Himachal Pradesh High Court
Geeta Devi vs State Of H.P. & Another on 7 October, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.6760 of 2010
.
Judgment Reserved on: 06.09.2016
Date of decision: 07.10.2016
Geeta Devi ....Petitioner
Versus
State of H.P. & Another ....Respondents
of
Coram
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting ?1 Yes.
For the Petitioner: Mr.Sunil Mohan Goel, Advocate.
For the Respondent No.1: Mr.Rupinder Thakur, Additional
Advocate General with Mr.Rajat
Chauhan, Law Officer.
For Respondent No.2: Nemo.
Sandeep Sharma,J.
By way of present writ petition filed under Article 226/227 of the Constitution of India, petitioner, who is owner of land in dispute, has laid challenge to the order dated 27.7.2010 passed by Financial Commissioner (Appeals), H.P. in Revision Petition No.132 of 2009, filed under Section 65 read with Section 118 sub-section 3(C) of H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the `Act'), 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 2whereby he upheld the order of Divisional Commissioner, Shimla Division, Shimla, affirming the order of Collector, .
Solan, holding the petitioner herein responsible for violation of Section 118(1) of the `Act' and accordingly ordered for confiscation/vesting of the property in dispute in State of Himachal Pradesh alongwith building constructed thereon of free from all encumbrances.
2. The genesis of the entire case is based on the order of Collector, Solan, passed in case No.25/13 of 1999.
rt In nutshell case of respondent-State was that the petitioner herein, resident of village Manjhu, Tehsil Arki, District Solan, H.P., executed an agreement to sell qua the land comprised in Khasra No.531/472/422/389/59, measuring 0-2 Bigha, situated in Mauza Abadi Village Hatkot (Kunihar), Tehsil Arki, District Solan, and put one Shri J.P. Shah in possession of the same in violation of Section 118 of the Act without obtaining prior sanction of the Government, as required under Section 118 of the Act. Respondent-State, before initiating proceedings under Section 118 of the Act, got the matter inquired from Sub Divisional Officer(C), Arki on two occasions, who vide communication dated 27.1.2000 reported to the Deputy Commissioner, Solan that "in the light of above statements recorded by the undersigned, it is ::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 3 revealed that both Smt.Geeta Devi and J.P. Shah claimed themselves to be owner and tenant of the house under report .
respectively". He further reported that, "no deed has been executed for the transfer of the land as yet, therefore, the case does not fall within the ambit of Section 118 of the Act". He also reported that, "the parties have entered into an of agreement of Rs.14000/- and they may execute sale deed for which permission is reported to have been sought by Sh.J.P. Shah". SDO(C) further suggested that, "when the deed will rt come for registration before the Sub Registrar, the matter could be examined at that time". But, it appears that matter was again inquired into by SDO(C), Arki, who vide communication dated 7.4.2000, addressed to the Deputy Commissioner, Solan, reported that in view of contradictory statements of the parties, it emerges that house has been constructed by Shri J.P. Shah and not by Smt.Geeta Devi and as such plea of Shri J.P. Shah's being tenant does not sustain in view of the statement of Shri Radhe Shyam and Shri J.P. Shah himself. Subsequent to aforesaid reports submitted by SDO(C), present petitioner was served with show cause notice calling upon her that why proceedings be not initiated against her under Section 118 of the Act.
::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 43. Perusal of Annexure P-2 suggests that present petitioner filed reply to the notice dated 23.4.1999, wherein .
she claimed her to be exclusive owner in possession of the land described in the notice. She also claimed that she has raised/constructed a house over the suit land by spending her own money and by taking loans from the others. She of also denied that she has sold property to J.P. Shah by way of agreement after receiving consideration. Rather, she stated that J.P. Shah is tenant in the house, existing over the suit rt land in question, and in no manner any transfer of land having been made by the replying respondent to anyone. To substantiate her aforesaid plea, she also stated that till date she is exclusive owner in possession of the land and the house in question and as such provisions of Section 118(3) of the Act are not applicable in the present case. However, fact remains that Collector concerned, being not satisfied with the reply submitted by the present petitioner, initiated proceedings under Section 118 of the Act against the present petitioner and vide order dated 31.7.2006 ordered that the land comprised in Khasra No.531/472/422/398/59, measuring 0-2 Bigha, situated in Mauza Abadi Village Hatkot (Kunihar) is hereby confiscated in the State of Himachal ::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 5 Pradesh alongwith building constructed thereon free from all encumbrances.
