Andhra HC (Pre-Telangana)
Dharma Reddy vs Sub-Collector, Bodhan And Ors. on 27 November, 1986
Equivalent citations: AIR1987AP160, AIR 1987 ANDHRA PRADESH 160, (1987) 1 ANDH LT 124 (1987) 1 APLJ 171, (1987) 1 APLJ 171
JUDGMENT K. Bhaskaran, C.J.
1. Sub-sec. (1) S. 3 of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977) for short 'the Act' reads :
"3. Prohibition of transfer of assigned lands. - (1) Where before or after the of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site then, notwithstanding anything to the contrary in any other law for the time being in force or in the deed of transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer."
The terms "assigned land" and "landless poor person" are defined in the Act by sub-sec. (1) and (3) of S. 2 as follows :
"(1) "assigned land" means land assigned by the Government to the landless poor persons under the rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or transferred to landless poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assigned" shall be construed accordingly;"
(3) "landless poor person" means a person who owns an extent of land not more than 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land or such other extent of land as has been or may be specified by the Government in this behalf, from time to time, and who has no other means of livelihood;
Explanation : For the purpose of computing the extent of land under this clause. 0.404686 hectares (one acre) of wet land shall be equal to 0.809372 hectares (two acres) of dry land."
2. The real question that falls for the decision of this Full Bench in these writ petitions is whether the expression 'and shall be deemed never to have been transferred' occurring in S. 3(1) of the Act takes within its sweep transfers in respect of assigned lands which had been effected prior to 21-1-1977 on which date the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Ordinance was promulgated (and on which date the Act replacing that Ordinance is deemed to have come into force). In view of the conflict of opinion expressed by two Division Benches of this Court on this question, the matter has been referred to the Full Bench. In the judgment in W. A. No. 418 of 1979 dt. 26-12-1979 (which appears to have so far not been reported), a Division Bench consisting of Lakshmaiah and Narsinga Rao JJ. (referred to hereinafter as "the First Division Bench) affirmed the decision of Kondaiah J. (as he then was) in B. Seetha Ramanamma v. The Government of Andhra Pradesh (1979) 1 Andh LT 79 (referred to hereinafter as 'the Single Bench') that S. 3(1) prohibited only the transfers of assigned land from the date of the commencement of the Act; and the said Section did not take in any previous transfer effected prior to the commencement of the act of a land assigned previously. On the other hand, a subsequent Division Bench consisting of Gangadhara Rao and Jeevan Reddy JJ. (referred to hereinafter as 'the Second Division Bench') took a diametrically opposite view on the question in the judgment dt. 9-10-1980 in W. P. Nos. 3972/78 and Batch, reported in V. C. Kondayya v. District Collector, West Godavari holding that the Act applied to transfers made prior to the commencement of the Act as well. There is, however, no reference in the decision of the Second Division Bench to the decision of the First Division Bench, obviously for the reason that it has not been reported and was not, therefore brought to the notice of the learned Judges. For the same reason Choudary J. who critically commented upon the decision of the Single Bench (in Seetharamanama's case) and declined to follow the ruling therein or to refer the matter to a Division Bench, while hearing W. P. No. 2500 of 1978 reported in T. Onnuramma v. Tahsildar, Kadiri (1980) 2 Andh LT 276 : , which was disposed of on 8-8-80 also does not appear to have been referred to the decision of the First Division Bench.
3. In spite of the forceful argument advanced by the counsel for the writ petitioners, we do not find ourselves persuaded to agree with the view expressed by the Single Bench, affirmed by the First Division Bench. The Single Bench found on facts that the vendor, Nagaiah was not shown to be a 'landless poor person' that the land involved in the case was not an 'assigned land' as defined in S. 2(1) of the Act; hence the Act itself could not be applied. Whatever observation the learned Judge made on the basis of the discussion in the concluding paras 7 and 8 in the judgment is on a hypothesis that there existed a 'landless poor person' and an assigned land, which in fact, as found by the learned Judge himself, did not exist; and could not, therefore, form the ratio decidendi of that case. The conspicuous absence of any discussion whatsoever on the pivotal expression 'and shall be deemed never to have been transferred' in S. 3(1) of the Act, which was the material expression that was required to be construed, also diminished the binding nature, may even persuasive value, of the decision. It is also noticed that instead of interpreting the provisions contained in sub-sec. (1) of S. 3 of the Act, giving them the natural and the plain meaning of the language, what the learned Judge is seen to have done is to restrict the scope and meaning of the sub-section, referring to the statement of objects and reasons attached to the Bill, which according to the learned Judge, indicated that the intendment of the Act was to prohibit alienations of lands assigned to landless poor persons. The learned Judge went further to hold that the Statement of Objects and Reasons also indicated that the prohibition of transfer sought to be made null and void under the Act was prospective but not retrospective. Before the First Division Bench which affirmed the decision of the Single Bench, it was argued on behalf of the State (appellant) that the learned single Judge had, while construing sub-sec. (1) of S. 3 of the Act, lost sight of the implications contained in sub-sec. (5) of that Section, which reads as follows :
"(5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement."
