STATE OF BIHAR AND ANOTHER versus UMESH JHA

2 S.C.R. SUPREME COURT REPORTS,

STATE OF BIHAR AND ANOTHER v.

UMESH JHA

(J. L. KAPUR, K. SUBBA RAO, M. HrnAYATULLAH, J. C; SHAH and RAGHUBAR DAYAL, JJ.)

Land Reform-Vesting of estate in the State-Enactment em· powering collector to set aside anticipatory settlement-Constitu· tional validity-Amendment-Effect-Bihar Land Reforms Act, r950 (Bihar 30 of r950), as amended by Bihar Land Reforms (Amendment) Act, I959 (Bihar I6 of z959), s. 4(h)-Constitution of India, Arts. I4, I9, 31, JIA.

Section 4(h) of the Bihar Land Reforms Act, 1950, as amended by the Bihar Land Reforms (Amendment) Act, 1959. which empowers the Collecfor to annul anticipatory transfers of land designed to defeat the object of the Act, is protected by Art. 31A of the Constitution although it does not by itself pro-vide 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 Arts. 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 v. State of Ajmer, [1959) Supp. I S.C.R. 478, applied.

On true construction of s. 3 of the Amending Act, the second proviso to s. 4(h) cannot be retrospective in operation and therefore, in respect of an order of annulment made by the Collector before the Amendin·g Act came into force the previous sanction obtained from the State Government would be suffi. cient, but subsequent confirmation by the State Government would be necessary in the case of an order made after the Amending Act came into force.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 425of1957.

Appeal from the judgment and order dated Februa-ry 21, 1956, of the Patna High Court in Misc. Judi-cial Case No. 53 of 1955.

B. K. P. Sinha and D. P. Singh, for the appellants.

L. K. Jha and R. 0. Prasa,d,, for the respondent.

1961. May 3. The Judgment of the Court was

delivered by

May 3.

State of Bihar \', Umesh .J ha Sttbba Rao J.

SuBBA RAO, J.-This appeal by certificate raises the question of the construction of s. 4(h) 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 Amel1ding Act).

The facts giving ri~e to the appeal lie in small compass. Plots Nos. 383 and 1033 are tanks in village Lakshmipur alias 'l'arauni in the District of Dar-bhanga. The respondent claims to have taken settle-ment of the said plots in the year 1943 from the land-lords of Raghopur Estate of which the said plots formed part. After the coming into force of the Act, the said Estate vested in the St.at~ of Bihar. There-after, one Sheonandan Jha and some other villagers of Lakshmipur filed 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 settle-ment was actually made after January 1, 1946, and that it was only paper transaction; having annul-led the said settlement, the Additional Collector, Ly 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 petition in the High Court of Judi-cature at Patna under Art. 226 of the Constitution for rule in the nature of 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 pos-session of the said two plols. That petition came to be decided by 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 n,nd decide the question whe-ther the settkmont, which was prima facie shown to have been made before ,Jarnrnry I, 1946, was actually made after that date. On the basis of that finding, the order of the Additionn,l Collector was set aside.

The State of Bihar and the Additional Collector of Darbhanga have preferred the present appeal against tho said order.

Learned counsel for the State contends that s. 4(h) of the Act has been amended with retrospective effect, that under the amended section the Collector has power to decide whether 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 rcsponden t, while conced-ing the retroactivity of the amendment, relies upon the second proviso added by the amendment to s. 4(h) and contends that under the said proviso the order of tho 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 confirm11tion. Further he questions the constitutional validity of the said section on the ground that it infringes the funda-mental right of the respondent under Arts. 14, 19 and 31 of the Constitution and is not saved bv Art. 31 thereof. •The second contention of learned counsel for the respondent may be disposed of first. Under Art. 31A of the Constitution, no law providing for the acquisi-tion by the State of any estate or of any rights t.here-in or the extinguishment or morlification of any such rights shall be deemed to be void on tho ground that it is inconsistent with, or t'l.kes a1rny or abridges any of the rights conforred by Art. 14, Art.. 19 or Art. 31. The question is whether s. 4(h) of the Act is such law as to be hit by Art. 31A of the Constitution. Sec-tion 4(h) of the Act confers power on Collector, inter alia, to make inquiries 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 obj,'ct of defeating any provisions of the Act or causing los:; to the State or obtaining compensation thereunrl•,r. It is said that the section ex proprio vigore docs nc,t pro-vide for acquisition by the State of any estafe or of

Statt of Bihar v. Uniesh ]ha Subba Rao j.

Slate of Bihar v. U111esh ] ha Subba Rao J.

any rights therein or for the extinguishment or modi-fication of any such rights and, therefore, is not pro-tected by Art. 31A of the Const.itution. This argu-ment in effect disannexes s. 4(h) of the Act from the setting in which it appears and seeks to test its vali-dity independently of its interaction on the other pro-visions of the Act. Section 4(h) 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 provieiob.s of the Act. Suppose the Collector c11ncels 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 extin-guished. The said result accrues on the basis that the said land continued to be part of the estate at the time the Act came into force. That apart, the section is part of the Act designed to extinguish or modify tlw rights in an estate, and the power conferred on Collector to cancel 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 v. State of Ajmer ('). There, the const,itutional vali-dity of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (Ajmer III of 1955) ands. 8 thereof was att11cked. Section 8 of the said Act con .. forred power on (,Im Collector to cancel 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 abolitfon of intermediaries. Repelling the said contention, Wan-choo, J., speaking for the Court, observed thus: "The provision is not an independent provision; it is merely ancillary in character enacted for carry-ing 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 Art. 31A(l)(a) of the Constitution." (r) [1959] Supp. I S.C.R. 478, 482.

