# Kamakshi Ammal v. Rajalaksmi &

- **Citation:** (2012) 2 ILRA 535
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-07
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamakshi-ammal-v-rajalaksmi-42298
- **Pages:** 11

## Headnote

H.N. Pandey
H.N. Dubey
H.P. Pandey
J.P.Pandey
S.C

U.P.Z.A.
&L.R.
Act-Section-157-sale
transaction by member of Scheduled cost
on
23.03.1974-while
amended
prohibition
came
in
existence
on
28.01.1977
having
no
retrospective
effect-even if sale executed by court in
pursuance
of
Decree
of
specific
performance suit-restriction against S.T.
Can not be applicable upon S.C.-both
court below rightly discreed the suitSecond
Appeal
dismissed-as
the
536 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
substantial question of law remained
academic discussion-dismissed.

Held: Para 22

Coming to the facts of the present case,
it is undisputed that the sale-deed was
executed by the Court on 23.03.1974
pursuant to a decree passed in a suit for
specific
performance.
It
is
also
undisputed
that
the
predecessor-ininterest of the defendant-appellants was
not a member of Scheduled Tribe, but
was a member of Scheduled Caste, on
whom there was no restriction in the
statute book for effecting transfer of
land. Accordingly, on the date, when the
sale-deed
dated
23.03.1974
was
executed by the Court, there being no
restriction on transfer by a member of a
Scheduled Caste, there could be no such
restriction on the Court for executing
sale deed in favour of the plaintiff
pursuant
to
a
decree
for
specific
performance. Thus, even if it is assumed
that the statutory bar applies to a Court
that executes a sale deed pursuant to a
decree for specific performance, that bar
did not apply to the Court that executed
sale deed in favour of the plaintiff
inasmuch as on 23.03.1974, that is,
when the sale deed was executed, there
was no restriction in the statute book on
transfer by a member of a Scheduled
Caste.
Case law discussed:
1981 ALJ 794; 1981 R.D.Page 29; 1993 AWC
Page 1; (2001) 8 SCC 24; (1995) 6 SCC 545

## Text

2 All] Mahavir V. Smt. Phool Wati
535
also the gift could not have been
invalidated considering the relationship of
father and daughter. In the case of
Kamakshi Ammal V. Rajalaksmi &
others AIR 1995 Madras 415 (para 21) it
was held that where a father made a gift to
his daughter and on its acceptance by her,
she allows her father to enjoy the income
from the properties settled in view of the
relationship
of
father
and
daughter
between the donor and donee, it could not
be said that there was no acceptance of gift
by the donee even assuming that the donor
continued to be in possession and
enjoyment of the property gifted.

14. Likewise, even if it is assumed
that the defendant was minor on the date of
execution of the gift deed, the gift would
not be invalidated for lack of acceptance
by another guardian or next friend, as
acceptance can be implied by the conduct
of the donee. In the case of K
Balakrishnan V. K. Kamalam (2004) 1
SCC 581, the apex court after noticing a
number of authorities, in paragraph 30 of
its judgment, held as under: "As seen
above, in the case of a minor donee
receiving a gift from her parents, no
express acceptance can be expected and is
possible, and acceptance can be implied
even by mere silence or such conduct of
the minor donee and his other natural
guardian
as
not
to
indicate
any
disapproval or repudiation of it."

15. In the instant case, the counsel for
the appellant has not been able to point out
any material to show that the gift was
repudiated by the donee or her natural
guardian, or that she disapproved of it.
Thus, from the discussion made above, the
third contention also, as raised by the
learned counsel for the appellant, cannot be
accepted. No other point was pressed.

16. In view of the aforesaid
discussion, I find that the matter is
concluded by concurrent findings of fact
recorded by the courts below, which do not
suffer from any legal infirmity and, as
such, no substantial question of law arises
for
consideration
in
this
appeal.
Consequently, the appeal is dismissed
summarily.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

SECOND APPEAL No. - 539 of 1985

Mahavir

 ...Petitioner
Versus
Smt. Phool Wati

 ...Respondent

Counsel for the Petitioner:
Ravi Prakash Srivastava
Ashish Srivastava
H.N. Pandey
H.P.Pandey
Prakesh Srivastava
Tarun Agarwal

Counsel for the Respondents:
H.N. Pandey
H.N. Dubey
H.P. Pandey
J.P.Pandey
S.C

U.P.Z.A.
&L.R.
Act-Section-157-sale
transaction by member of Scheduled cost
on
23.03.1974-while
amended
prohibition
came
in
existence
on
28.01.1977
having
no
retrospective
effect-even if sale executed by court in
pursuance
of
Decree
of
specific
performance suit-restriction against S.T.
Can not be applicable upon S.C.-both
court below rightly discreed the suitSecond
Appeal
dismissed-as
the
536 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
substantial question of law remained
academic discussion-dismissed.