This contention was brushed aside by the First Division Bench stating as follows :
"The contention is that by providing an exception where such transfers could be saved, the intendment of the legislature is to bring in all transfers within the prohibition intended by the statute. In other words, the contention is that except a transfer in favour of landless poor, all other transfers made prior to the enforcement of this Act are hit by the provisions of this Act. Thus the contention is that sub-sec. (5) is in the nature of an exception. We will assume that it is in the nature of an exception. What follows from that is what is not intended in the sub-section is sought to be enlarged by the Proviso or the exception engrafted in sub-sec. (5). The principle of interpretation of statutes does not permit such an interpretation where the sub-section is permitted to enlarge the scope of the very section or where the section itself is a confined one. In other words, the sub-section is not intended to enlarge the scope of the section itself. Such an interpretation would be opposed to the canons of interpretation of statutes. Therefore, sub-sec. 5 cannot be so interpreted as to cover all previous transactions of sale or transfers prior to the commencement of this Act when sub-sec. (1) unequivocally lays down that transfer intended is only of transfers made after the commencement of this Act."
The very fact that sub-sec. (5) of S. 3 very much forms part and parcel of that section, and the Section has to be read and understood as a whole, would expose the weakness and fallacy in the reasoning which led the First Division Bench to hold "In other words, the sub-section is not intended to enlarge the scope of Section itself". There is also no foundation for the sweeping statement that sub-sec. (1) unequivocally laid down that transfer intended was only of transfers made after the commencement of the Act, in the context that the bone of contention itself was whether the use of the expression "and shall be deemed never to have been transferred" in that sub-section rendered all the transfers of assigned lands prior to the coming into force of the Act also non est. The object of the appellant-State in inviting the attention of the First Division Bench of the provisions contained in sub-sec. (5) of S. 3 of the Act appears to have been to reinforce its contention that the intendment of the legislature was to declare all transfers, including those which took place prior to the commencement of the Act of the assigned land, except to the extent expressly exempted in that sub-sec. (5) to be null and void. There was absolutely no need for providing an exception or an exemption provision in sub-sec. (5) unless it was felt by the legislature that in the absence of such exception or exemption the class of transfers sought to be exempted also would be treated, in terms of sub-sec. (1) of the Section to be null and void. We should not underestimate the significance of the words "prior to the commencement of this Act" used in sub-sec. (5) of S. 3. This is a clear indication that except for the class of transfers saved by the provisions of sub-sec. (5) all transfers, of assigned lands prior to the commencement of the Act would be required to be deemed null and void in terms of S. 3(1) of the Act. The irresistible conclusion, on a consideration of the language used in sub-sec. (1) read with sub-sec. (5) of S. 3 of the Act, is that all transfers of assigned lands prior to the commencement of the Act also are null and void non est in the eye of law, it is difficult to conceive an idea that the legislature in sub-sec. (1) of S. 3 employed the expression "and shall be deemed never to have been transferred" without any purpose in mind. The legislature does not use words unnecessarily or words which do not carry any meaning. The First Division Bench does not appear to have endeavoured to gather the intendment of the legislature in enacting the Act or the meaning of the expression "and shall be deemed never to have been transferred" in sub-sec. (1) of S. 3 of the Act instead it seems to have chosen to rest content with the making of a statement that sub-sec. (1) of S. 3 of the Act unequivocally laid down that transfer intended was only of transfers made after the commencement of the Act.
