@JUDGMENTTAG-ORDER
D.M. Chandrashekhar, C.J.-These petitions under Art. 226 of the Constn. have been referred to Division Bench. As they involve many common questions of law, they were heard together and we are deciding them by this common order.
2. The petitioner in W.P. No. 7659 of 1979 had purchased a land which formed an emolument attached to a village office (hereinafter referred to as Service Inam Land) after the Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as the Principal Act) came into force. He has alleged that he had made an application under S. 7 of the Principal Act for grant of that land and that his application has not been disposed of. His grievance is that under S. 7A of the Principal Act his application would abate. He has assailed the constitutionality of the Karnataka village Offices Abolition (Amendment) Act, 1978 (hereinafter referred to as the Amendment Act).
3. The petitioner in W.P. No. 2613 of 1979 claims to be in possession of a Service Inam Land since the year 1964. He has alleged that that land was regranted by the Assistant Commissioner by his order dated 29-5-1973 to the holder of the village office who had agreed to sell it and that he (the petitioner) had constructed a house in that land. He has impugned the notice issued to him by the Assistant Commissioner asking him to show cause why action should not be taken against him under amended S. 7 of the Principal Act to nullify his purchase and to resume the land.
4. Petitioners in W.P. Nos. 2842 and 2948 of 1979 have alleged, that they purchased Service Inam Lands from the erstwhile holders of village offices after the Principal Act came into force, that they thereafter made applications for regrant of those lands, that they had received notices from the Assistant Commissioner for enquiry regarding those lands and that their vendors were seeking to disturb their possession taking advantage of the provisions of the Amendment Act. Hence, they have impugned the notices of the Assistant Commissioner.
5. Petitioners in WPs Nos. 3178 6464 to 6468, 6796, 6797 and 8864 of 1979 have alleged that they had purchased service Inam lands after the Principal Act came into force, and they had made applications for regrant of those lands. They have impugned the notices issued to them under amended S. 7 of the Principal Act intimating that they had been in unauthorised possession of those lands and asking them to show cause why they should not be evicted from those lands.
6. Petitioners in WP Nos. 14283 to 14288 of 1979 have alleged that they have been in possession of Service Inam Lands even prior to the coming into force of the Principal Act, that the holders of the village offices concerned, had entered into agreements to sell those lands in their favour, that subsequent to those agreements they had made applications under S. 7 of the Principal Act for regrant of those lands, that those applications had not been disposed of that they have been issued notices under amended S. 7 of the Principal Act intimating them that they had been in unauthorised possession of those lands and asking them to show cause why they should not be evicted from those lands. They have impugned those notices.
7. Petitioners in WP Nos. 4836 and 14300 of 1979 had purchased Service Inam lands after the Principal Act came into force and after the regrant of those lands to the erstwhile holders of the village offices. After issuing show cause notices to the petitioners and heading them, the Assistant Commissioner, by his orders dt. 31-3-78, held that those lands could not have been alienated to them, that those lands vested in the State and directed the Tahsildar to take possession of those lands. They have impugned those orders.
8. Petitioners in WPs. Nos. 4077, 6248, 8753 9003 to 9006 and 12190 of 1979 have alleged that they had purchased Service Inam lands after the Principal Act came into force from erstwhile holders of village offices who had been regranted those lands under S. 5 of the Principal Act and that notices have been issued to them (the petitioners) under S. 5 or 7 of the Principal Act intimating that the alienations in their favour were unauthorised and asking them to show cause why they should not be evicted from those lands.
9. Learned Counsel for the petitioners addressed elaborate arguments impugning the constitutional validity of the Amendment Act. Other learned Counsel who had entered appearance for the petitioners in similar writ petitions, which were neither referred to a Division Bench nor posted for hearing though referred to a Division Bench, were permitted to intervene and to address arguments. The learned Advocate General and the learned Government Advocate, who appeared for the State arid its officers, addressed arguments defending the constitutionality of the Amendment Act and the validity of the notices issued under amended S. 7 of the Principal Act and of the orders made by the Assistant Commissioners.
10. Before dealing with the rival contentions of learned Counsel, it is necessary to set out the history of the legislation abolishing village offices and the relevant provisions of the Principal Act, the Amendment Act and the Rules made thereunder.
11. As in most parts of India, village offices in the different areas of the new State of Mysore (Karnataka) were generally held hereditarily. These village offices were governed by the Mysore Village Offices Act, 1908 in the former State of Mysore, the Madras Hereditary Village Offices Act, 1895, the Madras Proprietary Estates Village Service Act, 1894, the Madras Karnams Regulation, 1802 in the State of Madras and the Bombay Hereditary Offices Act, 1874 in Bombay State.
12. The emoluments of these village offices were generally in the form of lands and the alienations of such lands by the holders thereof was generally prohibited.
13. S. 5 of the Mysore Village Offices Act, 1908 provided that the emoluments of village officers, whether such officers were or were not hereditary, should not be transferred, partitioned, or encumbered in any manner whatsoever. Even the attachment and sale of such emoluments or any portion thereof by Courts, had been prohibited. The proviso to that Section, however permitted transfers, partitions and encumbrances as between the members of the the Hakdar''s family in the case of lands which were not assigned as emoluments to the holder of a village office.
14. In exercise of the rule making power under S. 22 of the Mysore Village Offices Act, the State Government had made Rules. Rules in part IV thereof provided for taking action in respect of alienations prohibited under Section 5 of that Act.
15. Rule 26 of those Rules provided, inter alia, that when an alienation of land which was attached to a, village office as its emoluments was made subsequent to the passing of the Mysore Village Offices Act by the holder of a village office, the Deputy Commissioner or the Assistant Commissioner should at once resume such land from the person or persons to whom it had been alienated. Rule 27 provided that such resumption should be made in the manner laid down in Section 209 of the Mysore Land Revenue Code for evicting persons wrongfully in possession of the land or in any other suitable manner.
16. Rule 28 of those Rules provided, inter alia, that in a case where the holder of a village office alienated the land assigned to such holder for the performance of the duties of such office, the Deputy Commissioner or Assistant Commissioner might, in addition to taking action under Rules 26 & 27, dismiss such holder from his office, and make over such land to the person newly appointed under Section 8 of that Act.
17. The policy of the State in restraining the alienation of Service Inam Lands was, as stated in para 67 of the Mysore Revenue Manual, 1938 Edition to render permanent the sources of official Income to a hereditary village officer''s family apart from any cash allowance.
18. It was stated in Clause (iii) of Para 282 of that Manual that no valid rights could be conveyed by alienations effected by means of sale, mortgage, transfer or relinquishment of Service Inam Lands, that the alienees could make no claim for return of any consideration, as such a transaction was contrary to rules and therefore null and void and that any sanction that might have been given by the local officers could be of no avail.
19. S. 4 of the Bombay Hereditary Village Offices Act, 1894 defined ''Watan Properties'' to include immovable property held, acquired or assigned for providing remuneration for the performance of the duty appertaining to a hereditary office. S. 5 of that Act prohibited alienation of a Watan property except to a person who was the Watandar of the same Watan. S. 9 of that Act empowered the Collector to declare a prohibited alienation of a Watan property to be null and void.
20. Hereditary village offices in the former State of Madras were governed by the Madras Hereditary Village Offices Act, 1895. S. 4 of that Act defined ''emoluments'' to include lands. S. 5 of that Act prohibited alienation of emoluments of village offices.
21. In Dasharathram Rao v. State of A.P, AIR 1961 SC. 564, the Supreme Court held that continuance of hereditary village offices was unconstitutional. In the light of that decision, the State of Karnataka enacted the Principal Act (Karnataka, Village offices Abolition Act, 1961) by which hereditary village offices were abolished. The Principal Act came into force on 1-2-1963. However, its operation was stayed by this Court during the pendency of a large number of writ petitions challenging its constitutionality and during the pendency of the appeals before the Supreme Court from the decision of this Court in those writ petitions. Such stay order terminated when the Supreme Court dismissed those appeals by its judgment dated 21-1-1966 in Sankaranarayana v. State of Mysore, AIR 1966 SC. 1571. The Supreme Court upheld the constitutionality of the Principal Act.
