Himachal Pradesh High Court
State Of Hp Through Distt. Collector vs D.C. Shankhla And Others ... Respond ... on 28 September, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1423 of 2007.
Reserved on 22.9.2016.
.
Decided on: 28.9 .2016.
State of HP through Distt. Collector, Chamba ....Petitioner.
Versus
D.C. Shankhla and others ... Respond ents .
................................................................................................
Coram
of
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner.
rt : Mr. Vikram Thakur & Ms. Parul Negy, Dy.
Advocate Generals.
For respondents No.1 & 2 : Mr. Neeraj Gupta , Advocate.
For respondent No.3 : None.
Ajay Mohan Goel, J.
By way of this writ petition, petitioner-State has prayed for the following reliefs :-
"i) It is, therefore, respectfully prayed that the impugned orders dated
2.12.2003 passed by R-3 the Ld. F.C. in appeal No. 108/2002 and review dated 22.5.2006 be quashed.
ii) The will may kindly be declared to be null and void and of no legal consequence.
iii) That the Mutation attested in favour of respondents vide No. 98 dated 13.7.1994 is wrong, illegal and un-lawful and may kindly be quashed.
iv) Any other relief that this Hon'ble Court deems fit and proper may also be granted in favour of the petitioners."
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 22. Brief facts necessary for adjudication of the present case are that by way of a registered Will, which was registered in the office of Sub-
.
Registrar, Dalhousie as Deed No. 2 dated 20.2.1990 Smt. Shakuntla Devi widow of late Shri Fakir Chand R/o Kothi, the Retreat, Rajmahal Road, Dalhousie bequeathed 0.38.14 Hectares land , situated in Mohal Dalhousie Khas in favour of present respondents. On the basis of the said Will Mutation No. 98 was thereafter attested in favour of present respondents in of equal shares on 13.7.1994.
3. In a case instituted under Rule 38-B of the H.P. Tenancy and rt Land Reforms Rules, 1975 as amended from time to time against the present respondents, a report was submitted by Sub Divisional Officer (Civil), Dalhousie dated 10.1.1997, on the basis of which, it was held by the Court of Collector, Chamba (in Case No. 7-3XIII/A/97 Instituted on 10.1.1997) vide order dated 10.11.1997, that the transfer of land in favour of present respondents by Shakuntla Devi by way of Will registered on 20.2.1990 was in contravention and violation of the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. The said Authority further ordered the property to be vested to the State Government together with structure building and other attachment free from all encumbrances.
4. Feeling aggrieved by the said order passed by learned Collector Chamba, present respondents filed an appeal under Section 114(2) of H.P. Tenancy and land Reforms Act, 1972 before the Appellate Authority, i.e. Additional Commissioner (Appeals) which authority vide ::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 3 order dated 18.6.2002 allowed the appeal and set aside the order passed by the District Collector by holding that the Will was executed in favour of the .
present respondents by Shakuntla Devi on 20.2.1990 and on the basis of same, Mutation was also attested in favour of the present respondents on 13.7.1994 and at that relevant time Sub Section 1 of Section 118 of H.P. Tenancy and Land Reforms Act contemplated transfer of land by way of sale, gift, exchange, lease, mortgage with possession of creation of tenancy.
of Appellate authority held that at the time of execution of Will and Mutation in favour of present respondents there was no bar under Section 118 of H.P. rt Tenancy and Land Reforms Act that transfers could not be effected by way of Testamentary and Intestate Succession. Learned appellate court thus held that the amendment which had been carried out in Section 118 of the H.P. Tenancy and Land Reforms Act in the year 1995 had in fact co me into force with prospective effect in the year 1995 and before the said amendment there was no ban on transfer of land by way of a Will and the provisions of the H.P. Tenancy and Land Reforms Act cannot be treated to have retrospective operation as the same was not contemplated by the H.P. Tenancy and Land Reforms Act also. It was on this ground that the appellate authority allowed the appeal and set aside the order passed by the District Collector, Chamba.
