# J:J62 Prem Chand Garg v. 'xcis1 Commissiona, U. P., A//ah•b•d

- **Citation:** [1963] Supp. 1 S.C.R. 912
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. P. StNHA, P. B. Ga.Tendragadkar, K. N. Wa'Whoo, K. c. DAS GUPTA, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-j62-prem-chand-garg-v-xcis1-commissiona-u-p-a-ah-b-d-2755
- **Pages:** 41

## Headnote

Compulsory
acquisition--J>ernianent
Lease-Statute
declaring transfer vaid-1Vo provision for cornpensation-F/tatute,
if provides for compulBOry acquisition-Gonstituti'.onality ofDoctrive of eclipse-If not applicable to post-Gon.stitution
stat11tes-U.P. L1ind Tenures (Regulation of Transfers) Act,
1952 (U.P. I5. of J.1152), s. 3-Gonstitution of India Arts. 13,
JI-Constitution (1i'ourth Amendment) Act, J9,55.
Forest-Declaration as resuve forest-Statute providing
for interim confrol-Gonstitntionality of-Indian /i'orest Act;
1.927 (IU of 1.927), Ghs. lI and JI-Indian 1i'ore$t (U.P. Amen.dment) Act, 1.956 (U.P. ,; of l.9!jli), s. 3.
By a registered lease dated June l 4, 1952, one M granted
a perpetual lease of certain lands to the petitioner.
Formally
a large nun1ber of trees
~tood on these lands and the lease deed
recittd that the entire land had been cleared of the trees and
possession given to the petitioner who was made a hereditary
tenant of the land. The U. P. Zamindari .,..bolition and Land
Ref arms Act, 195 l, (hereinafter referred to as the Abolition
Act) was made applicable from July I, 1952, In the meantime the U. P. Land Tenures (Regulation of Transfers) Act,
i952 (hereinafter referred to as the Transfer Act) ~'as passed
which came into force with retrospective effect from May 21,
I S.C.R.
SUPREME COURT REPORTS
913
1952.
By this Act all transfers made hy intermediaries after
May 21, 1952, were declared void.
The petitioner was ordered
to desist from clearing the land and from doing anything
contrary to the U. P. Private Forests Act, 1948. On March 23,
1955, the respondent issued a notification under s. 4 of the
Indian Forests Act 1927, decla.ring that it had been decided to
constitute certain lands including the lands in dispute a "reserve
forest'".
Later, a proclamation under s. 6 was issued calling
for objections from claimants but the petitioner did not file any
objections. In March 1956, the Indian Forest (U. P. Amend·
ment) Act, 1956, (hereinafter referred to as the Forest Amendment Act) was passed which introduced a new Ch. VA consisting ss. 38A to 38G in the Forest Act.
A fresh notification was
issued
prohibiting variou' acts mentioned in
s. 38B.
The
petitioner contended that the Transfer Act and the Forest
Amendment Act were unconstitutional and that the restrictions
imposed upon him under these two Acts were illegal.
The respondent contended that the two Acts were valid and that the
petitioner acquired no right under the lease and had no right to
maintain a writ petition under Art. 32.
Held, that so long as the lease stood, the petitioner had a
right to maintain the petitio!L The lease created a right in
presenti and not merely some future right. The fact that the
nature of the right was disputed did not affect the right to
maintain the petition.
Held, further, that the Transfer Act was unconstitutional.
It deprived the petitioner of his property without providing for
payment
of any compensation and contravened Art. 31.
The Transfer Act was law for acquisition of property when it
was passed in 1952 and the constitution (Fourth Amendment)
Act, !955, which laid down that a law which did not provide
for the transfer of ownership or right to possession to the State
was not a law for the compulsory acquisition or requisition of
property, was not applicable to it.
The constitutionality of a
law had to be judged on the basis of the Constitution as it stood
at the time the law was passed, subject to any retrospective
amendment of the Constitution. The Constitution (Fourth
Amendment) Act, 1955, could not be applied to the Transfer
Act by virtue of the doctrine of eclipse. This doctrine was
applicable to pre-Constitution laws but not to post-Constitution
laws.
State of West Bengal
v. Subodh Gopal Bose
fl954/
S.C.R. 587, Saghir Ahmad v. The State of U. P., [1955],I S.C.R.
707, Karam Singh v.
Nilial Khan, A. I. R. (1957) All.
549.
{3umhay Dyeing and Manufacturing Go. Ltd.
v.
The State of
1962
Mah~11dra Lal Jami
v.
State of

## Text

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J:J62
Prem Chand Garg
v.
'xcis1 Commissiona,
U. P., A//ah•b•d
Shah, J.
1962
November, 7.
912 SUPREME COURT REPORTS [1963] SUPP.
calling upon the petitioners to furnish security of
Rs. 2,500/- is set aside. There will be no order as to
costs.
MAHENDRA LAL JAIN!
v.
THE STATE OF UTTAR PRADESH
AND OTHERS
(B. P. StNHA, c. J., P. B. GA.TENDRAGADKAR,
K. N. WA'WHOO, K. c. DAS GUPTA
and J. C. SHAH, JJ.)
