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5. The new policy that Act No. 9 of 1977 enacts is contained in Sections 3 and 4 of the aforesaid Act No. 9/1977. I, therefore, read them in full together with Section 2 (1) and Section 6 which are also relevant:-

Sec. 2. In this Act, unless the context otherwise requires:-
(1) "assigned lands" meant lands assigned by the Government to the landless poor persons under the rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or transferred to landless poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assignee" shall be constructed accordingly", Sec. 3 (1) Where, before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or a house-site then, notwithstanding anything to the contrary in any other law for the time being in force or in the deed of transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer.

S. 6. Nothing in this Act shall apply to the assigned lands held no mortgage by the State or Central Govt., any local authority, a co-operative society, a scheduled bank or such other financial institution owned, controlled or managed by a State Government or the Central Government, as may be notified by the Government in this behalf.

6. A reading of the above sections makes the intention of the legislature clear. The legislature under those sections has adopted a policy which is diametrically opposed to the policy under lying the executive instructions contained in G. O. Ms. No. 1142 dated 18-6-1954. Whereas under G. O. Ms. No. 1142 the policy adopted was one of resumption of lands, under Act 9/1977 the policy adopted is one of restoration of lands both for violation of the condition of inalienability. Under G. O. Ms. No. 1142 it is open for the executive to resume the lands from the landless poor persons on the ground that they have alienated lands. But, under the provisions of the aforesaid Act No. 9/1977 it is not so open to the executive to resume those lands and on the other hand it is the duty of the authorities to restore back the alienated lands to the grantee. Resumption of lands would mean putting an end to the title and possession of the assignees. Restoration establishes the status quo ante as obtaining on the day of alienation Sections 3 and 4 of Act No. 9 of 1977 not only by implication forbid resumption from the landless poor but what is more, they by express language oblige the authorities to restore possession back to the landless poor persons of the lands which they have alienated contrary to the conditions attaching to the grant. This objective of the law is sought to be achieved by a declaration contained in Section 3 (1) which proclaims that any alienation made by the landless poor persons called the assignee by the Act shall be deemed to be non est and accordingly no right or title in such assigned lands by such transfer. Under Section 4 (a) and (b) of the Act the District Collector is empowered to take possession of the assigned land after evicting the transferee who is in possession and restore the assigned land to the landless poor or his legal heir. It, therefore, follows that after Act No. 9/1977 has been enacted, acting in accordance with G. O. Ms. No. 1142 amounts to acting contrary to the legislative will in relation to resumption. The executive direction and the legislative enactment both being on the same topic of resumption and speaking in conflicting voices cannot co-exist. One of them alone can be operable and enforceable. It is, therefore, clear that of these two inconsistent legal instrumentalities one alone can prevail. Act No. 9/1977 being the expression of a legislative intent and therefore of superior legal efficacy should prevail over mere executive instructions contained in G. O. Ms. No. 1142 to the extent it deals with resumption. In Chief Settlement Commr. v. Om Prakash the Supreme court observed, 'the notion of inherent or autonomous law-making power in the executive administration is a notion that must be emphatically rejected." The Supreme Court quoted with approval Jackson, J., from the famous judgment in Steel Seizure case (Youngstown Sheet and Tube Co. v. Sawyer (1957) 343 U. S. 579, 655) with all its defects, delays and inconveniences men have discovered no technique for long preserving free Government except that the Executive be under the law, and that the law be made by parliamentary deliberations."

