TMI Blog1962 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... en free from revenue since 1866. Initially, it belonged to Major P. Innes but was subsequently transferred to the Maharaja Bahadur of Nahan. On January 25, 1951, an agreement was executed by the Maharaja Bahadur in favour of the petitioner and one Virendra Goyal for lease of this land for a consideration of an annual rent of ₹ 2,200/- and a premium of ₹ 64,000/-. The petitioner's case further is that the possession of the land in dispute was delivered to him at the time the agreement to lease was executed. It appears that at that time a large number of trees were standing on this land and the-Maharaja Bahadur had given a contract for the removal of the trees to another person with a view to making the land culturable, and the intention of the lessor was to demise the land to the petitioner after the trees were removed, so that the petitioner may carry on agricultural operations thereon. On June 14,1952, a registered was executed by the Maharaja Bahadur in favour of the petitioner and Virendra Goyal and it was recited therein that the entire land had been cleared of the trees and had been in possession of the lessees from the date of the agreement referred to above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transfer Act until the orders of the Government were received or the matter was decided by a court of law. The petitioner's case is that the land was no longer forest land when the registered lease in his favour was made in June 1952. The petitioner then took up the matter with the Government but his representation in that behalf was reject- ed in September 1952. Thereupon in November 1952, the petitioner filed a writ petition-in the High Court at Allahabad challenging the applicability of the U. P. Private Forests Act to the land in dispute and also challenging the constitutionality of the Transfer Act. An ad interim order was passed by the High Court in December 1952 restraining the respondents from interfering with the possession of the petitioner over the land in dispute and directing that the parties should maintain the status quo. In February 1955, the petitioner withdrew the petition filed in the High Court for various reasons into which it is unnecessary to go. Thereafter the petitioner requested the Collector, Dehra Dun, to allow him to carry out agricultural operations over the land in dispute and he supported this prayer by a further allegation that he had at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection. The petitioner further alleges that in November 1957 the State of Uttar Pradesh released over 293 acres out of the land in dispute in favour of Virendra Goyal, his benamidar. The petitioner then made a representation to the Government in that behalf protesting against the release of land in favour of Virendra Goyal, and was informed that order had been cancelled on August 14, 1958. In May 1959, the legislature of Uttar Pradesh passed another Act known as the Government Grants (U. P. Amendment) Act, No. IX of 1959, and the petitioner contends that by virtue of this Act all other laws ceased to apply to the land in dispute but as this Act was admittedly repealed by the Government Grants (U. P. Amendment) Act,. No. XIII of 1960, with retrospective effect, nothing turns on this Act 'now, though the petitioner approached the Collector of Dehra Dun immediately after U. P. Act No. IX of 1959 was passed to be allowed to carry on reclamation operations. The Collector however told him that he should do nothing till specific orders were received from the Government or the matter was decided by a court of law. Thereupon the petitioner filed a writ petition in this Court under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has been dispossessed, a writ in the nature of mandamus or any other appropriate direction be issued against the respondents directing them to withdraw from possession of the land in dispute and to permit the petitioner to enjoy such rights to which he may be found entitled. The petition has been opposed on behalf of the State of Uttar Pradesh and it is maintained in the first place that the Transfer Act is valid and constitutional. If that is held in favour of the respondent, nothing else will survive, for no rights would then arise in favour of the petitioner under the registered lease of June 1952. Further.- it has been strenuously contended on behalf of the state that the petitioner never obtained possession over the land in dispute. It has also Seen contended that the land in dispute was never denuded of trees and that it is still forest land on which a large number of trees are standing. The petitioner's claim that he has become a bhumidhar under the Abolition Act is also denied. His further claim that he has become a sirdar is also repelled. The case of the State is that the petitioner acquired no rights under the registered lease of June 1952 and has no right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective of whether the Transfer Act is valid and constitutional or not. What rights are conferred on the petitioner by this registered lease is a different matter. The petitioner claims that he has become a bhumidhar under the Abolition Act by virtue of this lease; in the alterna- tive he claims that he has become a sirdar, as he is in possession. The State however denies that the petitioner has become a bhumidhar under the Abolition Act; it also denies that the petitioner is in possession and in consequence has become a sirdar, under the Abolition Act. The petitioner prays that his rights as a bhumidhar or a sirdar, may be decided in the present petition. We are however of opinion that it will not be fair to either party to decide the question whether or not the petitioner is either bhumidhar or sirdar by virtue of the registered lease or the possession of the land demised which he claims, in View of the provisions of the Abolition Act. The petitioner'.