The same reasoning applies to s. 4(h) of the Act, and for the same reasons we hold that s. 4(h) of the Act is likewise protected by Art. 31A of the Constitu-tion.

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 al ways to have been inserted; and

(c) the words "and with the previous sanction of

the State Government" shall be omitted;

(v) to elause (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 prescribed a.utho-rity not below the rank of the Collector of district who shall dispose of the same according to the pres-cribed procedure:

Provided further that no order annulling trans-fer shall take effect nor shall possession be taken in pursuance of it unless such an order has been con-firmed 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 tral'.sfer was made at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher

Stale of Bihar v. Umesh ]ha

Subba Rao ].

Stat• of Bihar v. Umesh }ha

Subba Rao ]. •

compensation thereunder, the Collector mav, after giving reasonable notice to the parties concerned to appear and be heard and with the previous sanc-tion of the State Government annul such transfer, disposses~ 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 n,s it was before the amendment and (,hereafter are that. under the unamended section it was moot point whether the Collector had the power to set aside transfer, whether it was effected before or after January 1, 1946; w hcreas under the amended section such power is c!eitrly and express. ly conferred on him: while under the original section, the Collector had to lake the previous sanction of th<1 State Government before he made the order annulling trnnsfor and dispossessing the perwn claiming under it, under the amended section the order made by the Collector shall neither take effect nor can he t11ke possession before his order is confirmed. The short question is whether the second proviso, added by the Amending Act, is retrospective iu operation, that is, whether the order of the Collector made before the Amending Act, though made wit.h the previous sanc-tion of the State Government, would still require for its ta.king effect a. subsequent confirmation by the State Government.

Learned Counsel for the State contends th11t the amendments made bys. 3(iv)(a) and (b) are retrospec-tive, but the amendment made by s. 3(v) 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 els. (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, iu cl. (c) the words mentioned therein sha,ll 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 trne con-struction, the condition of previous sa,nction would

continue to operate in respect of the Collector's order made before the 11,mend:nent can:.0 into force. If the proviso be given 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 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 party to seek for restoration of the land taken possession of by the Collector on the basis of technicality. Even in case where possession has not been taken by the Collector, the said anomaly would persist, for two sanc-tions would be required. The alternative construction makes the working of the section smooth and avoids the introduction of the said incongruity and, there. fore, 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 tho Collector before the Amend-ing Act, the previous sanction obtained would suffice, and in respect of an order made after the Amending Act, subsequent confirmation by the State Gqvern-ment 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 pre!i . minary point, did not consider the question whe-ther. 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 allcga. tion 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 argu. ments before the High Court. In the circumstances we do not think that this Court is justified in allowing

Staid of Bihar v. Umesh }ha Subba Rao ].

the respondent to raise the said question for the first State of Bihar time before us. We, therefore, reject this plea. v. In the result we set aside the order of the High Umesh ]h• Court and allow the appeal. But, in the circumstan-ces of this case, we direct the parties to bear their own Subbo Rao ]. costs here and in the High Court.

Appeal allowed.

DELHI ADMINISTRATION

May 3. v. RAM SINGH (K. SUBBA RAo, RAGHUBAR DAYAL and J. R. MUDHOLKAR, JJ.)

Criminal Law-Immoral traffic-Enactment for suppression-Speciat police officer appointed under the Act- Investigation of offen-ces under the Act-Exclusion of powers of station-house oj)icer-"Dealing with offences under the Act"-Suppression of Immoral Traffic in Women and Girls Act, r956 (ro4 of r956), ss. 2(i), 8, r3(2) -Code of Criminal Procedure, r898 (Act V of r898), ss. 5, r56, 55r.

Jhe respondent was prosecuted for an offence under s. 8 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and charge-sheet was presented before First Class Magistrate in Delhi by sub-inspector, who, as the officer in charge of the Police Station, had investigated the case. On an objection raised by the respondent, the Magistrate quashed the charge-sheet on the ground that only the special police officer appointed under the Act was competent to investigate the offen-ces under the Act.Held, (Mudholkar, J.. dissenting), that since the Suppression of Immoral Traffic in Women and Girls Act, 1956, created new offences and prescribed the procedure for dealing with them, it was complete code in itself and to that extent the provisions of the Act must prevail over those of the Code of Criminal Procedure, 1898; that as the Act provided for the appointment of special police officer for dealing with offences under the Act in the area within his jurisdiction, be and his assistant police officers were the only persons who could investigate offences under the Act committed within that area, and that police offi-cers not specially appointed as special police officers could not