Held: Para 22

Coming to the facts of the present case,
it is undisputed that the sale-deed was
executed by the Court on 23.03.1974
pursuant to a decree passed in a suit for
specific
performance.
It
is
also
undisputed
that
the
predecessor-ininterest of the defendant-appellants was
not a member of Scheduled Tribe, but
was a member of Scheduled Caste, on
whom there was no restriction in the
statute book for effecting transfer of
land. Accordingly, on the date, when the
sale-deed
dated
23.03.1974
was
executed by the Court, there being no
restriction on transfer by a member of a
Scheduled Caste, there could be no such
restriction on the Court for executing
sale deed in favour of the plaintiff
pursuant
to
a
decree
for
specific
performance. Thus, even if it is assumed
that the statutory bar applies to a Court
that executes a sale deed pursuant to a
decree for specific performance, that bar
did not apply to the Court that executed
sale deed in favour of the plaintiff
inasmuch as on 23.03.1974, that is,
when the sale deed was executed, there
was no restriction in the statute book on
transfer by a member of a Scheduled
Caste.
Case law discussed:
1981 ALJ 794; 1981 R.D.Page 29; 1993 AWC
Page 1; (2001) 8 SCC 24; (1995) 6 SCC 545

(Delivered by Hon'ble Manoj Misra, J.)

1. I have heard Sri Ashish Srivastava
along with Sri Ravi Prakash, learned
counsels for the appellant and Sri H.N.
Pandey, learned counsel for the respondent
and have perused the record.

2. This is a defendant's appeal against
the judgment and decree dated 17.12.1984
passed by the Special Judge /Additional
District Judge, Aligarh in Civil Appeal No.
91 of 1982 arising out of Suit No. 55 of
1980 between Smt. Phoolwati (plaintiff)
and Sri Mahavir and another (defendants).

3. The Original Suit No. 55 of 1980
was instituted by Phoolwati Devi (the
plaintiff-respondent herein), who is now
represented through her heir, for permanent
prohibitory
injunction
restraining
the
defendants from interfering in her peaceful
possession over Bhumidhari Plot Nos. 44A
@ 19 Biswa; 26 @ 15 Biswa, 3 Biswansi;
and 44-B @ 3 Bigha, 4 Biswa that is, three
plots having a total area of 4 Bigha, 12
Biswa, 3 Biswansi situated at village Nagla
Nattha, Pargana Chandaus, Tehsil Khair,
District Aligarh. In short the plaint case was
that the plaintiff was bhumidhar in
possession of the disputed land on the basis
of a sale-deed dated 23.03.1974, which was
executed by the 1st Additional Civil Judge,
Aligarh in execution of a decree for specific
performance passed in Original Suit No. 23
of 1971. It was claimed that the defendants,
without right, title or interest, were seeking
to dispossess her as well as to cut away her
standing crop, hence, she was constrained to
institute the suit. During the pendency of the
suit, by way of amendment, she sought for
damages to the tune of Rs.3000/- for the
loss to the standing crop caused by the
defendants.

4. The defendants contested the suit
by claiming that the sale-deed dated
23.03.1974 was a void and ineffective
instrument, which conferred no right, title or
interest on the plaintiff. It was claimed that
the father of the defendants was bhumidhar
of the land in suit and the bhumidhari rights
were inherited by the defendants. It was
claimed that though the court had executed
the sale deed in execution of the decree for
specific performance against the father of
2 All] Mahavir V. Smt. Phool Wati
537
the defendants, but the sale-deed dated
23.03.1974 was void being hit by section
157-A of the UPZA & LR Act. It was
claimed that the defendants were members
of scheduled caste whereas the plaintiff was
not. Accordingly, prior permission for sale
was required under section 157-A, which
was not obtained. It was further claimed that
the defendants continued to remain in
possession even after the execution of the
sale-deed and that they were never
dispossessed. The defendants also claimed
that the sale-deed dated 23.03.1974 was
cancelled by a decree dated 10.02.1978
passed in Original Suit No. 364 of 1977,
which was instituted by the defendants.