-, status as bhumidhar or sirdar will depend upon the decision of various questions of fact, and we do not think that it will be fair to either party to decide those questions of fact merely on the scanty documentary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was at the time covered by trees and was not fit for cultivation. This again raises the same question of fact, namely, the nature of land at the time of the execution of the lease. It may be that no tenancy rights may be created in' favour of the petitioner by the lease, if it is found that the land in dispute was not land within the meaning of the U. P. Tenancy Act. But that again is a question which will have to be decided in the proper forum as indicated above by us. There can however be no doubt that the lease did create some right, whatsoever be its nature, in presenti and though the nature of that right may be disputed,, it is not a case where only some future right is conferred. In the circumstances, it cannot be said that no right whatever in presenti was created by the lease, and therefore the petitioner is not entitled to maintain the present petition. Lastly, it is urged that the lease was in favour of two persons, namely, the petitioner and Virendra Goyal, and the present petition has been filed only by the petitioner and Virendra Goyal has not been made a party to it, even as respondent. It is urged therefore that the present petition is not maintainable on that gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediary and a tenant conferring on the tenant a right to transfer by sale his holding or any part thereof either made or entered into or registered on or after May 21, 1952 shall be and is hereby declared null and void from the date of execution. It will thus be seen that the Transfer Act makes two kinds of transfers made on or after May 21, 1952 null and void and thus deprives the transferee of the right which he would otherwise acquire under the transfer. The contention of the petitioner is that the Transfer Act contravenes Art. 31 of the Constitution, as it was at the time the Act was passed, and therefore is unconstitutional, for though the transferee is deprived of his property, no compensation is provided in the Act as required by Art. 31(2) of the Constitution. Reliance in this connection is placed on the State of West Bengal v. Subodh Gopal Bose(1), where dealing with Art. 31, the majority of the Court held that Art. 31 protects the right to property by defining the limits on the power of the State to take away private property. It was further held that clause (1) and (2) of Art. 31 were not mutually exclusive in scope and content, but should be read together and understood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(2), as it stood in 1952, would be unconstitutional. We are unable to agree with the view taken by the High Court at Allahabad in Karam Singh v. Nihal Khan(A.I.R. (1957) All. 549.) insofar as it upholds the validity of the Transfer Act. The contention on behalf of the respondents in support of the constitutionality of the Transfer Act is, however, two- fold. In the first place, it is urged that the constitutionality of the Transfer Act must be judged on the basis of the Constitution as it stood on the date of the present petition and not as it stood on the date of the Transfer Act. Reliance in this connection is placed on Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay ([1958] S.C.R. 1122.), where it was observed at p. 1131, that it was not disputed that the Constitution Fourth Amendment Act which introduced cl. (2-A) in Art. 31 was not retrospective, and that the rights of the parties must be decided in accordance with the law as on the date of the writ petition. It is urged that this observation is an authority for the proposition that in every case the constitutionality of an Act has to be judged by the Constitution as it 'stood on the date of the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted that the Transfer Act would be unconstitutional., in view of the decision of this Court in Subodh Gopal's case ([1954] S.C.R. 587). The second contention on behalf of the respondents is that even if the Transfer Act was unconstitutional, when it was passed the inconsistency having been removed on the enactment of the Constitution (Fourth Amendment) Act- by which Art. 31 was amended, the Transfer Act revived and became effective, at any rate from the date the Fourth Amendment Act came into force. This brings us to a con- sideration of the doctrine of eclipse, on which the con- tention is based. This doctrine first came to be considered in Behram Khurshed Pesikaka v. The State of Bombay () [1955] 1 S. C. R. 613,) where Venkatarama Aiyar, J. drew a distinction between the invalidity arising out of lack of legislative competence and that arising by reason of a check imposed upon the legislature by the provisions contained in the Chapter on Fundamental Rights. He relied on an earlier decision of this Court in Keshavan Madhava Menon v. The State of Bombay (1) and was of the view that the word void in Art. 13 (1) should be construed as meaning in the language of the American ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Constitution which came later cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed , and the observation of Prof. Cooley in his work on Constitutional Limitations to the effect that a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted was accepted as sound, and the Court therefore came to the conclusion that the legislation in question which violated the fundamental right of the appellants under Art. 19 (1)(g) of the Constitution and was not shown to be protected by cl. 6 of the Article, as it stood at the time of the enactment must be held to be void under Art. 13 (2) of the Constitution. The Court further held that the Act then under consideration also violated Art. 31 (2) of the Constitution, and thus was invalid. It will be seen therefore that the doctrine of eclipse was not applied to the case of a post-Constitution law, which was unconstitutional as it was in violation of the Art. 17 (1)(g) and was not protected by Art. 19 (6) and also because it was in violation of Art. 31 (2). