Babu Ram v. Sughar Singh — 1965 DIGILAW 120 (ALL)

ORDER D.S. Mathur, J. - This is a revision u/s 115 CPC by Babu Ram and another against the order dated 7 7.1962 of the District Judge of Farrukhabad allowing the appeal of Sughar Singh, opposite party, and thereby declaring the reference u/s 12(4) of the UP Consolidation of Holdings Act (to be referred hereinafter as the Consolidation Act though with reference to the Am ending Act UP Act XVI of 1957 it may also be called the Principal Act) to be invalid. At the same time the Civil Judge was directed to return the papers to the Consolidation Officer with directions to proceed with the case according to law. 2. The point in issue was whether both the parties, or only Sughar Singh, opposite party, was the sirdar of the plots in dispute. The Consolidation Officer treated the dispute to relate to a question of title and under order dated 30.12.1956, passed u/s 12(4) of the Consolidation Act, referred the question of title to the Civil Judge for decision in accordance with the law. The Civil Judge received the papers on 27.4.1957. The Consolidation Act was amended under UP Act XVI of 1957 (to be referred hereinafter as the Amending Act) and u/s 18 of the Amending Act, a new Section 36A was added to the Principal Act, laying down that the question whether a person is a sirdar, adhivasi or asami shall not be deemed to a question of title. The amendment came into force on Tune 3, 1957. Prior to the incorporation of S. 36A there existed a corresponding provision in the UP Zamindari Abolition and Land Reforms Act (to be referred hereinafter as the Zamindari Abolition Act, namely, Section 332A, which was applicable to all the suits or proceedings not only under this Act but also under any other law for the time being in force. Section 332A indicated what was not a question of title and it provided that a questiou whether a person is or is not a sirdar, adhivasi or asami of any land shall not be deemed to. raise a question of title. Section 332A was incorporated in the Zamindari Abolition Act under UP Act XVIII of 1956. 3. Section 332A indicated what was not a question of title and it provided that a questiou whether a person is or is not a sirdar, adhivasi or asami of any land shall not be deemed to. raise a question of title. Section 332A was incorporated in the Zamindari Abolition Act under UP Act XVIII of 1956. 3. Consequently, if there was no other provision in the Amending Act it could rightly be said that Section 332A of the Zamindari Abolition Act determined not only for purposes of that Act but also for other enactments what amounted to a question of title, and hence the validity of the reference u/s 12(4) of the Consolidation Act an 1 a so the jurisdiction of the Civil Judge. 4. The legislature appears to have realised the confusion arising out of the consolidation authorities not following Section 332A, and incorporated a saving Clause (Section 21) in the Amending Act. Section 21 of the Amending Act is as below: Nothing in Section 18 shall affect the validity, invalidity, effect or consequence of anything already done or suffered or any right, or title, obligation or liability already acquired, accrued, incurred, or any jurisdiction already exercised, and any proceeding referred to any Civil Judge prior to commencement of this Act, shall continue to be heard by the appropriate authority. The section has not been happly drafted and if it is strictly construed it can be said that the saving clause does not give protection to any action taken in disregard of S. 332A of the Zamindari Abolition Act. But in interpreting the provisions of an enactment the courts have to determine and to give effect to the intention of the legislature, and with this aim in view can at occasions depart from the ordinary meaning of the words. As observed in Tirath Singh Vs. But in interpreting the provisions of an enactment the courts have to determine and to give effect to the intention of the legislature, and with this aim in view can at occasions depart from the ordinary meaning of the words. As observed in Tirath Singh Vs. Bachittar Singh and Others, AIR 1955 SC 830 : Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence." In the instant case we are concerned with the effect of Sections 18 and 21 of the Amending Act, and not the other provisions of the Amending Act or of the Principal Act; but the rule applicable to interpretation of statute in general can safely be utilized in the interpretation of Sections 18 and 21 of the Amending Act. 5. Another important rule of interpretation of statutes, as laid down in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, AIR 1955 SC 661 , is: For the sure and true interpretation of all statute in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: First, what was the common law before the malting of the Act; second, what was the mischief and defect for which the common law did not provide; third, what remedy the Parliament has resolved and appointed to cure the disease and fourth, the true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and proprivato commodo, and to add Force and life to the cute and remedy, according to the true intent of the makers of the Act,-pro bona fide public. 6. It shall be safe to first of all consider why a new Section 36A was added to the Principal Act u/s 18 of the Amending Act, and thereafter what complications were likely to arise which the legislature intended to safeguard by incorporating the saving clause as contained in Section 21 of the Amending Act. 6. It shall be safe to first of all consider why a new Section 36A was added to the Principal Act u/s 18 of the Amending Act, and thereafter what complications were likely to arise which the legislature intended to safeguard by incorporating the saving clause as contained in Section 21 of the Amending Act. It shall be the duty of the courts of law to interpret Section 21 in such a manner that, not only the intention of the legislature is given effect to but the mischief or the defect which was sought to be cured may no longer remain in existence. 