.
4. Petitioner, being dissatisfied with the aforesaid order passed by Collector, Solan, filed a Revenue Appeal No.100/2009 under Section 118(3)(b) of the Act, as amended up to 1994, before Divisional Commissioner, Shimla Division, of Shimla. However, the same was dismissed on 10.8.2009 by the Divisional Commissioner, Shimla, by holding that fact of possession, having been transferred to Shri J.P. Shah for rt long time, has not been disputed by the appellant and as such there is a violation of provisions of the Act.
5. Feeling aggrieved and dissatisfied with the aforesaid orders passed by the Collector and Divisional Commissioner, present petitioner filed a Revision Petition under Section 118(3)(C) of the Act, specifically assailing therein order dated 10.8.2009 passed by the Divisional Commissioner, Shimla Division in Revenue Appeal No.100 of 2009, which came to be registered as Revision Petition No.132 of 2009. But learned Financial Commissioner (Appeals) dismissed the revision petition filed by the present petitioner and held that since Shri J.P. Shah, in whose favour present petitioner allegedly made sale, was not an agriculturist, as such, transaction was ab-initio void as per ::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 6 provisions of Section 118(3)(C) and (D) of the Act and as such land alongwith the building will vest in the State.
.
6. In the aforesaid background, present petitioner, being aggrieved with the orders passed by Financial Commissioner (Appeals) in Revision Petition, referred hereinabove, whereby he, while rejecting the revision petition of preferred on behalf of the present petitioner, upheld the orders passed by Divisional Commissioner as well as Collector, wherein they had come to the conclusion that the rt present petitioner, Smt.Geeta Devi, put Shri J.P. Shah into possession of suit land in violation of provisions of Section 118(3) and as such ordered for confiscation of the property, preferred this writ petition.
7. Mr.Sunil Mohan Goel, learned counsel representing the petitioner, vehemently argued that the impugned order passed by Financial Commissioner (Appeals), whereby he upheld the orders passed by the Divisional Commissioner and Collector, is not sustainable in the eye of law as the same is in grave violation of provisions of the Act.
Mr.Goel contended that bare perusal of order passed by Collector itself suggests that it was not proved on record that present petitioner had made any sale in favour of J.P. Shah in violation of Section 118 of the Act, rather property in ::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 7 question was given on monthly rent to Shri J.P Shah. He also contended that at no point of time respondent-State was able .
to prove on record by leading cogent and convincing evidence that any deed was executed for transfer of land in violation of the provisions of Section 118 of the Act and as such no action could be initiated against the petitioner in terms of of Section 118(3) of the Act. To substantiate his aforesaid plea, he invited the attention of this Court to Annexure P-3 i.e. communication dated 27.1.2000, whereby SDO(C) Arki, had rt submitted his report to Deputy Commissioner, Solan, stating in uncertain terms that no deed has been executed for transfer of land as yet, therefore, the case does not fall within the ambit of Section 118 of the Act.
8. Mr.Goel further argued that if for the sake of arguments, case of the respondent-State is taken to be correct that petitioner Smt.Geeta Devi had executed an agreement to sell in favour of J.P. Shah for sale of suit land, even in that eventuality no action could be taken against present petitioner for violation of Section 118 of the Act because Section 118 of the Act prevalent at the time of alleged execution of agreement did not contemplate any penal action in case land is intended to be sold in favour of non-
Himachali by way of agreement. In the aforesaid ::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 8 background, Mr.Goel prayed that impugned orders passed by the Financial Commissioner, Divisional Commissioner and .
