Allahabad High Court
Parmeshwar Gond (Decd.) Through L.Rs. vs Iind Additional District Judge, Deoria ... on 12 May, 1998
Equivalent citations: 1999(1)AWC157, 1998 ALL. L. J. 2192, 1998 A I H C 4889, (1999) 1 ALL WC 157, (1998) REVDEC 742, 1998 ALL CJ 2 826
Author: D. K. Seth
Bench: D.K. Seth
JUDGMENT D. K. Seth, J.
1. Opposite party Nos. 3, 4 and 5 instituted Suit No. 1951 of 1958 before the Munsif. Deoria against the petitioner as defendant for injunction and demolition of Kuchha structure made by the defendant, on the alleged ground that the said opposite parties had purchased the said land by a registered deed of sale dated 29.8.1953, after which their names were so recorded as tenure-holders in respect of the said land. The suit was decreed on 7.9.1962 on contest. An appeal being Appeal No. 3667 of 1962 was filed by the petitioner against the said order. The appeal was dismissed on contest by an order dated 25.9.1968. The opposite parties decree holders levied Execution Case No. 67 of 1968 on 15.11.1968. In the said execution case, the petitioner-judgment debtor filed an objection under Section 47 of the Civil Procedure Code on 12.9.1977. In the said objection, it was pleaded that the land being an agricultural land, it is subject to Section 122C of the U. P. Zamindari Abolition and Land Reforms Act, 1951, (hereinafter referred to as the Act) and thereby liable to be settled with the petitioner, a member of Scheduled Caste under Section 123 (2) of the Act. This objection was allowed by the executing Court by an order dated 26.2.1979. A revision being Revision No. 94 of 1979 was filed against the said order. By an order dated 29.1.1980, the revision was allowed and the order dated 26.2.1979 was set aside. It is this order dated 29.1.1980 which is the subject-matter of challenge in the present writ petition.
2. Mr. Swaraj Prakash. Learned counsel for the petitioner, contends that Section 122C of the Act provides for settlement of housing site for members of Scheduled Caste and agricultural labours. According to him, the petitioner belongs to Gond community, which was declared within the list of Scheduled Caste on 8.12.1978. Therefore, according to him, the petitioner is eligible for settlement of such housing site under Section 122C of the Act according to preference provided in the said section. He further contends that Section 123 prescribes the manner for settlement of such housing sites with the existing owners. According, to him, the land being a land held by the decree holders as tenure-holders, the same is to be settled by virtue of Section 123 (2) of the said Act in favour of the petitioner. He stresses on the expression "notwithstanding anything contained in this Act" in sub-section (2) and contends that by reason of such non-obstante clause, the land held by the petitioner is to be settled with the petitioner notwithstanding anything contained in the Act. According to him, this non-obstante clause has the effect of nullifying the decrees which had not yet been satisfied or executed. He further contends that by virtue of Act No. XXI of 1971, Section 123 was re-
enacted which was subsequently described as sub-section (1) after Act No. XXXIV of 1974, was enacted. According to him, the scheme of Act No. XXI of 1971, read with that of Act No. XXXIV of 1974, makes it clear that the provisions contained in Section 123 (1) and 123 (2) were given retrospective effect by implication. Since nothing has been mentioned in the said two Acts, the said section shall be deemed to have always been in the Act. The intention of the legislature can be gathered from the very expression used in the said Act to the extent that the date provided in Act No. XXXIV of 1974 prescribes 15th March, 1974 as the prescribed date. Since the petitioner had been holding the land under a tenure-holder where the house existed on 15th March, 1974, the provisions of sub-section (2) of Section 123 is very much applicable since the decree had not been executed till then. According to him, the said section has not made any distinction with regard to holding of the house or existence of any decree or otherwise. Since it does not recognise any of the contingencies specifically in the said section, the decree shall be deemed to have become nullified and cannot override the provisions contained in the said Act as brought by amendment though Act No. XXXIV of 1974, since according to him, the U.P.Z.A. and L.R. Act is a special statute which will override such situation.
