896 ‘
GURDIT SINGH AND OTHERS Ve STATE OF PUNJAB AND OTHERS April 10, 1974 [K. K. MATHEW AND A, ALAGIRISWAMI, JJ.J
Pepsu Tenancy and Agriculrural Lands Act, 1955—As amended by Act 16 of 1962 introducing Sec. 32-DD(b)—Retrospective effect of —Determination of surplus area-—Previous order declaring no surplus land on basis of judgment and decree of Civil Court—Whether can be reviewed under Sec. 32-DD(b)— Natural justice.
- Judgment—Connotation of—interpretation of statutes—Object of provision fs circumscribed by the language of the section. :
The tands in question were bequeathed to appellants 2 and 3, sons of the first appeliant, by their grandfather. After the death of the testator mutations in favour of appellants 2 and 3 were effected in the revenue records in 1939, The first appellant managed to get the mutation of the land in his name in 1944 for the reason that he wanted to get licence for a gun. In 1955, when the Act came into force, the first appellant was shown to be the owner of the land in the revenue records. On October 30, 1956 the Act was amended so as to impose a ceiling on the holding of land.
Appellants 2 and 3 fited a suit in the civil court for a declaration that the Jand belonged to them and that there was no transfer of the land to the first appellant. The latter, who was the only defendant, did not contest the suit and it was decreed on February 14, 1961. Thereafter, in proceedings under the Act, by order dated March 28, 196! the Collector declared on the basis of the judgment and decree of the civil court that there was no surplus land in the ownership and possession of the first appellant. .
The Act was amended by Act 16 of 1962 and S. 32-DD was introduced into the Act with retrospective effect from October 30, 1956, ie. the date of the earlier amednment. Section 32-DD provided inter alia that for the purposes of determining the surplus area of any person, any judgment, decree or order of a Court obtained after the commencement of the amending Act of 1956 and having the effect of diminishing the area of such person which could have been declared as his surplus area shali be ignored. The Collector, acting purportedly under Sec. 15 of the Punjab Land Revenue Code reviewed bis order dated March 28, 1961. By order dated May 20, 1963 he refused to give effect to the judgment and decree by ignoring them as enjoined by section 32-DD and included the land in the holding of the first appellant.
The appellants filed a writ petition in the High Court to quash this order. The High Court overruled the contentions of the appellants und dismissed ihe writ petition, Before this Court, the appellants raised the same contentions. namely: (i) that the Collector had no jurisdiction to review his order dated March 28. 1961; (i) that the order in review-was passed without notice to the appellants; and (iii) that, in any event. the iudgment of the civil court was not of the nature.contemplated by section 32-DD.
Allowing th: appeal,
HELD: (1) The order of the Collector dated March 28, 1961, was in perfectly volid one when it was passed. No one challenged that order and it became final for all parposes. The Collector could act have anticipated the enactment of the section with retrespective effect and passed the order conforming to its provisions. ‘We cannot subscrib: to the view that the order of the Collector passed bn March 28, 1961, became null and void merely because he failed to take inte account the provisions of Sec. 32-DD even if by virtue of the fiction it is to be assumed that the section was on the statute book when he passed it. We do not bb
GURDIT SINGH v. PUNJAB (Mathew, J.) 897 think that we can extend the ratio of the decision in the Anisminic case (infra) to a Case where the provision overlooked during the course of the enquiry was hot on the statuie book but was begotten and brought into being subsequently, though with retrospective vitality. The order of the Collector dated March 28, 1961 cannot, therefore, be regarded as null and void. There was no provision in the amending Act which enabled the Collector to review jt, We cannot stretch the fiction of retrospectivity so far as to make the order null and void without further ado. [899 D-900 B]
_ Anisminic Lid. v. Foreign Compensation Commission, [1967] 3 W.L.R. 382, distinguished. .
_ CH) we are also not satisfied that the Collector was acting in consonance with ihe principles of natural justice when he passed the order dated May 2u, 1963, as he gave no opportunity to appellants 2 and 3 of being heard. The fact that the first appeliant was heard before that order was passed is of no moment because the persons who were vitally concerned in re-opening the case were appellants 2 and 3. Admittedly, no notice of the proceedings to re-open the case was given to them. If notice had been given to them, they could have shown the true nature and character of the jadgment of the civil court . upon which they relied. [900 B-D]
(III) Nor are we satisfied that every judgment which has the apparent effect of diminishing the area of land of a person would be within the ambit of S, 32- DD(b). ‘The judgment of the civil court adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected not with the idea of transferring the properly to the first appellant but for some other reason, the effect of the declaration was that there was no real transfer of the property in favour of the first appeflant and that the property remained always in the ownership of appellants 2 and 3, notwithstanding the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause (b) of Sec. 32DD an unconfined operation. If the effect of the judgment is only to declare-that the land never belonged to the first appellant, it has not the effect of diminishing the area of land in his possession. The object of this provision in an Act like the one under ’ consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. The High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated’ May 20, 1963 on the ground that it had effect of diminishing the area of the first appellant which could have been declared as his surplus. [900 F- 901 G]
Civit APPELLATE JURISDICTION : Civil Appeal No, 1897 of 1967.