Compulsory
acquisition--J>ernianent
Lease-Statute
declaring transfer vaid-1Vo provision for cornpensation-F/tatute,
if provides for compulBOry acquisition-Gonstituti'.onality ofDoctrive of eclipse-If not applicable to post-Gon.stitution
stat11tes-U.P. L1ind Tenures (Regulation of Transfers) Act,
1952 (U.P. I5. of J.1152), s. 3-Gonstitution of India Arts. 13,
JI-Constitution (1i'ourth Amendment) Act, J9,55.
Forest-Declaration as resuve forest-Statute providing
for interim confrol-Gonstitntionality of-Indian /i'orest Act;
1.927 (IU of 1.927), Ghs. lI and JI-Indian 1i'ore$t (U.P. Amen.dment) Act, 1.956 (U.P. ,; of l.9!jli), s. 3.
By a registered lease dated June l 4, 1952, one M granted
a perpetual lease of certain lands to the petitioner.
Formally
a large nun1ber of trees
~tood on these lands and the lease deed
recittd that the entire land had been cleared of the trees and
possession given to the petitioner who was made a hereditary
tenant of the land. The U. P. Zamindari .,..bolition and Land
Ref arms Act, 195 l, (hereinafter referred to as the Abolition
Act) was made applicable from July I, 1952, In the meantime the U. P. Land Tenures (Regulation of Transfers) Act,
i952 (hereinafter referred to as the Transfer Act) ~'as passed
which came into force with retrospective effect from May 21,
I S.C.R.
SUPREME COURT REPORTS
913
1952.
By this Act all transfers made hy intermediaries after
May 21, 1952, were declared void.
The petitioner was ordered
to desist from clearing the land and from doing anything
contrary to the U. P. Private Forests Act, 1948. On March 23,
1955, the respondent issued a notification under s. 4 of the
Indian Forests Act 1927, decla.ring that it had been decided to
constitute certain lands including the lands in dispute a "reserve
forest'".
Later, a proclamation under s. 6 was issued calling
for objections from claimants but the petitioner did not file any
objections. In March 1956, the Indian Forest (U. P. Amend·
ment) Act, 1956, (hereinafter referred to as the Forest Amendment Act) was passed which introduced a new Ch. VA consisting ss. 38A to 38G in the Forest Act.
A fresh notification was
issued
prohibiting variou' acts mentioned in
s. 38B.
The
petitioner contended that the Transfer Act and the Forest
Amendment Act were unconstitutional and that the restrictions
imposed upon him under these two Acts were illegal.
The respondent contended that the two Acts were valid and that the
petitioner acquired no right under the lease and had no right to
maintain a writ petition under Art. 32.
Held, that so long as the lease stood, the petitioner had a
right to maintain the petitio!L The lease created a right in
presenti and not merely some future right. The fact that the
nature of the right was disputed did not affect the right to
maintain the petition.
Held, further, that the Transfer Act was unconstitutional.
It deprived the petitioner of his property without providing for
payment
of any compensation and contravened Art. 31.
The Transfer Act was law for acquisition of property when it
was passed in 1952 and the constitution (Fourth Amendment)
Act, !955, which laid down that a law which did not provide
for the transfer of ownership or right to possession to the State
was not a law for the compulsory acquisition or requisition of
property, was not applicable to it.
The constitutionality of a
law had to be judged on the basis of the Constitution as it stood
at the time the law was passed, subject to any retrospective
amendment of the Constitution. The Constitution (Fourth
Amendment) Act, 1955, could not be applied to the Transfer
Act by virtue of the doctrine of eclipse. This doctrine was
applicable to pre-Constitution laws but not to post-Constitution
laws.
State of West Bengal
v. Subodh Gopal Bose
fl954/
S.C.R. 587, Saghir Ahmad v. The State of U. P., [1955],I S.C.R.
707, Karam Singh v.
Nilial Khan, A. I. R. (1957) All.
549.
{3umhay Dyeing and Manufacturing Go. Ltd.
v.
The State of
1962
Mah~11dra Lal Jami
v.
State of U. P.
1962
·lahendra Lr1[ Jaini
v •.
St•t' of U. P.
Wanchoo, J.
914 SUPREME COURT REPORTS [1963] SUPP.
Bombay, [1958] S. C. R. 1122, Behram Khurshed Pesikaka v.
Ths Slate of Bombay, [1955] I S. C.R. 613, Keshavan Madhava
Meno~ v.
The State of Bombay, [1951] S. C.R. 228, Bhikaji
Narain Dhr:has v.
1'he State of Madhya Pradesh, (1955]
2 S. C.R. ~89 ancf Deep Chand v.
The State of Uttar Pradesh
(1959] Supp. 2 S. C. R. 8, referred to.
Held, further, that the Forest Amendment Act was not
unconstitutional. Chapter VA introduced by Ch. II in the
Indian Forest Act was ancillary to Ch. II and not to Cb. V.
Chapter VA was a mere interim measure to deal with the
situation arising after the Abolition Act while steps were being
taken to constitute reserved forests under Ch. II.