Collector are required to be quashed and set aside.
9. Mr.Goel, while concluding his arguments, invited the attention of this Court to para-13 of the orders passed by the Financial Commissioner (Appeals) in Revision Petition, of whereby he allegedly dealt with aforesaid fact of amendment in the Act, to demonstrate that Financial Commissioner below miserably failed to make distinction between the rt provisions contained in un-amended Section 118 of the Act and subsequent amendment in the Act. Mr.Goel also stated that learned authorities below failed to take note of judgment passed by this Court in Smt.Santosh Malhotra vs. State of H.P. and Others, 2003(3) Shiml.L.C. 342, wherein, issue, involved in the present case, has been elaborately dealt with by this Court.
10. Mr.Rupinder Singh Thakur, learned Additional Advocate General, argued that impugned orders passed by the Authorities below are based on correct appreciation of evidence available on record as well as law, as such, no interference, whatsoever, of this Court is warranted in the facts and circumstances of the present case. Mr.Thakur vehemently argued that it stands duly proved on record that ::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 9 present petitioner put non-agriculturist into possession of the land in dispute in violation of Section 118 of the Act without .
taking prior permission from the authorities as envisaged under Section 118 of the Act and as such no illegality and infirmity can be found in the impugned orders passed by the authorities as referred hereinabove. He also invited the of attention of this Court to the latest judgment passed by the Division Bench of this Court in Som Kirti alias Som K.Nath and Others vs. State of H.P. and Others, Latest HLJ 2013 rt (HP) 1223 and other connected matters, whereby validity of Section 118 of the Act has been upheld. In the aforesaid background he prayed for dismissal of instant writ petition.
11. I have heard learned counsel for the parties and have gone through the record of the case.
12. Before adverting to the merits of the case, it may be stated that there is no dispute as far as validity of Section 118 of the Act ibid is concerned. Though issue with regard to validity of Section 118 of the Act has been examined by the Division Bench of this Court in many cases, but recently, while dealing with the batch of writ petitions, wherein vires of Section 118 of the Act were challenged by many parties, Division Bench of this Court vide judgment dated Ist October, 2013 passed in CWP No.443 of 1995, titled Som Kirti ::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 10 alias Som K.Nath and others vs. State of H.P. and others upheld the validity of Section 118 of the Act and as such this .
Court has no occasion, whatsoever, to examine validity, if any, of Section 118 of the Act.
13. This Court solely with a view to test the correctness and genuineness of arguments having been of advanced on behalf of the petitioner that no penal action in terms of Section 118 of the Act could be taken against the present petitioner even if it is presumed that she had rt executed agreement to sell in favour of J.P. Shah for selling property in terms of un-amended Section 118 of the Act, would be examining issue at hand in light of the Section 118 of the Act.
14. The State of Himachal Pradesh enacted H.P. Tenancy and Land Reforms Act, 1972, Chapter-XI deals with Control on transfer of land, wherein under Section 118 transfer of land to non-agriculturists is prohibited, it would be relevant to reproduce herein below Section 118 amended by amendment Act, 1988:-
"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 force, but save as otherwise provided in this Chapter, on transfer of land (including sales in execution of a decree of a civil Court or for recovery of arrears of land revenue), by way of sale, gift, exchange, lease, mortgage with possession or ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 11 creation of a tenancy shall be valid in favour of a person who is not an agriculturist.
(2). Nothing in sub-section (1) shall be deemed to prohibit the transfer of land by any person in .
favour of-
(a) to (h) .................
(i) a non-agriculturist with the permission of State Government for the purpose that may be prescribed:
Provided.............
of (3) No Registrar or the Sub-Registrar appointed under the Indian Registration Act, 1908 (16 of 1908), shall register any document pertaining to a transfer of land, which is in contravention to sub-section (1) and such transfer shall be void ab rt initio and the land involved in such transfer, if made in contravention of sub-section (1), shall, together with structures, buildings or other attachments, if any, vest in the State Government free from all encumbrances."
