PETITIONER: GURDIT SINGH AND OTHERS Vs. RESPONDENT: STATE OF PUNJAB AND OTHERS DATE OF JUDGMENT10/04/1974 BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A. CITATION: 1974 AIR 1791 1974 SCR (3) 896 1974 SCC (2) 260 ACT: Pepsu Tenancy and Agricultural Lands Act, 1955--As amended by Act 16 of 1962 introducing Sec. 32--DD(b)--Retrospective effect of--Determination of surplus area--Previous order declaring no surplus land on basis of judgment and decree of Civil Court--Whether can be reviewed under Sec. 32-DD(b)-- Natural justice. Judgment--Connotation of--Interpretation of statutes--Object of provision is circumscribed by the language of the section. HEADNOTE: The lands in question were bequeathed to appellants 2 and 3, sons of the first appellant, by their grandfather. After the death of the testator mutations in favour of appellants 2 and 3 were effected in the revenue records in 1939. The first appellant managed to get the mutation of the land in his name in 1944 for the reason that he wanted to get licence for a gun. In 1955, when the Act came into force, the first appellant was shown to be the owner of the land in the revenue records. On October 30, 1956 the Act was amended so as to impose a ceiling on the holding of land. Appellants 2 and 3 filed a suit in the civil court for a declaration that the land belonged to them and that there was no transfer of the land to the first appellant. The latter, who was the only defendant, did not contest the suit and it was decreed on February 14, 1961. rhereafter, in proceedings under the Act, by order dated March 28, 1961 the Collector declared on the basis of the judgment and decree of the civil court that there was no surplus land in the ownership and possession of the first appellant. The 'Act was amended by Act 16 of 1962 and S. 32-DD was introduced into the Act with retrospective effect from October 30, 1956, i.e. the date of the earlier amendment. Section 32-DD provided inter alia that for the purposes of determining the surplus area of any person, any judgment, decree or order of a Court obtained after the commencement of the amending Act of 1956 and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored. The Collector, acting purportedly under Sec. 15 of the Punjab Land Revenue Code reviewed his order dated March 28, 1961. By order dated May 20, 1963 he refused to give effect to the judgment and decree by ignoring them as enjoined by section 32-DD and included the land in the holding of the first appellant. The appellants filed a writ petition in the High Court to quash this order. The High Court overruled the contentions of the appellants and dismissed tile writ petition. Before this Court, the appellants raised the same contentions, namely : (i) that the Collector had no jurisdiction to review his order dated March 28. 1961; (ii) that the order in review was passed without notice to the appellants; and (iii) that, in any event. the judgment of the civil court was not of the nature contemplated by section 32-DD. Allowing the appeal, HELD:(1) The order of the Collector dated March 28, 1961, was in perfectly valid one when it was passed. No one challenged that order and it became final for all purposes. The Collector could not have anticipated the enactment of the section with retrospective effect and passed the order conforming to its provisions. We cannot subscribe to the view that the order of the Collector passed on March 28, 1961, became null and void merely because he failed to take into account the provisions of Sec. 32-DD even if by virtue of the fiction it is to be assumed that the section was on the statute book when he passed it. We do not 897 think that we can extend the ratio of the decision in the Anisminic case (infra) to a case where the provision overlooked during the course of the enquiry was not on the statute book but was begotten and brought into being subsequently, though with retrospective vitality. The order of the Collector dated March 28, 1961 cannot, therefore, be regarded as null and void. There was no provision in the amending Act which enabled the Collector to review it. We cannot stretch the fiction of retrospectivity so far as to make the order null and void without further ado. [899 D-900 B] Anisminic Ltd. v. Foreign Compensation Commission, [1967] 3 W.L.R. 382, distinguished. (II)we are also not satisfied that the Collector was acting in consonance with the principles of natural justice when he passed the order dated May 20, 1963, as he gave no opportunity to appellants 2 and 3 of being heard. The fact that the first appellant was heard before that order was passed is of no moment because the persons who were vitally concerned in reopening the case were appellants 2 and 3. Admittedly, no notice of the proceedings to reopen the case was given to them. If notice had been given to them, they could have shown the true nature and character of the judgment of the civil court upon which they relied. [900 B- D] (III)Not are we satisfied that every judgment which has the apparent effect of diminishing the area of land of a person would be within the ambit of S. 32DD(b). ) The judgment of the civil court adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected not with the idea of transferring the property to the first appellant but for some other reason, the effect of the declaration was that there was no real transfer of the property in favour of the first appellant and that the property remained always in the ownership of appellants 2 and 3, notwithstanding the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause (b) of Sec. 32DD an unconfined operation. If the effect of the judgment is only to declare that the land never belonged to the first appellant, it has not the effect of diminishing the area of land in his possession. The object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. The High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had effect of diminishing the area of the first appellant which could have been declared as his surplus. [900 F 901 G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1897 of
1967.