22. S. 2 of the Principal Act contained definitions. Clause (a) of sub-section (1) defined "appointed date" as the date appointed under sub-sec. (3) of S. 1.
23. Clause (b) of that sub-section defined "authorised holder" as a person in whose favour a land granted or continued in respect of, or annexed to, a village office by the State or a part thereof, had been validly alienated permanently, whether by sale, gift partition or otherwise under the extsting law relating to such village office.
24. Clause (3) of that sub-sec. defined "emoluments" as including lands and assignment of revenue payable in respect of lands.
25. Clause (g) of that sub-section defined "holder of a village office" or "holder" as a person or the whole body of persons having an interest in a village office under the law in force immediately before the Appointed Day, relating to such office (hereinafter referred to as the "Existing Law")
26. Clause (m) of that sub-section defined "unauthorised holder" as a person in possession of a land granted or continued in respect of, or annexed to, a village office by the State, without any right or under any lease, mortgage, sale, gift or any other kind of alienation thereof, which was null and void under the existing law, relating to such village office.
27. Sub-section (1) of S. 3 of the Principal Act empowered the Deputy Commissioner to decide:
(a) whether any land was granted or continued in respect of or annexed to a village office by the State, or (b) whether any person was a holder of a village office, or (c) whether any person was an authorised holder, or (d) whether any person was an unauthorised holder.
Under that sub-section, the Deputy Commissioner was required, before deciding any question, to give the party likely to be affected therefrom an opportunity to be heard and to hold an enquiry in the prescribed manner.
28. Sub-section (2) of S. 3 provided for an appeal to the District Judge from any decision of the Deputy Commissioner under sub-section (1).
29. Sub-section (1) of S. 4 provided for abolition of all village offices which were held hereditarily before the commencement of the Constitution under existing laws relating to village offices.
30. Sub-section (3) of S. 4 provided inter alia, that subject to the provisions of Ss. 5, 6 and 7, all land granted or continued in respect of, or annexed to, a village office by the State should be resumed and should be subject to the payment of land revenue under the land revenue law as if it were an unalienated land or ryotwari land.
33. Sub-section (1) of S. 5 provided for regrant of lands under sub-section (3) of S. 4, in cases not falling under S. 6 and 7, to the person who was a holder of the village office immediately prior to the Appointed Date.
32. Sub-section (2) of S. 5 provided that if there was a failure to pay the occupancy price under sub-section (1) within the prescribed period and in the prescribed manner, the holder should be deemed to be unauthorisedly occupying the land and should be liable to be summarily evicted therefrom by the Deputy Commissioner.
33. Sub-section (3) of S. 5 provided that the occupancy or the Ryotwari Patta of the land regranted under sub-section (1) of that section be not transferable otherwise than by partition among members of Hindu Joint family without the previous sanction of the Deputy Commissioner.
34. S. 6 provided for regrant of land resumed under Section 4 to authorised holders.
35. Sub-section (1) of S. 7 provided that where any land resumed under clause (3) of S. 4 was in possession of an unauthorised holder, he should be summarily evicted therefrom by the Deputy Commissioner in accordance with the provisions of the land revenue law. However, the proviso to that sub-section empowered the Deputy Commissioner to regrant the land to such unauthorised holder, if the Deputy Commissioner, after enquiry, was of the opinion that in view of the investment made by such holder in the development of the land or in the non-agricultural use of the land or for any other reason, the eviction of such holder from the land would involve undue hardship on him.
36. S. 11 empowered the State Government to make rules. In exercise of such power, the State Government had made the Rules called ''the Karnataka Village Offices Abolition Rules, 1961'', (hereinafter referred to as the Rules).
37. S. 12 repealed certain enactments specified in Schedule I to the Principal Act in so far as they related to the village offices or the emoluments attached to such offices. Among the enactments so repealed were, the Mysore Village Offices Act, 1908, the Madras Hereditary Village Offices Act, 1895, the Madras Karnams Regulations, 1802, and the Bombay Hereditary Village Offices Act, 1874.
38. The Principal Act was amended by the Karnataka Village Offices Abolition (Amendment) Ordinance), 1975, which lapsed. Another Ordinance the Karnataka Village Offices Abolition (Amendment) Ordinance, 1978 (Karnataka Ordinance No. 7 of 1978) was promulgated and was subsequently replaced by the Karnataka Village Offices Abolition (Amendment) Act, 1978 (hereinafter referred to as the Amendment Act) which received the assent of the President on 7-8-78. Sub-section (2) of S. 1 of the Amendment Act provides that Ss. 2, 3 and 7A in S. 4 thereof shall come into force at once i.e., on 7-8-1978 and that the other provisions shall be deemed to have come into force on 24 12-1975.
39. S. 3 of the Amendment Act amended sub-section (3) of S. 5 of the Principal Act. We have extracted below sub-section (3) of S. 5, as it stood before amendment, and as it stands now after such amendment.
Sub-Section (3) of Sec. 5 before amendment. Sub-section (3) of Sec. (3) of Sec. 5 after amendment.
(3) The occupancy or the ryotwari patta of the land as the case may be, regranted under sub-section (1) shall not be transferable otherwise than by partition among members of Hindu joint family without the previous sanction of the Deputy Commissioner and such sanction shall be granted only on payment of an amount, equal to fifteen times the amount of full assessment of the land. (3) The occupancy or the ryotwari patta of the land, as the case may be, regranted under sub-sec. (1) shall not be transferable otherwise than by partition among members of Hindu joint family for a period of 15 years from the date of commencement of Section 1 of the Karnataka Village Offices Abolition (Amendment) Act, 1978.
40. S. 3 of the Amendment Act inserted in S. 5 of the Principal Act, a new sub-section, namely, sub-section (4) which shall be and shall be deemed always to have been inserted in the Principal Act. That sub-section reads:
"(4) Any transfer of land in contravention of sub-sec. (3) shall be null and void and the land so transferred shall, as penalty, be forfeited to and vest in the State Government free from all encumbrances and any person in possession thereof shall be summarily evicted therefrom by the Deputy Commissioner and the land shall be disposed of in accordance with the law applicable to the disposal of unoccupied unalienated lands.
Provided that if the person who has transferred the land in contravention of sub-sec. (3) is not alive, while disposing of such land preference shall be given to the heirs of such person."
41. Sub-section (6) inserted by the amendment Act in S. 5 of the Principal Act, reads:
"(6) Notwithstanding anything contained in any law for the time being in force, any agreement for transfer of land resumed under clause (3) of S. 4, entered into prior to regrant thereof under sub-section (1), shall be null and void and any person in possession thereof in furtherance of such agreement shall be summarily evicted therefrom by the Deputy Commissioner."
