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Thuraka Onnuramma and anr. Vs. Tahsildar, Kadiri and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 2500 of 1978
Judge
Reported inAIR1980AP267
ActsConstitution of India - Articles 161 and 226; Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 - Sections 1, 3, 3(1) and 4
AppellantThuraka Onnuramma and anr.
RespondentTahsildar, Kadiri and ors.
Appellant AdvocateA. Sriramulu, Adv.
Respondent AdvocateGovt. Pleader for Revenue
Excerpt:
- - both of them were 'landless poor persons'.in g. 1142 revenue dated 18-6-1954, the state government issued executive instructions governing the mode of assignment of government lands to the landless poor persons. says that the government shall be at liberty to resume the lands and assign the same to whomsoever they like. this order of the tahsildar was made on 27-9-1977. against that order of the tahsildar the petitioners had unsuccessfully appealed to the sub-collector, penugonda and later to the district revenue officer, anantapur. 1142 dated 18-6-1954, rights of resumption in favour of the government in the event of the assignee's alienating the land is clearly reserved. 1142 dated 18-6-1954, the impugned orders of resumption in this case are clearly legal and must be upheld......order1. these are two petitioners. the first petitioner is the mother and the second in her son. both of them were 'landless poor persons'. in g. o. ms. no. 1142 revenue dated 18-6-1954, the state government issued executive instructions governing the mode of assignment of government lands to the landless poor persons. on the basis of the aforesaid g. o. and subject to its conditions the mother was assigned in the year 1956, ac. 2.50 cents of land in survey no. 970 in ginjepalli village, kadiri taluk, anantapur district. similarly in the year 1968 an extent of ac. 2.56 cents of land adjoining the above land and situated in survey no. 970/2 of the same village was assigned to the son under the aforesaid g. o. ms. no. 1142. the importance of the aforesaid g. o. ms. no. 1142, consists in the.....
Judgment:
ORDER

1. These are two petitioners. The first petitioner is the mother and the second in her son. Both of them were 'landless poor persons'. In G. O. Ms. No. 1142 Revenue dated 18-6-1954, the State Government issued executive instructions governing the mode of assignment of Government lands to the landless poor persons. On the basis of the aforesaid G. O. and subject to its conditions the mother was assigned in the year 1956, Ac. 2.50 cents of land in Survey No. 970 in Ginjepalli village, Kadiri Taluk, Anantapur District. Similarly in the year 1968 an extent of Ac. 2.56 cents of land adjoining the above land and situated in Survey No. 970/2 of the same village was assigned to the son under the aforesaid G. O. Ms. No. 1142. The importance of the aforesaid G. O. Ms. No. 1142, consists in the prohibition it enacts against alienation of the lands assigned under that G. O. Under that G. O., it is provided that the assigned lands are heritable, but not alienable and when the assignee breaches the condition of inalienability the G. O. says that the Government shall be at liberty to resume the lands and assign the same to whomsoever they like.

2. The Tahsildar, Kadiri received complaints engineered, the petitioners say, by a local landlord that the mother and son had alienated some portions of the lands assigned to them. Acting on those complaints the Tahsildar issued a show-cause notice to the petitioners on 31st April, 1977, calling upon them to show-cause why the assignments earlier made should not be cancelled and the lands resumed. To this show cause notice, the mother and the son offered their explanation admitting the alienation but pleading in extenuation as the apothecary in Romeo and Juliet pleaded in selling mortal drugs in violation of law of Mantua to Romeo that it was their poverty that consented to the sales and not their will. From the records I find that the Tahsildar got an enquiry conducted through the Special Deputy Tahsildar, Kadiri and the village officers and collected evidence from the villagers and eventually resumed the lands earlier granted to the petitioners for the reason of their violation of condition of inalienability attached to the grant. This order of the Tahsildar was made on 27-9-1977. Against that order of the Tahsildar the petitioners had unsuccessfully appealed to the Sub-Collector, Penugonda and later to the District Revenue Officer, Anantapur. The District Revenue Officer, Anantapur by his order dated 28-5-1978, confirmed the orders of resumption passed by the lower authorities. It is against these orders of the District Revenue Officer, Anantapur dated 28-5-1978, the present writ petition has been filed.