As originally
enacted. Ch. VA was ancillary to Ch. II and gave further
powers of control besides those contained in Ch. II. during the
period that proceedings under Ch. II were pending. These provisions which were for the interim protection of the forests pending
declaration of forests as reserved forests were in the interests of
the general public. The Amendment Act of 1960 which
enacted ss. 38H to 38M made no difference to the position that
ss. 38A to 38G as originally enacted were ancillary to Ch. II.
Held, further, that ss. 38A to 38G of the Forest Act were
applicable to the lands in dispute. Chapter II to which these
sections were. ancillary, dealt inter alia with forest and waste
land belonging to the Government. After the Abolition Act.
the proprietary rights in the land vested in the Government and
the petitioner who claimed to have become a bhumidar could
not be a proprietor but only tenure-holder.
ORIGINAL .JURISDICTION :
Petition No. 59 of
1962.
Petitioner under Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
C. B. Agarwala
and
J(. P. Gupta, for the
petitioner.
G. S. Pathalc, K. S. Hajela and C. P. Lal, for
the respondents.
1962. November 7.
The Judgment of the
Court was delivered by
W ANCHOO, ].-This petition un~er ;'\rt .. 32 of
the Constitution challenges the constltutlonahty of
I S.C.R. SUPREME COURT REPORTS
915
U. P. Land Tenures (Regulation of Transfers)
Act 1952, (U. P. XV of 1952), (hereinafter called the
Transfer Act) and the Indian Forest (U. P. Amendment) Act 1956, (U. P. V of 1956), (hereinafter
referred to as the Fotest Amendment Act.) The case
of the petitioner is that he obtained a permanent
lease from the Maharaja Bahadur of Nahan of certain
land known as "asarori" land, situate in the district
of Dehra Dun, in U ttar P~adesh. The area leased
out to him was 1069.68 acres in Khewat No. 1,
Mahal No. 8, Khasra Nos. IA, 1-B and ·2.
This
land was originally a Crown grant and had been free
from revenue since 1866. Initially, it belonged to
Major P. Innes· but was subsequently transferred to
the Maharaja Bahadur of Nahan. On January 25,
1951, an agreement was executed by the Maharaja
Bahadur in favour of the petitioner and one Virendra
Goyal for lease of this land for a consideration of an
annual rent of Rs. 2,200/-
and a premium of
Rs. 64,000/-.
The petitioner's case further is that
the possession of the land in dispute . was delivered to
him at the time the agreement to lease was executed.
It appears tl_iat at that time a large number of trees
were standing on this land and the Maharaja Bahadur
had give,n a contract for the removal of the trees to
another person with a view to making the land culturable, and the intention of the lessor was to demise the
land to the petitioner after the trees were removed,
so that the petitioner may carry on agricultural operations thereon.
On June 14, 1952, a registered lease
was executed by the Maharaja Bahadur in favour of
the petitioner and Virendra Goyal and it was recited
therein that the entire land had been cleared of the
trees and had been in possession of the lessees from
the date of the agreement referred to above.
Therefore, in fulfilment of the agreement, the lease was
executed demising to the lessees the land in question
on an annual rent of Rs. 2,200/-. The lease was
permanent, heritable and transferable. The lease
also provided that the lessor hacl given the right of
1962
Mahendra I.al Jaini
v.
State of U. P.
Wanc~oo, J.
1962
..ta/undra Lal Jaini
v.
State of U. P.
Wanchoo, J.
916 SUPREME COURT REPORTS [1963] SUPP.
hereditary ten'!ncy within the meaning of the U. P.
Tenancy Act, l!l89 to the lessees.
The lessees were
also given the right to put the land to any other use
whatsoever besides
agriculture and subterranean
rights were also confer~ed. Tliey had also the right
to sub-let and assign the land.
·
The petitioner's case further is that Virendra
Goyal is merely a benamirlar and has no right, title
or interest in the land in dispute and that a suit for
declaration in that behalf is pending in the Civil Court
at Dehra Dun between the petitioner and Virendra
Goyal.
A day after the agreemept of lease was
executed, the U. P
Zamindari Abolition and Land
Reforms Act, No. 1of19fil, (hereinafter referred to
as the Abolition Act), came into force on January 26,
195], and the land in dispute is land within the
meaning of this Act.
The Abolition Act was actually
applied to this area by a notification issued under s. 4
thereof from July ] , l 9fi2, shortly after the registered
lease in favour of the petitioner and another had been
made. The contention of the petitioner is that in
consequence of the application of the Abolition Act
to this
ar~a, the petitioner became a bhurnidhar of
the land under s. 18 (d) (iii) of the Abolition Act and
that his bhurnidhari rights still subsist.
On July 5,
1952, the petitioner and his employees went to the
land to carry on agricultural operations, but they
were stopped from doing so by the City l\1agistrate,
Dehra Dun along with the Divisional Forest Officer
and the Tehsildar, Dehra Dun.
He was ordered to
desist from clearing the land until further orders. The
matter was then referred to the Government of l1ttar
Pradesh, and the petitioner was ordered to desist from
doing anything, which was contrary to the U. P.
Private Forests Act, 1948 (U. P. VI of 1949). It may
be mentioned that in the meantime the Transfer Act
which was passed on June 28, J 952, came into force
with retrospective effect from May 21, 1952. By this
Act all transfers made by intermediaries after May 21,
,.