42. Section 4 of the Amendment Act substituted a new section for S. 7 of the Principal Act. We have extracted below S. 7, as it stood before amendment, and as it stands now after amendment. Section 7 before amendment Eviction of unauthorised holder and re-grant to him in certain circumstances of land resumed under Section 4:(1) Where any land resumed under clause (3) of Sec. 4 is in the possession of an unauthorised holder, such unauthorised holder shall be summarily evicted therefrom by the Deputy Commissioner, in accordance with the provisions of the Code:Provided that where in the case of any unauthorised holder, the Deputy Commissioner after enquiry is of opinion that in view of the investment made by such holder in the development of the land or in the non-agricultural use of the land or for any other reason, the eviction of such holder from the land will involve undue hardship on him, he shall regrant the land to such holder on payment of such amount and, subject to sub-section (3) of S. 5, on such terms and conditions as the State Government may determine.(2) A land which is not regranted under sub-section (1) shall be disposed of it; accordance with the provisions of the Code and the rules and orders made thereunder applicable to the disposal of unoccupied unalienated land. Section 7 after amendment Eviction of unauthorised holders, etc.-(1) Where any land resumed under clause (3) of Sec. 4 is in the possession of an unauthorised holder, such unauthorised holder shall be summarily evicted therefrom and the land shall be taken possession of by the Deputy Commissioner in accordance with law:Provided that no such summary eviction shall be made except after giving the person affected a reasonable opportunity of making representation.(2) Any order of eviction passed under sub-section (1) shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Deputy Commissioner in pursuance of the power conferred by sub-section (1).(3) The land from which an unauthorised holder is evicted under sub-section (1) shall,-(a) if it was granted or continued in respect of or annexed to an inferior village office be regranted to the hold of such village office;(b) in other cases be disposed of in accordance with the law applicable to the disposal of unoccupied unalienated lands.
43. The Amendment Act inserted in the Principal Act, a new section, namely, S. 7A, which reads:
"7A. Restriction on transfer etc.-(1) No person shall transfer or acquire by transfer for a, period of fifteen years from the date of commencement of this Section any land disposed of or regranted under sub-sec. (4) of Section 5 or sub-section (3) of S. 7 and any transfer of such land in contravention thereof shall be null and void. The land so transferred shall vest in the State Government free from all encumbrances. The provisions of sub-section (5) of Sec. 5 shall mutatis mutandis apply to transfer of such land.
(2)Any person who acquires by transfer such land in contravention of sub-section (1) shall on conviction be punished with imprisonment which may extend to six months.
44. Section 5 of the Amendment Act provides that all pending applications and proceedings relating to re-grant of land to unauthorised holders under the proviso to sub-section (7) of the Principal Act, as it stood prior to the commencement of the Amendment Act, shall not have effect and shall abate.
45. Rule 3 of the Rules provided for the manner of holding enquiry under S. 3 of the Principal Act. Under that Rule, the Deputy Commissioner was required to hold an enquiry in the manner prescribed for a formal enquiry under the Karnataka Land Revenue Act.
46. Rule 6 provided, inter alia, that the Deputy Commissioner, in making enquiries under these Rules, might exercise all or any of the powers conferred on a Revenue Officer making formal or summary inquiry under the Land Revenue Law and that the procedure to be followed should, as far as practicable, be the procedure prescribed in the Code of Civil Procedure.
47. The Rules were amended by the Karnataka Village Offices Abolition (Amendment) Rules, 1978 which came into force on 4-12-1978 and a new Rule, Rule 5A, was inserted which reads:
"5A-Eviction of an unauthorised holder or person in wrongful possession:
(1) The Deputy Commissioner may evict any person under sub-sec. (1) of Section 5 or Section 7 in the following manner, namely:
(1) by serving a notice on the person in possession to vacate the land within such time after the service of such notice asmay appear reasonable to him; and (ii) if such notice is not obeyed, by removing or causing the removal of any person who may refuse to vacate the land, and (iii) if such person or any other person on his behalf resists or obstructs such removal, he shall hold a summary inquiry into the facts of the case and if satisfied that the resistance or obstruction was without any just cause, may without prejudice to any proceedings to which such person or other person may be liable under any law for the time being in force for such resistance or obstruction, take or cause to be taken such steps and use or cause to be used such force as may, in the opinion of such officer, be reasonably necessary for securing compliance with the order.
(2) Subject to the above sub-rule the provisions of the Karnataka Land Revenue Act, 1964 shall apply to, such eviction."
48. Rule 4 of the Rules which provided for the time and manner of payment of occupancy price under Ss. 5 and 6, was amended from time to time so as to extend such time. Sub-rule (1) of that Rule, as it stands now, provides that the occupancy price referred to in Ss. 5 & 6 may be paid in lumpsum or in three equal instalments, the first to be paid within 31-12-1980.
49. Rule 5 provided, inter alia that an application for regrant of land under S. 5 or 6 should be made within three months from the date of payment of the full occupancy price under Rule 4. However, the Deputy Commissioner was empowered to condone the delay in making such application.
50. We shall now set out the questions that arise for determination in these appeals:
(i) Did an alienee of a Service Inam land from its holder or the authorised holder, acquire any title to or interest in, such land, if the alienation had taken place prior to the coming into force of the Principal Act? If not, did he acquire such title or interest subsequently by his alienor obtaining its regrant under S. 5 or 6, as the case may be, of the Principal Act?
(ii) Did the holder or the authorised holder of a Service Inam Land get title to it when that land stood resumed to the Government under sub-sec. (3) of S. 4 of the Principal Act or did he get such title to that land only when it was re-granted to him under S. 5 or 6 as the case may be of the Principal Act?
(iii) Did an alienee of a Service Inam Land, from its holder or the authorised holder, acquire title to such land, if the alienation had taken place between the date of the coming into force of the Principal Act and the date of the regrant, after its regrant to its holder or the authorised holder under S. 5 or 6, as like case may be of the Principal Act?
(iv) Did an intending alienee of a Service Inam Land from its holder or the authorised holder, who was put in possession of that land pursuant to an agreement to purchase obtained from the latter prior to the coming into force of the Principal Act, get a right to continue in possession of that land after the, Principal Act came into force- (a) if such land had not been regranted to the alienor under S. 5 or 6 of the Principal Act, (b) after such land was so re-granted to the alienor?
(v) Did an alienee or an intending alienee of a Service Inam Land, who was, prior to, the coming into force of the Principal Act, put in possession under a deed of alienation or pursuant to an agreement to purchase, become disentitled to regrant of such land subsequent to 7-8-1978 even though he had, made an application for regrant under original S. 7 of the Principal Act? If so, was such person liable to be evicted?
(vi) Did a transferee of a Service Inam Land from its holder or authorised holder after its regrant under S. 5 or 6 of the Principal Act, get title to or interest in, such land, if such transfer had taken place without the previous sanction of the Deputy Commissioner under the unamended sub-section (3) of S. 5 of the Principal Act?
(vii) Is sub-section (4) of S. 5 of the Principal Act attracted to- (a) a transfer of a Service Inam Land in contravention of unamended sub-section (3) of that Section; or (b) a transfer of such land in contravention of amended sub-section (3) of that section; or (c) both of them-.
(viii) Is substituted S. 7 of the Principal Act violative of Art. 31 of the Constitution?
(ix) Is S. 5 of the Amendment Act which provides that all pending applications and proceedings relating to regrant of Service Inam Lands to unauthorised holders under the proviso to sub-section (1) of unamended Section 7 of the Principal Act, shall not have effect and shall abate, violative of Article 14 of the Constitution?
(x) Is the opportunity provided under the proviso to sub-section (1) of substituted Section 7 of the Principal Act to an affected person to make a representation, sufficient to satisfy the requirement of fair hearing a principle of natural justice?
51. We shall now proceed with the determination of these questions seriatim.
Re: Question No. 1:
52. As seen earlier, S. 5 of the Mysore Village Offices Act, 1908, S. 5 of the Madras Hereditary Village Offices Act, 1894 and S. 5 of the Bombay Hereditary Village Offices Act, 1874, prohibited alienation of lands which were assigned as emoluments to the holders of village offices. Rule 26 of the Mysore Village Offices Rules, expressly provided that, where any such land was alienated, the Deputy Commissioner or the Assistant Commissioner should at once resume such land from the person to whom it had passed.