14. In his discussion of these arguments, the learned Judge first considered the question whether the aforesaid Nagaiah was a landless poor person and secondly whether the sale of 1955 violated any condition of non-alienability. The learned Judge found that the said Nagaiah was not shown to be a landless poor person. He also held that the lands assigned to Nagaiah in 1936 were not subjected to any condition of inalienability. The learned Judge, therefore, concluded that the lands assigned to the said Nagaiah in 1936 do not fall under the description of 'assigned lands' contained in Section 2 (1) of the Act No. 9/1977. The learned Judge, therefore, concluded, "In the view, I must hold that the land in question does not come within the meaning of 'assigned lands' as defined under Section 2 (1) of the Act. Hence, this Act itself cannot be applied to the case on hand". These two clear and unequivocal findings of the learned Judge are plainly enough without anything more to hold the impugned action of the respondents in that case as bad and to allow the writ petition. But, the learned Judge on an assumption that Nagaiah was a landless poor person and the grant of 1936 in his favour was burdened with a condition of inalienability raised a further question whether the Act. No. 9/1977 is prospective of retrospective. This further discussion is clearly based on an assumption of a fact which is that Nagaiah was a landless poor person and that the grant of 1936 in favour of Nagaiah was subject to the condition of inalienability. This assumption of fact is made by the learned Judge not because it is warranted by the facts of the case but only because it has become necessary for the disposal of a hypothetical question. To that hypothetical question raised on the basis of hypothetical facts the learned Judge gave an answer. Such an answer cannot but be regarded as hypothetical without enjoying the halo and sanctity of a ratio decidendi of a case. The learned Judge significantly introduced this part of the discussion with these words:- "Even assuming for the sake of argument that the land in question falls within the 'assigned lands." What the learned Judge assumed in that writ petition is the existence of a set of facts which are contrary to the facts earlier found by him. Whatever may be the position in a private law action instituted on the foundation of inconsistent facts, in a writ petition the setting of inconsistent facts is not legally permissible. Facts, barring those coming under the category of jurisdictional facts can never be found for the first time by a writ court. However serious an error of fact might be, its correction is beyond the reach of a writ court unless it be an error of jurisdictional fact. In Nagendranath Bora v. Commr. of Hills Division, our Supreme Court observed, "So far as we know, it has never been contended before this Court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the court exercising its writ jurisdiction. No ruling was brought to our notice in support of the proposition that the Court exercising its powers under Article 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of a mistake of fact apparent on the fact of the record". Marcos described the writ of certiorari as one riveted to the record. To a writ court therefore facts are nearly always sacred except where force, fraud or falsehood are alleged. But what is more to a writ court even comment is not free. It is restricted to jurisdictional errors. Writ is clearly not a substitute to a statutory appeal. Examined from the above angle of public law it appears to me that the pronouncement of law by Kondaiah, J., that Act No. 9/1977 is not retrospective on the basis of alternative findings of facts is clearly obiter. If Courts are free to assume every set of conceivable facts bearing some connection with the controversy before the Court and lay down appropriate law applicable to each set of alternative facts an impossible situation removing the last vestiges of distinction between the power to make law and the power to declare laws would arise. Judicial function must be confined to disposing of concrete cases and controversies. No doubt, this does not prevent the courts from applying more than one legal principle to ascertained facts. It only denies power to the court to find alternative facts. "An opinion given in Court, if not necessary to the judgment given on record, but that it might have been as well given if no such, or a contrary had been broached, is no judicial opinion; but a mere gratis dictum" (Vaughan, C. J., in Bole v. Horton 360, 382 quoted in Cross, Precedent in English Law p. 37 II Ed.).

16. One of the crucial differences between the Anglo Saxon and the civil law system lies in the identifiable responsibility for the individual decisions of named Judges. (See Vol. 41 Modern Law Review (1978) Page 7). If that he so. I would not be justified in referring this case to a Division Bench on the basis of my finding that the observations of Kondaiah, J., are merely obiter.

17. But there is equally another reason that impels me to hold the later part of the opinion of Kondaiah, J., as not constituting ratio decidendi of the judgment rendered by him. The judgment of Kondaiah, J., merely considered Sec. 3 (1) of the Act 9/1977 without even glancing at such other vital and significant provisions of the Act such as Section 3 (5) and Section 6. Section 3 (5) speaks in clear language of a 'land purchased by a landless poor person' prior to the commencement of this Act, showing thereby that but for the exemption granted by Section 3 (5) the Act would have applied even to that category of purchases of the lands prior to the Act by the landless poor persons from the landless poor person. Similar is the legal effect of Section 6 in relation to the lands held by Government etcetera on the date of the commencement of the Act under mortgages.