'
"' •
1 S.C.R. SUPREME COURT REPORTS
917
1952, were declared void.
The petitioner was therefore asked by the City Magistrate not to do anything
contrary to the Transfer Act until the orders of the
Government were received or the matter was decided
by a court of law. The petitioner's case is that the
land was no longer forest land when the registered
lease in his favour was made in June 1952. The
petitioner then took up the matter with the Government but his representation in that behalf was reject-
' ed in September 1952.
Thereupon in November 1952, the penuoner
filed a writ petition in the High Court at Allahabad
challeging the applicability of the U. P. Private
Forests Act to the land in dispute and also challenging
the constitutionality of the Transfer Act.
An ad
interim order was passed by the High Court in December 1952 restraining the respondents from interfering
with the possession of the petitioner over the land in
dispute and directing that the parties should maintain
the status quo.
In February 1955, the petitioner
withdrew the petitoin filed in the High Court for
various reasons into which it is unnecessary to go.
Thereafter the petitioner requested the Collector,
Dehra Dun, to allow him to carry out agricultural
operations over the land in dispute and he supported
this prayer by a further allegation that he had at any
rate become a sirdur within the 1111.:aning of s. :!l 11 of
the Abolition Act and was thus entitled to retain the
land in dispute.
The Collector again informed thl'
petitioner that the matter had been 1:cfen cd to the
Government and in the meantime the st11.tas rtno
should be maintained. In his present petition also,
the petitioner in the alternative raises the plea that
he has become a .sfrdar of the land in dispute and as
no steps were taken by the State to eject him within
two years of the date of vesting, namely, July I, 1952,
he was entitled to retain the possession of the land as
8irdf4r.
1962
.Wahendra Lal Jain•
v.
State of U. P.
~Vanchoo, J.
1962
Mahendrtl Lal Jaini
v.
'Stat4Df U. P.
Wanrhoo, J.
918 SUPREME COURT REPORTS [I963]SUPP.
On March 23, 1955, the Government of Uttar
Pradesh issued a notification under s. 4 of the Indian
Forest Act, 1927, (XVI of l.927), (hereinafter referred
to as the Forest Act), declaring that it had been
decided to constitute Asarori village including the
land in dispute a "reserved forest", and appointing
the Forest Settlement Officer Dehra Dun to call for
objections from claimants under ·Chap. Il of that
Act.
On April 26, 1955, a proclamation was issued
under s. 6 of the Forest Act, calling for objections
from claimants.
The petitioner, however, has made
no claim so far in persuance of the proclamation
issued under s. 6 of the Forest Act, and his reason for
this is that his matter was still under the consideration
of the Government as intimated to him by the Collector of Dehra Dun, and no orders had been passed by
the Government thereon.
On December 3, 1955, the Governor of Uttar
Pradesh promulgated an Ordinance, named as "The
Indian Forest (U. P. Amendment) Ordinance, 1955"
adding Chap. V-A to the Forest Act, and a notification was issued thereunder restraining the claimants
as defined in s. 38-A from doing acts prohibited under
s. 38-B.
This Ordinance was made into an Act in
March 1956, namely, the Indian Forest (U.P.
Amendment) Act, 1956 (U. P. V of 1956) by .which
Chap. V-A was introduced into the Forest Act, and
a fresh notification was issued under the Act prohibiting various acts mentioned in s. 38-B thereof. This
is one of the Acts which. the petitioner challenges as
unconstitutional.
The petitioner asserts . that the
notification, of March 17, 1956, was cancelled on
December 19, 1956, and thereupon he applied to the
Collector again to.allow him to reclaim the land. The
Collector told him in reply that the orders of the
Government were awaited in that connection. The
petitioner further alleges that in November 1957 the
State of Uttar Pradesh released over 293 acres out of
the land in dispute in favour of Yirendra Goyal, his
f
~
1.
1 S.C.R.
SUPREME COURT REPORTS
919
benamidar. The petitioner then made a representa·
tion to the Government in that behalf protesting
against the release of land in favour of Virendra
Goyal, and was informed that order had been cancelled on August 14, 1958. In May 1959, the legislature ofUttar Pradesh passed another Act known as
the Government Grants (U. P. Amendment) Act,
No. IX of 1959, and the petitioner contends that by
virtue of this Act all other laws ceased to apply to the
land in dispute but as this Act was admittedly repealed by the Government Grants (U. P. Amendment)
Act, No. XIII of l 960, with retrospective effect, nothing turns on this Act now, though the petitioner
approached the Collector of Dehra Dun immediately
after U. P. Act No. IX of 1959 was passed to be allowed to carry on reclamation operations. The Collector
however told him that he should do nothing till specific orders were received from the Government or the
matter was decided by a court of law.
Thereupon the petitioner filed a writ petition in
this Court under Art. 32 which was admitted in
February 1960. When this writ petition cam~ up
for hearing on October 25, 1961, this Court was
informed that certain notifications had been issued
under ss.38-B and 38.C of the Forest Amendment
Act. The petitioner was then .. fore allowed on March
19, 1962 to withdraw that petition with liberty to
present a fresh writ petition and thereupon the
present petition was filed in April 1962.