53. However, learned Counsel for some of the petitioners contended that an alienation of a Service Inam land, was not null and void but was only voidable at the option of the Government. Support for this contention was sought by them from the decision of a Division Bench of this Court in Laxmamma v. Special Deputy Commissioner, 10 LR 650. There, a land granted under Rule 43(6) of the Mysore Land Grant Rules, made under the Mysore, Land Revenue Code, had been alienated contravening clause (2) of the terms and conditions of that grant prohibiting such alienation. Since clause (b) of the terms and conditions of that very grant contained a stipulation that a land alienated in contravention of clause (a), might be summarily resumed by the Government, that on such resumption it would vest in the Government free from all encumbrances and that neither the grantee nor the alienee was entitled to any compensation for it, the scope of that clause had to be determined in the light of Rule 43(6) of the Mysore Land Grant Rules. The Division Bench held that although the Government was permitted to resume such land under clause (b), such resumption was not compulsory or automatic and that the alienee from the grantee did acquire a title to it which would be put an end to, only if action was taken by the Government or its officers under Rule 43(6)(b). According to learned Counsel, the reasoning adopted in that decision, would be equally applicable to a prohibited alienation of a Service Inam Land, and that hence such alienation would not be null and void, but would only be voidable at the option of the Government.
54. We do not consider it possible to accede to the contention of learned Counsel, in that, the provisions of Rule 43(6) of the Land Grant Rules in the light of which the Division Bench determined the scope of the clauses of a grant, are not in pari materia with the provisions of the Village Offices Acts, which prohibited alienations of Inam lands assigned to the holders of the village offices. There are two cases of the Madras High Court; one of a Full Bench and another of a Division Bench, wherein the question as to passing of title in a Service Inam land, the aliention of which was prohibited, has been considered. In Anjaneyalu v. Venugopal Rice Mills, AIR 1922 Mad. 197 FB, a Full Bench of the Madras High Court, pointed out thai Section 6(h) of the Transfer of Property Act clearly prohibited transfer of property when such transfer was opposed to public policy, that where the land was a personal Inam for rendering public service, it could not be sold by the Inamdar and that if such land was so sold, the purchaser did not get any title since at any moment the Inam could be resumed by the Government when the Inamdar ceased to render service. In Ramaiah v. Dhara Sachi, (1913) 25 Mad.L.J. 635, it was also held by a Division, Bench that an alienee of a Service Inam Land acquired no title even after such land had been enfranchised.
55. From the ratios of the said decisions of the Madras High Court with which we are in respectful agreement, it would follow that a prohibited alienation of a Service Inam Land would be null and wholly void and not merely voidable at the option of the Government and that the alienee of such land would not get any title to, or interest in it and further such alienee could not claim the benefit of the doctrine of feeding the estoppel, which has been given statutory recognition in Section 43 of the Transfer of Property Act because that Section would not apply to transfers forbidden by law on the ground of public policy.
56. Hence, our answer to the question is that the alienee of a Service Inam land from its holder or the authorised holder, did not acquire any title to, or interest in, such land, if the alienation had taken place prior to the coming into force of the Principal Act and that he also did not acquire such title or interest subsequently by the alienor obtaining its regrant under Section 5 or 6, as the case may be, of the Principal Act.
Re: Question No. 2:
57. Shri T.S. Ramachandra, learned Counsel for some of the petitioners, contended that when a Service Inam land stood resumed to the Government under sub-section (3) of S. 4 of the Principal Act, such resumed land was subject to regrant to its holder or authorised holder, and that consequently the resumption of a Service Inam land simultaneously brought regrant of such land to the holder or authorised holder thereof. In other words, the contention of Shri Ramachandra was that the holder or authorised holder of a Service Inam land got title to it simultaneously with its resumption, subject to such title becoming defeasible, if he failed to pay its occupancy price and to apply for its regrant within the prescribed time.
58. On the other hand, the learned Advocate General contended that the holder or authorised holder of a Service Inam land did not get title to it as soon as it stood resumed statutorily but got title to it only after such land was regranted to him under S. 5 or 6 of the Principal Act.
59. Shri Ramachandra sought to derive support for his contention from the observation of the Supreme Court in Jayavantsinhji v. State of Bombay, AIR 1959 SC. 547, that on the abolition of Taluqdari tenure under the Bombay Taluqdari Tenure Abolition Act, 1949, the Taluqdar became the occupant of the land held by him with the result he would be liable to pay land revenue in accordance with the provisions of the Bombay Land Revenue Code. But S. 3 of the Bombay Taluqdari Tenure Abolition Act was not in pari materia with S. 5 of the Principal Act, in that, the provision of the former Act did not provide for a scheme of resumption of Taluqdari lands and regrant thereof to erstwhile Taluqdars, while the provisions of the latter Act so provided. Hence, the decision in Jayavantsinhji''s case is not of any assistance to the present cases.
60. Shri Ramachandra next relied on observations of the Supreme Court is Dolatsinghji v. State of Gujarat, AIR 1980 SC 59 @ 63, that an erstwhile Jagirdar became the occupant of the land held by him, together with the forest trees standing thereon arid that the Government authorities had no right to interfere with his dealing with the forest trees, at any rate before passing of the Gujarat Private Forests (Acquisition) Act, 1972. S. 5(1)(b) of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1954, provided that on the abolition of Jagirs, the Jagirdar in actual possession of Jagir land, should be primarily liable to the State Government for the payment of the land revenue due in respect of such land and that he should be entitled to all the rights and should be liable to all the obligations in respect of such land as an occupant under the Bombay Land Revenue Code. That Act also did not provide for resumption of Jagir lands by the Government and subsequent regrant thereof. Hence, the observations of the Supreme Court in that case do not bear on the question now under consideration.
61. Shri Ramachandra next invited our attention to the provision in sub-section (3) of S. 4 of the Principal Act to the effect that a Service Inam land on resumption, should be liable to the payment of land revenue under the provisions of the Land Revenue Law as if it was an unalienated or ryotwari land. He argued that unless such land stood statutorily regranted immediately on its resumption, the question of payment of land revenue would not arise at all because there could not be any liability to pay land revenue on a land which belonged to the Government and that such liability would arise only when the land belonged to a person other than the Government.
62. It is true that the Government was not liable to pay land revenue on a land of which it was the owner. What sub-section (3) of S. 4 of the Principal Act stated was that a Service Inam land which was exempt, totally or partially, from payment of land revenue, would cease to enjoy such exemption after losing its character as Service Inam Land and becoming an unalienated or Ryotwari land. Such cessation of exemption did not necessarily mean that on resumption of such land it simultaneously stood regranted to any person.
63. However, we do not consider it necessary to further elaborate the discussion relating to the question as it has been answered by the Supreme Court in M.B. Desai v. Siadalingappa, AIR 1973 SC. 190. There the Supreme Court was dealing with the change in the character of Service Inam Lands which were resumed and had to be regranted under the provisions of Bombay Pargana and Kulkarni Watan (Abolition) Act, 1950, the relevant provisions of which are in pari materia with the provisions of the Principal Act. Dealing with the question as to.whether the holders of Watans, who were entitled to regrant of lands resumed under the Act, got title immediately on coming into force of the Act providing for resumption and regrant or got title to the same after their actual regrant the Supreme Court held that once an actual regrant was made, the title of the grantee related back to the date of commencement of the Act. From this pronouncement of the Supreme Court, it follows that the holder or the authorised holder of a Service Inam land did not get title to such land simultaneously with the coming into force of the Principal Act providing for resumption and regrant of such land to the holder or the authorised holder, but he got title to such land only after such actual regrant was made, though by such actual regrant, his title to the land related back to the date of commencement of the Principal Act.
64. Hence, our answer to the question is that the holder or the authorised holder of a Service Inam Land did not get title to it when that land stood resumed to the Government under sub-section (3) of S. 4 of the Principal Act, but he got title to it only when it was regranted to him under S. 5 or 6, as the case may be, of the Principal Act.