5. Feeling aggrieved by the said order passed by the appellate authority, appellant-State filed a revision petition under Section 118(3)(C) of H.P. Tenancy and Land Reforms Act, 1972 before the Financial ::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 4 Commissioner (Appeals). The revision so filed by the State was dismissed by the revisional authority, i.e. Financial Commissioner (Appeals) vide .
order dated 2.12.2003 by holding that District Collector could not have adjudicated upon the authenticity or validity of the Will which has not been challenged even by the legal heirs of the testator and besides the learned appellate authority had rightly held that amendment to H.P. Tenancy and Land Reforms Act, 1972 having been enacted after the execution of the of Will, the amended provisions could not be treated to have a retrospective operation.
6. rt Review filed before Financial Commissioner (Appeals) by the State was also dismissed vide order dated 22.5.2006.
7. Feeling aggrieved by the dismissal of the revision petition as well as review petit ion by the learned Financial Commissioner (Appeals), the State has filed the present writ petition.
8. I have heard learned counsel for the parties and have also gone through the pleadings of the case as well as judgments passed by the learned courts below.
9. It is not in dispute that in the present case the Will in issue was executed and registered by the testator, i.e. Shankutla Devi in favour of the propounders of the Will, i.e. the present respondents vide Deed No. 2 dated 20.2.1990 which was duly registered in the office of Sub Registrar, Dalhousie. It is also not in dispute that Mutation on the basis of the said Will was got attested in favour of the respondents in equal share on ::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 5 13.7.1994. Though during the course of arguments Mr. Vikram Thakur, learned Deputy Advocate General could not point out the actual date of .
death of Shakuntla Devi, however, it is stated at the bar that as Mutation of property was got attested in favour of present respondents in equal shares on 13.7.1994, it was but obvious that Shakuntla Devi died before 13.7.1994.
10. Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 of as it stood before amendment carried out in it in the year 1994 provided that notwithstanding anything to the contrary contained in any law, contract, rt agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a Civil Court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist.
11. In the year 1995, Sub Section (1) and (2) of Section 118 of the H.P. Tenancy and Land Reforms (Amendment) Act, 1994 (Act No. 6 of 1995) were substituted. This was followed by further amendment carried out in the said Section of H.P. Tenancy and Land Reforms (Amendment) Act, 1997 (Act No. 9 of 1997). After these amendments Section 118 of H.P. Tenancy and Land Reforms Act provided as under:-
"118. Transfer of land to non -agriculturists barred :
(1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in ::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 6 force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a Civil Court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is .
not an agriculturist. x x x x x x x x x x"
12. Thus before the amendment carried out in Sub Section 1 and 2 of Section 118 of the H.P. Tenancy and Land Reforms Act by way of Act No. 6 of 1995 Section 118 prohibited transfer of land by way of sale, gift, of exchange, lease mortgage with possession of creation of tenancy in favour of a person who was not an agriculturist. By virtue of amendment carried out in the year 1995 'Will' was also included in Sub Section 1 of Section rt 118 of the HP Tenancy and Land Reforms Act. As already mentioned above , this amendment came in force w.e.f. 22.4.1995 and the same was prospective . Keeping in view the fact that the 'Will' executed in favour of the present respondents was not only executed before coming into force of the 1995 amendment but in fact had also been acted upon before coming into force of the said amendment, in my considered view the findings returned by learned Financial Commissioner (Appeals) to the effect that the amendment carried out in Sub Section 1 of Section 118 in the year 1995 had no effect on the Will which was executed in favour of present respondents by Shakuntla Devi were correct findings.
13. It is well settled principle of law that all amendments especially those which are substantive amendments and affect the rights of the parties are prospective until and unless they are expressly made retrospective.
::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 714. Three Judges Bench of the Hon'ble Supreme Court in District Collector, Vellore District Vs. K. Govindaraj , (2016) 4 S upreme Court .