From the Judgment and Order dated the 27th September, 1966,
of the Punjab High Court at Chandigarh in Civil Writ No.
1371 of 1963.
S. K. Mehta, K. R. Nagaraja, M. Qamaruddin and Vinod
Dhawan, for the appellants.
V. C. Mahajan, O. P. Sharma and R. N. Sachthey, for the
respondents.
The judgment of the Court was delivered by
MATHEW, J. The first appellant is the father of appellants 2
and 3. The property in question belonged to the father of
first appellant. By a will executed by him, he bequeathed
the property to appellants 2 and 3. After the death of the
tastator, mutations in favour of appellants 2 and 3 were
effected in the revenue records in the year 1996 B.K.
(1939). The first appellant managed to get the mutation of
the land
898
in his name in 1944 for the reason that he wanted to get
licence for a gun. In 1955, when the Pepsu Tanancy and
Agricultural Lands Act (hereinafter referred to as the Act)
came into force, the first appellant was shown to be the
owner of the land in the revenue records. Chapter IV-A of
the Act was inserted by Pepsu Act No. 15 of 1956 on October
30, 1956 and by s. 32A of this chapter, ceiling was placed
on the holding of land.
A suit was filed by appellants 2 and 3 for a declaration
that the land belonged to them, that, the mutation of the
land in the name of the first appellant in the revenue
records was for the purpose of enabling him to obtain a gun
licence and that there was no transfer of the land to first
appellant. The first appellant was the only defendant in
the suit. He did not contest the suit and it was decreed on
February 14, 1961. A few weeks later, the question of-
declaration of the surplus area of the (and in the hands of
the, first appellant came up for consideration before the
Collector of Bhatinda. On the basis of the judgment and
decree passed by the Civil Court that there was no transfer
of the land to the first appellant, the Collector, by his
order dated March 28, 1961, declared that there was no
surplus land in the ownership and possession of the first
appellant.
The Act was amended by Act No. 16 of 1962 and s. 32-DD was
introduced into the Act with retrospective effect from
October 30, 1956. That section reads :
“32-DD. Future tenancies in surplus area and
certain judgments etc. to be ignored-
Notwithstanding anything contained in this
Act, for the purposes of determining the sur-
plus area of any person-
(a) a tenancy created after the commencement
of the Pepsu Tenancy and Agricultural Lands
(Second Amendment) Act, 1956, in any area of
land which could have been declared as the
surplus area of such person; and
(b) any judgment, decree or order of a court
or other authority, obtained after the
commencement of that Act and having the effect
of diminishing the area of such person which
could have been declared as his surplus area
shall be ignored.”
The Collector thereupon made a reference presumably under S.
15 of the Punjab Land Revenue Code for sanction to the
Commissioner of Patiala to review his order dated March 28,
1961, as it omitted to include the land in question in the
holding of the first appellant on the basis of the judgment
and decree. The sanction was given, the Collector reviewed
the order and he refused to give effect to the judgment and
decree by ignoring them as enjoined by s. 32-DD and
;included the land in the holding of the first appellant.