15. Perusal of aforesaid amended Act of 1988 provides that no transfer of land by way of sale, gift, Will, exchange, lease, mortgage with possession, creation of tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist.
16. However, proviso to aforesaid provisions suggests that non-agriculturist can purchase land with the prior permission of the State Government. But close scrutiny of aforesaid provisions, as amended; nowhere suggest that there is any bar to transfer the land by way of agreement. But, at this stage, it may be noticed that H.P. Tenancy and Land ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 12 Reforms (Amendment) Act, 1994 came into force on 22.3.1995, wherein explanation of Section 118(1) of .
Amendment Act was incorporated as under:
"Explanation.- For the purpose of this sub- section, the expression "transfer of land" shall include:-
(a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a non-
agriculturist, and of
(b) an authorization made by the owner by way of special or general power of attorney or by an agreement with the rt intention to put a non-agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is a real owner of that land."
17. Perusal of aforesaid amendment, which came into force on 22.3.1995, suggests that after amendment no transfer of land could be made by way of Special or General Power of Attorney or by an agreement with the intention to put an non-agriculturist in possession of the land and allow him to deal with the land in like manner as if he is real owner of that land.
18. Perusal of aforesaid explanation, which came into force on 22.3.1995, certainly suggests that after 22.3.1995 no transfer of land could be made by way of agreement also.
19. But in the present case, as clearly emerged, that alleged agreement to sell was entered into by the petitioner ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 13 herein with J.P.Shah in the year 1990 i.e. admittedly before coming into operation of H.P. Tenancy and Land Reforms .
(Amendment) Act, 1994, wherein transfer of land was made prohibited even by way of agreement.
20. Hence, in view of aforesaid, this Court sees substantial force in the contention put forth on behalf of the of counsel representing the petitioner. This Court, after perusing aforesaid amendment as well as case law referred by petitioner rt before Commissioner i.e. Smt.Santosh Mahlotra vs. State of H.P. and Others, 2003 (3) Shim.L.C. 342, has no hesitation to conclude that learned Financial Commissioner has fallen in grave error while concluding that "the amendments to the Act carried out in 1994 (and valid from 4.4.1995) do not come into play; the transaction between the petitioner took place around 1990 and the provisions incorporated by the 1987 amendments (valid from 14.4.1988 onwards) would cover the case fully. Section 118(3) of the amended Act provides for vesting of the land and structures/buildings in the State". Had Financial Commissioner (Appeals), while examining revision petition preferred on behalf of petitioner herein, bothered/cared to take into consideration the law referred by petitioner in Santosh Mahlotra's case supra, he would have not passed ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 14 order which is impugned before this Court by way of present petition.
.
21. At this stage, this Court deems it necessary to refer to the law made by this Court in the aforesaid case of Santosh Mahlotra, where this Court has held as under:-
"12. I have duly considered the respective contentions of the learned counsel for the parties. From the perusal of the original record of the Collector, of Shimla, it is not in dispute that notices were issued by the collector to Jaidev Malhotra, Sh.B.N. Malhotra, Smt.Santosh Malhotra and Suresh Kumar Shukla under Section 119(1) of 'the Act' and Rule 38(B) of H.P. Tenancy and rt Land Reforms Rules, 1975. All the parties have appeared before the Collector. Sh.B.N. Malhotra made the specific statement that his son Jaidev Malhotra purchased land in Kachhighati on which building had been constructed Jaidev Malhotra made the statement that the land in dispute belongs o his mother Smt.Santosh Malhotra on which he constructed the building. The Collector Shimla passed the order dated 20.2.1995 (Annexure P-2) in case No.1/94 against Jaidev Malhotra on the basis of the Income-tax returns filed by him before the Income Tax Department for the assessment years 1993-94 and 1994-95 in which he had shown having spent a sum of Rs.1,90,000/- on the construction of the building. The Collector Shimla in his order recorded the findings that as the General Power of Attorney (Anenxure P-1) has been executed by Suresh Kumar Shukla owner of the land in favour of Smt.Santosh Malhotra keeping in view the fact that no sale deed could be executed in favour of Smt.Santosh Kumar Mahlotra as she is not the agriculturist of State of H .P. and Jaidev Malhotra invested a sum of Rs.1,90,000/- for the construction of the building, therefore, the land has been acquired by him in violation of Section 118 of 'the Act'. The order of the Collector has been affirmed both by the Divisional Commissioner and by the Financial Commissioner in appeal.
