Case: State Of Bihar And Another Vs. Umesh Jha

2. The facts giving rise to the appeal lie in a small compass. Plots Nos. 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 S. 4 (h) 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 Art. 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 restraining 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. The State of Bihar and the Additional Collector of Darbhanga have preferred the present appeal against the said order.

Reasoning:
The main differences material to the present enquiry between the section as it was before the amendment and thereafter are that under the unamended 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 isdifferent phraseology used in cls. (a) and (b) of sub-s. (iv) of S. 3 of the Amending Act in the matter of omissions supports it. While in cl. (a) the omission shall 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 construction, the condition of previous sanction would continue to operate in respect of the Collectors 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-s. (iv) of S. 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 respondents 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 such no 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 the respondent to raise the said question for the first time before us. We, therefore, reject this plea.