K.L. Shah Vs Hari Dutt and Another

J.S. Trivedi, J.@mdashHari Datt, plaintiff-respondent No. 1 and Maheshwar Datt, defendant-respondent No. 2 are real brothers and were hissedar in the village Naya Gaon Chandan Singh. On 25-11-1952, Maheshwar Datt sold the land in suit to the appellant Sri K. L. Shah. Hari Datt, plaintiff-respondent No. 1 brought the suit out of which this appeal arises for presumption. The suit was contested by the appellant on a number of grounds which are not material for the disposal of this appeal. The trial court decreed the plaintiff''s suit and the decree of the trial court was confirmed by the lower appellate Court, hence this Second Civil Appeal.

2. Learned counsel for the appellant has raised a preliminary point. His contention is that vide Notifications Nos. 226-69/Ek-Ka-2-l (2)-69-U. P. Tenancy Act, 1939, 226-69(1) /Ek. ka 2-1(2)-69-1950 U. P. Zamindari Abolition Act, 226-69 (2) Ek. Ka-2-1(2)-69-1950 U. P. Zamindari Abolition Act published in U. P. Gazette Extraordinary dated 30th June 1970, the Tenancy Act came in force in the village in suit and thereafter the U. P. Zamindari Abolition Act also came in force in the village in suit with effect from 1st of July 1970 and u/s 336 (2) of the Zamindari Abolition Act (hereinafter referred to as the Act.), the suit for pre-emption has to be dismissed.

3. Learned counsel appearing for the respondent contends that Section 336 (2) of the Act is essentially a judicial power and the legislature was not competent to exercise a power which can be described as judicial and not legislative. The question for determination, therefore, is whether Section 336 (2) of the Act is ultra vires of the Constitution as it is an exercise of judicial power and not the legislative power.

4. In the The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, , the nature and scope of judicial power was fully dealt with by Mukerji, J.

5. Learned counsel for the respondent has placed his reliance on Bankey Singh and Others Vs. Jhingan Singh and Others, ; Biharilal Vs. Ramcharan, ; Janapada Sabha Chhindwara Vs. The Central Provinces Syndicate Ltd. and Another, and Potti Sarvaiah v. Waryara Narsing Rao AIR 1955 Hyd 257.

6. Bankey Singh and Others Vs. Jhingan Singh and Others, Was a case where during the pendency of appeals, Barahiya Tal Lands (Declaration of Possession) Act was passed and u/s 2 of the said Act certain persons were deemed to have been in possession as raiyats of the land. The jurisdiction of the Court was excluded from questioning the possession of the persons described therein. It was held by their Lordships of the Patna High Court that the enactment was concerning rights of persons and not the land and was ultra vires. Bankey Singh''s case was overruled in Brij Bhukan Kalwar and Others Vs. S.D.O. Siwan and Others, by a Special Bench of the Patna High Court.

7. The following observations of Hon''ble Hidayatullah, C. J., as he then was made in the case of Biharilal Vs. Ramcharan, are relied upon by the respondent in support of his contention:--

"Where, however, the legislature goes further and compels the determination of a case at the hands of a Court taking it completely out of the reach of the Court to make a contrary decision, the matter is one under judicial and not legislative power."

8. In Janapada Sabha Chhindwara Vs. The Central Provinces Syndicate Ltd. and Another, , it was held that:

"It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court."

9. Similarly, in AIR 1955 Hyd 257, it was laid down that:--

"It is open to the legislature acting within the sphere of its constitutional authority to pass a validating statute or to give a retrospective effect to a new statute notwithstanding the fact that the earlier law governing the same matter is declared by Courts of law as invalid, unenforceable or inoperative. No doubt, the competency, of the Indian Legislature to enact laws does not confer on it the right of a judicial nature."

It was further held:

"If any enactment disposes of a case by the vigour of the enactment itself without leaving to the judiciary the power to pass the appropriate orders with reference to the law in force at the date of the order, it may be open to the objection of judicial functions being usurped by the Legislature."

10. To appreciate and assess the force of respondent''s contentions it is necessary to advert to Section 336, U. P. Z. A. Act. Section 336, U. P. Zamindari Abolition and Land Reforms Act reads as under :

"336 (1) Notwithstanding anything contained in any law, custom, usage or agreement, the right of pre-emption shall not exist in respect of any sale of any Immovable property in the area to which the Act applies whether made voluntarily or under order of Court.

(2) All suits for pre-emption pending in respect of any such property in any court whether of the first instance of appeal or revision shall stand dismissed, but award of the costs incurred in any such suit shall be in the discretion of the court."

