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2016 DIGILAW 1265 (ORI)

Nilamani Maharana v. Collector, Bhadrak

2016-12-21

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed by the petitioner seeking a direction for quashing the order dated 1.2.2013 passed by the Collector, Bhadrak in O.C.H & P.F.L. Misc. Case No.11 of 2012 and thereby a suitable direction to the opposite party No.1 not to evict the petitioner from the case land. 2. Short background involved in this case is that the present petitioner purchased a piece of land measuring Ac.0.27 decimals out of Ac.0.60 decimals from Plot No.1446, Chaka No.623, Khata No.691 of Mouza-Berhampur by three Registered Sale Deeds bearing No.2401 dated 12.6.2001, No.2402 dated 12.6.2001 and No.4087 dated 31.10.2003 from the pro-forma opposite parties and as a consequence of which, the petitioner remained in possession of the suit land. While the matter stood thus, the opposite party Nos.2 to 10 filed an application under Section 34 & 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 before the Collector praying therein to declare the transfer of the case land by pro-forma opposite parties in favour of the petitioner as void. While making such prayer, they also sought for a direction for eviction of the petitioner from the case land. This matter was registered as O.C.H. & P.F.L. Misc. Case No.11 of 2012. The contesting opposite parties, on their appearance, contended that the case land since was undivided ancestral property of the opposite party Nos.2 to 10 and the pro-forma opposite parties, the record has been prepared in the consolidation record of rights indicating all their names as joint owners of the land and the disputed lands were being possessed by all these persons independently by virtue of an amicable partition claiming that the transfer of the land by the pro-forma opposite parties in favour of the petitioner was in contravention of the provisions contained in Section 34 of the Act and claimed therein for declaring the transaction as void and further, the opposite party Nos.2 to 10 claimed that they have a justified claim for eviction of the petitioner. Above was decided on contest but in absence of the pro-forma opposite parties holding that the transfer or partition of the disputed property remaining in contravention to the provisions contained in Section 34 of the Act, becomes void and consequently, held that the person occupying or in possession of any of the land by virtue of such transfer is liable to be summararily evicted. Consequently, a direction was given to the Tahasildar for evicting the opposite party No.1 therein i.e. the present petitioner and report compliance. 3. Assailing the impugned order, Sri Mohanty, learned counsel for the petitioner submitted that prior to purchase of the disputed land, the petitioner was in possession of the disputed land since 1995 and therefore, he had already perfected his title by virtue of adverse possession. The case of the petitioner before the Collector was that the case land since had already come within the town planning area, the provisions contained in Section 34 & 35 of the Act were not applicable to the present case and the sale deeds could not have been declared as void. Learned counsel for the petitioner further contended that for the O.C.H. & P.F.L. (Amendment) Act, 2012, the sub-Sections 1 & 2 of the Section 34 of the Act shall not be applicable to any land, which is covered under the Orissa Town Planning and Improvement Trust Act, 1956. The benefit of the amended provision goes in favour of the petitioner resulting the impugned order as bad. 4. Relying upon decisions as reported in (1) AIR 1989 SC 1247 , (2) (2000) 7 SCC 357 & (3) 2014 (Supl.-I) OLR 1089, learned counsel for the petitioner contended that for the decisions of the Hon’ble Apex Court as well as of this Court referred to hereinabove, the petitioner has a case in his favour. 5. 4. Relying upon decisions as reported in (1) AIR 1989 SC 1247 , (2) (2000) 7 SCC 357 & (3) 2014 (Supl.-I) OLR 1089, learned counsel for the petitioner contended that for the decisions of the Hon’ble Apex Court as well as of this Court referred to hereinabove, the petitioner has a case in his favour. 5. Sri A.P. Bose, learned counsel for the private opposite party Nos.2 to 10 while refuting to each of the contentions raised by the learned counsel for the petitioner contended that for no affixture of the retrospective application of the amended provision in the amendment Act, 2012, not only the petitioner has no case but for the decision cited by the petitioner vide AIR 1989 SC 1247 having reversed vide a judgment of the Hon’ble Apex Court in AIR 1996 (SC) 238 , the decision cited at Bar vide AIR 1989 SC 1247 has also not applicable to the present case. 6. Looking to the submissions made by the learned counsel for petitioner, it appears that he has concentrated his submission challenging the impugned orders taking into the advantage of the amended provision of the amendment Act, 2012. Further, on the premises that for the amendment brought in the year 2012, the provisions contained in Sub-sections 1 & 2 of the Section 