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Jairam Singh and ors. Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 412 and 143 of 1957
Judge
Reported inAIR1962All350
ActsUttar Pradesh General Clauses Act, 1904 - Sections 6 and 24; Uttar Pradesh Public Land (Eviction and Recovery of Rent and Damages) Ordinance, 1959 - Sections 16; Uttar Pradesh Government Land (Eviction and Rent Recovery) Act, 1953; Constitution of India - Articles 215 and 245; Uttar Pradesh Public Land (Eviction and Recovery of Rent and Damages) Ordinance, 1953 - Sections 17
AppellantJairam Singh and ors.
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateK.B. Asthana, Standing Counsel
Excerpt:
.....sphere - none can encroach upon jurisdiction of other - legislature has unlimited and unrestricted powers to pass a law but legislature cannot validate unconstitutional acts - u.p. act of 1953 declared unconstitutional - actions taken or orders passed thereunder cannot be validated by section 17 of u.p. ordinance of 1953 - held, orders passed in the proceedings could not be held to be legal and must be set aside. - .....(eviction and rent recovery) act, 1953, by section 16 of this ordinance,(a) all actions taken, orders passed, proceedings initiated in all cases whether disposed of or pending, shall be deemed to be actions taken,orders passed and proceedings initiated, as the case may be, under and in accordance with the provisions of this ordinance; and(b) all proceedings and appeals under theaforesaid act commenced prior to, or pending on the date of promulgation of this ordinance before any officer or authority under that act shall be continued, heard and decided, as the case may be, as proceedings under and in accordancewith the provisions of this ordinance,as if this ordinance had been in force on all material dates.'7. section 16 is a repealing clause whereunder the u.p. government land.....
Judgment:
ORDER

D.S. Mathur, J.

1. This order governs Civil Misc. Writ Nos. 412 and 413 of 1957 by Jai Ram Singh, and Dharambir Singh and two others, respectively. As the facts of the two cases are virtually the same and similar questions of law are involved in both, they are being decided by one judgment. The request made in both the cases was for the issue of a writ of certiorari, or an order or direction in the nature of certiorari, to quash an order passed by the Additional District Magistrate, Nainital, respondent No. 2, who was a competent authority under the U. P. Government Land (Eviction and Rent Recovery) Act, 1953 (Act No. 29 of 1953) for the ejectment of the petitioners from the Government land.

2. The facts of both the cases were disputed by the respondents, the State of Uttar Pradesh and lhe Additional District Magistrate, Nainital, in their counter-affidavit, but for Purposes of the present cases, the facts as emerge out cannot be deemed to bo in dispute. These facts, in brief, are that certain area of land in Tahsils Kicha and Bazpur, of the District Nainital, previously under the management of Tarai and Bhabhar Estate was transferred to 'the Colonization Department for settlement of specific categories of persons. According to the petitioners, the land in dispute lies within the Kham land of Tarai and Bhabhar Estate and had not been transferred to the Colonization Department. The respondents, on the other hand, assert that the land now belongs to the Colonization Department and is under the control of Director of Colonization. For the purposes of the present proceeding, we shall have to start with the assumption that the land now belongs to the Colonization Department and could not have been allotted by the Kham Department of Tarai and Bhabhar Estate.

3. Both the sets of the petitioners assert to have obtained the land in question on lease from the Kham Department of Tarai and Bhabhar Estate. They further plead that the Colonization Department had no power to eject them and thereby take possession of the land given to the (Petitioners) in an authorised manner. As the land shall be deemed to belong to the Colonization Department, it can further be assumed that the possession of the present petitioners was not authorised. The Colonization Department is dispossessing the petitioners so as to allot the land to certain political sufferers.

4. The petitioners are being dispossessed under the provisions of the U. P. Government Land (Eviction and Rent Recovery) Act, 1953; but this Act w.as declared unconstitutional by a Division Bench of this Court in Civil Misc. Writ No, 988 of 1956, decided on 24-4-59, Bir Pratap Singh v. State of Uttar Pradesh. It was after the Act was declared unconstitutional that the Governor of Uttar Pradesh promulgated an Ordinance on July 15, 1959, known as the Uttar Pradesh Public Land (Eviction and Recovery Rent and Damages) Ordinance, 1959. The learned Standing Counsel wanted to argue at length on the correctness of the decision of the Division Bench and suggested that the questionsdecided therein required reconsideration. Thedecision of the Division Bench is binding on meand in case it needs reconsideration the respondents can prefer a Special Appeal against the decision in the present cases, and the appellate court can, if it considers necessary, reconsiderthe question. No useful purpose will be served by permitting the respondents to re-agitate the question of the constitutionality of the Act of 1953 in this Court.