5. On the pleadings of the parties, the
trial Court framed as many as five issues,
which are as follows:-

(a) Whether the sale-deed dated
23.03.1974 is barred by Section 157-A of
the U.P.Z.A. & L.R., Act. If so, its effect?

(b) Whether the plaintiff is the owner
in possession?

(c) Whether the plaintiff has a right to
maintain the suit after cancellation of the
sale-deed?

(d) To what relief, if any, is the
plaintiff entitled to?

(e) Whether the plaintiff is entitled to
Rs. 3,000/- as damages for loss of crop?

6. The trial court, on issue No. 1,
recorded a finding that the bar under
Section 157-A of the U.P.Z.A. & L.R., Act
applies only on voluntary sale and it did not
apply to a sale conducted through Court.
While holding as above, the trial court
placed reliance on judgment of this Court in
the case of Ram Saran v. 1st Additional
District Judge, Rampur reported in 1981
ALJ 794. On issue No. 3, the trial Court
held that the ex-parte decree in Original Suit
No. 364 of 1977 was set aside, as evidenced
by Exhibit No.6, therefore, the plaintiff had
a right to maintain the suit. On issue No.2,
the trial court, relying upon Exhibit Nos. 1
and 2, came to the conclusion that the
Additional Civil Judge had executed the
sale-deed in favour of the plaintiff, in
execution of the decree passed in Original
Suit No. 23 of 1971. From Exhibit No.3
(Khasra) and from Exhibit No.4 (Khatauni)
the trial court concluded that the name of
the plaintiff was recorded in the revenue
records pursuant to the execution of the sale
deed. Thereafter, by relying on the oral as
well as documentary evidence, the trial
court found the plaintiff to be owner in
possession of the land in suit and on the
findings so recorded it decreed the suit for
permanent injunction, although the relief for
damages, for loss of crops, was denied.

7. The defendants, aggrieved by the
judgment and decree of the trial court, filed
Civil Appeal No. 91 of 1982, which was
dismissed by the Special Judge /Additional
District Judge, Aligarh vide his judgment
and decree dated 17.12.1984. The appellate
court affirmed the judgment of the trial
court and adopted the reasoning of the trial
court.

8. Aggrieved by the judgment and
decree of the courts below, the present
second appeal has been filed by the
defendant-appellants. This appeal was
admitted, and the following substantial
question of law was framed for hearing of
the appeal:-

" Whether the bar under Section 157-A
of the U.P.Z.A. & L.R. Act 1 of 1951 applies
538 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to the execution of a sale-deed by a Court in
compliance of a decree for specific
performance of an agreement of sale? If so,
its effect."

9. The counsel for the appellant
submitted that the undisputed facts of the
case are that the predecessor-in-interest of
the defendant-appellants was a member of
the scheduled caste whereas the plaintiff
respondent was not a member of scheduled
caste. On 26.12.1969 the predecessor in
interest of the defendant- appellants entered
into an agreement to sell the land in
question with the plaintiff-respondent. The
plaintiff-respondent had instituted Suit No.
23 of 1971 for specific performance of the
agreement to sell dated 26.12.1969, which
was decreed on 14.12.1972. In execution of
the decree, the court executed sale-deed in
favour of the plaintiff-respondent on
23.03.1974
without
obtaining
prior
permission of the Collector. Seeking
cancellation of the sale deed dated
23.03.1974 an original suit no.364 of 1977
was instituted by the defendant-appellants,
which was decreed ex parte on 10.2.1978.
Later, on an application for setting aside the
ex-parte decree, on 05.01.1981, the ex-parte
decree was set aside, and since then
proceedings of suit No. 364 of 1977 are
lying stayed.