Re: Question No. 3:
65. We have already held that though the holder or the authorised holder of a Service Inam Land got title to such land only when it was actually regranted to him under S. 5 or 6 of the Principal Act, such title related back to the date of coming into force of that Act. From this, it would follow that if he purported to alienate such land before it was re-granted to him, but after the Principal Act came into force, the doctrine of feeding the grant by estoppel embodied in S. 43 of the Transfer of Property Act, would apply and the title he subesquently acquired on such regrant of that land, would enure to the benefit of his alienee who would get a good title to such land after such regrant to his alienor. There is also no good reason why the benefit of S. 43 should be denied to such an alienee when the Principal Act did not prohibit the holder or the authorised holder of a Service Inam, Land from transferring his interest or right therein after it was resumed and before it was regranted to him,
66. Hence, our answer to the question is that if the holder or the authorised holder of a Service Inam land had alienated it after the Principal Act came into force and before it was regranted to him under S. 5 or 6 of the Principal Act, the alienee acquired a title to that land after such regrant to his alienor.
Re: Question No. 4:
67. Learned Counsel for the petitioners contended that if the holder or authorised holder of a Service Inam land had entered into an agreement to alienate that land and had put the proposed alienee in possession thereof in pursuance of such agreement before the Principal Act came into force, such alienee was entitled to be in possession of that land after the Principal Act came into force whether or not such land had been regranted to the alienor under S. 5 or 6 of the Principal Act and that at any rate if it was so regranted to the alienor.
68. We have held earlier that an alienation of a Service Inam Land prior to the coming into force of the Principal Act, was wholly void and not merely voidable at the instance of the Government and that the alienee got no title to such land. It follows therefrom that an agreement to alienate a Service Inam land entered into prior to the coming into force of the, Principal Act, was also wholly void and not merely voidable. Even if the proposed alienee under such agreement was put in possession of such land in pursuance of such agreement, he could not derive the benefit of the doctrine of part performance embodied in S. 53A of the Transfer of Property Act. As stated in Mulla''s Commentary on the Transfer of Property Act (6th Edn) at page 295, S. 53A is applicable to a case where a transfer had not been, completed in the manner required by law and not to a case where an agreement to so transfer was void under law. Therefore, neither that section nor the doctrine of equity on which it is founded, would validate that which the law said was invalid.
69. Thus, the alienee, who had entered into an agreement for purchasing a Service Inam land and was put in possession of that land in pursuance thereof prior to the coming into force of the Principal Act, did not, under such agreement, get any right to continue in possession of such land after the coming into force of the Principal Act. Even by his alienor subsequently obtaining regrant of such land under S. 5 or 6, as the case may be, of the Principal Act, the alienee got neither any title to such land nor the right to protect his possession of such land under S. 53A of the Transfer of Property Act.
70. Our answer to Question No. 4 raises a subsidiary question as to whether it is open to the State to evict an alienee or an intending alienee who has continued to be in possession of a Service Inam Land having been put in such possession by the holder or the authorised holder of such land if the latter had subsequently obtained regrant thereof under Section 5 or 6 of the Principal Act, We shall now examine this subsidiary question.
71. If a Service Inam land was in the possession of an unauthorised alienee or an unauthoriset intending alienee thereof at the time of coming into force of the Principal Act, it was open to him to obtain regrant of such land under the proviso to sub-section (1) of original S. 7 of the Principal Act. But, that proviso stood repealed by reason of substitution of a new Section for original S. 7 of the Principal Act by the Amendment Act. After such repeal it would be open to the State to take proceedings against the unauthorised alienee or the unauthorised intending alienee for evicting
him from such Service Inam Land. If in the meanwhile such land had been regranted to his alienor, who was its holder or authorised holder, the title to that land no longer remains with the State and it follows that the State cannot take any proceedings for evicting from such land the unauthorised alienee or intended alienee. In other words, if the State regranted under S. 5 or 6 a former Service Inam Land to its holder or authorised holder, the State can no longer take eviction proceedings in respect of that land on the ground that it is in possession of a person who had purchased it unauthorisedly prior to the coming into force of the Principal Act, or had been put in possession of such land in pursuance of an agreement to sell such land entered into prior to the coming into force of the Principal Act, or had been put in possession of such land in pursuance of an agreement to sell such land entered into prior to the coming into force of the Principal Act.
Re: Question No. 5:
72. We shall next examine the position of an alienee who was put in possession of a Service Inam land prior to the coming into force of the Principal Act either under a deed of alienation or in pursuance of an agreement to purchase and the alienor had not obtained the regrant of that land under S. 5 or 6 of that Act, but the alienee had made an application for regrant under unamended S. 7 of that Act and such application had not been disposed of when that Section was substituted by a new section by the Amendment Act.
73. As seen earlier, even though such alienee had been in possession of a Service Inam Land, his possession was without any right. Hence, he was an unauthorised holder of such land as defined in clause (m) of S. 2 of the Principal Act. However, if he had made any substantial improvement in the development of that land, and if his eviction therefrom would involve hardship to him, under the proviso to unamended sub-section (1) of S. 7 of the Principal Act, the Deputy Commissioner should have regranted the land to him on payment by him of an amount equal to 15 times the amount of full assessment of the land and subject to such terms and conditions as the State Government might have determined.
74. If the Deputy Commissioner had regranted that land to such person under the proviso to sub-section (1) of the unamended S. 7, such regrant would remain unaffected even though that section stood substituted by new Section 7 with effect from 7-8-1978. The learned Advocate General and the learned Government Advocate did not dispute this legal position. If the Deputy Commissioner had not regranted that land under that proviso before 7-8-1978, he could not do so thereafter because new Section 7 which superseded original Sec. 7, did not empower the Deputy Commissioner to do so, S. 5 of the Amendment Act provides that all pending applications and proceedings relating to regrant of land to unauthorised holders under the proviso to sub-section (1) of original S. 7 of the Principal Act, shall not have effect and shall abate.
75. Hence, unless new S. 7 of the Principal Act and Section 5 of the Amendment Act are held to be unconstitutional, an alienee or an intending alienee of a Service Inam land, who was, prior to the coming into force of the Principal Act, put in possession of a Service Inam Land under a deed of alienation or pursuant to an agreement to purchase, became disentitled to regrant of such land subsequent to 7-8-1978 even though he had made an application for regrant under the proviso to original S. 7 of the Principal Act and as he did not get any title thereto, he is liable to be evicted from such land. Re: Question No. 6:
76. Original sub-section (3) of S. 5 of the Principal Act provided, inter alia, that a Service Inam land regranted under sub-section (1)of that section was not transferable without the previous sanction of the Deputy Commissioner and that such sanction should be granted only on payment of an amount equal to 15 times the amount of full assessment of the land. The position was the same in regard to lands regranted under Section 6 of the Principal Act. As to what is the consequence of a transfer of a land regranted under S. 5 or 6 of the Principal Act without obtaining the previous sanction of the Deputy Commissioner, was the subject of considerable debate. The learned Advocate General contended that such transfer was void because the condition precedent for such transfer, namely, obtaining the previous sanction of the Deputy Commissioner, had not been satisfied. On the other hand, learned Counsel for petitioners contended that the requirement of such previous sanction was not mandatory but was only directory, that a transfer made in contravention of such requirement, was not void and that on payment of15 times the full assessment, the defect due to not obtaining such previous sanction, would be cured.