5. The next question that arises is whether the orders in question can be considered to be legal and within the powers of the competent authority by virtue of Sections 16 and 17 of the U.P. Public Land (Eviction and Recovery of Rent and Damages) Ordinance, 1959.

6. Sections 16 and 17 run as below;-

'16. The U. P. Government Land (Eviction and Rent Recovery) Act, 1953, is hereby repealed and the provisions of Sections 6 and 24 of the U. P. General Clauses Ac's 1924, shall apply to its repeal as if the said Act had been repealed by an Uttar Pradesh enactment.

17. Notwithstanding the repeal of the U. P.Government Land (Eviction and Rent Recovery) Act, 1953, by Section 16 of this Ordinance,

(a) all actions taken, orders passed, proceedings initiated in all cases whether disposed of or pending, shall be deemed to be actions taken,orders passed and proceedings initiated, as the case may be, under and in accordance with the provisions of this Ordinance; and

(b) All proceedings and appeals under theaforesaid Act commenced prior to, or pending on the date of promulgation of this Ordinance before any officer or authority under that Act shall be continued, heard and decided, as the case may be, as proceedings under and in accordancewith the provisions of this Ordinance,as if this Ordinance had been in force on all material dates.'

7. Section 16 is a repealing clause whereunder the U.P. Government Land (Eviction and Rent Recovery) Act, 1953, was repealed, but the repeal was subject to the provisions of Sections 6 and 24 of the U.P. General Clauses Act, 1924. Though the Ordinance was promulgated after the decision, of this Court, the State Government apparently did not submit to that decision and the 'Ordinance was drafted in such a manner that it may be possible to challenge that decision before the Supreme Court, if necessary. But for the purposes of the present cases the Act of 1953 shall be deemed to be unconstitutional, and the saying clause contained in, Section 16 will not be of any help to the respondents. It is in casesof a valid enactment repealed subsequently that Sections 6 and 24 of the U. P. General Clauses Act 1904, would be applicable, but where the enactment is unconstitutional and has been declared unconstitutional it shall have to be presumed as if the Act had never been passes and was never in force. The provisions of the U. P. General Clauses Act will not apply to an enactment which, in the eye of law, never existed.

8. Section 17 of the Ordinance is a validation clause laying down that notwithstanding therepeal of the Act all actions taken, orders passed, proceedings initiated in all cases whether disposed of or pending, shall be deemed to be actions taken, orders passed and proceedings initiated, as the case may be, under and in accordance with the provisions of this Ordinance. It was further provided in Clause (b) of Section 17 that all proceedings and appeals under the aforesaid Act commenced prior to, or pending on the date of promulgation of this Ordinance, before any officer or authority under that Act shall be continued, heard and decided, as the case may be as proceedings under and in accordance with the provisions of the Ordinance, as if the Ordinance had been in force on all material dates. It will be found that the Governor of Uttar Pradesh instead of expressing in clear terms that the Ordinance wag being given a retrospective effect indicated indirectly by implica ion that the Ordinance shall have a retrospective effect. This was done by providing a validating clause in section 17. The question that arises is whether such, a validation clause can be regarded to be constitutional and if constitutional, will it cover those actions taken, orders passed or proceedings initiated under the Act of 1953 which are not covered by the present Ordinance and which can be deemed to have been taken, passed or initiated under the old invalid Act.

9. The Legislature and High Courts are supreme within their own sphere, None can encroach upon the jurisdiction of the other. The legislature has unlimited and unrestricted powers to pass a law, provided that it is competent to make such law and the subject is covered by any of the items in the lists laying down the competence of the legislature. Courts of law do not substitute their judgment for the wisdom of the legislature and consequently if an enactment is ultra vires but causes or appears to cause unnecessary hardship to a class of persons or on other grounds may appear to be unreasonable or Inequitable, High Courts will not set aside the enactment on those grounds. It will be for the legislature to consider whether such an enactment should or should not remain on the statute book.