3. Under Government Order No. 1142 dated 18-6-1954, rights of resumption in favour of the Government in the event of the assignee's alienating the land is clearly reserved. Tested on the touchstone of G. O. Ms. No. 1142 dated 18-6-1954, the impugned orders of resumption in this case are clearly legal and must be upheld. If nothing new had appeared on the legal horizon of Andhra Pradesh this writ should have been dismissed. But, the legislature of Andhra Pradesh passed A. P. Act No. 9/1977, with effect from 21st January, 1977. This Act exclusively deals with the topic of resumption of Government lands assigned by the Government to the landless poor subject to the condition of inalienability and lays down a new policy of restoration of the assigned lands to the land-less poor which is diametrically opposed to the policy of resumption contained in the above G. O. Ms. No. 1142. The question that now arises is whether after the passing of the aforesaid Act No. 9/1977, the aforesaid G. O. Ms. No. 1142 dated 18-6-1954, still continues to be valid and operative in relation to the resumption of lands assigned by the Government to the landless poor under the above G. O.

4. The policy of the executive Government as contained in the above G. O. Ms. No. 1142 is to authorise the grant of Government lands subject to the condition of resumption of lands from the assignees, who had violated condition of inalienability. That policy is laid down by the executive in G. O. Ms. No. 1142 of the year 1954, at a time when the field was not occupied by any law made by the legislature on the topic of resumption of these lands. It is now well known that the area within which the executive Government can act is conterminous with the field within which the legislature can make laws. (See Ram Jawaya v. State of Punjab : [1955]2SCR225 ). Absent legislation on a topic, the executive Government can govern by means of administrative directions, provided those directions do not harm or injure the rights of the citizens. (See M. P. State v. Bharat Singh 0043/1967 : [1967]2SCR454 ). It follows, therefore, that so long as the legislature has not spoken its mind on the appropriate policy of resumption of lands from the landless poor assignees, the order of the executive Government contained in G. O. Ms. No.1142 completely governs and controls the situation. And under that G. O. Ms. No. 1142 it was clearly open for the Government to resume the lands on the ground of alienation of the assigned lands. But, now that the legislature by enacting Act No. 9/1977 has covered and occupied the same field relating to the subject of resumption of lands from the landless poor persons, who have been earlier granted lands, but who had breached the condition of non-alienability attached to those grants, it is the legislative will and legislative will alone contained in Act No. 9/1977 that should govern the whole subject of resumption. Thereafter the previous executive directions become either mischievous or superfluous and in any case certainly inoperative. What is more the new legislative direction seeks to restore the alienated lands to the landless poor and therefore forbids resumption of the lands. In other words, alienation is no longer a ground for resumption. It is only a ground for restoration.

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',

(2) 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.

(3) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, lease mortgage exchange or otherwise.

(4) Any transfer or acquisition made in contravention of the provisions of sub-section (1) or sub-section (2) shall be deemed to be null and void.

(5) The provisions of this section shall apply to any transaction of the nature referred to in sub-section (2) in execution of a decree or order of a civil court or of any award or order of any other authority.

(6) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement to this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement.

Sec. 4 (1). If, in any case, the District Collector or any other officer not below the rank of a Tahsildar, authorised by him in this behalf, is satisfied that the provisions of sub-section (1) of Section 3, have been contravened in respect of any assigned land, he may, by order-

(a) take possession of the assigned land, after evicting the person in possession in such manner as may be prescribed; and

(b) restore the assigned land to the original assignee or his legal heir, or where it is not reasonably practicable to restore the land to such assignee or legal heir, resume the assigned land to Government for assignment to landless poor persons in accordance with the rules for the time being in force;

Provided that the assigned land shall not be so restored to the original assignee or his legal heir more than once, and in case the original assignee or his legal heir transfers the assigned land again after such restoration, it shall be resumed to the Government for assignment to any other landless poor person.

(2) Any order passed under sub-section (1) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by any officer or authority or Government in pursuance of any power conferred by or under this Act.

(3) For the purposes of this section, where any assigned land is in possession of a person, other than the original assignee or his legal heir, it shall be presumed, until the contrary is proved, that there is a contravention of the provisions of sub-section (1) of Section 3.

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 : [1968]3SCR655 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.'