10. It was submitted on behalf of the
appellant that section 157-A of the U.P.Z.A.
& L.R., Act places a restriction to the effect
that no bhumidhar belonging to a Scheduled
Caste shall have a right to transfer any land
by way of sale, gift, mortgage or lease to a
person not belonging to a Scheduled Caste,
except with the previous approval of the
Collector. It was submitted that when a saledeed is executed by Court, pursuant to a
decree for specific performance, it is on
behalf of judgment-debtor, therefore, any
statutory bar that is applicable to a
judgment-debtor
would
be
equally
applicable on the Court and, as such, the
sale-deed executed by the Court would be
hit by the provisions of Section 157-A of
the U.P.Z.A. & L.R. Act and, as such,
would be void. In support of his contention,
reliance was placed on a decision of this
Court in the case of Dal Chand v. IIIrd
Additional
District
Judge,
Aligarh
reported in 1981 R.D. Page 29. The
relevant portion, on which reliance was
placed, is being reproduced below:-

"From
the
above
discussion,
it
emerged that the consensus of judicial
opinion is that a decree for specific
performance merely declares the right of
the plaintiff vis a vis the agreement of sale
and does not by itself create title in the
plaintiff. In order to obtain title to the
property the Court has further to get the
sale-deed executed in execution of the
decree either from the judgment-debtor
himself and if he fails to do so then to
execute the sale-deed itself as a statutory
agent of the judgment-debtor. It is only
when a sale-deed has been executed that the
title to the property passes to the decreeholder. It also emerges from the above
discussion that if there was any statutory
bar in execution of the sale-deed by the
judgment-debtor then the said bar would be
equally applicable against the Court and
the petitioner executing the sale-deed.
Therefore it will have to be seen that the
statutory bar is removed either by any of the
parties taking steps or the Court itself doing
it."

11. Relying on the aforesaid decision,
the counsel for the appellant submitted that
since the sale-deed was void, there was no
transfer of interest in the property, hence,
the defendants, who were the successor-in-
2 All] Mahavir V. Smt. Phool Wati
539
interest
of
the
original
bhumidhar,
continued to remain owners and, as such, no
injunction could be granted against a true
owner.

12. Per contra, the counsel for the
respondent submitted that the bar under
Section 157-A of the U.P.Z.A. & L.R. Act
would not be applicable to a sale conducted
by the Court pursuant to a decree for
specific performance of a contract, as it
applies only to voluntary sale by act of
parties. He has placed reliance on two
Single Judge decisions of this Court,
namely, Ram Saran v. Ist Additional
District Judge, Rampur (supra) and
Harmal v. Special/A.D.J, Saharanpur
reported in 1993 AWC Page 1. He further
contended that section 157-A of the
U.P.Z.A.& L.R., Act was inserted with
effect from 03.06.1981, whereas, the sale
deed was executed on 23.3.1974. Therefore,
he submits, the substantial question framed
for adjudication is purely of academic
interest and its answer either way would not
determine the rights of the parties to the
suit.

13. Before considering the respective
merit of the submissions of the learned
counsel for the parties, it would be useful to
trace out the legislative history of the
provision
of
section
157-A
of
the
U.P.Z.A.& L.R, Act. Section 157-A of the
U.P.Z.A. & L.R. Act was introduced in the
Statute Book for the first time by U.P. Land
Laws (Amendment) Act, 1969 (UP Act No.
IV of 1969), which was published in the
U.P. Gazette, Extraordinary, dated 1st
September, 1969. The prefatory note to the
Bill, which was ultimately enacted as U.P.
Act No. IV of 1969, with regard to Clauses
9 to 11 reads as under (sourced from 1969
LLT Part IV pages 19 to 24):-

"Clause
9
to
11
of
the
Bill
(corresponding to sections 5 to 7 of the U.P.
Ordinance No. III of 1969), make provision
for binding transfer by way of sale, gift,
mortgage or lease or bequest of any land by
a person belonging to Scheduled Tribe to a
person not belonging to any such Tribe,
without obtaining the previous approval of
the Collector for the same. This provision
has been considered necessary for their
protection from exploitation."

Section 9 of U.P. Land Laws
(Amendment) Act, 1969, by which section
157-A was inserted in U.P. Act No. 1 of
1951, reads as follows (sourced from 1969
LLT Part IV pages 19 to 24):-

"9. Insertion of new Section 157-A.--
After Section 157 of the principal Act, the
following section shall be inserted, namely:-

"157-A. Restrictions on transfer of
land by members of Scheduled Tribes.- (1)
Without prejudice to the restrictions
contained in Sections 153 to 157, no
bhumidhar, sirdar, or asami belonging to a
Scheduled Tribe shall have the right to
transfer by way of sale, gift, mortgage or
lease any land to a person not belonging to
a Scheduled Tribe except with the previous
approval of the Collector.