4. The Government had been assigning Govt. lands to landless poor persons who had no other means of livelihood, over the past few decades the avowed object being the improvement of the economic lot of the assignees. The rules governing such assignment of lands and the pattas granted thereunder invariably contained a clause that the lands assigned were heritable, but not alienable, in the hope that such restrictions would prevent the deprival to the poor landless persons of the land assigned to them. As experience would have it, this hope, however proved to be false. In most cases, the condition attached to the assignment was honoured in its breach; and the lands assigned found their way to the possession of money-lenders and moneyed class of people, the landless poor remaining landless poor, as before. Earlier by G.O.Ms. No. 1142 dt. 18-6-1954 the Government sought to resume the lands which were transferred by the original grantees in violation of the condition attached to the grant, but that was found to be too ineffective and too inadequate to achieve the social goal set by the Government. This realisation in the light of the unfortunate experience of the past led the legislature in its wisdom and in pursuance of its declared policy of safeguarding, protecting and improving the condition of the weaker section of the community consisting of landless poor persons, to bring about this change in the legal position by providing that any such transactions would be null and void not merely voidable. This is not only consistent with the mandates in the Directive Principles contained in Part IV of our Constitution, but also in consonance with the Contract Act which provided that any contract which is opposed to public policy would be rendered void. In all these cases, the purchasers would not claim to have acted with bona fides inasmuch as it was with full knowledge that the grantee was not entitled to alienate the lands, and in violation of that condition, that the lands had been so purchased. Voidable transactions could be legally avoided; and that has been done by law in order to avoid the agony of protracted litigation in which the exploited and the deprived would be locked up if the redressal of the grievance by the restoration to them of the land lost to them, is to be obtained by legal proceedings. The legislature undoubtedly is competent to pass an enactment providing that transfers of such assigned lands would be void, not merely voidable for properly safeguarding the interests of the landless poor for whose benefit alone these lands had been granted. The Supreme Court had in Sri Manchegowda's case, occasion to consider the constitutional validity of Ss. 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act 2 of 1979, the scheme of which is in substance identical of that of the Act (Act 9 of 1977 of Andhra Pradesh) though there are slight variations in expressions used. Towards the end of para 12 at page 1156 of the report, the Supreme Court in that decision, stated as follows :
"As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes."
5. Rejecting the contention that the provisions contained in S. 4 of the Karnataka Act in so far as it sought to nullify transfers effected before the Act had come into force, in para 15 of the judgment at page 1157 of the report, the Supreme Court held :
"Where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land on the basis of the provisions contained in S. 4 and S. 5 of the Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable unjust and arbitrary."
6. In that case, the Supreme Court also held that the provisions of Ss. 4 and 5 of the Karnataka Act did not violate either Art. 19(1) (f) which was in force at the relevant time, or Art. 14 of the Constitution.
7. The counsel for the writ petitioners drew our attention to paras 133 and 134 (at pages 576 and 577) of the decision of the Supreme Court in Privy Purse case and stressed that the attempt of the Court should be to interpret a statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations possible, one which was more reasonable and just should be adopted, for there was always a presumption against the law-maker intending injustice and unreason; and the Court would avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous. The Supreme Court has, we notice observed in the very same decision, that a provision in a statute would not be construed to defeat its manifest purpose and general values which animate its structure. In this case, as we have already seen, it is only the defeasible right which was voidable that is sought to be avoided by the intervention of the legislation. The manifest intention of the Legislature is to save the landless poor persons from the clutches of the rich and the resourceful, who deprived them of the precious little, the small plots of land assigned to them by the Government, which alone provided them occupation and the source of livelihood. While interpreting the provisions of a progressive legislation, like the one relating to assignment of land to the landless poor persons, satisfaction of the judicial conscience, inspired and guided by our democratic Constitution wedded to socialism would lie in the discovery of the true spirit of the legislative purpose and giving full effect to the policy behind such legislation without adopting a negative approach to defeat the policy of the Legislature. What impelled the Legislature to bring forward a fairly comprehensive legislation to restore the assigned lands to the original grantees is the realisation of the grave injustice done to them by the affluent segment of the society who sought to become richer by exploiting them, the poor landless people, because of their ignorance, illiteracy and social economic backwardness. Justice and fairplay lie in repairing the damage done to them by nothing less than the restoration of the lands which they had been grabbed by the moneyed class often than not by unscrupulous methods, in violation of the condition attached to the grant of the land to them (the landless poor). According to Maxwell on the Interpretation of Statutes (12th Edition page 225) "The rule against retrospective operation is a presumption only, and as such it may be overcome, not only by express words in the Act but also by circumstances sufficiently strong to displace it. The decision of the Supreme Court in Commr. of Income-tax, Madhya Pradesh v. Straw Products, and Chanan Singh v. Jai Kaur, cited also are for the well-accepted principle that in the absence of manifest expression to the contrary the legislation would be prospective in operation. The decision of the Supreme Court in Sri Manchegouda's case, (supra) has placed the constitutional validity of the impugned provisions beyond the pale of doubt. The presence of the expression "and shall be deemed never to have been transferred" in sub-sec. (1) of S. 3 of the Act is the unmistakable indication that the Legislature intended the invalidation of the transfer of assigned land retrospectively also. Decisions rendered in cases where there was absence of such an expressed provision indicating retrospective operation of the provision would not be of any assistance to decide the question in issue here.