77. To decide which of the above rival contentions should be accepted we have to examine the object of original sub-section (3) of S. 5 of the Principal Act. Once village offices were abolished, lands attached thereto ceased to be emoluments of such offices. No public policy was involved, in our opinion, in prohibiting transfer of such lands after abolition of village offices. Under original sub-section (3) of S. 5 of the Principal Act, the Deputy Commissioner had no option but to grant such previous sanction to the re-grantee of a land under S. 5 or 6 of that Act, if he had paid an amount equal to 15 times the full assessment of that land The provisions in Ss. 5, 6 and 7 of that Act envisaged conferment of title to Service Inam Lands upon re-grantees, i.e., holders, authorised holders, or unauthorised holders at concessional prices if they wanted to retain those lands for themselves without the right to alienate them and at higher prices if such re-grantees desired to have those lands together with the right to alienate them. Thus, in imposing a restriction on alienation of lands by the grantees under the said provisions, the Legislature did not intend to prohibit totally re-grantees from alienating the regranted lands. The only object of sub-section (3) of S. 5 of that Act, which was made applicable to subsequent alienations by all types of re-grantees, was to collect higher prices for the lands regranted if the re-grantees wanted to have the right of alienating such lands. Hence, the omission to obtain the previous sanction of the Deputy Commissioner under original sub-section (3) of S. 5 of the Principal Act did not, in our opinion, render void a transfer of a land regranted under S. 5 or 6 or 7 of the Principal Act prior to 7-8-1978, but such transfer can be regularised by paying to, the Government an amount equal to 18 times of full assessment of that land.
Re: Question No. 7:
78. As seen earlier, sub-section (1) of S. 3 of the Amendment Act amended sub-section (3) of S. 5 of the Principal Act by deleting the provision permitting transfer of regranted lands after obtaining previous sanction of the Deputy Commissioner for such transfer on payment of an amount equal to fifteen times the full assessment of those lands. Amended sub-section (3) totally prohibits transfer of such regranted lands for a period of 15 years from 7-8-1978. Sub-section (2) of S. 3 of the Amendment Act inserted a new sub-section, sub-section (4) in S. 5 of the Principal Act, making it operative retrospectively from the commencement of the Principal Act. sub-sec. (4) provides, inter alia, that any transfer of land in contravention of sub-section (3) shall be null and void and that the land so transferred shall, as penalty, be forfeited to, and vest in the State, free from all encumbrances and that any person in possession thereof shall be summarily evicted therefrom by the Deputy Commissioner.
79. What has now to be examined is whether it is original sub-section (3) or the amended sub-sec (3) that is referred to in sub-section (4) of S. 5 of the Principal Act. Learned Counsel for the petitioners contended that sub-sec. (3) referred to in sub-section (4), is amended sub-section (3) and not original sub-section (3), because the Amendment Act which inserted sub-section (4), also amended sub-section (3) by substitution which has the effect of making original sub-section (3) non-existent.
80. On the other hand, the learned Advocate General contended that the above interpretation of sub-section (4) of S. 5 of the Principal Act, if accepted would defeat the very object of giving retrospective effect to that sub-section and, therefore, it would be necessary to construe that sub-section (3) referred to in sub-section (4) of S. 5 of the Principal Act as original sub-section (3) upto 7-8-1978 (with effect from which date sub-section (3) was amended) and as amended sub-section (3) with effect from 7-8-1978.
81. The interpretation suggested by the learned Advocate General, if accepted, would invalidate all transfers of regranted lands that had taken place prior to the coming into force of the Amending Act which inserted sub-section (4) in S. 5 of the Principal Act.
82. In Mohd.Rashid Ahmad v. State of UP, AIR 1979 SC 592, 598, the Supreme Court explained the rule of construction of a retrospective provision of a statute, thus:
"Perhaps no rule of construction is more firmly established than this that retrospective operation is not to be given to a statute so as to impair an existing right or obligation other than as regards the matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is in a language which is fairly capable of either interpretation, it ought to be construed as prospective only. But where, as here, it is expressly stated that an enactment shall be retrospective the Courts will give it such an operation. It is obviously competent for the legislature, in its wisdom, to make the provisions of an Act of Parliament retrospective. That is precisely the case here. In Quinn v. Prairiedale (1958) WWR 241 where a subsequent enactment provided that the relevant section should be deemed never to have been contained in the earlier statute, it was held to be sufficient to rebut the presumption against retrospectivity."
83. As pointed out by the learned Advocate General, the presumption against retrospective operation of sub-section (4) of S. 5 of the Principal Act so as to affect past transfers (transfers which had taken place prior to the coming into force of the Amendment Act) and to impair existing rights and obligations, is rebutted by the express declaration in sub-section (2) of S. 3 of the Amendment Act to the effect that sub-section (4) shall be deemed always to have been inserted. It was contended by him that such declaration would have been wholly unnecessary if sub-section (4) was intended to apply only to subsequent transfers (transfers subsequent to 7-8-1978 with effect from which date sub-section (3) of S. 5 of the Principal Act was amended).
84. If sub-section (4) of S. 5 of the Principal Act is interpreted as affecting transfers made prior to 7-8-1978, of lands regranted under that section and S. 6, a question arises whether that sub-section is violative of Article 31 of the Constitution. Invalidating transfer of a land and vesting such land in the State Government, would, in substance, amount to compulsory acquisition of that land by the Government without paying any compensation to the transferor or the transferee of that land. Clause (2) of Art. 31 of the Constitution provides, inter alia, that no immovable property shall be compulsorily acquired save by authority of law which provides for compensation for such acquisition, subject to the exceptions in sub-clauses (i) to (iii) of clause (5)(b) of that article. As the acquisition by the State Government of lands under sub-section (4) of S. 5 of the Principal Act, does not fall within any of the said exceptions, such acquisition without paying compensation, would, in our view, result in infringement of the right guaranteed by clause (2) of Art. 31 of the Constitution.
85. Clause (a) of Art. 31A(1) of the Constitution, though undoubtedly saves a law providing for acquisition by the State of any estate or any right therein from any attack on the ground that such law is inconsistent with or takes away or abridges any of the rights conferred by Arts. 14, 19 and 31 of the Constitution, the further proviso to Art. 31A(1) declares that it shall not be lawful for the State to acquire any portion of a land held by a person under his personal cultivation and within the ceiling limit applicable to him unless the law relating to acquisition of that land provides for payment of compensation at a rate which shall not be less than the market value thereof.
86. As sub-section (4) of S. 5 of the Principal Act does not provide for payment of compensation for lands which would vest in the State Government on their transfer in contravention of sub-section (3) of that section, sub-section (4) would become void if it affects transfers which had already taken place prior to the coming into force of that sub-section. But, it is a well accepted rule of construction of statutes that if a statutory provision is reasonably capable of two constructions, one which is consistent with the provisions of the Constitution and another, inconsistent therewith the former construction should be preferred to the latter, to save the constitutionality of that statutory provision. In State of Karnataka v. Raghunatha Reddy, AIR 1978 SC 215, 231, the Supreme Court held that to preserve the constitutionality of certain statutory provisions which had been impugned, a reading down of those provisions, on the well known principles of law established and noticed in several decisions, was permissible.
87. In the light of the above principles of statutory construction, we hold that sub-sec. (4) of S. 5 of the Principal Act should be construed as being applicable only to transfers made subsequent to 7-8-1978 and not to transfers which had taken place prior to that date and that sub-sec. (3) occurring in that section should be construed as having reference to amended sub-sec. (3) and not to original sub-sec. (3) of that Section.
Re: Question No. 8:
88. Learned Counsel for the petitioners contended that S. 4 of the Amendment Act substituting a new Section for original S. 7 of the Principal Act (which provided for regrant of Service Inam Lands to unauthorised holders), was violative of Arts. 19 and 31 of the Constitution. Elaborating that contention, they argued that unauthorised holders had been conferred under original S. 7 of the Principal Act a right to obtain regrant of Service Inam lands in their possession on satisfying certain conditions and that taking away such valuable right without paying any compensation, violated Arts. 19 and 31 of the Constitution. On the other hand, the learned Advocate General argued that original S. 7 of the Principal Act merely gave to unauthorised holders a concession of getting regrant of lands in their possession, but did not confer on them any right to obtain such regrant and that the withdrawal of such concession before it was availed of, by substituting a new Section, could not be regarded as taking away any right to property. Alternatively, it was contended that even if original Sec. 7 were to be construed as having conferred on unauthorised holders any right to obtain regrant of Service Inam Lands, such right could not be regarded as property for the purpose of Art. 31 of the Constitution.