(2) On an application being given in
that behalf in the prescribed manner, the
Collector shall make such inquiries as may
be prescribed.

Explanation.--- In this Chapter, the
expression "Scheduled Tribe," means a
Scheduled Tribe specified in an order made
by President under clause (1) of Article 342
of the Constitution."
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Later,
by
U.P.
Land
Laws
(Amendment), Act, 1974 (U.P. Act No. 34
of 1974), which was published in U.P.
Gazette,
Extraordinary
dated
07th
December, 1974, section 157-A was further
amended by Section 7 thereof. Section 7 of
U.P. Act No. 34 of 1974 reads as under
(sourced from 1975 LLT Part IV pages 1 to
4):-

"Section7. Amendment of Section
157-A-- In Section 157-A of the principal
Act,--

(i) in the marginal heading, for the
words "Scheduled Tribes", the words
"Scheduled Castes and Scheduled Tribes"
shall be substituted;

(ii) in sub- section (1), for the words
"Scheduled Tribe", wherever occurring, the
words "Scheduled Caste or Scheduled
Tribe" shall be substituted;

(iii )after sub-section (1), the following
proviso thereto shall be inserted, namely:

"Provided that a bhumidhar, sirdar or
asami belonging to a Scheduled Caste or
Scheduled
Tribe
may,
without
such
approval, transfer by way of mortgage
without possession, his interest in any
holding as security for a loan taken by way
of financial assistance for agricultural
purposes (as defined in Uttar Pradesh
Agricultural Credit Act, 1973) from the
State Government by way of Taqavi, or
form a co-operative land development bank,
or from the State bank of India or from any
other bank which is a Scheduled Bank
within the meaning of clause (e) of Section 2
of the Reserve Bank of India Act, 1934, or
from
the
U.P.
State
Agro-Industrial
Corporation Limited."

(iv) for the Explanation thereto, the
following Explanation shall be substituted,
namely:

"Explanation.--In this Chapter, the
expressions
"Scheduled
Castes"
and
"Scheduled Tribes" respectively mean the
Scheduled Castes and Scheduled Tribes
specified in relation to Uttar Pradesh under
Articles 341 and 342 of the Constitution."

Thereafter by U.P. Act No. 8 of 1977,
which was published in the U.P. Gazette
Extraordinary dated 24th July, 1977, and
came into force with effect from January
28, 1977, section 157-A was further
amended by section 15 thereof, which reads
as under (sourced from 1977 LLT Part IV
page 227 to 230):-

"15. Amendment of Section 157-A:-
In Section 157-A of the principal Act, -----

(a) the word "sirdar" where it occurs
for the first time shall be omitted.

(b) in the proviso, for the words
"bhumidhar, sirdar or asami" the words
"bhumidhar with transferable rights or
asami" shall be substituted.

Finally,
by
U.P.
Land
Laws
(Amendment) Act, 1982, (U.P. Act No. 20
of 1982), which was published in U.P.
Gazette Extraordinary dated 20th August,
1982, section 157-A was substituted and
sections 157-B and 157-C were inserted by
sections 3 and 4 thereof, with effect from
03.06.1981, which reads as under (sourced
from 1982 LLT Part IV pages 196 to 200):-

"3. Substitution of Section 157-A--
For Section 157-A of the principal Act, the
following section shall be substituted,
namely:-
2 All] Mahavir V. Smt. Phool Wati
541

"157-A. Restrictions on transfer of
land by members of Scheduled Castes.--

(1)
Without
prejudice
to
the
restrictions contained in Sections 153 to
157, no bhumidhar or asami belonging to a
Scheduled Caste shall have the right to
transfer any land by way of sale, gift,
mortgage or lease to a person not
belonging to a Scheduled Caste, except with
the previous approval of the Collector:

"Provided that no such approval shall
be given by the Collector in case where the
land held in Uttar Pradesh by the transferor
on the date of application under this section
is less than 1.26 hectares or where the area
of land so held in Uttar Pradesh by the
transferor on the said date is after such
transfer, likely to be reduced to less than
1.26 hectares.

(2) The Collector shall, on an
application made in that behalf in the
prescribed manner, make such inquiry as
may be prescribed."