7. As already mentioned above, there already existed Section 332A in the Zamindari Abolition Act which applied to suits not only under this Act but also other enactments including the Consolidation Act; and this section would have determined, for all purposes what was or was not a question of title? When Section 332A already existed, there was no necessity to incorporate a similar provision in the Consolidation Act by a subsequent Amending Act unless the legislature was aware of the fact that the consolidation authorities had disregarded Section 332A and wrongly treated the question to amount to a question of title even though u/s 332A it was not. Section 36A was apparently incorporated in the Consolidation Act to emphasise and also to clarify that the provisions of Section 332A of the Zamindari Abolition Act were applicable with equal force to proceedings under the Consolidation Act also. In case Section 332A of the Zamindari Abolition Act was not to apply to proceedings under the Consolidation Act, it would have been made clear in the Amending Act that Section 332A was not applicable to consolidation proceedings and, consequently, Consolidation Officers shall be guided by Section 36A of the Consolidation Act and not 332A of the other Act. This could be clarified by either amending Section 332A of the Zamindari Abolition Act with retrospective effect, or by making a clear provision that the provisions of Section 36A of the Consolidation Act were, inspite of Section 332A, not to be applied prior to the commencement of the Amending Act. The legislature took no such step, and instead, to remove the defects, incorporated a saving clause in the Amending Act. 8. The legislature took no such step, and instead, to remove the defects, incorporated a saving clause in the Amending Act. 8. The law before the incorporation of the saving Clause (Section 21 of the Amending Act) was that a question whether a person was or was not a sirdar, adhivasi or asami of land shall be deemed not to liaise a question of title. The provisions of Section 332A of the Zamindari Abolition Act are clear and unambiguous and if these provisions had been given effect to by the consolidation authorities, no occasion would have cirisen for incorporating a similar clause tin the Consolidation Act. In other words, strictly speaking, the law in existence had made a provision similar to that introduced by Section 18 of the Amending Act (Section 36A of the Principal Act) and there was no ''mischief or defect for which the common law did not provide''. But it appears many consolidation authorities were unaware of the fact that Section 332A of the Zamindari Abolition Act was also applicable to proceedings under the Consolidation Act and under an erroneous impression of the law made reference to Civil Judges u/s 12(4) of the Consolidation Act even though under the law as it then stood, no such reference could be made and the question of sirdari rights could be adjudicated upon by the consolidation authorities themselves. 9. The legislature apparently tried to remove this confusion by incorporating Section 18 of the Amending Act and by validating acts u/s 21 of the Amending Act which would otherwise have been invalid. At the same time it was provided that any proceeding referred to the Civil Judge prior to the commencement of the Amending Act shall continue to be heard by the appropriate authority. 10. In case the legislature had referred to Section 332A of the Zamindari Abolition Act in the saving clause there would have been no ambiguity and any act in disregard of Section 332A would have been validated. It is a settled rule that courts of law can add words to an enactment to carry out the intention of the legislature, where, without such a course the provision is meaningless and incapable of any proper interpretation. As already mentioned above, Section 36A of the Consolidation Act (Section 18 of the Amending Act; merely incorporates in the Act what was already contained in Section 332A of the ZA Act. As already mentioned above, Section 36A of the Consolidation Act (Section 18 of the Amending Act; merely incorporates in the Act what was already contained in Section 332A of the ZA Act. It did not introduce any new provision. Consequently, Section 18 of the Amending Act could not by itself effect "the validity, invalidity, effect or consequence of anything already done or suffered or any right, or title, obligation or liability already acquired, accrued, incurred, or any jurisdiction already exercised." They would have been affected by Section 332A of the Zamindari Abolition Act and not by Section 18. It is thus apparent that reference to Section 18 had been wrongly made. In any case, reference to this section alone was not sufficient. To put it differently, saving clause contained in Section 21 of the Amending Act was meant to validate acts done in disregard of Section 332A of the Zamindari Abolition Act and in this view of the matter references to the Civil Judge made prior to the Commencement of the Amending Act, though initially invalid, could be heard and decided by him in accordance with the law. 11. The words "appropriate authority" used in Section 21 of the Amending Act cannot have reference to the con" solidation authorities who can, after the commencement of the Amending Act, decide the sirdari question. What Section 21 of the Amending Act provides is that the proceeding referred to the Civil Judge shall continue to be heard by the "appropriate authority". The word "continue" suggests that the authority who has already taken cognizance of can continue to exercise the jurisdiction. A reference made to the Civil Judge is decided by him after reference to an Arbitrator appointed by the State Government. In Other words, authorities who can exercise jurisdiction in one capacity or the other are the Civil Judge and the Arbitrator. Consequently, if the reference is continued to be heard, it shall be heard by the Civil Judge and also by the Arbitrator in accordance with the law. The Civil Judge does not refer any question for decision to the consolidation authorities. The matter would be decided by consolidation authorities only if the reference cannot be heard and disposed of by the Civil Judge. The Civil Judge does not refer any question for decision to the consolidation authorities. The matter would be decided by consolidation authorities only if the reference cannot be heard and disposed of by the Civil Judge. It is thus clear that a proceeding already referred to the Civil Judge prior to the commencement of the Amending Act has to be heard by the Civil Judge and the Arbitrator, irrespective of whether the reference was, on the date it was made, valid or invalid. 