From the Judgment and Order dated the 27th September, 1966, of the Punjab High Court at Chandigarh in Civil Writ No. 1371 of 1963.
S. K. Mehta, K. R. Nagaraja, M. Qamaruddin and Vinod Dhawan, for the appellants.
V. C. Mahajan, O. P. Sharma and R. N. Sachthey, tor the respondents. ;
The Judgment of the Court was delivered by
MATHEW, J. The first appellant is the father of appellants 2 and 3. The property in question belonged to the father of first appellant. By a will executed by him, he bequeathed the property to appellants 2 and 3. After the death of the tastator, mutations in favour of appellants 2 and 3 were effected in the revenue records in the year 1996 BLK. (1939). The first appellant managed to get the mutation of the land
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898 SUPREME COURT REPORTS 11974} 3 s.c.r.
’ in his name in 1944 for the reason that he wanted to get licence for a gun. In 1955, when the Pepsu Tanancy and Agricultural Lands Act (hereinafter referred to as the Act) came iato force, the first appellant was shown to be the owner of the land in the.revenue records. Chapter IV-A of the Act was inserted by Pepsu Act No. 15 of 1956 on October 30, 1956 and by s. 32A of this chapter, ceiling was placed on the holding of Jand.
- A suit was filed by appellants 2 and 3 for a declaration that the land ‘ belonged to them, that the mutation of the land in the name of the first appellant in the revenue records was for the purpose of enabling him to obtain a gun licence and that there was no transfer of the land to first appellant. The first appellant was the only defendant in the suit, He did not contest the suit and it was decreed on February 14, 1961. A few weeks later, the question of declaration of the surplus area of the fand in the hands of the first appellant came up for consideration before the Collector of Bhatinda. On the basis of the judgment and decree passed by the Civil Court that there was no transfer of the land to the first appellant, the Collector, by his order dated March 28, 1961, declared that there was no surplus land in the ownership and possession of the first appellant.
The Act was amended by Act No. 16 of 1962 and 3s. 32-DD was introduced into the Act with retrospective effect from October 30, 1956. That section reads :
“32-DD. Future tenancies in surplus area and certain judgments etc. to be ignored—Notwithstanding anything contained in this Act, for the purposes of determining the surplus area of any person—
(a) a tenancy created after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, in any area of land which could have been declared as the surplus area of such person; and
(b) any judgment, decree or order of a court or other authority, obtained after the commencement of that Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored.”
The Collector thereupon made a reference presumably under s. 15 of the Punjab Land Revenue Code for sanction to the Commissioner of Patiala to review his order dated March 28, 1961, as it omitted to include the land in question in the holding of the first appellant on the basis of the judgment and decree. The sanction was given, the Collector reviewed the order and he refused to give effect to the judgment and decree by ignoring them as enjoined by s. 32-DD and included the land in the holding of the first appellant.
The appellants filed a writ petition in the High Court of Punjab to \ quash this order. Before the High Court, three contentions were raised va
GURDIT SINGH ¥. PUNJAB (Mathew, J.) 899 by the appellants: (1) that the Collector had no jurisdiction to review his order dated March 28, 1961; (2) that the order in review was passed without notice to the appellants; and (3) that, in any event, the Judgment of the civil court only made a declaration as regards rights of the parties on the date of the suit and it was not, therefore, a judgment of the nature contemplated by s. 32-DD. The High Court overruled all the contentions and held that the order of the Collector was rendered null and void by virtue of the provisions of s. 32-DD and, therefore, the Collector had the power to determine by his order.dated May 29, 1963, the surplus area after ignoring the judgment and decree. The High Court said that since mandatory provisions of s. 32-DD which has retrospective operation were not taken into consideration, the order passed by the Collector on March 28, 1961 was non est as being one made without jurisdiction and that, the order dated May 20, 1963, must be deemed to be the order determining the holding of the first appellant for the purpose of the Act as amended.
We are not satisfied that this is a correct approach’ to the question. The Collector purported to act under s. 15 of the’ Land Revenue Code, which, obviously, has no application. The High Court did not rest its decision on s. 15 of the Punjab Land Revenue Code for holding that Collector had jurisdiction to pass the order dated May 20, 1963. When the Collector passed the order dated March, 28, 1961 determining the surplus area in the hands of the first appellant, he took into considefation the effect of the judgment of the civil court declaring that the muta_ tion of the name of the first appellant in the revenue record was effect-
-ed only to enable him to obtain a gun licence. That order of the .Col- lector dated March 28, 1961 was a perfectly valid one when it was passed. No one challenged that order and it became final for all purposes. It was only when s. 32-DD was incorporated in the Act with retrospective effect from October 30, 1956 that the question arose whether that order was valid.” The Collector could not have anticipated the enactment of the section with retrospective effect and passed the order conforming to its provisions. . It is rather curious that the draftsman of the amending Act No. 16 of 1962 did not incorporate a provision for ré-opening orders, already passed before s. 32-DD came to be enacted as that section was made retrospective. We cannot subscribe to the view that the order of the Collector passed on March 28, 1961 became null and void merely because he failed to take into account the provisions of s. 32-DD even if by virtue of the fiction it is to be assumed that the section was on the statute book when he passed it. We are aware that in Anisminic Ltd. v, Foreign Compensation Commission(+) the House of Lords has held that even if a tribunal had‘ jurisdiction to enter upon an enquiry, the fact that it overlooked an applicable mandatory provision in the course of the enquiry would denude it of its jurisdiction; but we doubt whether that principle has any application in a case when the provision overlooked was not in actual existence at the time when the inquiry was conducted and the order was ‘passed. In other words, we do not think that we can extend the ratio of the decision in that case to a case where the provision overlooked during the course of the inquiry
(1} (1967) 3 W.L.R, 382.