The main contentions of the petitioner with
respect to the two Acts, the constitutionality of which
he challenges, are these.
He con tends that the
Transfer Act .is unconstituti~mal, as it deprives the
l~s~ees of thell' lease-hold nghts without any prov1s1011 for payment of compensation in violation of
Art. 31 (2) of the Constitution as it stood before the
Fourth Amendment to the Constitution.
In the
alernative, he claims that even if the Transfer Act
1962
A1 ahendra Lal J aini
v.
State of U. P.
Wanchoo, J.
1962
Mahindra Lal Jaini
v.
State of U. P.
Wanchoo, J.
920 SUPREME COURT REPORTS [1963] SUPP.
is valid, he has become a sirdar under s. 210 of the
Abolition Act.
As to the Forest Amendment Act it
.
'
1s contended that it is unconstitutional as it imposes
unreasonable restrictions on the fundamental right of
the petitioner enshrined in
Art. 19 (1) (f) of the
Constitution. Besides these two main objections,
the petitioner further contends that the notification
under s. 4 of the Forest Act dated March 23, 1955,
was cancelled so far as the land in dispute was con·
cerned and therefore would not affect the petitioner's
case. It is also urged that as no notification under
s.20 of the Forest Act has been issued, it must be held
that the purpose of the notification under s. 4 had
been abandoned.
As to the notification under s. 38-B
of the Forest Amendment Act, it mav be mentioned
that the petitioner made no objections as required
under that Act; but he claims that he could not do
so because before the time within which he had to
file objections had expired, U .P. Act IX of J 959 had
come into force and it was not necessary for him to
file any objection in view of that Act.
The petitioner therefore p~ays that the Transfer Act and the
Forest Amendment Act be declared ultra vires and
all actions taken thereunder be held to be void as
against the petitioner. He further prays that he
may be declared a bhumidhar or in the alternative a
sirdar under the provisions of the Abolition Act and
the respondents be restrained from interfering with
his possession of the land.
He also prays that in
case it is found that he has been dispossessed, a writ
in the nature of inandarnus or any other appropriate
direction be issued against the respondents directing
them to withdraw from possession of the land in
dispute and to permit the petitioner to enjoy such
rights to which he may be found entitled.
The petition has been opposed on behalf of the
State of U ttar Pradesh and it is maintained in the
first place that t.he Transfer Act is valid and constitutional. If that is held in favour of the respondent,
,.
l S.C.R.
SUPREME COURT REPORTS
921
nothing else will survive. for no rights would then
arise in favour of the peritioner under the registered
lease of June 1952.
Further, it has been strenuously
contended on behalf of the state that the petitioner
never obtained possession over the land in dispute.
It has also been contended that the land in dispute
was never denuded of trees and that it is still forest
land on which a large number of trees are standing.
The petitioner's
claim that he
has
become a
bhurnidhar under the Abolition Act is also denied.
His further claim that he has become a sirdar is also
repelled.
The case of the State is that the petitioner
acquired no rights under. the registered lease of June
l952 and has no right to maintain the present petition
n consequence, irrespective of whether the Transfer
\ct is valid and constitutional or not. It is also
contended that the Forest Amendment Act is a valid
and constitutional piece of legislation and the various
notifications issued under the For est Act and the
Forest Amendment Act are perfectly good.
Lastly
it is contended that the notification under s. 4 of the
Forest Act has never been withdrawn though no
notification under §. 20 has yet been issued in deference to the fact that the writ petitions filed by the
petitioner one after the other were pending either in
the High Court or in this Court.
The three main
points therefore which arise for decision in the present
petition are these : --
(I) Has the petitioner no right whatsoever to
any property by virtue of the registered
lease deed of June 1952 in his favour
irrespective of whether the Transfer Act is
valid and constitutional or not, and therefore has no locns stwndi to maintain the
present petition ?
(2) Is the Transfer Act, 1952, valid and cons··
titutional ?
(3) Is the Forest Amendment Act of l!J5G valid
and constitui:imrnl ?
1962
Mahmdra L.t J ainl
••
Stat• of U. P.
Wanchoo, J,
1962
Mahnidra lAI Jaini
v.
Stale of U. P.
Wanehoo, J.
922 SUPREME COURT REPORTS [1963] SUPP.
There are ·some subsidiary points with respect
to the notifications issued which also arise for consideration with which we shall deal when considering
the three main points mentioned above.
Re. (1).
The petitioner bases his right to move this Court
to protect his fundamental right on the basis of the
registered lease in his favour of June 14, 1952. There
can be no doubt after a perusal of that lease which is
not said to be a fictitious document, that if various
laws had not been passed and had not come into
force that might have affected this land, it would have
conferred a right of property on the petitioner, and
he would be entitled at least to be a permanent lessee
of the land in dispute with such rights as the lease
confers upon him. It is therefore difficult to understand how it can be said in the face of this lease that
the petitioner has no right to maintain the present
petition. It may be that the lease may be of no force
and effect, if the Transfer Act is held valid--which
is a question we shall consider later-; but once it is
conceded that the lease is not fictitious, it does confer
rights in the land affected by it on the petitioner. We
cannot see how the petitioner would have no right to
maintain the present petition irrespective of whether
the Transfer Act is valid and constitutional or not.