13. The State of Himachal Pradesh enacted the H.P. Tenancy and Land Reforms Act, 1972. Chapter XI deals with Control on transfer of land.::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 15
Section 118 prohibits the transfer of land to non-agriculturists which reads 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 force, but save as otherwise provided in this Chapter, on transfer of land (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue), by way of sale, gift, exchange, lease, mortgage with possession or creation of a tenancy shall be valid in favour of a person who is not an agriculturist.
of (2) Nothing in sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour of--
(a) to (h)................... rt
(i) a non-agriculturist with the permission of State Government for the purpose that may be prescribed:
Provided..........
(3) No Registrar or the Sub-Registrar appointed under the Indian Registration Act, 1908 (16 of 1908), shall register any document pertaining to a transfer of land, which is in contravention to sub-section (1) and such transfer shall be void ab initio and the land involved in such transfer, if made in contravention of sub-section (1), shall, together with structures, buildings or other attachments, if any, vest in the State Government free from all encumbrances."
14. The revenue authorities below have mis-directed themselves in applying the above extracted provisions of Section 118 of the 'Act' in the present case. Suresh Kumar Shukla has not transferred his ownership rights and interest in the property in favour of Smt. Santosh Malhotra by way of General Power of Attorney (Annexure:P1) and the transfer by way of execution of the General Power of Attorney is not incorporated in Section 118(1) of the 'Act'. The transfer of land to non-agriculturist is only barred under Section 118(1) if the transfer is by way of sale gift, exchange, lease, mortgage with possession or creation of tenancy including sales in execution of a decree of a Civil Court or for recovery of arrears of Land Revenue. The General Power of Attorney has been executed on 7.11.1991 by Suresh Kumar Shukla the owner of ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 16 the property in favour of Smt.Santosgh Malhotra in which she has only been authorized to look after, manage, sell or construct the building on the piece of land, to enter into agreement, to sell, to receive the earnest money, to execute or .
sign on the sale deed etc. etc. On bare reading of the General Power of Attorney it cannot be concluded that Suresh Kumar Shukla has transferred the land by way of sale, gift, etc. etc. envisaged in Section 118(1) of the Act in favour of Smt. Santosh Malhotra or in favour of Jai Dev Malhotra nor it is proved on record that Smt. Santosh Malhotra has sold the land to her son Jaidev Malhotra on the strength of the General Power of Attorney. The reasoning of the Collector of that as Jaidev Malhotra had spent a sum of Rs.1,90,000/- on the construction of the building on the land as reflected by him in his Income-tax returns will not be a sufficient proof that Suresh Kumar Shukla has transferred the land to rt Jaidev Malhotra on the basis of the General Power of Attorney executed in favour of his mother. The H.P. Tenancy and Land Reforms (Amendment) Act, 1994 came into force on 22.3.1995 whereas the General Power of Attorney (Annexure P-1) has been executed on 7.11.1991 as noticed above and the Collector passed the order (Annexure-P2) on 20.2.1995 prior to the date of the enforcement of the amended Act. Explanation of Section 118(1) of the Amendment 'Act' reads as under:
"Explanation - For the purpose of this sub-section, the expression "transfer of land" shall include:-
(a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a non-
agriculturist, and
(b) an authorization made by the owner by way of special or general power of attorney or by an agreement with the intention to put a non- agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is a real owner of that land."