10. When the legislature has the power to make an enactment, it can validate invalid acts of the State Government or of subordinate officers or authorities by passing a law which is not unconstitutional and is within the competence of the legislature. The legislature cannot however interfere with the jurisdiction of the Courts of law by declaring an, illegal act to be legal without passing a proper law. If the legislature decides to validate an illegal act by p'ssing a defective law, or a law which is not constitutional, in the eye of law, the Illegal act shall continue as such and shall not be deemed to have been validated by or under an enactment which was passed by the legislature to, in one way, encroach upon the jurisdiction of the Courts of law.

11. When Section 17 of the Ordinance is considered in this light, the use of the word 'deemed'' will not in any way enlarge the scope of the Ordinance. This inference finds support from a few words existing at the end of Section17. It is mentioned therein that actions taken etc. shall be deemed to have been taken 'under and in accordance with the, provisions of this Ordinance, as if the Ordinance had been in force on all material dates'. The underlying idea is that the validity or invalidity of actions taken, orders passed, or proceedings initiated shall have to ba determined on the basis of the Ordinance as if it was in force on those materialdates. Section 17 would, therefore validateonly those actions, orders or proceedings which could be taken under the Ordinance, and not such actions, orders or proceedings which could not be taken under the Ordinance but were taken under the Act of 1953, which has since been declared to be unconstitutional.

12. The Act of 1953 was declared unconstitutional on the ground that it was hit by Article 14. That Act laid down a speedy procedure with regard to government land only, and not to land of other categories, namely, private land. The object and purpose for enacting such a law was also not properly expressed in that Act, with the result that the Act was to apply to all the government land and not necessarily for anypublic purpose. But the Ordinance is applicable to only some of the government land and not all. The title of the Ordinance has been loosely drafted to suggest that its object is to provide for theeviction of persons in unauthorised occupation from public land; but the object of the Ordinance was clarified in the preamble, the material portion of which runs as below:-

'Whereas public land capable of being used for agricultural purposes is immediately required for planned use, rehabilitation of displaced persons, distribution amongst landless agricultural labourers co-opertive farming and other public purposes, with a view to ensure greater food production and more equitable distribution of the land.'

In the present case, the land was required for being given on lease to political sufferers, that is, to a class of persons not specified in theOrdinance. The allotment of land to political sufferers cannot be considered to be for a public purpose. In fact, it was conceded before me that the allotment of land to political sufferers did not come within the preamble and object of the Ordinance, It was for this reason that it was urged before me on behalf of the respondents that the Ordinance not only permitted certain actions to be taken, orders to be passed and proceedings to be initiated with regard to public land required tor purposes detailed in, the preamble, but the validating clause validated even those actions which were not covered by the Ordinance but had been taken under the Act of 1953.

In other words, therefore, the competent authority or any other authority could not have taken an, action under the Ordinance to dispossess the present petitioners so as to allot the land to political sufferers. When the competent authority could not have dispossessed the petitioners under the Ordinance, the action taken or orders passed by it under the invalid Act of 1953 cannot be deemed to be under the Ordinance, for thesimple reason that they do not come within, the scope and four corners of the Ordinance. The actions taken or orders passed shall continue to be under the Act of 1953 which has been declared unconstitutional and consequently such orders shall continue to be illegal and cannot be deemed to have been validated by Section 17 of the Ordinance.

13. To sum up, the action was taken and orders passed to dispossess the petitioners from the land in question under the provisions of the Act of 1953 an Act which has since been declared to be unconstitutional. The orders passed under an invalid Act are illegal and can have no force, and for that reason the orders of the competent authority shall have to be set aside. The Act has since been repealed and replaced by an Ordinance, but such actions could not be taken nor could such orders be passed, under the Ordinance in order to give the land to political sufferers. Such actions or orders will not be covered by the validating clause contained in Section 17 of the Ordinance, nor will in the eye of law such actions and orders be deemed to have been taken, or passed under the Ordinance for the simple reason that such action and order could not have been taken or passed under the Ordinance. On the basis of Section 17 of the Ordinance only such invalid acts, orders and proceedings could be validated which could be done passed or taken under the Ordinance. Thus the orders passed in the proceedings in question cannot be held to be legal and for that reason they must be set aside. The order being passed in the present proceedings will, of course have no effect if the Ordinance is substituted by a valid enactment which can lawfully cover cases of the present nature.

14. Both the petitions are hereby allowed and it is ordered that a writ of certiorari be issued to quash the orders dated 23-12-1955 passed by the Additional District Magistrate, Nainital, respondent No. 2, for ejectment of the petitioners. Costs on parties.petitions allowedand writs issued.


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