3. Mr. A. B. Singh. learned counsel for the opposite party, on the other hand contends that the petitioner was not declared Scheduled Caste till 8.12.1978 since only by virtue of notification issued on the said date the Gond community was included within the list of Scheduled Caste and therefore on 15th March. 1974, the petitioner cannot be said to be a member of Scheduled Caste. He further contends that there is nothing either in the Act No. XXI of 1971 or in Act No. XXXIV of 1974. which renders a valid decree of a Court void or nullified. The said amending Acts has not provided any overriding effect nor retrospective operation. The U.P.Z.A. and L.R. Act also does not contain anything which has the effect of nullifying a decree or rendering it void. It may be a special statute which may have special application, but unless it is expressly provided that it has the effect of nullifying a decree on certain contingencies, such a situation cannot be presumed. If the legislature had such intention, in that event it should have been expressed in the legislation itself or could have been intended such provision which by implication would mean as such. Then again, he contends that Section 123 stood deleted between 1958 and 1971. When the decree was passed in 1962. Section 123 was not there. Even execution was levied before Section 123 was re-enacted by 1971 Act. However, land of the decree holder could not be brought within the purview of Section 123 until Act No. XXXIV of 1974 was enacted. In such circumstances, by no stretch of imagination, this provision could be said to have retrospective effect or could have been deemed to have the effect of nullifying a decree or rendering the same void or in other words to render the decree inexecutable. Therefore, according to him, the order passed by the revisional Court is perfectly justified. He also contends that even on merits, the petitioner is not entitled to such benefits. He further contends that subsequent amendment cannot nullify the judgment or decree and cites a few decisions which will be dealt with at appropriate stage. Similarly, Mr. Swaraj Prakash has also cited certain decisions which will be dealt with at appropriate stage.
4. I have heard Mr. Swaraj Prakash, learned counsel for petitioner, Mr. A. B. Singh, learned counsel for opposite parties and Mr. Upadhyaya, learned standing counsel at length.
5. In order to appreciate the rival contentions of the learned counsel advanced before this Court, it is necessary to refer to the history of Sections 122 and 123 respectively. Section 122 as it originally stood in the said Act related only to the constitution of a committee as contemplated in Section 121 for management of the land belonging to Gram Panchayat. It did not provide anything with regard to settlement of housing sites to the Scheduled Caste or otherwise. Section 123 as it stood originally provided for the term of such committee and method of conduct of its business as may be prescribed. However, this section did not provide anything else as was re-enacted in 1971 Act or 1974 Act respectively. The said Section 123 continued until 1958 when Section 123 was deleted by Act No. XXXVII of 1958. Section 122 has also undergone certain changes in the meantime. Section 122C was inserted by U. P. Act No. XXI of 1971. By the said Act No. XXI of 1971, Section 123 was re-enacted. Thereafter by Act No. XXXIV of 1974, sub-section (2) of Section 123 was inserted while describing Section 123 as amended by Act No. XXI of 1971 as sub-section (1).
6. After tracing out the legislative history as indicated above, it appears that when the suit was instituted in 1958. Section 122C or 123 as it stood after the Act No. XXI of 1971, came into force, was not in existence- The suit was decreed in 1962 and the appeal stood dismissed in 1968 and the execution was levied in 1968. Even till then Section 122C and Section 123 was non-existent. The land having been belonging to the opposite parties as tenure-holders, it could not be brought within the purview of Section 123 as inserted by Act No. XXI of 1971. Therefore, till Act No. XXXIV of 1974, the land could not be brought within the purview of said provisions. Then again, admittedly, the Gond community was not originally in the list of Scheduled Caste till 8.12.1978. Therefore, until 8.12.1978 the petitioner could not claim the benefits of Act No. XXXIV of 1974. Thus, though benefit of Act No. XXXTV of 1974, was available in 1974, but since the community to which the petitioner belonged having not been declared to be within the list of Scheduled Caste, the petitioner could not claim benefits of the same until 1978.
7. This is one of the ground advanced by Mr. Swaraj Prakash to explain the delay in taking objection through Section 47 only in 1979.