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of article 13, rendered void to the extent of such inconsistency'. Such laws were not dead for, all purposes. They existed for the purpose of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non citizens. It is only as against the citizens that they remained in a dormant or moribund condition . It is true that the learned judges did say that they need not rest their decision on the distinction between pre- Constitution and post-Constitution laws ; but the later part of these observations where the learned judges say that such laws are not dead for all purposes shows that they had in mind pre-Constitution laws, for otherwise they could not have said that they existed for the purpose of pre- Constitution rights and liabilities and they remained operative even after the Constitution as against non- citizens. We are therefore of opinion that the decision in Bhikaji Narain's case (1) must be confined to pre- Constitution laws to which the doctrine of eclipse would apply. We are fortified in this op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore did not finally express its views. A review of these authorities therefore in our opinion clearly shows that the doctrine of eclipse will apply to pre-Constitution laws which are governed by Art. 13(1) and would not apply to post-Constitution laws which are governed by Art. 13(2). It is, however, urged on behalf of the respondents that on the language of Art. 13(1) and (2) there should be no difference in the matter of the application of the doctrine of eclipse. It is said that Art. 13(1) pres- cribes that insofar as the existing laws are inconsistent with the provisions of Part III, they shall to the extent of such inconsistency be void. Similarly,, Art. 13(2) provides that any law made in contravention of this clause shall to the extent of the contravention be void. The argument is two-fold. In the first place, it is urged that the words 'to the extent of the inconsistency or 'to the extent of the contravention mean 'so long as the inconsistency continues or so long as the contravention continues. We are of opinion that this is not the meaning of these words in Art. 13(1) and (2). Obviously, the Constitution makers when they used the words 'to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perfectly valid when they were passed and the existence of which is recognised in the opening words of Art. 13(1) revive by the removal of the inconsistency in question. This in effect is the doctrine of eclipse, which if we may say so with respect, was applied in Bhikaji Narain's case.( [1955] 2 S.C.R. 589.) Art. 13(2) on the other hand begins with an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. There is thus a constitutional prohibition to the State against making laws taking away or abridging fundamental rights. The legislative power of Parliament and 'the Legislatures of States under Art. 245 is subject to the other provisions of the Constitution and therefore subject to Art. 13(2), which specifically prohibits the State from making any law taking away or abridging the fundamental rights. Therefore, it seems to us that the prohibition contained in Art. 13(2) makes the State as much incompetent to make a law taking away or abridging the fundamental rights as it would be where law is made against the distribution of powers contained in the Seventh Schedule to the Constitution between Parliament and the Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning to the word 'void in Art. 13 (1). as compared to Art. 13 (2). We do not think so. The meaning of the word void in Art. 13 (1) was considered in Keshava Madhava Menon's caseand again in Behram Khurshed Pesikaka's case In the later case, Mahajan, C. J., pointed out thatthe majority in Keshava Madhava Menon's case ([1951] S.C.R. 288.) clearly held that the word void in Art. 13(1) did not mean that the statute stood repealed and therefore obliterated from the statute book; nor did it mean that the said statute was void ab initio. This, in our opinion if we may say so with respect, follows clearly from the language of Art. 13(1), which presupposes that the existing laws are good except to the extent of the inconsistency with the fundamental rights. Besides there could not be any question of an existing law being void ab initio on account of the inconsistency with Art. 13(1), as they were passed by competent legislatures at the time when they were enacted. Therefore, it was pointed out that the effect of Art. 13(1) with respect to existing laws insofar as they were unconstitutional was only that it nullified them, and made them 'ineffectual and nugatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon giving a different meaning to the word void' in the two parts of Art. 13; it arises from the inherent difference between Art. 13 (1) and Art. 13 (2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post- Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being still_ born-there will be no scope for the application of the doctrine of eclipse. Though the, two clauses form part of the same Article, there is a vital difference in the language employed in them as also in their content and scope. By the first clause the Constitution recognises the existence of certain operating laws and they are declared void, to the extent of their inconsistency with fundamental rights. Had there been no such declaration, these laws would have con- tinued to operate. Therefore, in the case of pre- Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration. The law thus revives. However, in the case of the second clause, applicable to post Constitution laws, the Constitution does not recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act. It may be added that in 1960 there was an amendment to this Act by which certain other sections have been added in Chap. V-A. We shall deal with the effect of that amendment later; for the present we are dealing with the attack on S. 38-B. It is contended that the regulation or prohibition contemplated in S. 38-B is of a permanent nature and interferes even with forestry operations. It is also contended that it takes away rights without any provision for compensation. In short, the attack on Chap. V-A, as originally enacted., is based on a contrast of its provision with Chap. V of the Forest Act. Now if this is really so, there may be something in favour of the petitioner's contention that certain parts of Chap. V-A, as originally enacted, are unconstitutional. But the contention on behalf of the respondents is that Chap. V-A, as originally enacted (i.e. ss. 38-A to 38-G) is not supplementary to Chap. V, but is supplementary to Chap. II of the Forest Act, and is thus intended to serve as a temporary provision for protection of forests while proceedings under Chap. II are going on. If