The appellants filed a writ petition in the High Court of
Punjab to quash this order. Before the High Court, three
contentions were raised
899
by the appellants :(1) that the Collector had no
jurisdiction to review his order dated March 28, 1961; (2)
that the order in review was passed without notice to the
appellants-, and (3) that, in any event, the judgment of the
civilcourt only made a declaration as regards rights of the
parties on the date of the suit and it was not, therefore, a
judgment of the nature contemplated by s. 32-DD. The High
Court overruled all the contentions and held that the order
of the Collector was rendered null and void by virtue of the
provisions of s. 32-DD and, therefore, the Collector had the
power to determine by his order dated May 29, 1963, the
surplus area after ignoring the judgment and decree. The
High Court said that since mandatory provisions of s. 32-DD
which has retrospective operation were not taken into
consideration, the order passed by the Collector on March
28, 1961 was non est as being one made without jurisdiction
and that, the order dated May 20, 1963, must be deemed to be
the order determining the holding of the first appellant for
the purpose of the Act as amended.
We are not satisfied that this is a correct approach to the
question. The Collector purported to act under s. 15 of the
Land Revenue Code, which, obviously, has no application.
The High Court did not rest its decision on s. 15 of the
Punjab Land Revenue Code for holding that Collector had
jurisdiction to pass the order dated May 20, 1963. When the
Collector passed the order dated March, 28, 1961 determining
the surplus area in the hands of the first appellant, he
took into consideration the effect of the judgment of the
civil court declaring that the mutation of the name of the
first appellant in the revenue record was effected only to
enable him to obtain a gun licence. That order of the Col-
lector dated March 28, 1961 was a perfectly valid one when
it was passed. No one challenged that order and it became
final for all purposes. It was only when s. 32-DD was
incorporated in the Act with retrospective effect from
October 30, 1956 that the question arose whether that order
was valid. The Collector could not have anticipated the en-
actment of the section with retrospective effect and passed
the order conforming to its.provisions. It is rather curious
that the draftsman of the amending Act No. 16 of 1962 did
not incorporate a provision for reopening orders already
passed before s. 32-DD came to be enacted as that section
was made retrospective. We cannot subscribe to the view
that the order of the Collector passed on March 28, 1961
became null and void merely because be failed to take into
account the provisions of s. 32-DD even if by virtue of the
fiction it is to be assumed that the section was on the
statute book when he passed it. We are aware that in
Anisminic Ltd. v. Foreign Compensation Commission(1) the
House of Lords has held that even if a tribunal bad
jurisdiction to enter upon an enquiry, the fact that it
overlooked an applicable mandatory provision in the course
of the enquiry Would denude it of its jurisdiction; but we
doubt whether that principle has any application in a case
when the provision overlooked was not in actual existence at
the time when the inquiry was conducted and the order was
passed. In other words, we do not think that, we can extend
the ratio of the decision in that case to a case where the
provision overlooked during the course of the inquiry
(1) (1967) 3 W.L.R. 382,
900
was not on the statute book but was begotten and brought
into being subsequently, though with retrospective vitality.
The imagination sometimes has to boggle before stark
reality. The order of the Collector dated March 28, 1961,
cannot, therefore, be regarded as null and void. It Was a
valid order when it was passed, and there was no provision
in the amending Act which enabled the Collector to review
it. We cannot stretch the fiction so far as to make the
order null and void without further ado.
We are also not satisfied that the Collector was acting in
consonance with the principles of natural justice when he
passed the order dated May 20, 1963, as he gave no
opportunity to appellants 2 and 3 of being heard. The fact
that the first appellant was heard before that order was
passed is of no moment because the persons who were vitally
concerned in reopening the case were appellants 2 and 3.
Admittedly, no notice of the proceedings to reopen the case
was given to them. It is not for us to speculate what
defences were available to them and whether the defences
available would have materially affected the destiny of the
decision. We do not think it necessary, to decide in this
case whether the failure to observe the rule audi alteram
partem would per se vitiate an order or whether it is also
necessary to show prejudice to the person affected resulting
from the failure to observe the rule. Suffice it to say
that in the present case we are of the view that if notice
had been given to appellants 2 and 3, they could, at any
rate, have shown the true nature and character of the
judgment of the civil court upon which they relied.
