Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2747 of 2001 (M/S) / Writ Petition No. 09 of 2009 (M/B) (Old No. 2815 of 1984) 1. Shri Mahendra Lal Jaini (since deceased) 1/1. Jinendra Lal Jain 1/2. Gyanendra Kumar Jain 1/3. Achal Kumar Jain 1/4. Kamod Kumar Jain All Son of late Mahendra Lal Jaini All R/o 13 / 229 (Old No. 13 / 182) Jatwan Street, Saharanpur (U.P.). ...…………. Petitioners Versus 1. The Additional District Judge, Dehadun. 2. The Forest Settlement Officer, Dehradun. 3. The State of Uttar Pradesh (Now State of Uttarakhand) through the Collector, Dehradun. 4. The Divisional Forest Officer (West), Dehradun. ...…………. Respondents Mr. Ravi Kiran Jain, Sr. Advocate assisted by Mr. D.S. Patni and Mr. Vipul Sharma, Advocates for petitioners. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the respondents. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Per: Hon. Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioners have sought 2 writ in the nature of certiorari, quashing the order dated 27.10.1983 (copy Annexure –10 to the writ petition), passed by Addl. District Judge (Special Judge, Anti Corruption), Dehradun, whereby said court has allowed Misc. Civil Appeal No. 67 of 1967. The impugned order appears to have been passed under Section 17 / 18 of the Indian Forest Act, 1927. The petitioners have also challenged vires of U.P. Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Act, 1972 (U.P. Act No. 12 of 1972). 2) Heard learned counsel for the parties at length and perused the papers on record. 3) Brief facts of the case, as narrated in the writ petition, are that the then Maharaja of Nahan (Sirmour Estate) namely Sir Rajendra Prakash, owned and possessed various properties in District Dehradun, including the land situated in Village Asharori, measuring 1281.74 acres, pertaining to Khewat No. 1, Mahal 8. Said land was a forest land. The Maharaja vide agreement dated 25.01.1951 (copy Annexure –A) transferred the land to the petitioner Mahendra Lal Jaini (since deceased) and Virendra Goyal (adjudged Benamidar) on lease with perpetual, heritable and transferable rights, in respect of 1069 acres of said forest land. It is pleaded by the petitioners that for transfer of lease rights the petitioners agreed to pay Rs. 64,000/- in addition to annual rent of Rs. 2,200/-. According to the petitioner, possession was transferred 3 on the very day i.e. 25.01.1951 to the lessee. Thereafter, vide deed dated 14th June 1952 (copy Annexure –B) the Maharaja executed a registered lease- cum-sale deed through his Sub Attorney Durga Ram Agarwal in favour of petitioner Mahendra Lal Jaini (since deceased) and Virendra Goyal (adjudged Benamidar) in respect of aforesaid land measuring 1069 acres. It is stated in the writ petition that by moving mutation application on 14.06.1952, revenue authorities were informed of the transaction. By a communication dated 17.06.1952, Divisional Forest Officer, Dehradun (present respondent No. 4) was also informed of the transaction. However, on 23rd of June 1952, U.P. Land Tenures (Regulation of Transfers) Act, 1952 (U.P. Act No. 15 of 1952) was gazetted (copy Annexure –C) declaring aforesaid lease / sale and other similar transfers null and void, and declaring lessee as trespasser under Section 180 of the U.P. Tenancy Act, 1939. On first of July 1952, a notification was issued, whereby U.P. Zamindari Abolition and Land Reforms Act, 1950, came into force, and all rights and interests of Maharaja (an intermediary) came to an end and vested in the State (present respondent No. 3). On 5th of July 1952, the City Magistrate, Tehsildar and the District Forest Officer, Dehradun, came at the spot and stopped the lessee from felling trees and removing the same. Against which the petitioner made a representation to the Collector, Dehradun. On 15th of July 1952, City Magistrate, Dehradun, informed the 4 petitioner that lease-cum-sale deeds in favour of Mahendra Lal Jaini were null and void, as per the provisions contained in U.P. Land Tenures (Regulation of Transfers) Act, 1952 (Act No. 15 of 1952), and directed to maintain status quo (copy of said communication is Annexure –D). Mahendra Lal Jaini (since deceased) filed a writ petition No. 668 of 1952 before the High Court of Judicature at Allahabad, which was admitted by said court on 05.12.1952. It is pleaded by the petitioner that Allahabad High Court vide its interim order in said petition, restrained the opposite parties from interfering with the possession of the writ petitioner, and directed the parties to maintain status quo. On 15th of February 1955, petitioner requested the Collector, Dehradun, to permit him to carry out clearing operations in the forest land, on which the Collector informed that the matter has been referred to the State Government, and directed that status quo be maintained over the property. Meanwhile, on 14.02.1955 and 23.03.1955, the State (respondent No. 3) issued a notification under Section 4 of the Indian Forest Act, 1927, declaring entire land as reserved forest, and a consequential proclamation was issued under Section 6 of the Act. On the other hand, the Maharaja claimed compensation as his property right vested in the State, and his claim was disposed of vide order dated 29.02.1956 (copy Annexure –H), passed on Case No. 32 / 232 by the Sub Divisional Officer, Dehradun. In April 1962, Mahendra