8. Now, the question remains as to whether the Act No. XXXIV of 1974 vis-a-vis Act No. XXI of 1971, could be treated to have retrospective effect or could have the effect of nullifying a valid decree.
9. The text of Act No. XXI of 1971, which brought into being Sections 122C and 123 (1) as it stands today, did not provide anything either expressly or by implication to indicate that the said provision shall be deemed to have always been in the statute nor it has provided anything to indicate that on and from the appointed date ; valid decrees of the Court would become void or be rendered a nullity. Then again. Section 123 as was inserted through 1971 Act did not include the land belonging to tenure-holders. It had related only to the land belonging to Gaon Sabha. Only by virtue of Act No. XXXIV of 1974, the land of a tenure-holder was also brought within the purview of Section 123 (2) read with Section 122C of the said Act for the first time. The said Act received the assent of the Governor on 25.4.1972 and was published in the gazette on 28.4.1972. The appointed date mentioned therein was 15th March, 1974. This Act No. XXXIV of 1974, also did not provide anything to indicate that it shall always be deemed to be in the statute or that it has been given any retrospective effect by express provision or by implication. After having checked up the scheme of the 1974 Act. I have not been able to find out anything which even by implication indicates that the said provision is to be given retrospective effect. No where in the four corners of the said Act enacted anything so as to render a decree of the Court invalid or a nullity, either by express provision or by implication. The said provision has not been given any such overriding effect. Similarly, the U.P.Z.A. and L.R. Act also does not contain any provision which indicates that a valid decree passed by the Court could become a nullity or void by reason of enactment of Section 123 (2) from the appointed date namely in 1974.
10. Then again, from the facts as disclosed above, on 15th March, 1974 the petitioner was ineligible to claim benefit under Section 123 (2) since till, 8.12.78 Gond community to which the petitioner belonged was not included within the list of Scheduled Caste. Only in 1978, he could have laid the claim prospectively and which should be a date after 1978. Inclusion of Gond community in the list of Scheduled Caste has not been given retrospective effect. The expression used in 1974 Act "notwithstanding anything contained in this Act" is confined to the provisions contained in the Act. It cannot exceed the scope of the Act itself. The said expression cannot be stretched in its application to anything beyond the Act. A decree passed by the Court is not a matter contained in the Act. The insertion of sub-section (2) of Section 123 has not provided either by express provision or by implication to have been given the effect of nullifying a decree or rendering such decree void and thereby making the same inexecutable.
11. The rights of the parties as soon the decree is passed is governed by the decree. Such decree can be set aside only through judicial process either in appeal or in revision or by such remedy as provided in the judicial system. Such decree can also be rendered invalid or void through specific enactment in the statute by express provision. In the absence of any express provision to that effect in the statute, the same cannot have the effect of rendering the decree void and a nullity.
12. In such circumstances, ! have not been able to persuade myself to agree with the contention of Mr. Swaraj Prakash as raised by him. On the other hand. It seems that the submissions made by Mr. A. B. Singh and Mr. Upadhyay, learned standing counsel, are of substance. Following the rationale of the submissions of Mr. Singh and Mr. Upadhyay, I have no hesitation to agree with their contentions as advanced by them.
13. The other contention which weighs with me and having been so raised by Mr. Singh that the executing Court cannot go behind the decree which is an established principle of law and is supported by a number of decisions. One such decision is in the case of Seth Hiralal Patni v. Sri Kali Nath. 1962 (21 SCR 747 : AIR 1962 SC 199. In the said case the extent of power of the executing court with regard to the context as to whether the same is executable or not, was deak with. In the said case, it was held that the validity of the decree could be challenged in execution proceedings only on the ground that the court which had passed the decree was lacking inherent jurisdiction in the sense that it could not have seizin of the case because the subject-matter was wholly foreign to its jurisdiction, or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other grounds which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of subject-matter of the suit or over the parties to it.