(Pp.347,348 & 349)
22. Careful perusal of aforesaid judgment passed by this Court in Santosh Mahlotra's case supra clearly suggest ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 17 that provisions incorporated in the principal Act by amendment Act 1994, which came into force on 22.3.1995 .
could not be made applicable in the cases which pertained to years prior to amendment carried out on 22.3.1995. Hence, this Court has no hesitation to conclude that revenue authorities have passed impugned orders against the of petitioner herein, contrary to the provisions of Section 118 of 1988 Act, because amendment Act, which came into force on 22.3.1995, could not be made applicable retrospectively in rt the present case.
23. At this stage, it may be stated that though respondent, while opposing present petition, did not raise issue, if any, of retrospectively as far as amendment Act, 1994 is concerned, which came into force on 22.3.1995, but it is well settled law that in the absence of anything in enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to claim under litigation at the time when the Act was passed (See: Garikapatti Veeraya vs. N.Subblah Choudhury, 1957 SCR 488).
24. Since this Court had an occasion to peruse H.P. Tenancy and Land Reforms (Amendment) Act, 1994, wherein expression 'transfer of land' was amended, but this Court ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 18 was unable to find any specific clause stating therein that amendment would have retrospective operation and as such .
it can be inferred that Amendment Act, 1994 was prospective in nature.
25. As clearly emerged from the judgment passed by this Court, referred hereinabove, the issue at hand is not of more res intigra, rather pursuant to aforesaid judgment, this Court in number of judgments reiterated the view taken in Santosh Mahlotra's case supra.
rt
26. Reliance is placed on the judgment of our own High Court in Dhyan Singh vs. State of Himachal Pradesh and Others, 2012 (3) Shim.L.C. 1741, wherein this Court, while dealing with the aforesaid aspect of amendment, has also dealt with issue of retrospectivity and as such it would be profitable to refer to para-6 of the judgment:-
"6. Learned Counsel also places reliance on the decision of the Supreme Court in Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others, (1999)8 SCC 16. The Court holds:
22. In view of the facts and circumstances of the case and in the alternative Mr. Agarwal, the learned counsel for the respondent has urged that the amending Act being substituted legislation would have retrospective effect.
23. In Garikapatti Veeraya v. N. Subbiah Choudhury, [1957] SCR 488, Chief Justice S.R. Das speaking for the Court observed as follows :
"The golden rule of construction is that, in the absence of anything in the ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 19 enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."
.
24. We may also refer to Francis Bennion's Statutory Interpretation, 2nd Edn.,at p. 214 wherein the learned author commented as follows :
"The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in rt force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of expost facto law is enshrined in the United States Constitution and in the Constitutions of many American States, which forbid it. The true principle is that Lex prospicit non respicit (law looks forward not back).
As Willes, J. said, retrospective legislation is `contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."
25. This Court in Hitendra Vishnu Tlutkur and Others v. State of Maharashtra and Others, [1994] 4 SCC 602 has culled out the principles with regard to the ambit and scope of an amending Act and its retrospective operation 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 tex-tually 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 ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 20 relating to right of action and right 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.
(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 of 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."
27. rt After bestowing my thoughtful consideration qua [P.25 & 26) the fact and circumstances of the case, especially proposition of law as discussed in detail hereinabove, I find that case at hand was squarely covered by decision of this Court in Santosh Mahlotra's case supra and as such Financial Commissioner (Appeals) has erred in law while holding that amendments to Act carried on in the year 1994 do not come into play and provisions incorporated in 1987 of the amendment covers the case fully.
28. This Court is of the view that amendment in the Act, made on 22.3.1995 prohibiting transfer of land by way of agreement, is not retrospective and as such agreement to sell made, if any, by present petitioner prior to amendment Act, 1994, cannot be said in violation of provisions of Section 118 ::: Downloaded on - 15/04/2017 21:23:04 :::HCHP 21 of the Act. Accordingly, order of Financial Commissioner, affirming the orders of authorities below, is quashed and set .
aside. This petition is allowed with no order as to costs.
8. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
October 7, 2016 (Sandeep Sharma)
of
(aks) Judge
rt
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