Patna High Court
Umesh Jha vs The State And Anr. on 21 February, 1956
Equivalent citations: AIR 1956 PATNA 425
JUDGMENT Choudhary, J.
1. This is an application under Article 226 of the Constitution of India.
2. The facts giving rise to the application, as alleged by the petitioner put briefly, are these:
3. Plot Nos. 383 and 1033 lying in village Lakshmipur, alias Tarauni, P. S. Bahera in the district of Darbhanga, were Gairmazrua Khas lands of the landlords, Sri Kaladharisingh and Sri Krishnanandsingh. These two plots are tanks. The petitioner took settlement of these plots from the aforesaid landlords in the year 1350 Fasli. The, settlement was made by granting receipts to the petitioner by the aforesaid landlords. The petitioner accordingly paid rent to them so long as the estate remained in their possession.
Later on, their estates vested in the State of Bihar under the provisions of the Bihar Land Reforms Act (hereinafter to be referred to as the Act) and thereafter the petitioner paid rent to the State of Bihar in respect of the aforesaid plots in the year 1361 Fasli. The Additional Collector of Darbhanga (opposite party 2) purporting to act under Section 4 (h) of the Act passed an order annulling the aforesaid settlement and called upon the petitioner to give up possession of the plots in question by a certain date.
It was contended on behalf of the petitioner before the Additional Collector that the settlement in question was made prior to January, 1946 and it could not, therefore, be annulled under Section 4 (h) of the Act. This contention was overruled by him as he came to a finding that the settlement was actually made after 1-1-1946. The petitioner has, therefore, moved this Court for issue of a writ of certiorari for quashing the said order.
4. In support of the application Mr. B. C. De has raised two contentions. They are : (1) that tbe State of Bihar (opposite party 1) having accepted rent from the petitioner in the year 1361 Fasli and granted receipt for the same, as stated above, was not entitled to challenge the genuineness and validity of the settlement and (2) that the settlement in question having apparently been made before January, 1946, the Additional Collector had no jurisdiction to annul the same under Section 4 (h) of the Act and it was beyond his jurisdiction to entertain and decide the question that the said settlement was actually made after January, 1946.
5. The first contention has no substance. It is the admitted case of the parties that the rent that was accepted by the State of Bihar from the petitioner for the year 1361 Fasli was accepted without prejudice and this fact was noted on the receipt itself. That being so, there is no force in the argument that the State of Bihar was estopped from challenging the genuineness and validity of the settlement under Section 4 (h) of the Act.
The words "without prejudice" import into any transaction that the parties have agreed that as be between themselves the receipt of money by one and its payment by the other shall not by themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid. (See Words and Phrases, Permanent Edition, West Publishing Company, Volume 45, page 439). This contention of the petitioner has, therefore, to be rejected as being without any merit.
6. The second contention is the main contention in the case and its decision is by no means free from difficulty. Section 4 (h) of the Act, so far as is relevant for the purpose of the present case, runs as follows:
"The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure made at any time after the first day of January, 1946, and if he is satisfied that such transfer was made with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder, the Collector may, after giving reasonable notice to the parties concerned to appear and be heard and with the previous sanction or the State Government, annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable."
The contention put forward by Mr. De is that the Collector is empowered under this section to annul, after observing certain formalities, a transfer made after the first day of January, 1946, and if any transfer, on the very face of it, appears to have been made prior to that date, the Collector has no jurisdiction to touch it under this section.
In other words, the argument amounts to this. If on the face of it a transfer appears to have been made after the first day of January, 1946, the Collector has power to annul it under certain circumstances; but if it, prima facie, appears to have been made prior to that date, it is beyond the jurisdiction of the Collector under this section to entertain and decide a dispute that it was actually made after the first day of January 1946, and not on the date it bears. Thus on this argument the Collector can annul a transfer only if it bears a date subsequent to the first day of January, 1946, whereas if it bears a date prior to this clay, it is not open to him to raise a controversy as to its actual date and decide the question.
In order to give effect to the contention raised by Mr. De we have, therefore, to read the section to mean that the Collector could annul a transfer if it was admittedly or undisputedly made subsequent to the above date. If, on the other hand, his contention has to be rejected, we have to read the section to mean that any transfer made by a landlord, can be annulled by the Collector if he takes the view that it was made subsequent to that date.
The decision of this question either way, in my opinion, is bound to create absurdities and anomalies. Suppose it is held that the Collector has only to look to the date mentioned in the document for deciding as to whether any such transfer could be annulled or act, the whole object of the Act may be frustrated by putting forward even bogus transfers alleging them to have been made prior to the above date.