What rights are conferred on the petitioner by this
registered lease is a different matter. The petitioner
claims that he has become a bhumidhar under the
Abolition Act by virtue of this lease; in the alternative he claims that he has become a sirdar, as he is in
possession.
The State however denies that the petitioner has become a bhumidhar under the Abolition
Act; it also denies that the petitioner is in possession
and in consequence has become a sirdar, under the
Abolition Act. The petitioner prays that his rights
as a bhnmidhar or a sirdar, may be decided in the
present petition. We are however of opinion that it
(
I S.C.R. SUPREME COURT REPORTS
923
/
will' not be fair to either party to d.ecide the question
whether or not the petitioner is either bhumidhar or
sirdar by virtue of the registered lease or the possession of the land demised which he claims, in view of
the provisions of the Abolition Act. The petitioner's
status as bhumidhar or sirdar will depend upon the
decision of various questions of fact, and we do not
think that it will be fair to either party to decide
those questions of fact merely on the scanty documentary evidence available on this record, in particular
as the question of possession is also seriously disputed
and further there is a serious dispute as to whether any
trees stand on this land even now or whether trees
had been cleared as recited in the registered lease,
before that lease was registered; these are all questions
of fact on which oral evidence will be necessary.
There is a provision in the Abolition Act, s. 229-B,
which allows a person claiming to be a bhumidhar or
sirdar under it to file a suit to establish that right.
We think, considering the serious dispute as to facts
which exists in this case between the parties both as to
the nature of the land and as to the possession of the
petitioner, that the petitioner should be left to establish his rights as bhumidhar or as sirdar by suit, or it
may also be possible for him to establish that right by
fling objections in response to the proclamation under
s. 6 of the Forest Act with which we shall deal in
detail later.
Therefore even though we are not
prepared to decide the question whether the petitioner
is a bhumidhar or a sirdar, it seems to us that in the
face of the deed of lease in favour of the petitioner,
it cannot be said that he has no right to maintain the
pr.esent petition (irrespective of whether the Transfer
.\ct is valid or not). As we have already indicated,
if the Transfer Act is valid, then the lease in favour
of the petitioner will confer no right on him and in
that case his petition must fail.
But if the Transfer
Act is not a valid piece of legislation, the lease will
stand and so long as it stands, the petitioner would in
our opiniort' be competer, :o ~aintain the present
1962
Malundra LIJI Jaial
v.
Stau of U. P.
Wanchao, J,
924 SUPREME GOUR T REPORTS [1963] SUPP.
petition, though we make it clear that we do not
Mahm;;;;z;; Jaini
decide in this petition what right is conferred on the
· petitioner by the lease and whether he is a bhumUlhar
or a sirdar by virtue of the lease and his alleged
possession over the land demised therein. We are
therefore of opinion that so long as the lease s'tands,
1962
••
State of U. P.
Wanclzoo1 J.
the petitioner would have a right to maintain the
present petition, though we express no opinion as to
the nature of that right and leave it to the petitioner
to have that determined in a proper forum.
It is also urged that no present tenancy right
was conferred by the lease on the petitioner though
cl. (2) of the lease purports to confer hereditary
tenancy rights within the meaning of U. P. Tenancy
Act, as the land was at the time covered by trees and
was not fit for cultivation. This again raises the
same question of fact, namely, the nature ofland at
the time of the execution of the lease. It may be
that no tenancy rights may be created in favour of
the petitioner by the lease, if it is found that the land
in dispute was not land within the meaning of the
U. P. Tenancy Act. But that again is a question
which will have to be decided in· the proper forum as
indicated above by us. There can however be no
doubt that the lease did create some right, whatsoever
be its nature, iq. presenti and though the nature of
that right may be disputed, it js not a case where only
some future right is conferred. In the circumstances,
it cannot be said that no right whatever in presenti
was created by the lease, and therefore the petitioner
is not entitled to maintain the present petition.
Lastly, it is urged that the lease was in favour
of two persons, namely, the petitioner and Virendra
Goyal, and the present petition has been filed only by
the petitioner and Virendra Goyal has not been made
a party to it, even as respondent. It is urged therefore that the present petition is not maintainable on
that ground aiso, and reliance in this connection is
l S.C.R.
SUPREME COURT REPORTS
925
placed on the analogy of suits, where all co·owners
must join in a suit to recover property unless the law
otherwise provides, and if some co-owners refuse to
sue, the proper course to adopt ,;is to the rest is to
make them defendants in the suit. It is enough to say
that this principle applicable to suits for possession caa
have no application to a petition under Art. 32, which
is not a suit for possession.
Besides the case of the
petitioner is
that the other lessee was a mere
beru.imidar and if that case is right (on which again we
express no opinion, as the matter is 8Ub judice in a
civil court at Dehra Dun), it would be unnecessary
to make Virendra Goyal even a respondent. If the
petitioner has a right to maintain the present petition,
the fact that he has not made another person who
would have equal right with him to maintain the
petition, even a party to the petition, would not in
our opinion entail that his petition should be thrown
out on that ground alone and he should not be grant·
ed any relief in the matter of enforcing his fundamental right. We are therefore of opinion that the
petitioner has a right to maintain the present petition,
though we express no opinion as to the nature of that
right.