Cases 763 has held :-
"13. As mentioned above, though the legislature has plenary powers of legislation within the fields assigned to it and can legislate prospectively or retrospectively, the general rule is that in the absence of the enactment specifically mentioning that the legislation or legislative amendment concerned is retrospectively made, the same is to be treated as prospective in nature. It would be more so when the statute is dealing with substantive rights. No of doubt, in contrast to statute dealing with substantive rights, wherever a statute deals with merely a matter of procedure, such a statute/amendment in the statute is presumed to be retrospective unless such a construction is textually inadmissible. At the same time, it is to be borne in mind that a particular provision in a rt procedural statute may be substantive in nature and such a provision cannot be given retrospective effect. To put in otherwise, the classification of a statute, either substantive or procedural, does not necessarily determine whether it may have a retrospective operation. In Maxwell v. Murphy, Dixon, C.J. formulated the aforesaid procedure in the following words:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption."
15. In Hitendra Vishnu Thakur and others Vs. State of Maharashtra and others , (1994) 4 Supreme Court Cases 602, the Hon'ble Supreme Court has held :-
"x x x x x x x From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge ::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 8 with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, .
either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
rt (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
16. The Hon'ble Supreme Court in MRF Ltd., Kottayam Vs. Asstt. Commissioner (Assessment) Sales Tax and others , (2006) 8 Supreme Court Cases 702 has held:-
"27. The provisions of the Act or notification are always prospective in operation unless the express language renders it otherwise making it effective with retrospective effect. This Court in S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India has held that it is a settled principle of interpretation that: (SCC p. 747, para 18) "....retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary."::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 9
17. This Court in Durma Devi Vs. State of H.P. and others .
2007(2) S.L.J. (H.P.) 1133 has held:-
"23. The law laid down by this Court in Dinesh kumar vs. State of H.P. is in consonance with the law laid down by the Hon'ble Supreme Court governing the principles that no retrospectivity should be given to the law impairing the accrued rights of the parties. Consequently, I am persuaded to follow the law laid down by this Court in Dinesh Kumar Vs. State of H.P. of
24. I am of the view that the proviso added to after sub section (9) of Section 104 of H.P. Tenancy and Land Reforms Act, 1972 cannot be given retrospective effect. It is reiterated that the petitioner's vested rights to enjoy her property cannot be permitted to be destroyed by applying the proviso retrospectively. rt The proviso has not been expressly made to have retrospective operation. The retrospectivity cannot be ga thered even by necessary implication."
18. It is not the case of the petitioner-State that the amendment which was carried out by the State in Sub Section 1 of Section 118 of the HP Tenancy and Land Reforms act in the year 1995 was retrospective in nature. It is further not the case of the petitioner-State that though the Will which was executed by Shakuntla Devi in favour of the respondents was executed before coming into force of the 1995 amendment, however, the same had not been given effect to as on the date when the 1995 amendment came into force. During the course of arguments learned Deputy Advocate General argued that the order passed by learned Financial Commissioner (Appeals) was bad in law as the same was contrary to the judgment passed by this Court in CWP No. 443 of 1995 and connected matters decided on October 1, 2013. In my considered view the law ::: Downloaded on - 15/04/2017 21:19:04 :::HCHP 10 declared by this Court in the abovementioned judgments has no bearing on the facts of the present case. In CWP No. 443 of 1995 and connected .
matters, the Hon'ble Division Bench of this Court was dealing with the vires of the provisions of Section 118 and 121A of the H.P. Tenancy and Land Reforms Act as well as provisions of Rule 38-A thereof which had been notified on 23.12.2011. Whether or not the amendment carried out in Section 118 of the H.P. Tenancy and Land Reforms Act in the year 1995 of was prospective or retrospective was neither an issue involved in CWP No. 443 of 1995 nor there was any adjudication on this issue by the Hon'ble rt Division Bench of this Court in the abovementioned writ petition.
Therefore, in view of discussion held above, in my considered view there is no infirmity with the order passed by the learned Financial Commissioner (Appeals) in Revenue Revision No. 108 of 2002 dated 2.12.2003 as well as order passed in Review dated 22.5.2006. As there is no merit in the present writ petition, the same is dismissed, so also pending application(s), if any. No order as to costs.
(Ajay Mohan Goel) Judge 28th September, 2016.
(Guleria) ::: Downloaded on - 15/04/2017 21:19:04 :::HCHP