On the other hand, if it is held that the Collector can annul every such transfer if he finds that notwithstanding the date that it bears it was made subsequent to the said date, persons having taken transfers either orally or by simply obtaining rent receipts from the landlords and having quiet possession for any length of time are put in peril of being easily evicted by the Collector under a summary proceeding. It may be noted here that according to Section 35 of the Act no suit can be brought in any civil Court in respect of any order passed under Chapters II to VI of the Act or concerning any matter which is or has already been the subject of any application made or proceedings taken under, the said Chapter.
Thus, if the Collector acting under Section 4 (h) of the Act which is under Chapter II, annuls a transfer which was actually made prior to the first day of January, 1946, but was found by him to have been made, subsequent to that date, the transferee is debarred from getting his title and possession adjudicated in a Civil Court even though he may have been in possession of the transferred property for any length of time, Thus quiet possession for any length of time even much more than statutory period of limitation may be disturbed, without any adjudication by a Court of law, under a summary procedure by the Collector. It is for these reasons that I have said that the decision of the question cither way has the effect of creating absurdities and anomalies. As observed by Raghava Rao J. in the case of -- 'Viraraghava Rao v. Narasimharao', 1950) Mad 124 (AIR V 37) (A), consideration of possible anomalies, however, is not a ground for construing the plain words of a statute in a manner opposed to their plain meaning. The section, therefore, has to be interpreted, notwithstanding the consequences, on the plain words used in it in the light of established principles of construction of statute.
7. Every citizen has a right to get his title adjudicated in a Court of law subject, however, to an enactment by the legislature in certain matters. A distinct and unequivocal enactment is, therefore, required for the purpose of excluding the jurisdiction of a civil Court. The exclusion of its jurisdiction is not to be readily inferred; it must either be explicitly expressed or clearly implied. (See -- 'Secretary of State v. Mask and Co.', Z940 PC 105 (AIR V 27) (B).) In the Bihar Land Reforms Act, there is a section, namely, Section 35, which as already observed, excludes the jurisdiction of the civil Court with regard to any order passed under certain Chapters of the Act, Section 4 (h) being under one of those Chapters. It has, therefore, to be seen whether a controversy raised with regard to the date of the transfer could be decided under this section so as to exclude the jurisdiction of the civil Court to deal with it.
The section does not explicitly express that the Collector shall have jurisdiction to entertain and decide a dispute of this nature; nor is there, in my opinion anything to suggest the conference of such jurisdiction even by implication, The section only states that the Collector can annul a transfer made subsequent to the first day of January 1946. The decision of the question, therefore, rests on the Interpretation of the word "made" used in the section.
Mr. De asks us to interpret this word as meaning "admittedly or undisputedly made". In order to accept this interpretation, however, we have to read the words "admittedly" or "undisputedly" into the section.
As stated by the Lord Chancellor Lord Loreburn in -- 'Vickers, Sons and Maxim Ltd. v. Evans', (1910) 79 LJ KB 954 (C), we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act it-self. In the case of -- 'Everett v. Wells', (1841) 2 Man & G 269 (D), Tindal C. J. observed that it is our duty neither to add to nor to take from a statute unless we see good grounds for thinking that the legislature intended something which it has failed precisely to express.
Thus, we cannot read the word "admittedly" undisputedly" or some such other words conveying similar meaning into the section unless we hold that the intention of the legislature was not to give jurisdiction to the Collector to decide such controversial questions in a summary proceeding.
8. For the true construction of the section in question it has to be discerned and considered as to what was the object of the legislature in making the enactment and what mischief or difficulty it wanted to avoid by such enactment. The preamble of the Act shows that the object of enacting it was, amongst others, to provide for the transference to the State of the interests of proprietors and tenure-holders an land and of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, etc. etc. By Sections 3 and 3-A provisions have been made for the vesting in the State of the estates or tenures including the intermediary interests of all intermediaries in the whole of the estate. According to Section 4 (a) the effect of such vesting of the estates or tenures is, apart from other things, to vest absolutely in the State free from all incumbrances the interests of the proprietors or tenure-holders in trees, forests, fisheries, jalkars etc. etc. It is well known that since about 1946 the authorities, to the full knowledge of all concerned, were seriously contemplating and making enactments for abolition of zamindari and when the present Land Reforms Act was being enacted, it was probably apprehended that the proprietors or tenure-holders may have since 1946 made or created transfers including settlements and leases in order either to defeat the provisions of this Act so as to prevent certain properties from "vesting in the State or with the object of obtaining higher compensation from the State.
Section 4 (h) was, therefore, enacted giving power to the Collector to annul such transfers under certain circumstances and dispossess the persons dawning thereunder. The legislature has, thus, expressly given this power to the Collector. If it intended that even transfers purporting to have been made prior to January, 1946, should be brought into controversy and be annulled at the decision of the Collector without leaving any right in the transferees to establish in Court of law their validity and genuineness, and the actual dates on which they were made or created, there was nothing to prevent it to have clearly said so.