89. We shall next examine which of the above rival contentions should be accepted.
90. In Brijlal v. State of UP, AIR 1958 All. 621, the facts were these: The petitioner therein had been granted a prospecting licence to prospect certain minerals in a specified area. Before the determination of the term of that licence, he applied for grant of a mining lease of that area. But such lease was not granted to him. Even the term of the prospecting licence was not extended. He filed a writ petition praying, inter alia, for a mandamus directing the State Government to execute a mining lease. It was contended for him that under the prospecting licence he was entitled to apply for grant of a lease, that he had a vested right to obtain a mining lease and that such a right was protected by Art. 19(1)(f) and 31 of the Constitution. Repelling that contention, their Lordships held that the prospecting Licence gave him a right to obtain a lease, but as long as that lease was not executed, the right of a lessee did not come into existence and that the right to obtain a lease, was not one in respect of which he could claim the protection under Article 19 or 31 of the Constitution.
91. In Amarsingh v. Custodian of Evacuvee Property, AIR 1957 SC. 499, a quasi permanent allotment of a property to a displaced person, had been cancelled in order to work out readjustments consequent upon the order of the higher authority. It was contended for the petitioner therein that under the quasi permanent allotment scheme the allottee was entitled to a right to possession within the limits of the relevant notification and that such right to possession was itself property. The Supreme Court observed such right to possession might be property in one sense, but it did not affect the question whether it was property so as to attract the protection of fundamental rights under the Constitution. The Supreme Court further observed that if the totality of the bundle of rights of a quasi permanent allottee in the evacuee land constituting an interest in such land, was not property entitled to protection of fundamental rights, the mere possession of that land by virtue of such interest was not on any higher footing- The Supreme Court held that until a Sanad in respect of such land had been granted to an evacuee, the allottee had no interest in the evacuee land which could itself constitute ''property'' within the meaning of the protected fundamental rights.
92. In the light of the reasoning in the above decisions, we hold that until a Service Inam land had been regranted to an unauthorised holder, his right to claim regrant of such land under original S. 7 of the Principal Act, could not be regarded as ''property'' which could claim the protection of Art. 19 or 31 of the Constitution.
93. Likewise, we hold that the mere prospect of an unauthorised holder perfecting his title by adverse possession after the statutory period, Could not also be regarded as property which could claim protection under Art. 19 and 31 of the Constitution.
94. Hence, substitution of new S. 7 for original S. 7 of the Principal Act by S. 4 of the Amending Act, could not be regarded as being void, on the ground of violation of Art. 19 or 31 of the Constitution.
Re: Question No. 9:
95. As pointed out earlier, sub-section (1) of original S. 7 of the Principal Act provided that where any land resumed under clause (3) of S. 4 was in the possession of an unauthorised holder, he should be summarily evicted therefrom by the Deputy Commissioner in accordance with the provisions ofthe Land Revenue Code. But, the proviso to that sub-section required the Deputy Commissioner to re-grant such land to such unauthorised holder, if he (the Deputy Commissioner) after enquiry, was of opinion that in view of the investment made by such holder in the development of that land or in the non-agricultural use of that land or for any other reason, such eviction would involve undue hardship on such holder. In substituted S. 7 of the Principal Act, that proviso is replaced by another proviso which does not provide for regrant of such land to to such unauthorised holder. By reason at substitution of S. 7 of the Principal Act, the concession relating to regrant which the unauthorised holders could have availed of under it in certain circumstances, has been withdrawn. S. 5 of the Amendment Act further provides that all pending applications and proceedings relating to regrant of land to unauthorised holders under the proviso to sub-section (1) of unamended S. 7 of the Principal Act, shall not have effect and shall abate. The net effect is that while those unauthorised holders whose applications for regrant of lands in their possession, had been allowed by the Deputy Commissioner, would become lawful occupants of those lands, such of those unauthorised holders whose like applications had not been disposed of before 6-7-1978, became disentitled to such regrant and are liable to be evicted.
96. Learned Counsel for the petitioners contended that such substitution of S. 7 of the Principal Act and the provisions of S. 5 of the Amendment Act, brought about discrimination as between unauthorised holders to whom lands in their possession had been regranted by Deputy Commissioner prior to 6-7-1978 and unauthorised holders whose applications for such regrant had not been disposed of prior to 6-7-1978.
97. It was argued that disposal of such applications by Deputy Commissioners before 7-8-1978, depended upon many accidental and chance circumstances, that applications which had been made earlier, might not have been disposed of by 7-7-1978, while applications which were made much later might have been disposed of before 6-7-1978, that there was no intelligible classification as between the above two categories of unauthorised holders and that hence there was violation of Article 14 of the Constitution.
98. On the other hand, the learned Advocate General contended that for the purpose of Art. 14, a classification according to difference in time, is permissible and that whenever a new enactment or an amendment to an existing enactment comes into effect from a particular day, there is bound to be difference as between the legal position before that day and that after that day and that hence Section 5 of the Amendment Act could not be regarded as infringing Art. 14 of the Constitution.
99. In Jain Brothers v. Union of India, AIR 1970 SC. 778, the Supreme Court considered whether the differential treatment of assessees resulting from the application of provisions of Section 297(2)(g) of the Income Tax Act, 1961, violated Article 14 of the Constitution. It was contended in that case that assessees whose assessment had been completed before 1-4-1962 would be liable for a lower penalty under the corresponding provision of the Indian Income Tax Act, 1922, while those whose assessments were completed after the date would be subject to a higher penalty under S. 297(2)(g) of Income Tax Act, 1961, that there was no rational classification as between these two categories of assessees and that hence Article 14 of the Constitution was violated. Repelling that contention, the Supreme Court observed thus at page 784:
"According to the arguments on behalf of the appellants Art. 14 is attracted because the classification which has been made is purely arbitrary depending on the accident of the date of the completion of the assessment. There can be no manner of doubt that penalty has to be calculated and imposed according to the tax assessed. It follows that imposition of penalty can take place only after assessment has been completed. For this reason there was every justification for providing in clauses (f) and (g) that the date of the completion of the assessment would be determinative of the enactment under which the proceedings for penalty were to be held. It may be that the legislature considered that a separate treatment should be given in the matter of assessment itself and under clauses (a) and (b) of 297(2) the point of time when a return of income had been filed was made decisive for the purpose of application of the Act of 1922 or the Act of 1961. But merely because the legislature in its wisdom decided to give a different treatment to proceedings relating to penalty, it is difficult to find discrimination with regard to the classification which has been made in clauses (f) and (g) which are independent of clauses (a) and (b)......."
100. In Inder Singh v. State of Rajasthan, AIR 1957 SC 510, it was contended that under Ss. 7(1) and 15 of the Rajasthan (Protection of Tenants) Ordinance, landlords who had tenants on their lands on 1-4-1948 were subjected to various restrictions in the enjoyment of their rights as owners, while other landlords were free from such restrictions and that therefore those two sections were repugnant to Article 14 of the Constitution. Repelling that contention, the Supreme Court observed:
"There is no substance in this contention. The preamble to the Ordinance recites that there was a growing tendency on the part of the land-holders to eject tenants and that it was therefore expedient to enact a law for giving them protection; and for granting relief to them, the Legislature had necessarily to decide from what date law should be given operation, and it decided that it should be from 1-4-1648. That is a matter exclusively for the Legislature to determine."
101. In the light of the above pronouncements of the Supreme Court, S. 5 of the Amendment Act cannot be held to be violative of Article 14 of the Constitution.