7. It is, therefore, clear that after Act No. 9/1977 the legality of the impugned action of resumption should not be tested on the basis of G. O. Ms. No. 1142 but should be tested only on the touchstone of the provisions of Act No. 9 of 1977. The question then boils down to this:-

Whether the impugned action of the respondent authorities can be upheld under the Act No. 9 of 1977. The answer to this question does not admit of any doubt. The answer is in the negative. Section 2 (1) of the Act may be divided into four parts. First part identifies the nature of the lands which are dealt with by the Act as lands assigned by the Government. The second part identifies the beneficiaries as landless poor persons. The third part speaks of the authority under which the assignment should be made as the rules for the time being in force. The fourth and the last part lays down the condition of non-alienation as a part of these grants. The word 'rules' in Section 2 (1) is designedly left undefined. The clear idea of the legislature is to see the executive power to lay down rules like G. O. Ms. No. 1142 for the purpose of assigning the Government lands. That is achieved by the Act by omitting to define the word 'rules'. The result is that G. O. Ms. No. 1142 is still valid and governs the question of assignment. Let us look at Sec. 3 once more but in greater detail. Section 3 (1) applies to 'assigned lands' a word already defined by the Act in Section 2. Now section 3 (1) forbids the transfer of such assigned lands in future. Further Section 3 (1) declares that assigned lands shall never be deemed to have been transferred. This part of Section 3 (1) both by its own force and read in contrast with the immediately preceding part of the section says assigned lands transferred earlier to 21st January, 1977 should not be deemed to have been transferred. It is for achieving that objective a fiction is enacted. In other words, this part of Section 3 (1) is clearly intended to apply to lands transferred already by the date the Act came into force on 21st January, 1977. If no retrospective effect is intended by the Act, the words occurring in Sec. 3 (1) 'it shall not be transferred' are more than sufficient to cover prospective transactions. But, the legislature did not stop with the use of the words. It deliberately went further and declared, 'and shall be deemed never to have been transferred'. This purpose of this legislative declaration is really to cover past transfers. To read those words in any other way would not only render that part of the section meaning less, but would also render semantic violence to the plaint and innocent words used by the legislature. Section 3 (5) which engrafts an exception to this retrospective operation of Section 3 (1) in favour of those landless poor persons who have already purchased the lands prior to the commencement of Act No. 9/1977 from landless poor persons in violation of condition of inalienability clearly shows that Section 3 (1) is intended by the legislature to be retrospective. Another section which clearly exhibits the intention of the legislature to enact the law with retrospective effect is Section 6 which exempts assigned lands 'held' on mortgages by the State or Central Government et cetera. Here, 'held' clearly covers lands held by the date of the Act. An enactment like Act No. 9/1977 with abundant legal provisions like Section 3 (1) forbidding further transfers of assigned lands. Section 5 prohibiting registration of assigned lands and Section 7 (1) imposing penalty for transferring assigned lands would not have contained an emphatic declaration that it 'shall be deemed never to have been transferred.'

Unless it be the intention of the legislature to be retrospective such lot of words could not have been used by the legislature merely as surplusage without intending to produce any legal effect. I am, therefore, clearly of the opinion that this Act No. 9/1977 applies to the alienations in this writ petition although those alienations are prior to January 1977.

8. On my interpretation of Section 3 (1) as having retrospective operation, it logically follows that Section 4 (1) applies to the two cases before me. Under that section the authorities mentioned therein namely the District Collector and others are enjoined in appropriate cases to take possession of the assigned lands after evicting the person in possession and restore the assigned lands to the original grantees. It means that the petitioners should be put back into possession of those bits of lands the possession and title of which they had parted with earlier this provision for restoration clearly negatives the power of the State to put an end to the petitioners' title and possession of the assigned lands including the lands still in their possession. In this context the declarations contained in Sec. 3 (1) to the effect that no right shall vest in the transferee and no transfer shall be deemed ever to have taken place are of great significance. Restoration is rendered as a logical step to be taken from the premise established by those declarations. The power to restore conferred by Section 4 must be construed as negativing the existence by implication of an inconsistent power to resume. (See Pentaiah v. Veeramallappa : [1961]2SCR295 ). Where the Act No. 9/1977 enacted a complete code on the topic of consequences of alienation of assigned lands merely providing for restoration, we must take the legislature as intending to exclude the operation of G. O. Ms. No. 1142 on the same topic. It follows that the impugned orders of resumption are illegal and without jurisdiction.