11. Sub-clause (2) has to be read with Sub-clause (1). The vires of Sub-clause (1) is not challenged. By Sub-clause (1) the right of pre-emption was abolished. Sub-clause (1) as it stood did not indicate the fate of pending pre-emption suits and appeals. The object of Sub-clause (2) was only to indicate the extent of retrospectivity and to remove the ambiguity, if any. The distinction between a legislative Act and judicial Act was considered in AIR 1944 1 (Federal Court) . In that case the Federal Court was examining the validity of the sentence which had been validated by the Ordinance. In that case the appellants were convicted under the Special Criminal Court''s Ordinance (Ordinance 2 of 1942). The convictions were finally challenged in the Federal Court which held that the convictions were bad because the Courts were not duly invested with the jurisdiction. Next day another ordinance (19 of 43) was promulgated whereby the sentences passed under the earlier ordinance were validated. The subsequent ordinance (19 of 43) was then challenged on the ground that the ordinance was usurpation of judicial power and as such was invalid. It was argued on the basis of American Constitution that the legislature was incompetent to validate by retrospective legislation proceedings which had been held void by the Courts. It was held by his Lordship that the power of validation was ancillary or subsidiary to the power to deal with the particular subject. It was also held that while in United States the rule has been the "legislative action" cannot be made to retroact upon past controversies and to reverse decisions which the courts in the exercise of their undoubted authority have made. The position in India is different and the legislature has more than once enacted laws providing that suits which had been dismissed on a particular view of the law should be restored and retried. The Ordinance according to the Hon''ble Federal Court was not an exercise of judicial power because according to their Lordships the ordinance only treated acts of former incompetent judicial body as acts of a competent judicial body.

12. Biharilal Vs. Ramcharan, was a case where under M. B. Municipalities Act a voter aggrieved by the election was given the right to challenge the election by an Election Petition to the District Judge having jurisdiction within 30 days. The Madhya Bharat High Court held that:--

"The District Judge had to be pointed out and invested with jurisdiction before he could entertain the election petition."

13. The Madhya Bharat Municipalities Act was then amended and an explanation was added defining "the District Judge having jurisdiction." The amending Act also provided that any election petition rejected or dismissed shall be revived on an application presented within thirty days of the publication of the Act. The amendment was challenged on the ground that the provisions of law which allowed a decision to be reopened was an exercise of judicial power. The High Court rejected the contention and held that the explanation and the amendment had to be read as part of the statute and that the mandate to reopen the proceedings was in the circumstances of the case not an exercise of judicial power. The amending Act according to the High Court only supplied the lack of jurisdiction and with that jurisdiction the Legislature made it a duty for the Court to reconsider the position of jurisdiction.

14. In AIR 1955 Hyd 257 (Supra) also the validity of Section 31 of Hyderabad House (Rent, Eviction and Lease) Control Act was upheld and it was held that the section did not trespass on the judicial function of a court of law and was in substance an exercise of the incidental power of varying a rule of law and making a new law retrospective.

"The true function of judicial power is, as already indicated, to investigate declare and enforce rights and obligations on present or past facts, by whatever authority such facts are ascertained or determined, and under laws supposed already to exist."

15. The question whether Land Acquisition (Amendment and Short Title Validation) Act, 1967 had sought to encroach into the domain of judiciary or not arose in Udai Ram Sharma v. Union of India AIR 1968 SC 1138. The Supreme Court had earlier held that once a declaration u/s 6 of the Land Acquisition Act was made the notification u/s 4 (1) stood exhausted and that it was not competent with the Government to make the notification u/s 4 (1) of the Land Acquisition Act a reservoir from which he might from time to time draw out land and make successive declarations. The judgment of the Hon''ble Supreme Court necessitated the Parliament Land Acquisition Act by Act 87 of 1967 styled as the Land Acquisition (Amendment and Short Title Validation), Act, 1967. Section 4 of the Amendment Act validated the acquisition. The validating Act was then challenged and one of the grounds was that it trespassed on the judicial power not possessed by the Legislature. While discussing the law on the subject, it was laid down that:

"The power to legislate for validating actions taken under statute which were not sufficiently comprehensive for the purpose is only ancillary or subsidiary to legislate on any subject within the competence of the legislature and such validating Acts cannot be struck down merely because courts of law have declared actions taken earlier to be invalid for want of jurisdiction."

16. If the Legislature was to enact a law saying that all suits shall stand dismissed it will be a case of usurping the judicial power, but where the Legislature was legislating in respect of the land and abolishing the right of pre-emption, it was quite competent to indicate the extent of the aforesaid right. The purpose of Zamindari Abolition Act was to abolish the intermediaries and vest the estates in the State of Uttar Pradesh. After the abolition the right of pre-emption available to a co-sharer intermediary had no meaning and it is doubtful if the same could be enforced. If Sub-clause (2) was not there it might be said that the rights which had accrued before were not affected even though those rights had disappeared after the abolition of the Zamindari. The principal purpose of Sub-clause (2) was to explain the scope only of Sub-clause (1) and for the reasons stated above could not be said to be a trespass on the judicial power.

17. It has also been contended by the learned counsel for the appellant that the right of pre-emption was ultra vires of the Constitution, Reliance has been placed by him on Bhau Ram Vs. B. Baijnath Singh, and Sant Ram and Others Vs. Labh Singh and Others, It is not necessary to go into that question after the finding that Section 336 (2) was a valid section and the suit for pre-emption had to be dismissed under the aforesaid section. In view of Section 336, therefore, the plaintiff''s suit for pre-emption had to be dismissed.

18. I, therefore, allow this appeal with the result that plaintiff''s suit for pre-emption shall stand dismissed. Costs in the circumstances of the case throughout shall be on parties.