102. The Legislative policy in enacting the proviso to sub-section (1) of original S. 7, appears to be to mitigate undue hardship to which most of the unauthorised holders of Service Inam Lands would have been put to if they were not regranted such lands but were evicted therefrom. After a lapse of nearly two decades, due to the subsequent change in the Legislative policy, that proviso has been deleted. This has resulted in withdrawing the concession of regranting lands to unauthorised holders even though they had made large investments in the development of such lands. Many of them are likely to have made further investments on development of such lands during these two decades in the belief that those lands would be regranted to them. This change in the Legislative policy may spell ruination of several agriculturists who might have put their entire resources in purchase and improvement of such lands and have been depending on the cultivation of such lands for their livelihood. Many of them may be reduced to the position of landless labourers as a result of such change in the Legislative policy.
103. However, it is a matter for the Legislature to consider how such undue hardship, which could not be anticipated by unauthorised holders, should be remedied or at least mitigated. But, we cannot strike down new S. 7 of the Principal Act or S. 5 of the Amendment Act on the ground of such hardship to unauthorised holders.
Re: Question No. 10:
104. Learned Counsel for the petitioners contended that the proviso to sub-sec. (1) of the substituted S. 7 of the Principal Act merely requires that before making a summary eviction, the person affected shall be given a reasonable opportunity of making representation and that there is no provision for giving a personal hearing to such affected person or for giving him an opportunity to adduce evidence in support of his case. It was argued that the absence of the requirement to give a personal hearing and an opportunity for adducing evidence, offends principles of natural justice.
105. In F.N. Ray v. Collector of Customs, AIR 1957 SC. 667, the Supreme Court observed that there is no rule of natural justice that at every stage a person is entitled to personal hearing.
106. In the proviso to sub-sec. (1) of the substituted S. 7 of the Principal Act, there is no prohibition against granting a personal hearing or an opportunity to adduce evidence. There may be, cases involving complicated questions and in such cases, it will be the duty of the Deputy Commissioner to give the affected person a personal hearing and also an opportunity to adduce evidence and failure to do so may invalidate the proceedings on the ground of violation of the principles of natural justice. But we are unable to accept the contention that principles of natural justice require that in every case of eviction of an unauthorised holder under new S. 7 of the Principal Act, he should be given a personal hearing and an opportunity to adduce evidence.
107. We, therefore, hold that the proviso to sub-sec. (1) of substituted S. 7 of the Principal Act is not void as being violative of the principles of natural justice.
108. To sum up, our conclusions on the aforesaid questions, are these:
(i) The alienee of a Service Inam Land from its holder or the authorised holder, did not acquire any title to such land if the alienation had taken place prior to the coming into force of the Principal Act and he did not also acquire any title to such land subsequently by his alienor obtaining its regrant under S. 5 or 6, as the case may be of the Principal Act;
(ii) The holder or the authorised holder of a Service Inam Land did not get any title to it when that land stood resumed to the Government under sub-sec. (3) of S. 4 of the Principal Act, but he got title to it only when it was regranted to him under S. 5 or 6, as the case may be, of the Principal Act;
(iii) If the holder or the authorised holder of a Service Inam Land had alienated it after the Principal Act came into force and before it was regranted to him under Section 5 or 6, as the case may be, of the Principal Act, the alienee acquired a title to that land after such regrant to his alienor;
(iv) The alienee, who had entered into an agreement for purchasing a Service Inam Land and was put in possession thereof in pursuance of such agreement prior to the coming into force of the Principal Act, did not, under such agreement, get any right to continue in possession of such land by reason of the Principal Act coming into force. Even by his alienor subsequently obtaining regrant of such land under Section 5 or 6, as the case may be, of the Principal Act, the alienee got neither any title to such land nor the right to protect his possession of such land under Section 53A of the Transfer of Property Act. However, the State cannot evict such alienee or intending alienee, in possession of & Service Inam Land, if such land had been subsequently regranted to the holder or the authorised holder under Section 5 or 6 of the Principal Act;
(v) Unless new Section 7 of the Principal Act and Section 5 of the Amendment Act are held to be unconstitutional, an alienee or an intending alienee of a Service Inam Land, who was put in possession of such land pursuant to an agreement to purchase, prior to the coming into force of the Principal Act, did not get any title to such land nor was he entitled to regrant of such land subsequent to 7-8-1978 even though he had made an application for such regrant under the proviso to sub-section (1) of Sec. 7 of the Principal Act and he is liable to be evicted from such land;
(vi) The omission to obtain the previous sanction of the Deputy Commissioner under original sub-section (3) of Section 5 of the Principal Act, did not render void a transfer of a land regranted under Section 5 or 6 or 7 of the Principal Act prior to 7-8-1978, but such transfer can be regularised by paying to the Government an amount equal to 15 times the full assessment of that land;
(vii) Sub-section (4) of Section 5 of the Principal Act should be construed as being applicable only to transfers made subsequent to 7-8-1978 and not to transfers which had taken place prior to that date and that sub-sec. (3) occurring in that Sec. has reference to amended sub-section (3) and not to original sub-section (3) of that Section;
(viii) Substitution of new Section 7 for original Section 7 of the Principal Act by Section 4 of the Amending Act, could not be regarded as being void on the ground of violation of Article 19 or 31 of the Constitution;
(ix) Section 5 of the Amendment Act cannot be held to be violative of Article 14 of the Constitution; and (x) The proviso to sub-section (1) of substituted Section 7 of the Principal Act, is not void as being violative of principles of natural Justice.
109. In the result- (1) Writ Petition No. 7659 of 1979 is dismissed and the Rule which had been issued, is discharged;
(2) Writ Petition No. 2613 of 1978 is allowed, the Rule which had been issued, is made absolute and the show cause notice impugned therein is quashed;
(3) Writ Petitions Nos. 2842 and 2948 of 1979 are dismissed and the Rule which had been issued in each of them, is discharged;
(4) Writ Petitions Nos. 3178, 6464 to 6468, 6796, 6797 and 8864 of 1979 are dismissed and the Rule which had been issued in each of them, is discharged;
(5) Writ Petition Nos. 14283 to 14288 of 1979 are dismissed and the Rule which had been issued in each of them, is discharged;
(6) In each of Writ Petitions Nos. 4836 and 14300 of 1979, we issue a writ in the nature of mandamus, directing the Assistant Commissioner and the Tahsildar not to evict the respective petitioner if he pays to the State within three months from to-day an amount equal to 15 times the assessment on the land in dispute. If any of these petitioners fails to pay such amount within such period, the respective order of the Assistant Commissioner will stand and the Tahsildar will be free to evict such petitioner;
(7) In each of Writ Petitions Nos. 4077, 6248, 8753, 9003 to 9006 and 12190 of 1979, we issue a writ in the nature of mandamus directing the Revenue Authorities not to evict the respective petitioner if he pays to the Revenue Authorities within three months from to-day an amount equal to 15 times the assessment on the land in dispute. If any of them fails to par such amount within such time, the Revenue Authorities will be free to evict him.
110. However, we make it clear that the dismissal of Writ Petitions Nos. 7659, 2842, 2848, 3178, 6464 to 6468, 6796, 6797, 8864 and 14283 to 14288 of 1979, will not come in the way of the holders and authorised holders who had sold Service Inam Lands to these petitioners, applying and obtaining regrant of those Service Inam Lands
111. In all these petitions, we direct the parties to bear their own costs.
Chief Justice:
After we pronounced the above order, learned Counsel for the petitioners in Writ Petitions Nos. 7659, 2842, 2848, 3178, 6464 to 6468 6796, 6797, 8864 and 14283 to 14288 of 1979 made oral applications for grant of certificates of fitness to appeal to the Supreme Court.
In our opinion, substantial questions of law of general importance, which need to be decided by the Supreme Court, arise out of our common order.
Hence, we grant certificates of fitness to appeal to the Supreme Court from our common order.
In the meanwhile, we stay the operation of our order in so far as it relates to Writ Petitions Nos. 7659, 2842, 2848, 3178, 6464 to 6468, 6796 6797 8864 and 14283 to 14288 of 1979, for a period of 2 months to enable the petitioners in these writ petitions, to move the Supreme Court for grant of stay.