Lal Jaini 5 (since deceased), petitioner, filed Writ Petition No. 59 of 1962, before the Supreme Court challenging the vires of U.P. Land Tenures (Regulation of Transfers) Act, 1952 (U.P. Act No. 15 of 1952). The constitution bench of the Supreme Court by its unanimous judgment and order dated 07.11.1962 (A.I.R. 1963 SC 1019) declared the aforesaid Act ultra vires to the Constitution, as the provisions contained therein were hit by Article 31(2), as it stood in 1952, of the Constitution of India. According to the petitioners, Supreme Court allowed the petitioner to file a claim under Chapter II of the Indian Forest Act, 1927, before the appropriate authority, within a period of 30 days, in response to which on 05.12.1962, the aforesaid writ petitioner filed claim No. 616 of 1962 before the Forest Settlement Officer, Dehradun. Initially, said claim was decided vide order dated 21.03.1964, but on appeal by the Divisional Forest Officer (respondent No. 4), matter was remanded back to the Forest Settlement Officer by Addl. Commissioner, Meerut. Again, the claim was decided by the Forest Settlement Officer, Dehradun (respondent No. 2) vide his order dated 09.08.1967, declaring the petitioner bhumidhar in possession of the land in question w.e.f. 01.07.1952. Trees standing on the land were also declared to have settled with the petitioner. The Divisional Forest Officer (respondent No. 4) filed Misc. Civil Appeal No. 67 of 1967 before the District Judge, Dehradun, under Section 17 of the Indian Forest Act, 1927. Said appellate authority 6 stayed the operation of the order, passed by Forest Settlement Officer, during pendency of appeal. During the pendency of said appeal, the Governor of State of U.P. promulgated U.P. Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Ordinance No. 16 of 1971 (U.P. Ordinance No. 16 of 1971). Said Ordinance stood repealed vide U.P. Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Act, 1972 (U.P. Act No. 12 of 1972). (Vires of said Act which received Presidential assent on 09.02.1972, is challenged in this writ petition). Earlier, in January 1973, the petitioner moved Writ Petition No. 19 of 1973 before the Supreme Court under Article 32 of the Constitution of India, for the same relief. However, said writ petition was dismissed as withdrawn with costs, on 19.02.1982. The Additional District Judge, Dehradun, to whom Misc. Civil Appeal No. 67 of 1967 was transferred, decided the appeal vide impugned judgment and order dated 27.10.1983, whereby the appeal was allowed and the order dated 09.08.1967, passed by Forest Settlement Officer, Dehradun, declaring the petitioner bhumidhar was set aside. The petitioners have pleaded in this writ petition that the subsequent U.P. Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Act, 1972 (for short U.P. Act No. 12 of 1972) is ultra vires as the same is violative of Article 13, 14, 19 and 31 of the Constitution of India. They have also challenged the impugned order passed by the appellate authority 7 (respondent No. 1) stating that it has erroneously held the lease deed hit by Section 8 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short U.P. Act No. 01 of 1951). The constitutional validity of U.P. Act No. 12 of 1972 is challenged also on the ground that after the provision of U.P. Act No. 15 of 1952 were found ultra vires, same law could not have been re- enacted by the Legislature to frustrate the judgment of the Apex court. 4) In the counter affidavit filed on behalf of respondents No. 3 and 4, it has been stated that the Maharaja of Nahan (Sirmour Estate) had no authority to execute an agreement in favour of anyone, and the same is void-ab-initio. Suit No. 52 of 1957, which was filed after execution of said lease deed by the Maharaja in favour of petitioner Mahendra Lal Jaini and Virendra Goyal, in which Virendra Goyal was adjudged Benamidar, was a collusive decree as the answering respondents of this writ petition were not parties to said suit. The agreement appears to have been executed by the Maharaja to deprive the State of its rights over the land in question. It is specifically stated in the counter affidavit that the lease / sale deed executed by the Maharaja in favour of original petitioner is hit by Section 8 of U.P. Zamindari Abolition and Land Reforms Act, 1950. No right whatsoever heritable or otherwise stood transferred to the petitioner by the alleged deeds executed by the Maharaja. It is pleaded 8 that the document said to have been executed on 14.06.1952, was actually registered on 06.08.1952, which shows that the said document was a ante dated document. It is further pleaded that the mutation application could not have been moved before registration of the aforesaid document as alleged by the petitioners. It is stated in the counter affidavit that all properties including the land in question vested in Gaon Sabha by virtue of Section 6 of U.P. Zamindari Abolition and Land Reforms Act, 1950. The petitioner could not have been granted permission to convert forest land into an agricultural land in the manner pleaded by him, nor such permission was given to him. It is specifically stated that land in question is in the possession of the State. It is further stated in the counter affidavit that petitioners, alleged co-lessee Virendra Goyal when made attempt to fell trees in the land in question, criminal proceedings were drawn against him and he was convicted under Section 26 of the Forest Act, 1972. Thereafter, he filed criminal appeal No. 81 of 1960, and the same too was dismissed by the Sessions Judge, vide his judgment and order dated 25.07.1962. It is also stated that when the writ petition was filed by the petitioner before Allahabad High Court and obtained interim order, the petitioner was not in possession of the land in question. Defending the vires of the impugned U.P. Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Act, 1972 (Act No. 12 of 1972), it is 9 pleaded that the same is passed with the due legislative competence, and it is stated that validity of said Act is not affected due to the striking down of the U.P. Act No. 15 of 1952. The inspection report of the Sub Divisional Officer, who was an I.A.S. officer, after spot inspection on 09.07.1952 is filed as Annexure –6 to the counter affidavit, and report dated 07.03.1967 of the Forest Settlement Officer, after his inspection, is also filed as Annexure –7 to the counter affidavit. 5) It is pertinent to mention here that this writ petition is transferred from the Allahabad High Court where it was filed in the year 1984, under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. After creation of State of Uttarakhand, a counter affidavit has been filed on behalf of respondents No. 2, 3 and 4, to reply the amended pleas in the writ petition, in which the averments made in the counter affidavit filed before the Allahabad High Court are more or less repeated. It is pleaded that since the Maharaja was aware of the fact that Zamindari Abolition and Land Reforms Act is likely to come into force, to defeat the object of said Act, a lease / sale deed was executed in favour of the petitioner Mahendra Lal Jaini, which is void as per the provisions contained in Section 8 of said Act. 6) In the rejoinder affidavit filed on behalf of the petitioners, in reply to the counter affidavit filed on 10 behalf of respondents No. 3 and 4, averments made in the writ petition are reiterated. 7) Before further discussion it is pertinent to quote here the relevant provision of the U.P. Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Act, 1972 (Act No. 12 of 1972). Section 3 of said Act, reads as under: “3. Lease and transactions made or registered after the appointed date to be void-ab-initio:- Notwithstanding anything contained in any law or contract to the contrary- (1) A lease of land by an intermediary either granted or registered on or after appointed date shall be and is hereby declared null and void from the date of execution, and the lessee (irrespective of whether he obtained delivery of possession, before or after the appointed date, either in pursuance or in anticipation of such lease) shall for purpose of section 180 of the U.P. Tenancy Act, 1939 (U.P. Act No. XVII of 1939), and section 209 of the Abolition Act, be deemed to be a person in possession of the land otherwise than in accordance with the provisions of the law for the time being in force. 11 (2) A transaction between an intermediary and a tenant conferring on the tenant a right to transfer by sale his holding or any part thereof either made or entered into or registered on or after the appointed date, shall be and is hereby declared null and void from the date of execution. EXPLANATION – In this Section, registration means registration in accordance with law for the time being in force relating to registration of documents and includes attestation under Section 57 of the U.P. Tenancy Act, 1939 (U.P. Act No. XVII of 1939).” 8) The Statement of Objects and Reasons of said Act (U.P. Act No. 12 of 1972) is being reproduced below: “In pursuance of the resolution of the United Provinces Legislative Assembly recorded on the 8th day of August, 1946, accepting the principle of the Abolition of the Zamindari system, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 was enacted on the 26th day of January, 1951, but soon there after certain intermediaries challenged the validity of the above enactment in the High Court and after the dismissal of their appeal by the High Court the State Government declared its decision that the estates shall vest in the State from the 1st day of July, 1952. 12 Apprehending that the intermediaries during the short period in which they would still remain in possession might abuse their powers of Land Management under the UP Tenancy Act, 1939, the State Government, in public interest, decided that all leases and other transactions entered into after 21st May, 1952, shall be deemed to be invalid and with this end in view the Uttar Pradesh Land Tenures (Regulation of Transfers) Act, 1952 (hereinafter referred to as the Transfer Act) was enacted. One Sri Mahendra Lal Jaini of Dehradun filed a Writ Petition before the Supreme Court challenging the above said Transfer Act and the Supreme Court in Writ Petition No. 59 of 1962 – Sri Mahendra Lal Jaini V. State of UP and others, decided on 7th day of Nov. 1962, reported in 1963 Supp.(1) SCR 912, declared the said Act to be ULTRAVIRES of Article 31 of the Constitution as it stood at the time of the enactment of that Act. Article 31 and 31-A of the Constitution have been so amended by the 4th and 17th Amendments that the Transfer Act, if it had been enacted after the said amendments, would have been valid and constitutional. 