14. It is a settled principle of law that the executing Court cannot go behind the decree. But this principle has a distinguishing feature. The executing Court can well look into executability of the decree. The test of executability of the decree does not amount to go behind the decree. Whenever a decree comes before the executing Court, it has duty to see first as to whether the decree, as it is, is executable or not. The scope and ambit of such test has consistently been held by the High Courts and the Apex Court to be confined only to the testing as to jurisdiction of the Court passing the decree. Or in other words, on the date of pronouncement of the decree, whether the Court had jurisdiction to pass the decree or did lack it. Unless on the date of passing the decree, the Court is possessed of jurisdiction, it could not have passed the decree. Thus, the inherent lack of jurisdiction renders the decree by such Court lacking jurisdiction a nullity by reason of its being passed without jurisdiction.
15. Then again, there is two kinds of lack of jurisdiction, one is inherent lack of jurisdiction which can never be surmounted and 'the other is irregularity in the Jurisdiction which could be waived by the parties or may be ignored at the appellate or revislonal stage when the Jurisdiction was not objected to at the first opportune moment as was the ratio decided in the case of Ledgard v. Bull. 1886 LR 13 IA 134.
16. In the said case of Seth Hiralal (supra), executabillty of ihe decree was opposed under Section 47, C.P.C. on the ground that the Court had lacked territorial jurisdiction. In the said case it was held "it is well-settled that the objection as to local Jurisdiction of a Court does not stand on the same fooling as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure."
17. In the present case, as observed earlier, when the decree was passed, the Court did not lack jurisdiction either inherently or even irregularly. On the other hand, it is a case as to whether by reason of subsequent enactments, the decree has become irregular or illegal. It is also observed earlier that by virtue of subsequent enactment the decree has not been rendered a nullity neither such enactment had the impact of creating inherent lack of Jurisdiction on the Court prior to the date of incorporation of the present provision in the enactment, in the absence of its retrospectivity or nullifying the effect of the decree.
18. The other judgment that was relied by Mr. A. B. Singh was the decision in the case of Sunder Doss v. Ram Prakash., 1977 (2) SCC 622 : AIR 1977 SC 1201. However, in the said case, the decree was held to be a nullity on the ground that proviso was added to Section 3 of the Delhi Rent Control Act. 1958 by Act No. 4 of 1963. The said proviso provided that "notwithstanding any judgment, decree or order of any Court or other authority, the provisions of this Act shall apply." This amendment was given retrospective effect, by reason whereof, it was deemed to be there in the statute right from the Act 1958 was enacted. In the present case, neither any retrospectivtty nor any suppression of decree as discussed above, has been provided in the enactment brought through the amendment.
19. On the other hand. Mr. Swaraj Prakash had relied on the decision in the case of Vidya Sagar v. Smt. Sudesh Kumari, AIR 1975 SC 2295, wherein a decree was held to be inexecutable after coming into operation of U.P.Z.A. and L.R. Act on the issuance of notification under Section 4, by reason whereof the land involved in the decree was visited with the consequences of Section 6. It was further held that despite absence of the express provision voiding the decree or taking away the rights under the decree by operation of law, the decree was held to be inexecutable on the ground that on issue of such notification the property against which the decree was sought to be executed became extinct. The ratio decided in the said case cannot be attracted in the facts and circumstances of the present case, inasmuch as the plaintiff had applied for pre-emption and the decree of preemption was affirmed by the High Court in second appeal on 27.4.1970 relating to the land situated at Nainital. The U.P.Z.A. and L.R. Act was brought into force in the district of Nainital with effect from 1.7.1970. By reason of Section 336 of the said Act, the right of pre-emption stood extinguished at Nainital. The said decision proceeds on the basis of the right that emanated from Section 6 (h) of the said Act which deals with claim or liability, enforceable or incurred before the date of vesting, were rendered unenforceable. Thus, the right which was rendered unenforceable by reason of Section 6 (h) would not be enforced after notification under Section 4 is issued and as such executing Court had also lacked jurisdiction in enforcing such decree.