12. Whenever there is a change in the law a question very often arises, how are the pending proceedings to be heard and determined ? Can the court or authority before whom the proceeding is pending continue to hear it or pending proceedings are to be returned to the authority competent to hear them after the amendment of the law ? A procedural law applies retrospectively, even to pending suits or proceedings, but amendments affecting vested rights apply prospectively. The right of appeal has been regarded as a vested right which cannot be taken away except by an enactment given effect to retrospectively. The same Can be said with regard to the court or authority before whom a suit or proceeding is pending. A party has the right that the proceeding already pending be heard and decided by the court or authority before whom it is pending. Consequently, the amendmerit Introduced by Section 332A of the Zamindari Abolition Act or Section 18 of the Amending Act cannot apply retrospectively and pending proceedings can continue to be heard and decided by that court or authority, though after the commencement of the Amending Act no fresh proceeding can be entertained by it or by him. Where cognizance of a proceeding is taken on a reference being made, references already made can be decided by that court, or authority though after the amendment no such reference can be made. 13. When amendments affecting the right to hear a proceeding are applicable prospectively and do not apply to pending proceedings, no difficulty would arise in enforcing the law as amended because unless provided to the contrary, pending references shall be heard and decided by the authority to whom the references had been made before the commencement of the Am ending Act though thereafter no such reference can be made to him. When the law is clear and no difficulty is likely to arise, incorporation of a saving clause to lay down who shall have the Authority to hear the pending proceedings is not necessary though a saving clause may be incorporated by way of clarification and to make it clear that the legislature wanted the amendments affecting jurisdiction to apply prospectively. 14. If Section 21 of the Amending Act is read as a whole, it shall be clear that the purpose of enacting this clause was not to clarify that the existing law shall apply to pending references. The saving clause was incorporated to validate the references already made, whether decided or pending. If Section 21 was not meant to validate the references already made, it would not have been necessary to provide that "nothing In Section 18 shall affect the validity, invalidity effect or consequence of anything already done or suffered, or any right, or title, obligation or liability already acquired, accrued, incurred, or any jurisdiction already exercised." Right, title, obligation or liability is acquired, accrued or incurred after the proceeding has been finally adjudicated upon and not earlier. If Section 21 were to apply to only valid references no question would have arisen for validating orders passed therein as such orders would be valid and would not require validation by the legislature. 15. To sum up, the law before the incorporation of Section 36A in the Consolidation Act was clear and unambiguous but had been misapplied by the consolidation authorities with the result that many references were made to the Civil Judge u/s 12(4) of this Act against the provisions of Section 332A of the Zamindari Abolition Act and hence were invalid and without jurisdiction. Section 36A was introduced to make it clear to the consolidation authorities that the provision applies to proceedings under the Consolidation Act also. The mischief which the legislature wanted to undo was the result of ignorance on the part: of the consolidation authorities and they undid the mischief by incorporating S. 36A in the Consolidation Act u/s 18 of the Amending Act and also by incorporating a saving clause in Section 21 of the Amending Act. This provision Was apparently made to ensure that matters already finally determined may not become a nullity and without jurisdiction and references already made, though wrongly, be disposed of by the authority to whom already referred. 16. This provision Was apparently made to ensure that matters already finally determined may not become a nullity and without jurisdiction and references already made, though wrongly, be disposed of by the authority to whom already referred. 16. When such was the intention of the legislature, the courts can assume that the saving clause was meant to protect the disregard of Section 332A of the Zamindari Abolition Act also. In this view of the matter, a reference already made to the Civil Judge u/s 12(4) of the Consolidation Act in disregard of the provisions of Section 332A of the Zamindari Abolition Act, though initially invalid, can be heard and decided by the Civil Judge in accordance with the law, i.e. after making a reference to the Arbitrator. The Civil Judge, therefore had the jurisdiction to decide the reference after disposal of the objections to the award of the Arbitrator, and the District Judge could hear an appeal against the order of the Civil Judge setting aside or refusing to set aside the award. 17. The District Judge has thus taken an erroneous view that the Civil Judge had no jurisdiction to decide the reference u/s 12(4) of the Consolidation Act and when the Distt. Judge failed to hear the appeal on merits, he did not exercise the jurisdiction which was vested in him under the law. This Court can, therefore, in exercise of the revisional jurisdiction, remand the appeal for hearing on merits. 18. The revision is hereby allowed and the order under revision is set aside. It is further ordered that the appeal shall be registered at its original number and disposed of on merits in accordance with the law. Costs on parties. Stay order is vacated.