2. With a view to fully effectuating the State Policy of Agrarian Reform reflected in the UP Zamindari Abolition and Land Reforms Act, 1950, it was considered necessary and expedient to re- 13 enact the Transfer Act with certain amendments and accordingly the Uttar Pradesh Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Bill, 1971, was introduced in and was passed on August 20,1971 by the UP Legislative Council. Before this Bill could be passed also by the UP Legislative Assembly, the house was prorogued from Oct. 4, 1971. Since the State Legislature was not in Session and the circumstances were such as rendered it necessary for the Government to take immediate action, the Uttar Pradesh Land Tenure (Regulation of Transfers) (Re-enactment and Validation) Ordinance, 1971, (UP Ordinance No. 16 of 1971) was promulgated. 3. With a view to replacing the above mentioned Ordinance the Uttar Pradesh Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Bill, 1972 is being introduced afresh with certain formal alterations of a drafting nature. Instead of merely “re-enacting” with amendments in the Principal Act by reference thereto, it is now proposed as measure of abundant caution to re-enact a new law without reference to the Principal Act by incorporating its provisions with amendments. 14 (Received the assent of the President on Feb. 9, 1972 and published in UP Gazette, Extra., dated 10th February, 1972, pp. 5-7).” 9) Section 8 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, reads as under: “8. Contract entered into after August 8, 1946 to become void from the date of vesting. –Any contract for grazing or gathering of produce from land of the collection of forest produce or fish from any forest or fisheries entered into after the eighth day of August, 1946, between an intermediary and any other person in respect of any private forest, fisheries, or land lying in such estate shall become void with effect from the date of vesting.” 10) Article 31A of the Constitution of India, as amended by Constitution (17th Amendment) Act, 1964, reads as under: “ 31A. Saving of laws providing for acquisition of estates, etc.– (1) Notwithstanding anything contained in Article 13, no law providing for- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in 15 the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasures, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence. Shall be deemed to be void on the ground that it is inconsistent with, or away or abridges any of the rights conferred by Article 14, Article 19 or Article 31: First Proviso: Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”; and 16 Second Proviso : Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for the payment of compensation at a rate which shall not be less than the market value thereof. (2) In this article,- (a) the expression ‘estate’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include- (i) any jagir, inam or muafi or other similar grant and in State of Madras and Kerala, any janmam right. (ii) Any land held under ryotwari settlement. (iii) Any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of 17 land, agricultural labourers and village artisans. (b) the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure holder or other intermediary and any rights or privileges in respect of land revenue.” 11) Mr. Ravi Kiran Jain, Sr. Advocate vehemently argued that U.P. Land Tenures (Regulation of Transfers) (Re-enactment and Validation) Act, 1972 is ultra vires of the Constitutional provisions. First of all, he referred to the case of Mahenda Lal Jaini Vs. State of U.P.; A.I.R. 1963 SC 1019, whereby the Apex court struck down the validity of the U.P. Land Tenures (Regulation of Transfers) Act, 1952 (U.P. Act No. 15 of 1952) which came into force on 21st May 1952. On going through said judgment, we found that the Apex court held aforesaid enactment of 1952 ultra vires, as the same was violative of Article 31 of the Constitution of India (as it stood on the date of enforcement of said Act). It is needless to mention that Article 31 now stands repealed vide Constitution (44th Amendment) Act, 1978 w.e.f. 28th June 1979. Even before that Article 31(2) was amended by the Parliament by the Constitution (4th Amendment) Act of 1955, and new Clause 2A was inserted which provided that ‘no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law 18 which provides for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principles on which and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is inadequate.’ The constitution bench of the Apex court took the view that said amendment cannot be taken to have retrospective effect, and as such, cannot save the constitutionality of the Act challenged before it. It further held that doctrine of eclipse could save the law which was valid when it was passed and remained unconstitutional after the subsequent constitutional provision till such constitutional provision stood repealed. Apex court held that U.P. Act No. 15 of 1952 when passed, since hit by Article 31 of the Constitution (as it existed at that point of time) therefore, as per the command of Article 13 of the Constitution of India, said enactment had a stillbirth. Having considered submissions of learned counsel for the petitioners, we find that the present Act in question (U.P. Act No. 12 of 1972), though, having substantially