9. But, two objections were raised against the above. Firstly it is said that Act No. 9/1977 is not retrospective but only prospective. Secondly, it is said that as my brother, Kondaiah, J., as he then was had already held in W. P. No. 4044 of 1977: ((1979) 1 Andh LT 79) that Act No. 9/1977 is only prospective, I should refer this matter to a Division Bench.

10. The statement that Act No. 9/1977 is not retrospective seeks to convey the idea that the Act No. 9/1977 would apply only to transfers and alienations made subsequent to the commencement of the aforesaid Act and not to those alienations prior to the Act. It is an accepted rule of interpretation which is not intended to be overturned here that a legislative enactment should not normally be taken to have retrospective effect. But, this rule of interpretation like all other rules of interpretation is merely a guide to the reading of the mind of the legislature. But the mind of the legislature is written in the words of the statute and not in its astrological horoscope. Where the legislature has unambiguously expressed itself by using clear language its meaning must be ascertained by that language alone and without reference to the supposed but unexpressed intentions of the legislature. When the language is plain and admits of but one meaning, the task of interpretation can hardly he said to arise (Maxwell 12th Edition page 29). I find that the plain language of Section 3 (1) of the aforesaid Act which says, 'shall not be transferred and shall be deemed never to have been transferred; and accordingly the right or title in such assigned land shall vest in any person acquiring the land by such transfer' makes it perfectly clear that the intention of the Act is to apply its policy to all transfers made either before the commencement of the Act or after the commencement of the Act. A reference to the other provisions of the Act which I have already made commends this view. On the plain language of the Statute I find that the Act is more intended to be retrospective than prospective because after Act 9/1977 declares that transferee gets no title, refuses registration for conveyance, provides for restoration of possession and makes attempts to transfer, a criminal offence it is most unlikely that they person would run the risk of purchasing the land. The statutory provision for restoration could not have been directed more against such a remote and rate contingency than against the past transactions. It is therefore not possible for me to hold that the statute is merely prospective.

11. The same question may be examined from another view point. The rule of presumption hesitating to accord retrospectivity to a statute does not belong to any of the logical categories. It is firmly based on the good sense of social justice and the high public policy not to affect adversely past transactions. Maxwell explains the reason of this rule thus, 'upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation' (12th Ed. P. 215). Can this consideration even taken independently of the language of the statute weigh against the retrospective operation being given to Act No. 9/1977? First thing to note in this context is the fact that Act No. 9/1977 is not the first law in order of time to forbid alienation of assigned lands. That G. O. Ms. No. 1142 itself has done. No alienee who openly aids and abets a person to violate a condition of law conceived in public interest in order that he may thereby gain some advantage can complain of iniquity. G. O. Ms. No. 1142 which says that the land is heritable but is not alienable intends to deny the creation of any rights in favour of the alienee. Secondly the language of Section 4 (1) of the Act which I have already noticed above does not impose an invariable duty to restore the lands from every person in possession. The person in possession might be one in a long chain of transferees and might be in possession for a considerable number of years having spent time and energy in the development of the lands. In such a case Section 4 (1) of the Act clearly does not authorize the dispossession of such a person and restoration of such a land to the original assignee. Section 4 (1) only confers a power. By the deliberate use of 'may' it puts the authorities under an obligation to consider all the relevant facts in an objective and judicious manner before ordering restoration in a particular case. When the transfer is of a recent origin the authorities would be justified in putting the machinery of restoration to full use. When the alienation is old and long standing one giving rise to innocent third party claims Section 4 (1) rules out restoration. Even inter parties in each case has to be examined on its own merits. It is in order to individualize the general principle and enable the authorities to do justice in each case the legislature employed the permissive language of 'may' instead of the mandatory language of 'shall' in Section 4. Thus interpreted which I believe to be the true interpretation of Section 4, the reason for not giving the Act No. 9/1977 retrospective operation which its plain language warrants completely disappears. I am, therefore, unable to uphold the first objection.

12. The second objection requires closer scrutiny. Kondaiah, J., ( as he then was) rendering a judgment on 9-11-1978 allowing W. P. No. 4044 of 1977: ((1979) 1 Andh LT 79) observed that Act No. 9/1977 was only prospective and not retrospective. If those observations are to be taken as the ratio of the case and are not otherwise vitiated by any serious infirmity such as forming part of a judgment per incuriam, I am bound according to a long prevailing practice to refer this case to a Division Bench. But, as I am of the opinion that those observations are not the ratio of that case and that in any case they suffer from per incuriam infirmity I think I would not be justified in referring this case to a Division Bench.