Re. (2).
The Transfer Act is a short Act of three sections.
The preamble to the Act says that as the Abolition
Act !1as come into force and it is expedient for the
avoidance of transitional difficulties consequent upon
the said enforcc~ent to regulate certain transfers of
land by intermediaries, the Act was enacted.
Section
1 gives the short title, the extent to which the Act
extends and the date from which it came into force,
namely, :May 21, 1952 .. though it was actually publi·
shed on June 23, 1952.
Section 2 is the definition
section.
Section 3 is the main section, which lays
down that notwithstanding anything contained in any
law or contract to the contrary, a lease of land by
an intermediary either granted or registered on or
1962
A1afundra f,aJ J ait
v.
Stale nf U. P.
H'.ini:hoo, J.
1962
.falwndra Lal Jaini
v.
Stai. of U. P.
Wanehoo, J,
926 SUPREME COURT REPORTS [1963] SUPP.
after May 21, 1952 shall be and is hereby declared
null and void from the date of the execution and the
lessee shall for purposes of s. 180 of the U.P. Tenancy
Act and s. 209 of the Abolition Act be deemed to be
a person in possession of the land otherwise than in
accordance with the provis10ns of the law for the time
being in force. It is further provided that a transaction between an intermediary and a tenant conferring
on the tenant a right to transfer by sale his holding or
any part thereof either made or entered into or registered on or after May 21, 1952 shall be and is hereby declared null and void from the date of execution.
It will thus be seen that the Transfer Act makes two
kinds of transfers made on or after May 21, 1952 null
and void and thus deprives the transferee of the right
which he ,would otherwise acquire under the transfer.
The contention of the petitiorn;r is that the Transfer
Act contravenes Art. 31 of the Constitution, as it was
at the time the Act was passed, and therefore is unconstitutional, for though the transferee is deprived
of his property, no compensation is provided in the
Act as required by Art. 31(2) of the Constitution.
Reliance in this connection is placed on the State of
West Bengal v. Suhodh Gopal Bose(1), where dealing
with Art. 31, the majority of the Court held that Art.
31 protects the right to property by defining the limits
on the power of the State to take away private
property. It was further held that clause (1) and (2)
of Art. 31 were not mutually exclusive in scope and
content, but should be read together and understood
as dtaling with the same subject, namely, the protection of the right to property by means· of the limitations on the State power referred to above, the
deprivation contemplated in cl. t l) being no other
than the acquisition or taking possession of property
referred to in cl. ( 2).
The decision in Subodh Gopal' s
case(1) was refered to in Saghir Ahmad v. The State
of U. P.('), and it was pointed out that in view of the
majority decision in that case, it must be taken to be
settled that "clauses (1) and (2) of article 31 are not
(1) [1954] S.C.R. 587.
(2) [1955] 1 S.C.R, 707.
1 S.C.R. SUPREME COURT REPORTS
927
mutually exclusive in scope but should be read to1962
.gether as dealing with the same
su~ject, namely, the Mahendra Lal Jair
protection of the right to property by means of limitations on the State's powers, the deprivation contemplated in clause (1) being no other than acquisition or
taking possession of the property referred to in clause
(2)". Soon after the decision in Suhodh Gopal' s case('),
Art. 31(2) was amended by the Constitution (Fourth
Amendment) Act, 1955, and cl. (2A) was introduced
in Art. 31, the amendment being prospective. The
new cl. (2-A) of Art. 31 lays down that "where a law
does not provide for the transfer of the ownership or
right to possession of any property to the State or to
a corporation owned or controlled by the State, it
shall not be deemed to provide for the compulsory
acquisition or requisition of property, notwithstanding
that it deprives any person of his property." This
amendment thus accepted the minority view of
Das, J., as he then was, in l:Jubodh Gopal's case(') and
made it clear that mere deprivation of property,
without the ownership or right to possession being
transferred to the State, would not attract the provisions of Art. 31(2).
The contention on behalf of the
petitioner is that the amendment to Art. 31 being not
retrospective would not apply to the consideration of
the constitutionality of the Transfer Act, which would
have to be considered on the basis of the Constitution
as it ~.tood in 1952. It is not seriously disputed on
behalf of the respondents that if the Constitution as
it stood in. 1952 has to be applied to judge the constitutionalitv of the Transfer Act, the case would be
completely' covered by the decision in Subodh Gopal's
case('), and the Transfer Act not having provided
for payment of compensation, as required by Art.
31(2), as it stood in 1952, would be unconstitutional.
We are unable to agree with the view taken by the
High Court at Allahabad in Karam Singh v. Nihal
Khan(') insofar as it upholds the validity of the
Transfer Act.
·
'11·'
.
(I} [l 954) S.C.R:: 587,
(2) A.I.R. (1957) All. 549,
v.
Stall of U. P.
Wanchoo, J.
1962
MaMndra Lal laid
v.
Stal• oJ U. P.
Wanchoo, J.