It is too well known that even before 1946 genuine oral transfers, including settlements and leases, have been made or created by landlords and rent receipts have been granted by them in proof thereof, and it is similarly too well known that such transferees are in peaceful possession of the transferred properties from the dates thereof, which in plenty of cases are even more than several twelve years prior to 1946, without having any documentary evidence except those rent receipts to prove them.
The legislators must be expected to have full knowledge of this state of affairs in the State. Can it then be legitimately argued that the legislature, by this enactment, imperilled all such transfers to be avoided summarily by the Collector? If an enquiry had to be made as to the apparent state of affairs not to be the real state of affairs, the legislature could not be expected to have left such an important and controversial matter to be decided by the Collector in a summary proceeding as provided in the Act.
The civil right of a citizen is put in peril and it cannot be assumed for a moment that the legislature intended to disturb the peaceful possession of a citizen for any length of time in such a summary manner. It could not be said to have intended to set at rest all such controversies under Section 4 (h) of the Act. It must, therefore, be held that when it used the expression "made at any time after the first day of January, 1946" in this section, it meant only those transfers which were uncontroversially made after that date.
9. It is contended on behalf of the State that the legislature intended to give jurisdiction to the Collector to deal with all such controversies though due to defective phrasing of the section it did not express it clearly. But as observed by Lord Brougham in -- 'Crawford v. Spooner', (1846) 3 Moo PCC 1 (E), it is not for the Judge to make up deficiencies left in an enactment and it is for the Legislature to supply the defects by another enactment. In this connection I will not do better than to quote the observations of his Lordship in his own language as under ;
"The construction of the Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Act; we cannot add, and mend, and, by construction, make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly, much more, if the Legislature intended something very different; if the Legislature intended something pretty nearly the opposite of what is said, it is, not for Judges to invent something when they do not meet with in the words of the text (aiding their construction of the text always, of course, by the context); it is not for them so to supply a meaning, for, in reality, it would be supplying it; the true way in these cases is to take the words as the Legislature have given them, and to take the meaning which the words given naturelly imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered; and, therefore, if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning and supply the defect in the previous Act."
The same view was taken by the Privy Council in Kamalaranjan Roy v. Secretary of State, 1938 PC 281 (AIR V 25) (F) where Lord Wright made the following observations:
"The fact seems to be that the various Acts have provided 'for all contingencies as to transmission and devolution of the estate, but have not provided for the special case in which the Patna estate is not transmitted or devolved, but annulled and determined. It may be that there is here a casus omissus, but if so, that omission can only be supplied by statute or statutory action. The Court cannot put into the Act words which are not expressed, and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction, and outside the provinces of the Court".
10. It is against the fundamental principle of law that one should be a judge in his own cause, Here, if this section is interpreted to give jurisdiction to the Collector to decide the 'controversial question as to the date of the transfer, he will be given a power to raise a controversy himself, be adjudge in his own cause, decide it in his own favour and then assume jurisdiction to annul the transfer.
11. On consideration, therefore; of the plain words used in the above section and the various circumstances referred to above the only conclusion to which I could arrive at is that the existence of the fact of the transfer having been made subsequent to the first day of January, 1946, only gives jurisdiction to the Collector to annul it. No jurisdiction, however, has been conferred on him to determine the question of its existence if it is disputed and then to assume further jurisdiction to annul it.
12. For the reasons given above, I am of opinion that the Additional Collector had no jurisdiction to entertain and decide the question that the settlement in the present case which is prima facie shown to have been made much before the first day of January, 1946, was actually made after that date and his order annulling the settlement was, therefore, without jurisdiction. This is, therefore, a fit case where a writ of certiorari should issue quashing the order of the Additional Collector passed in that behalf.
13. The result, therefore, is that the application succeeds and the order of the Additional Collector annulling the settlement made in favour of the petitioner with regard to plot Nos. 383 and 1033, referred to above, dated 18-1-1955 under Section 4(h) of the Act and directing the petitioner to give up possession under Section 4(g) of the Act is quashed. Let a writ of certiorari be issued against the opposite parties to, the above effect. The petitioner is entitled to his cost. Hearing fee Is assessed at Rs. 100/-.
14. It may be noted that on behalf of some of the members of the public Mr. Rajendra Prasad Sinha has appeared to support the order of the Additional Collector on merits. But we are not concerned in the present application with the merits of the case. The Additional Collector having been held to have no jurisdiction to pass the order in question it is immaterial whether his order is good or bad on merits.
Banerji, J.
15. I agree.