34 of the Act shall not be applicable to any land, which is covered under the Orissa Town Planning and Improvement Trust Act, 1956 or the Orissa Development Act, 1982 being made operative in the meantime. Though the petitioner relied upon the decisions referred to hereinabove to support his case, this Court finds, the decision vide AIR 1989 SC 1247 has already been overruled by another decision of the Hon’ble Apex Court in a case in between R. Rajagopal Reddy (dead) by L.Rs. and others, Appellants v. Padmini Chandrasekharan (dead) by L.Rs., respondent as reported in AIR 1996 Supreme Court 238. Taking into consideration the objection of the contesting opposite parties that for no retrospectivity of the amended provision contained in the O.C.H. & P.F.L. Amended Act, 2012, the same have no application to the present case, this Court finds, the question to be determined here is whether for the challenge of the impugned order and the continuity of the litigation, the provisions under the Amendment Act, 2012 have any application to the present case or not? For better appreciation of this case, this Court here quotes the provisions contained in the pre-amendment and the provisions contained in the Amendment Act, 2012 of the O.C.H. and P.F.L. Act:- Sub-sections 1 & 2 of Section 34 of the O.C.H. & P.F.L. Act, “(1) No agricultural land in a locality shall be transferred or partitioned so as to create a fragment. (2) No fragment shall be transferred except to a land-owner of a contiguous Chaka: Provided that a fragment may be mortgaged or transferred in favour of the State Government, a Co-operative Society, a scheduled bank within the meaning of the Reserve Bank of India Act, 1934 (2 of 1934) or such other financial institution as may be notified by the State Government in that behalf as security for the loan advanced by such Government, Society, Bank or institution, as the case may be.” Sub-sections 1 & 2 of Section 34 of the O.C.H. & P.F.L. Amendment Act reads as follows: Be it enacted by the Legislature of the State of Odisha in the Sixty-third Year of the Republic of India as follows:- 1. This Act may be called the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land (Amendment) Act, 2012. 2. In sub-section (1) of section 1 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 the word “Odisha” shall be substituted. 7. The issue of retrospectivity in the application of the amended provision has been gone into by the Hon’ble Apex Court as well as the different High Courts at different point of time and these are some of the decisions taken into consideration. 7. The issue of retrospectivity in the application of the amended provision has been gone into by the Hon’ble Apex Court as well as the different High Courts at different point of time and these are some of the decisions taken into consideration. In the case in between Lakshmi Narayan Guin and others, Appellants v. Niranjan Modak, Respondent as reported in AIR 1985 Supreme Court 111 where considering the points decided by the High Court of Calcutta that by virtue of the West Bengal Premises Tenancy Act, 1956 being extended to Memari during the pendency of the first appeal, the first appellate Court was bound to take into account the change of law and to extend its benefit to the tenant, and consequently, to set aside the decree of the trial Court, in paragraph No.5, the Hon’ble Apex Court held that “The High Court is right in upholding the contention of the respondent and that this appeal must fail.” In the very same decision in paragraph No.9, the Hon’ble Apex Court observed as follows : “That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi (1963) 3 SCR 858 : ( AIR 1963 SC 553 ), which was followed by this Court in Mula v. Godhu (1970) 2 SCR 129 :( AIR 1971 SC 89 ). We may point out that in Dayawati v. Inderjit (1966) 3 SCR 275 :( AIR 1966 SC 1423 at p. 1426) this Court observed : If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance” 8. Similarly in the case in between United Bank of India, Calcutta versus Abhijit Tea Co. Similarly in the case in between United Bank of India, Calcutta versus Abhijit Tea Co. Pvt. Ltd. and others as reported in (2000) 7 Supreme Court Cases 357 the Hon’ble Apex Court taking into consideration the provisions made for Recovery of Debts Due to Banks and Financial Institutions Act, 1993 causing bar to the jurisdiction of the Civil Court and transfer of pending cases to Debt Recovery Tribunal, declared the High Court’s judgment by allowing the application of the respondent Company and directed that the remanded suit of the appellant Bank to be retained on the original side of the High Court as bad and held that the provisions contained in Section 13 and 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 must be interpreted in such a way that after coming into force of the Act, no Debt Recovery Suit by a Bank is decided by a Civil Court but only by the Tribunal. Paragraph No.16 of the Judgment reads as follows: “16. But, it is now well settled that an order of remand by the appellate Court to the trial Court which had disposed of the suit revives the suit in full except as to matters, if