8. One other decision on which considerable reliance was placed by the counsel for the writ petitioners is the Full Bench decision of the Bombay High Court in Smt. Saraswatibai v. Bhikamchand, . We have carefully gone through that decision. The Full Bench found that the provisions of S. 52 of the Bombay Tenancy and Agricultural lands (Vidarbha Region and Kutch Area) Act 1958 were not attracted to cases where the lease of a protected lessee had been determined by the landholder under S. 9 of the Berar Regulation of Agricultural Leases Act 1951 and possession thereof taken prior to the date the new Tenancy Act came into force, and the landholder continued to personally cultivate the land on the date the new Act came into force. This interpretation is in keeping with the language used in the Sections construed, with particular reference to S. 132 of the new Tenancy Act which provided;
"(1) The provisions of the enactments specified in Schedule I are hereby repealed to the extent specified in Column 4 of the said schedule.
(2) Nothing in sub-sec. (1) shall, save as expressly provided in this Act, affect or be deemed to affect-
(i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act."
This decision also has no application whatsoever to the case on hand.
9. Two decisions of the King's Bench Division in Langford Property Company v. Pajzs (1943) 2 All ER 687, and Master Ladies Tailors v. Min of L. & N.S., (1950) 2 All ER 525 have also been brought to our notice. The former decision relates to the interpretation of certain provisions in the Landlord and Tenant (War Damage) (Amendment) Act 1941, and the latter to the Wholesale Mantle and Costume Wages Council (Great Britain) Wages Regulation (Holidays) Order, 1949. The plain meaning of the language used in those provisions warranted only a conclusion that the provisions were prospective in character, there being no indication, expressly or by necessary implication, that it was meant to be retroactive by the legislature. We find nothing in these judgments to support the case of the writ petitioners.
10. After having considered all aspects of the matter in depth, due regard having been had to the submissions made by the counsel for the writ petitioners agreeing with the views of the Second Division Bench in the judgment in W.P. Nos. 3972/78 and batch dt. 9-10-1980 V. C. Kondayya's case, (supra) we answer the question formulated for our decision in the affirmative holding that S. 3(1) of the Act not only prohibits transfer of the assigned lands on or after the commencement of the Act, but also declares retrospectively that all transfers of such assigned land which took place prior to the coming into force of the Act shall also be null and void, non est in the eye of law, and no right or title in such assigned land shall vest in any person acquiring the land by such transfer. Having thus answered the question of law, which arose out of the order of reference to the Full Bench we direct these writ petitions to be posted before a learned single Judge to deal with the other points, if any arising out of the pleadings, and to finally dispose them of. No doubt, it shall be open to the petitioner in any particular case to show, on facts alleged in the pleadings, that either the provisions of S. 3(1) of the Act as interpreted herein by us, has no application to his case, or that his case would fall within the exemption provided under S. 3(5) of the Act. Inasmuch as two of these writ petitions are of the year 1978 we desire that these writ petitions are heard and disposed of without any avoidable delay, to the extent possible within three weeks from today. There would be no order as to costs. Advocate's fee Rs. 300 in each.
11. Order accordingly.