It is. relevant to note that the judgment itself was not
challenged as collusive by the respondents. We are quite
aware that the defendant in the suit in which the judgment
was obtained, namely, the first appellant, did not put
forward any contention. But it would be rash to jump to the
conclusion from the mere fact that no defence was put
forward by the first appellant in the suit that the decree
was obtained collusively. Under s. 43 of the Evidence Act,
a person who is not a party to a judgment can show that it
was obtained by fraud or collusion., No such attempt was
made in this case.
Nor are we satisfied that every judgment which has the
apparent effect of diminishing the area of land of a person
would be within the ambit of s. 32-DD(b). Generally
speaking, a judgment adjudicates on .the rights of the
parties as they existed before the suit in which it was
obtained.
A judgment is an affirmation of a relation between a
particular predicate and a particular subject. So, in law,
it is the affirmation by the law of the legal consequences
attending a proved or admitted state of facts. It is always
a declaration that a liability, recognised as within the
jural sphere, does or does not exist. A judgment, as the
culmination of the action, declares the existence of the
right, recognizes the commission of the injury, or negatives
of the allegation of one or the other(1).
A judgment of a court is an affirmation, by the authorised
societal agent of the state, speaking by warrant of law and
in the name of the
(1) See Black on Judgments, Vol. I, 2nd ed., pp. 1-2.
901
state, of the legal consequences attending a proved or
admitted state of facts. Its declaratory, determinative and
adjudicatory function is its distinctive characteristic.
Its recording gives an official certification to a pre-
existing relation or establishes a new one on pre-existing
grounds(1).
The judgment of the civil court with which we are concerned,
adjudicated on the rights of the parties as they existed
before the suit and when it declared that the mutation was
effected not with the idea of transferring the property to
the first appellant but for some other reason, the effect of
the declaration was that there was no real transfer of the
property in favour of the first appellant and that the
property remained always in the ownership of appellants 2
and 3, notwithstanding the purported transfer evidenced by
the mutation in the revenue records. It is impermissible to
give the wide language employed in clause (b) of s. 32-DD an
unconfined operation. When a transfer or mutation is made
on account of fraud or mistake and if a suit is filed for a
declaration that the transfer or mutation was made on
account of fraud or mistake and a judgment obtained,
certainly the judgment would not have the effect of
diminishing the area of a person which could have been
declared as a surplus area within the meaning of S. 32-DD
(b). The legal effect of such a declaration would be that
the transferee or the person in whose name the mutation was
effected had no right in the property. The land must have
belonged to the first appellant prior to the judgment in
order that it might be postulated that the judgment has the
effect of diminishing the total area in his hands. To put
it differently, prior to the judgment, the land must have
belonged to him in order that it may be said that the effect
of the judgment is to diminish the area of his holding. If
the effect of the judgment is only to declare that the land
never belonged to the first appellant, it has not the
effect of diminishing the area of land in his possession. We
are aware that the object of this provision in an Act like
the one under consideration is to prevent circumvention of
its provisions by dubious and indirect methods. But that is
no reason why we should put a construction upon the section
which its language can hardly bear. It would have been open
to the respondents to allege and prove that the judgment was
obtained collusively. But that could have been done only
after notice to appellants 2 and 3 and after giving them an
opportunity of being heard. Therefore, to say, as the High
Court has said, that no prejudice was caused to appellants 2
and 3 for want of an opportunity to them of being heard, is
neither here nor there. We think the High Court went wrong
in assuming that the Collector was right when he ignored the
judgment by, his order dated May 20, 1963 on the ground that
it had the effect of diminishing the area of the first
appellant which could have been declared as his surplus.
We, therefore, set aside the order of the High Court and
allow the appeal. We ‘make no order as to costs.
S.B.W. Appeal allowed.
(1) See Borchard, “Declaratory Judgments”, 2nd ed., pp. 8-
10.
902