900 SUPREME COURT REPORTS [1974} 3 s.c.r.
was not on the statute book but was begotten and brought into being subsequently, though with retrospective vitality. The imagination sometimes has to boggle before stark reality. The order of the Collector dated March 28, 1961, cannot, therefore, be regarded as null and void. It was a valid order when it was passed, and there was no provision in the amending Act which enabled the Collector to review it: We cannot stretch the fiction so far as to make the order null and void without further ado,
We are also not satisfied that the Collector was acting in consonance with the principles of natural justice when he passed the order dated May 20, 1963, as he gave no opportunity tc appellants 2 and 3 of being heard. The fact that the first appellant was heard before that order was passed is of no moment because the persons who were vitally concerned in re-opening the case were appellants 2 and 3. Admittedly, no notice of the preceedings to re-open the case was given to them. It is not for us to speculate what defences were available to them and whether the defences available would have materially affected the destiny of the decision. We do not think it necessary to decide in this case whether the failure to observe the rule audi alteram partem would per se vitiate an crder or whether it is also necessary to show prejudice to the person affected resulting from the failure to observe the rule. Suffice. it to say that in the present case we are of the view that if notice had been given to appellants 2 and 3, they could, at any rate, have shown the true nature and character of the judgment of the civil court upon which they relied.
It is. relevant to note that the judgment itself was not challenged as collusive by the respondents. We are quite aware that the defendant in the suit in which the judgment was obtained, namely, the first appellant, did not put forward any contention. But it would be rash to jump to the conclusicm from the mere fact that no defence was put forward by the first appellant in the suit that the decree was obtained collusively. Utider s. 43 of the Evidence Act, a person who is not a party to a judgment can show that it was obtained by fraud or collusion. No such attempt was made in this case. :
Nor are we satisfied that every judgment which has the apparent cffect of diminshing the area of land of a person would be within the ambit of s. 32-DD(b). Generally speaking, a judgment adjudicates on the rights of the parties as they existed before the suit in which it was obtained. ,
A judgment is an affirmation of a relation between a particular predicate and a particular subject. So. in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts. It is always a declaration that a liability, recognised as within the jural sphere, does or does not exist. A judgment, as the culmination of the action, declares the existence of the right, recognizes the commission of the injury. or negatives of the allegaticn of one or the other(‘).
A judgment of a court is an affirmation, by the authorised societal agent of the state. speaking by warrant of law and in the name of the
(lt) See Black on Judgments, Vol. 1, 2nd ed., pp. 1-2.
GURDIT SINGH v. PUNJAB (Mathew, J.) 901
‘state, of the legal consequences attending a proved or admitted state of facts, Its declaratory, determinative and adj distinctive characteristic. Its recording gives an official certification to @ pre-existing relation or establishes a new one on pre-existing grounds(*),
The judgment of the civil court with which we are concerned, adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected not with the idea of transferring the property to the first appellant but for some other reason, the effect of the declaration was that there was no real transfer of the property in favour of the first appellant and that the propert remained always in the ownership of appellants 2 and 3, notwithstand. ing the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause (b) of s. 32-DD an unconfined operation. When a transfer or mutation is made on account of fraud or mistake and if a suit is filed for a declaration that the transfer or mutation was made on account of fraud or mistake and a judgment obtained, certainly the judgment would not have the effect of diminishing the area of a person which could have been declared as a surplus area within the meaning of s. 32-DD (b). The legal effect of such a declaration would be that the transferee or the person in whose name the mutation was effected had no right in the property. The land must have belonged to the first appellant prior to the judgment in crder that it might be postulated that the judgment has the effect of diminishing the total area in his hands. To put it differently, prior to the judgment, the land must have belonged to him in order that it may be said that the effect of the judgment is to diminish the area of his holding. If the effect of the judgment is only tci declare that the land never belonged to the first appellant, it has not the effect of diminishing the area of land in his possession. We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It weld have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to appellants 2 and 3 and atfer giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to appellants 2 and 3 fcr want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that 1 had the effect cf diminishing the area of the first appellant which could have been declared as his surplus.
We, therefore, set aside the order of the High Court and allow the appeal. We make no order as to costs.
S.B.W. Appeal allowed.
(I) See Borchard, “Declaratory Judgments”, 2nd ed., pp. 8-10.
udicatory function js its