20. The execution of the decree is an enforcement of right arising out of the decree. The decree is a declaration of right capable of enforcement. A right which accrued before the date of vesting having rendered unenforceable after the date of vesting has the effect of voiding a decree though it was not so provided expressly in Section 6 (h)
21. The above decision in Vidya Sagar (supra) is distinguishable firstly, on the ground that the decree represented a claim that was enforceable before the date of vesting, which is not a case in the present one. Secondly, it was in respect of effect of vesting which had extinguished the right altogether from the date of vesting whether enforceable otherwise or through the decree, which is not a case in the present case. Thirdly, the claim culminating in the decree became enforceable on 27.4.1970 before the date of vesting being 1.7.1970 and as such became unenforceable because of Section 6 (h) will stand altogether on different footing than the provisions under Section 123 (2) read with Section 122C. Fourthly, the effect of Section 6 (h) had rendered the decree unenforceable by reason of Section 6 (h) read with Section 336 of the said Act, whereas neither Section 123 (2) nor Section 122C could be conceived of such impact as has been observed earlier. Thus, the decision in the case of Vidya Sagar (supra) does not help Mr. Swaraj Prakash and the ratio thereof cannot be attracted in the facts and circumstances of the present case.
22. The decision in the case of B. V. Patankar V.C.G. C. Shastri, AIR 1961 SC 272, cited by Mr. Swaraj Prakash also does not help him. inasmuch as in the said case Sections 8 (1) and 9 (1) of Mysore House Rent and Accommodation Control Order, 1948, was under
consideration. The said section provided that a tenant in possession of the house shall not be evicted therefrom whether in execution of a decree or otherwise before or after the termination of the tenancy except in accordance with the provisions of this clause. Similarly. Section 9 (1) provides that a tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of this clause. Thus, by virtue of express provision in the section itself, the decree were rendered inexecutable, which is not a case in the present one. In the said case, it was held that "prohibition on account of the House Rent Control Order was not against passing of the decree but against its execution and therefore the objection to the executability could only be taken at the time of execution of the decree.....,it is not an error in the exercise of jurisdiction.....
rather a fetter on the executability of the decree..... restriction on the power of the Court to execute the decree." A feature distinguishing the said case from the facts of the present one.
23. The next case that was cited on behalf of the petitioner was that of Manick Chandra Nandy u. Debdas Nandy and others, AIR 1986 SC 446. This decision was cited to support the contention of Mr. Swaraj Prakash that if it is a plea of jurisdiction, in that event the Court can go into the question of facts relating to determination as to the existence of jurisdiction of the Court either to pass the decree or to execute the decree. This is a well-settled proposition in respect whereof, there can be no two opinion. As observed earlier in the present case we have already observed that the decree had neither been rendered inexecutable nor the Court had lacked inherent Jurisdiction when the decree was passed. As such the ratio laid down therein has no manner of application for supporting the contention raised in this case on behalf of the petitioner.
24. The next case cited on behalf of the petitioner was that of Brij Bthari Dubey u. Chandra Shekhar Tewary, AIR 1975 Pat 164. This case also does not help the contention on behalf of the petitioner, inasmuch as in the said case, a suit for partition was instituted and was decreed in preliminary form before the date of vesting. But during pendency of the proceeding for preparation of final decree, the estate vested in the State under notification issued in pursuance to Section 3A of the Bihar Land Reforms Act, 1950. In the said case, it was held proprietary interest in the estate having become extinct on the issue of notification and the same having been vested free from all encumbrances, the partition in respect thereof could not be effected between the parties, who were denuded of their proprietary right. In the said case therefore it was held that it was open to the parties either to institute a fresh partition suit in respect of the land deemed to be settled with them under the provisions of Section 6 of the Bihar Land Reforms Act or may choose to proceed for preparation of fresh final decree in respect of remaining estate settled with them under the said Act on the analogy that the estate having vested, the subject-matter of the partition suit, which was merely the proprietary interest, was obliterated by force of statute and a decree in respect of such property became non est in the eyes of law and hence became inexecutable.
25. Thus, the above case is also distinguishable on facts with those of the present one. The ratio therefore, cannot be attracted to support the contention raised on behalf of the petitioner in view of the facts and circumstances of the present case.
26. For all these reasons. I am not inclined to interfere with the order dated 29.1.1980 passed in Revision No. 94 of 1979 by the learned IInd Addl. District Judge, Deoria. The writ petition, therefore, fails and is accordingly dismissed. There will be no order as to costs.