this contention on behalf of the- respondents is correct, the attack of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the owner thereof for the surrender of his rights ; or (iii) proceed to acquire such land in the manner provided by the Land Acquisition Act, 1894. Sections 12 to 16 provide for the determination of rights other than rights in or over any land, including commutation by the payment of a sum of money or by the grant of land, or in such other manner as he thinks fit. Section 17 provides for appeals from orders passed under ss. 11, 12, 15 and 16, while s. 18(4) provides for revising an appellate order by the State Government. Section 19 permits lawyers to appear before the Forest Settlement Officer or in appeal. When all these proceedings are over, the State Government has to publish a notification under s. 20 specifying definitely-the limits of the forest, which is to be reserved and declaring the same to be reserved from the date fixed by the notification, and from such date the forest shall be deemed to be a reserved forest. We need not refer to the remaining sections which provide for ancillary matters after the notification under s. 20. It is clear from this review of the provisions of Chap. II that it applies inter alia to forest land or waste land which is the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Abolition Act applied. This is in our opinion 'Made clear by the definition of the word claimant in s. 38-A, and the rest of the Chapter, as originally enacted, deals with claimants. The heading of the Chapter does appear to be somewhat ambiguous in as much as it says -of the Control over Forests of Claimants. The idea one gets prima facie from this heading is that the forests belong to claimants and the intention is to control such forests. This heading is in line with the heading of Chap. V of the Forest Act, which is of the control over Forests and Lands not being the property of Government , and so the first impression created on one's mind is that just as Chap. V deals With forests and lands not being the property of Government, Chap. VA also deals with forests which are not the property of Government but of claimants. But the definition of claimant in s. 38-A clearly shows that the claimant therein is a person making a claim and not a person whose claim has been recognised. Therefore it would not in our opinion be incorrect to connect Chap. V-A, as originally enacted, with Chap. 11 of the Forest Act, which clearly deals with claims and has here and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted. We are not actually concerned with the provisions of s.38-H onwards, for no action has been taken under those provisions; nor has the petitioner alleged that there is any threat of such action. The argument, however is that this new provision shows that ss.38-A to 38-G are not connected with Chap II , and really go with this new provision. We cannot accept this argument, for, in the first place, the legislature when it passed ss. 38-A to 38-G never had ss. 38-H to 38-M in- mind. In the second place, s. 38-H also deals with the land of claimants though it further deals with the lands of tenure-holders or owners. So far as the claimants are concerned, the position still remains that there must be some provision for deciding their claims and no such provisions are found up to s. 38-M, and we are therefore thrown back on Chap. II so far as the claimants are concerned. It must therefore be held that the enactment of new ss. 38-H to 38-M made no difference to the position that ss. 38-A to 38-G as originally enacted, are supplementary to Chap. II, though s. 38-H onwards may not be so and may stand by themselves, so far as owners or tenure-holders are concerned. There is no doubt, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r tenures as compared to asirdars similarly sirdars have wider rights as compared to asamis ; but nonetheless all the three are mere tenure holders-with varying rights under the State which is the proprietor of the entire land in the State to which the Abolition Act applied. It. is not disputed that the Abolition Act applies to the land in dispute and therefore the State 'is the proprietor of the land in dispute and the petitioner even if he were a bhumidhar would still be a tenure-holder. Further, the land in dispute is either waste land or forest land (for it is so far not converted to agriculture) over which the State has proprietaryrights and therefore Chap. II will clearly applyto this land and so would Chap. V-A. It is truethat a bhumidhar has got a heritable and transferableright and he can use his holding for any purpose including industrial and residential purposes, and if he does so that part of the holding will lie demarcated under s. 143. It is also true that generally speaking, there is no ejectment of a bhumidhar and no for- feiture of his land He also pays land revenue (s.241) but in that respect he is on the same footing as a sirdar who can hardly be called a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chap.II would not apply. We must therefore uphold the constitutionality of Chap. V-A, as originally enacted, in the view we have taken of its being supplementary to Chap. II, and we further hold that Chap. II and Chap. V-A will apply to the land in dispute even (1) A.I.R. (1952) All. 88. if the petitioner is assumed to be the bhumidhar, of that land. The only other question that remains to be considered is whether the notification under s. 4 is still in force. That notification was issued under Chap. II of the Forest Act on March 23, 1955 and thereafter a proclamation under s. 6 ibid was issued on April 26, 1955. The petitioner contends that the notification under s. 4 was withdrawn so far as his land was concerned by notification dated December 19, 1956. That is however not a notification at all. It is a mere government order issued to all Conservators of Forests, Divisional Forest Officers and District Officers as well as the Secretary, Board of Revenue, and all that is stated there is that a number of representations had been made to the Government by claimants of lands situated in the erstwhile private forests under agreements executed before July 1952 by them with thei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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