it is ancillary to Chap. II, would not apply. We must therefore uphold the constitutionality of Chap. V-A, as originally enacted, in the view we have taken of its teem supplementary to Chap. II and we further hold that Chap. II and Chap. V-A will apply to the land in dispute even if the petitioner is assumed to be the bhumidhar, of that landThat is however not a notification at all. It is a mere government order issued to all Conservators of Forests, Divisional Forest Officers and District Officers as well as the Secretary Board of Revenue, and all that is stated there is that a number of representations had been made to the Government by claimants of lands situated in the erstwhile private forests under agreements executed before July 1962 by them with their owners, and the Governor, on careful consideration, had decided that all such lands in respect of which valid legal reclamations leases were executed by the owners should be released in favour of the lessees. It was also pointed out that if such land was included in any of the notifications issued under S. 4 of the Forest Act, it should be deemed to have been excluded from the notification. It may be mentioned that this government order was cancelled by a later government order dated July 7, 1958, which was also not published. Now a notification under S. 4 of the Forest Act is required to be published in the Gazette and unless it is so published, it is of no effect. The notification of March 23, 1955 was published in the Gazette and was therefore a proper notification. It is also not disputed that in view of S. 21 of the U. P. General Clauses Act (No.1 of 1904) a notification issued under S. 4 could have been cancelled or modified but it could be done in the like manner and subject to the like sanction and conditions, i e. by notification in the gazette. The Government order of December 1956 therefore cannot amount to excluding anything from the notification issued wider S. 4 for it was never published, it was a mere departmental instruction by Government to its Officers which was later withdrawn. The notification therefore stands as it was originally issued and the petitioner cannot claim any benefit of the government order of December 1956, which was later cancelled. Further in view of the fact that we have held that Chap. V-A, as originally enacted, is valid, being a measure supplementary to Chap. II, the notification issued under Chap. V-A must also be upheld31. In the result therefore the petition is allowed to this extent that the Transfer Act No. XV of 1952 is struck down as unconstitutional and of no force and effect. We may add however, that learned counsel for the respondent has stated before us that if a claim is made even now under chap. II by the petitioner within thirty days of our judgment, even though it may be lime barred as from the date of the proclamation issued under S.6, the Forest Settlement Officer will entertain it and consider the claim as required under Chap. II.