4. Insertions--Sections 157-B and
157-C.--- After Section 157-A of the
principal Act, the following sections shall
be inserted, namely:

"157-B. Restrictions on transfer of
land by members of Scheduled Tribe.-- (1)
Without prejudice to the restrictions
contained in Sections 153 to 157, no
bhumidhar or asami belonging to a
Scheduled Tribe shall have the right to
transfer any land by way of sale, gift,
mortgage or lease to a person not
belonging to a Scheduled Tribe.

157-C. Mortgage of holdings by
members of Scheduled Caste or Scheduled
Tribe
in
certain
circumstances.--
Notwithstanding anything contained in
Sections 157-A and 157-B, a bhumidhar or
asami belonging to a Scheduled Caste or
Scheduled Tribe may mortgage without
possession his holding or part thereof in the
circumstances specified in sub-section (3) of
Section 152.

"Explanation.--In this Chapter, the
expressions
"Scheduled
Castes"
and
"Scheduled Tribes" shall mean respectively
the Scheduled Castes and Scheduled Tribes
specified in relation to Uttar Pradesh under
Articles 341 and 342 of the Constitution."

14. From the legislative history of
section 157-A of the U.P.Z.A. & L.R., Act,
as traced out above, it becomes clear that in
the year 1969 the restriction under Section
157-A applied only to members of
"Scheduled Tribe". The restriction on
members of "Scheduled Caste" became
applicable on publication of U.P. Land
Laws (Amendment), Act, 1974, which was
published in the Official Gazette on 07th
December, 1974. Thereafter, with effect
from 03.06.1981, section 157-A was
substituted so much so that section 157-A
related only to the members of Scheduled
Caste whereas new sections 157-B and 157C were inserted. Section 157-B was with
respect to restriction on transfer of land by
members of Scheduled Tribe.

15. After having noticed the
legislative history of section 157-A of the
U.P.Z.A. & L.R. Act, a question that now
arises for consideration is whether the
provisions of Section 157-A, including its
amendments, would be retrospective so as
to annul transactions that have taken place
prior to its insertion / substitution/
amendment in the Statute Book.
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

16. Section 5 of the U.P. General
Clauses Act, 1904 provides that where any
United Provinces Act is not expressed to
come into operation on a particular day,
then in the case of Uttar Pradesh Act made
after the commencement of the Constitution
it shall come into operation on the day on
which the assent thereto of the Governor or
the President, as the case may require, is
first published in the Official Gazette. It
further provides that unless the contrary is
expressed, an Uttar Pradesh Act shall be
construed
as
coming
into
operation
immediately on the expiration of the day
preceding its commencement.

17. In the instant case , I find that
there was no restriction on transfers by a
member of Scheduled Caste till the
amendment of Section 157-A brought about
by U.P. Act No.34 of 1974. The U.P. Land
Laws (Amendment) Act, 1974 (U.P. Act
No. 34 of 1974) does not provide for any
particular day for its commencement.
Accordingly, the U.P. Act No. 34 of 1974
would be deemed to have come into
operation on the day that it was published in
the Official Gazette. From 1975 LLT Part
IV page 1, it appears that the said Act was
published in U.P. Gazette, Extraordinary, on
07th December, 1974. Therefore the U.P.
Act No. 34 of 1974 came into operation
with effect from 07th December, 1974.
Accordingly, prior to 07th December, 1974,
section 157-A did not have the words
"Scheduled Caste" and it related to
members of "Scheduled Tribe" only.

18. It is cardinal principle of
construction that every Statute is prima
facie prospective unless it is especially or by
necessary
implication
made
to
have
retrospective operation. Unless there are
words in the Statute sufficient to show the
intention of the Legislature to affect existing
rights, it is deemed to be prospective only -
'nova constitutio, futuris formam imponere
debet, non praeteritis' (A new law ought to
regulate what is to follow, not the past).