928 SUPREME COURT REPORTS [1963] SUPP.
The contention on behalf of the respondents in
support of the constitutionality of the Transfer Act
is, however, two·fold. In the first place, it is urged
that the constitutionality of the Transfer Act must
be judged on the basis of the Constitution as it stood
on the date of the present petition and not as it stood
on the date of the Transfer Act. Reliance in this
connection is placed on Bombay Dye·inq and Manufacturing Co. Ltd. v. The State of Bombay (1), where
it was observed at p. 1131, that it was not disputed
that the Constitution Fourth Amendment Act which
introduced cl. (2-A) in Art. 31 was not retrospective,
and that the rights of the parties must be decided in
accordance with the law as on the date of the writ
petition. It is urged that this observation is an
authority for the proposition that in every case the
constitutionality of an Act has to be judged by the
Constitution as it stood on the date of the writ petition. We are of opinion that this observation is not
capable of this interpretation and could not have
intended to lay down any such proposition. The
judgment in the Bombay Dyeing case (') nowhere
considers the question whether the constitutionality of
an Act has to be judged on the basis of the Constitution as it stood on the date on which the Act was
passed or on the basis of the Constitution as it stood
on the date the writ petition was made. In that case
it made no difference whether the Constitution as it
stood on the date the Act was passed or on the date
when the writ petition was filed, was applied, for the
writ petition was filed long before the Constitution
Fourth Amendment was enacted. The observation
therefore in that case that the constitutionality of an
Act has to be judged on the basis of the Constitution
as it stood on the date of the writ petition,
cannot be ·given the meaning which the learued
counsel for the respondents put on it,, particularly, as
the context shows that the amendment of the Article
by the Constitution (~ourth Ame?d~ent). Act was not
retrospective. Now, if the const1tutionahty Wall to be
(I) [1958] S.C.R. 1122.
I S.C.R.
SUPREME COURT REPORTS
929
judged by the date of the writ petition, the result
would be that sometime the Fourth Amendment of
Art. 31 would become retrospective and sometimes it
would not, depending upon whether the writ petition
was filed before the Fourth Amendment Act was
passed or after the said amendment. If the writ
petition was filed before the Constitution (Fourth
Amendment) Act, the same provision of an Act would
be unconstitutional while if it was filed after the
Fouth Amendment Act, it may be constitutional.
.Such a result is obviously impossible to accept and
could not have been meant by the observation in
Bornhay Dyeing case (1). It is in our opinion absolutely elementary that the constitutionality of an Act
must be judged on the basis of the Constitution as it
was on the date the Act was passed, subject to any
retrospective amendment of the Constitution. Therefore, the argument that the constitutionality of the
Transfer Act must be judged on the basis of the
Constitution as it stood on the date of the present writ
petition has no force and must be rejected. We have
already indicated that if the constitutionality is to be
judged on the basis of the Constitution as it stood
when the Transfer Act was passed, it is not seriously
disputed that the Transfer Act would be unconstitutional, in view of the decision of this Court in Subodh
Gopal's case (').
The secon~ contention on behalf of the respondents is that even if the Transfer Act was unconstitutional, when it was passed, the inconsistency having
been removed on the enactment of the Constitution
(Fourth Amendment) Act by which Art. 31 was
amended, the Transfer Act revived and became effective, at any rate from the date the Fourth Amendment Act came into force.
This brings us to a consideration of the doctrine of eclipse, on which the contention is based. This doctrine first came to be
considrred in Behram Khurshed Pesikaka v. The 8t,ate
of Bomby (3) where Venkatarama Aiyar, J.
drew a
(I) (1958] s.C.R. 1122.
•
(2) (1954] s.c.R. 587.
(31 (1955] I S. C. R, 6131
1962
J.fakndra la! Jaini
v.
Slate of U. P.
Wanehoo 1 .I.
1962
fahenndra L21 Jaini
v.
State of U. P.
Wanchoo, J.
930 SUPREME COURT REPORTS [1963] SUPP.
distinction between the invalidity arising out of lack
of legislative
competence
and that
arising by
reason of a check imposed upon
the legislature
by the provisions contained in the Chapter on
Fundamental Rights. He relied on an
earlier
decision of this Court in Keshavan ]}f adhava ,~fenon
v.
The State of Bombay (1) and was of the view
that the word "void" in Art. 13 (1) should _be construed as meaning in the language of the American
Jurists as "relatively void". It may however be
observed that the laws under consideration in
Keshavan Madhava JJ!enon's case (') as well as in
Behram Khurshed Pasikaka (') were both pre-Constitution laws, and the effect of Art. 13 (1) had to be
considered with respect to their constitutionality.
llehrnm Khurshed Pesikaka's (')case was later referred to a larger Bench in view of the constitutional
questions involved and in the majority judgment of
the Constitution Bench, Ivfahajan, C. J., pointed out
that there was no scope for introducing terms like
"relatively void", coined by AmericanJurists in construing a Constitution . which is not drawn up in
similar language. The majority also observed that
they were not able to endorse the opinion expressed
by Venkatarama Aiyar, J., that a declaration of unconstitutionality brought about by lack of legislative power stood on a different footing from a declaration of unconstitutionality brought about by reason
of abridgement of fundamental rights, and that it
was "not correct to say that constitutional provisions
in Part III of the Constitution merely operated as a
check on the exercise of legislative power.