13. In the case before Kondaiah, J., the facts are:- The Government granted an extent of Ac. 7.24 cents in the year 1936 in Nallajerla village of West Godavari district in favour of one Nagaiah. The said Nagaiah sold that land for a paltry sum of Rs. 400/- in the year 1955 to one Jogiraju a village Karnam who in his turn conveyed that property under a registered settlement deed dated 30-9-1957 in favour of his wife. On the ground that the sale of the property by the said Nagaiah in the year 1955 in favour of Jogiraju, the village Karnam, violated a condition of inalienability attached to the grant made in the year 1936 in favour of Nagaiah, the Tahsildar resumed the lands under Act No. 9/1977 on 29-9-1977 after dispossessing the wife of Jogiraju and restored the possession of the land to the heirs of Nagaiah. That order of the Tahsildar was challenged in the above writ petition filed by Jogiraju's wife. Primarily two grounds were urged before Kondaiah, J., firstly that Jagaiah was not a landless poor person and secondly that the grant in favour of Nagaiah by the Government in 1936 was not burdened with any condition of inalienability. It was therefore argued that the sale in the year 1955 in favour of Jogiraju by Nagaiah did not violate any conditions attached to the grant relating to non-alienability as the lands do not fall under the category of 'assigned lands' within the meaning of Act No. 9/1977. Finally it was also argued that Act No. 9/1977 is not retrospective, but only prospective and that therefore the sale of 1955 could not be hit by Act No. 9/1977.

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, : [1958]1SCR1240 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.).

15. In the case before Kondaiah, J., the learned Judge recorded two facts which make in my opinion all his subsequent discussion and observations merely gratis dictum. Those findings are that Nagaiah was not a landless person and that the grant in favour of Nagaiah is never subject to the condition of inalienability. Those two findings in my opinion put an end to the controversy between the parties before him and completely settle the issues and rule out any further consideration of applicability of Act No. 9/1977 to the case before him. In those circumstances, the opinion of Kondaiah, J., that Act No. 9/1977 is not retrospective is in my opinion clearly obiter. For this reason I do not think that I would be justified in referring this case to a Division Bench. Do or die but never ask how or why cannot be a safe guide for the effective functioning of judicial process. The pronouncement of this Court in M. Subbarayudu v. State reported in : AIR1955AP87 (FB) and the decision of the Supreme Court reported in Bhagwan v. Ram Chand, : [1965]3SCR218 ; Sri Venkateswara Rice Ginning and Oil Mills Contractors Co. v. State of A. P. : [1972]1SCR346 and State of Rajasthan v. Tarachand Jain : 1973CriLJ1396 apply in my opinion only to differences between two benches of single Judges on ratio of the cases and not to obiter.

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.

It is now well settled that a decision rendered overlooking a statutory provision shall be treated as per incuriam and cannot be regarded a binding precedent. Salmond on Jurisprudence (Twelfth Edition page 150) says, 'A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of a statute i.e., delegated legislation'. Salmond cites in support of this proposition the high authority of Lord Halsbury in the House of Lords in London Street Tramways v. London County Council 1898 AC 375 and of Lord Greene M. R. in Court of Appeal in that well known case of Young v. Britol Aeroplane Co. Ltd. (1944) 1 KB 718. As examples of per incuriam judgments Salmond cites a case where the court knew the statute but did not refer to the precise terms of the statutes as well as to a case where the court knew the statute but failed to appreciate its relevance to the matter in hand. On the extensive scope of the doctrine of per incuriam Salmond says that, 'Even a lower Court can impugn a precedent on such grounds'. Vol. 22 of Halsbury's Laws of England Third Edition, page 799 says that a 'Court is not bound to follow a decision of its own if given per incuriam'. A decision may also be given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.' This principle is referred to with approval by our Supreme Court in Jaisri v. Rajdewan : [1962]2SCR558 . As I have found that the judgment of Kondaiah, J., never referred to important parts of Act no. 9/1977 I hold the holding of Kondaiah, J., that Act No. 9/1977 is not retrospective is per incuriam and for that reason I consider it not obligatory on my part to refer this case to a Division Bench.

18. In the result, I allow this writ petition. No costs, Advocate's fee Rs. 150/-.

19. Petition allowed.


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