19. The Apex Court in the case of Dy.
Collector and another v. S. Venkata
Ramanaiah and another reported in
(1995) 6 SCC 545, was required to decide
whether A. P. Scheduled Areas Land
Transfer (Amendment) Regulation, 1959
(Regulation 1 of 1959) and the subsequent
Regulation No.2 of 1963 and Regulation
No.1 of 1970 have retrospective effect and
can affect transfers made prior to the
coming into force of the said Regulations.
While holding that the provisions were not
retrospective, the Apex Court, in paragraph
Nos. 23 and 24 of the report, observed as
follows:-

"23.........It is obvious that transactions
which have taken place years back prior to
the very parent Regulation No.I of 1959
seeing the light of the day, and which had
created vested rights in favour of the
transferees could not be adversely affected
by the sweep of Section 3(1). It cannot be
said to have any implied retrospective effect
which would nullify and confiscate preexisting vested rights in favour of the
concerned transferees, transfers in whose
favour had become final and binding and
were not hit by the then existing provisions
of any nullifying statutes. In this connection
we may usefully refer to Francis Bennion's
Statutory Interpretation, Second Edition at
page 214 wherein the learned author, in
Section
97,
deals
with
retrospective
operation of Acts. The learned author has
commented on this aspect as under:

"The essential idea of a legal system is
that current law should govern current
activities. Elsewhere in this work a
2 All] Mahavir V. Smt. Phool Wati
543
particular Act is likened to a floodlight
switched on or off, and the general body 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 force
today, not tomorrow's backward adjustment
of it. Such, we believe, is the nature of law.
Dislike of ex post 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.'

Retrospectivity is artificial, deeming a
thing to be what it was not. Artificiality and
make-believe are generally repugnant to
law as the servant of human welfare. So it
follows that the courts apply the general
presumption that an enactment is not
intended to have retrospective effect. As
always, the power of Parliament to produce
such an effect where it wishes to do so is
nevertheless
undoubted.
The
general
presumption, which therefore applies only
unless the contrary intention appears, is
stated in Maxwell on the Interpretation of
Statutes in the following emphatic terms: `It
is a fundamental rule of English law that no
statute shall be construed to have a
retrospective operation unless such a
construction appears very clearly in the
terms of the Act, or arises by necessary and
distinct implication.'

Maxwell's statement has received
frequent judicial approval. It is however
too dogmatically framed, and describes as
a rule what (for reasons stated in Code
180) is really no more than a presumption
which, in the instant case, may be
outweighed by other factors. Where, on a
weighing of the factors, it seems that some
retrospective effect was intended, the
general
presumption
against
retrospectivity indicates that this should
be kept to as narrow a compass as will
accord with the legislative intention."

24. Mr. Bobde, learned counsel
appearing for the respondents as amicus
curiae at our request, invited our
attention to a decision of this Court in the
case of R. Rajagopal Reddy (Dead) by
LRs.
and
Others
v.
Padmini
Chandrasekharan (Dead) by LRs. (1995
(2) SCC 630) wherein one of us
(Majmudar, J.) speaking for a Three
Judge
Bench
on
the
question
of
retrospective
effect
of
a
statutory
provision observed as under : (SCC p.
645, paras 14 and 15)

"... Even otherwise, it is now well
settled that where a statutory provision
which is not expressly made retrospective
by the legislature seeks to affect vested
rights and corresponding obligations of
parties, such provision cannot be said to
have any retrospective effect by necessary
implication.
In
Maxwell
on
the
Interpretatin of Statutes, 12th Edn.
(1969), the learned author has made the
following observations based on various
decisions of different courts, specially in
Re: Athlumney, (1898)2 Q.B. at pp. 551,
552 :

`Perhaps no rule of construction is
more firmly established than this - that a
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
retrospective operation is not to be given
to a statute so as to impair an existing
right or obligation, otherwise than as
regards matters of procedure, unless that
effect cannot be avoided without doing
violence to the language of the enactment.
If the enactment is expressed in language
which
is
fairly
capable
of
either
interpretation, it ought to be construed as
prospective only.' The rule has, in fact,
two aspects, for it, `involves another and
subordinate rule, to the effect that a
statute is not to be construed so as to have
a greater retrospective operation than its
language renders necessary."

In the case of Garikapati Veeraya v.
N. Subbiah Choudhry (AIR 1937 SC 540
at p.553, para 25) Chief Justice S.R. Das
speaking for this Court has made the
following pertinent observations in this
connection :

`The golden rule of construction is
that, in the absence of anything in the
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.' "

Therefore,
we
agree
with
the
submission of Mr Bobde, learned counsel
for respondents, that the provisions of
Section 3(1) of the Regulation are purely
prospective in nature and do not affect
past transactions of transfers effected
between
tribals
and
non-tribals
or
between non-tribals and non- tribals
themselves in the Agency Tracts at a time
when neither Regulation I of 1959 nor
Regulation II of 1963 or Regulation I of
1970 was in force. Such past transactions
remained untouched by the sweep of the
aforesaid
subsequently
enacted
Regulations."