any, decided finally by the appellate court. Once the suit is revived, it must, in the eye of law, be deemed to be pending from the beginning when it was instituted. The judgment disposing of the suit passed by the Single Judge which is set aside gets effaced altogether and the continuity of the suit in the trial court is restored, as a matter of law. The suit cannot be treated as one freshly instituted on the date of the remand order. Otherwise serious questions as to limitation would arise. In fact, if any evidence was recorded before its earlier disposal, it would be evidence in the remanded suit and if any interlocutory orders were passed earlier, they would revive. In the case of a remand, it is as if the suit was never disposed of (subject to any adjudication which has become final, in the appellate judgment). The position could have been different if the appeal was disposed of once and for all and the suit was not remanded.” 9. In the case of a remand, it is as if the suit was never disposed of (subject to any adjudication which has become final, in the appellate judgment). The position could have been different if the appeal was disposed of once and for all and the suit was not remanded.” 9. Considering a similar situation, this Court in a case in between Subash Chandra Panigrahi, appellant versus Rajib Lochan Panigrahi and others, respondents as reported in 2014 (Supp.-I) OLR 1089 in paragraph Nos.25, 25.1, 25.2. & 26 observed as follows: “25. The questions whether a statute operates prospectively or retrospectively is one of the legislative intent. In para-18, 18.1 and 18.2 reference has been made to the decision of Apex Court in case of Mahadfolal Kanodia (supra). The legal principles have been further elaborated and settled in Constitution Bench decision in cases of “Shyam Sunder and others v. Ram Kumar and another.” AIR 2001 SC 2472 , it has been held that a substituted section in the Act is the product of an Amending Act and all the effects and consequences that follow in the case of an Amending Act, the same would also follow in the case of a substituted section in an Act. It has also been held that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a manner of necessary implication. Ordinarily, when an enactment declares the provisions law it requires to be given retrospective effect. The function of a declaratory statute is to supply an omission or explain previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed invariably it has been held to be retrospective. Mere absence of us e of word ‘declaration’ in an act explaining what was the law before may not appear to be a declaratory Act. But if the Court finds an Act as declaratory or explanatory it has to construe as retrospective. Mere absence of us e of word ‘declaration’ in an act explaining what was the law before may not appear to be a declaratory Act. But if the Court finds an Act as declaratory or explanatory it has to construe as retrospective. Further held that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act. 25.1. In this connection, it is also profitable to refer to the following observations in ‘Principles of Statutory Interpretation, ‘5th Edition 1992, by Sir G.P. Singh at page 351 under caption ‘Declaratory Statutes’: The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by Supreme court – For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to common law, or meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to be set aside what Parliament deems to have been a judicial error whether the statement of common law or in the interpretation of statutes.” xxx It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. 25.2. The inhibition against retrospective construction is not a rigid rule and must vary secundum materium. It has been said that “the basis of the rule is no more than simple fairness which ought to be the basis of every legal rule (Vijay v. State of Maharashtra; (2006) 6 SCC 289 referring the doctrine of fairness in the context of retrospectively.” 10. From the point of view of the aforesaid decisions, this Court looking to the broader consideration brought by way of Amended Act, 2012 and for the benefit brought by way of amendment and for no clear restriction with regard to retrospective application of the said provision, observes that the provision should also be made applicable to the pending cases. From the point of view of the aforesaid decisions, this Court looking to the broader consideration brought by way of Amended Act, 2012 and for the benefit brought by way of amendment and for no clear restriction with regard to retrospective application of the said provision, observes that the provision should also be made applicable to the pending cases. For the aforesaid rulings and observations made hereinabove, this Court finds, the petitioner has the benefit of the amended provision of the Amendment Act, 2012 and as a consequence of which, declares the order under Annexure-1 dated 1.2.2013 passed by the Collector, Bhadrak in O.C.H. & P.F.L. Misc. Case No.11/2012 as bad in law and sets aside the same. 11. The writ petition stands allowed. Parties to bear their respective costs.