20. The principles enunciated above,
were reiterated by a Constitution Bench
decision of the Apex Court in the case of
Shyam Sunder and others v. Ram
Kumar and another reported in (2001) 8
SCC 24.

21.

Applying
the
aforesaid
principles
to
assess
whether
the
provisions of section 157-A of the UPZA
& LR Act affect past completed transfers,
I do not find any provision that may
suggest that section 157-A of the
U.P.Z.A. & L.R. Act including its
amendments would affect past completed
transfers. Section 157-A, which was
substituted by U.P. Act No.20 of 1982,
was made effective from 03.06.1981
whereas
all
the
other
previous
amendments, except that was made by UP
Act No.8 of 1977, were prospective i.e.
operative
from
the
date
of
their
publication in the official gazette. So far
as the amendment brought by UP Act
No.8 of 1977 is concerned that was made
operative with effect from 28.01.1977.

22. Coming to the facts of the
present case, it is undisputed that the saledeed was executed by the Court on
23.03.1974 pursuant to a decree passed in
a suit for specific performance. It is also
undisputed that the predecessor-in-interest
of the defendant-appellants was not a
member of Scheduled Tribe, but was a
member of Scheduled Caste, on whom
there was no restriction in the statute book
for
effecting
transfer
of
land.
Accordingly, on the date, when the saledeed dated 23.03.1974 was executed by
the Court, there being no restriction on
transfer by a member of a Scheduled
2 All] State of U.P. V. Ram Sajeevan @ Gunda
545
Caste, there could be no such restriction
on the Court for executing sale deed in
favour of the plaintiff pursuant to a decree
for specific performance. Thus, even if it
is assumed that the statutory bar applies to
a Court that executes a sale deed pursuant
to a decree for specific performance, that
bar did not apply to the Court that
executed sale deed in favour of the
plaintiff inasmuch as on 23.03.1974, that
is, when the sale deed was executed, there
was no restriction in the statute book on
transfer by a member of a Scheduled
Caste.

23. In view of the aforesaid
discussion, the substantial question of
law, as framed, for hearing of this appeal,
is purely academic in nature and is not
required to be decided for determining the
rights of the parties to the suit. The
judgment relied upon by the counsel for
the appellant does not go to show that the
provisions of Section 157-A of the
U.P.Z.A. & L.R., Act would affect
transfers carried out before insertion of
the statutory bar.

24. In the instant appeal there is no
challenge to the finding recorded by both
the courts below that the plaintiff is in
possession of the land in suit and that her
name is recorded in the revenue records.
In this view of the matter, the plaintiffrespondent being owner in possession is
entitled to decree of her suit for
permanent
prohibitory
injunction
as
against the defendant-appellants. For the
reasons
noted
above,
I'm
of
the
considered view that the courts below
were legally justified in decreeing the suit
of the plaintiff and that the judgment and
decree passed by the courts below does
not suffer from any legal infirmity. The
appeal, therefore, lacks merit and is
hereby dismissed with costs.
---------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2012

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE RAMESH SINHA, J.

Government Appeal Defective No. - 122
of 2006

State of U.P.

 ...Petitioner
Versus
Ram Sajeevan @ Gunda ...Respondents

Counsel for the Petitioner
Govt Advocate

Counsel for the Respondents:
.........................................

Government Appeal-against acquittaloffence under Section 436 IPC alongwith
Section 3 (2) (4) of S.T/S.C. Act-inspite
of 4 years opportunity prosecution fail to
produce any witness- while primary duty
of officer incharge of Police Station was
to obtain bond under Section 170 (2)
Cr.P.C. From the person acquainted with
incident-exercise
of
Trail
Judge
to
examine accused person under Section
313 wholly un-warranted-in absence of
prosecution
witness-major
difference
between FIR and evidence-appeal by
Government with Section 5 Applicationcompletely
unnecessary
exerciseamounts to wastage of Public timeAppeal dismissed.

Held: Para 5 and 6

We have already pointed out that no
witness was present. As such, there was
no evidence and there could not have
been any other result as was recorded by
the learned Trial Judge. We do not find
any merit in the application filed under