Sanjeeb Barik And Others vs Nilamani Maharana And Others
2021 Latest Caselaw 7062 Ori

                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   W.A. No.7 of 2017
                    Sanjeeb Barik and others           ....          Appellants
                                                       Mr.A.P. Bose, Advocate
                                            -versus-
                    Nilamani Maharana and others      ....        Respondents
                               Mr.S.D. Mohanty, Advocate for Respondent No.1
                          Mr. S.K. Mohanty, Advocate for Respondents 3 to 6(e)

                            CORAM:
                            THE CHIEF JUSTICE
                            JUSTICE S.K. PANIGRAHI
                                         ORDER

Order No. 13.07.2021 Dr. S. Muralidhar, CJ.

04. 1. This matter is taken up through video conferencing mode.

2. This appeal is directed against an order dated 21 st December, 2013 passed by the learned Single Judge in W.P.(C) No.15048 of 2016. By the impugned judgment, the learned Single Judge set aside the order dated 1st February, 2013 passed by the Collector, Bhadrak in OCH & PFL Case No.11 of 2012.

3. This Court heard the submissions of Mr. A.P. Bose, learned counsel appearing for the Appellant, Mr. S.D. Mohanty, learned counsel appearing for Respondent No.1 and Mr. S.K. Mohanty, learned counsel appearing for Respondent Nos. 3 to 6

(e).

4. The background facts are that Respondent No.1 Nilamani Maharana 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 (hereafter „land in question‟) by three registered sale deeds - two of them dated 12th June, 2001 and the third dated 31st October, 20003. It was claimed that prior thereto Respondent No.1 was in possession of the land in question since 1995.

5. The case of the present Appellants, on the other hand, is that the land in question was Chaka land and ancestral in nature; it belonging to the undivided joint family and stands recorded in the name of Ratnakar Barik and other co-sharers of Mouza- Berhampur. The Appellants‟ case was that Respondent No.1 Nilamani Maharana had no chaka land adjoining the purchased land that the transfer of the land in question in his favour had been made in contravention of provisions of the Section 34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (OCH & PFL Act). Accordingly, the Appellants filed Misc. Case No.11 of 2012 before the Collector, Bhadrak praying that the aforesaid three registered sale deeds be declared void and further that Respondent No.1 should be evicted from the land in question.

6. In response to the notice issued in the aforementioned Misc. Case, Respondent No.1 contended, inter alia, that the purchased land was in the Town Planning (TP) area; that in the TP area the chaka could be fragmented and therefore Sections 34 and 35 of the OCH & PFL Act would not apply.

7. The Collector, Bhadrak by an order dated 1st February, 2013 found that Respondent No.1 was not a contiguous chaka owner and no documents on that aspect had been filed by him. It was further held that the transfer of the three parcels of land admeasuring Ac.0.12 decimals, and two parcels of Ac.0.03 decimals each by the registered sale deeds dated 12th June, 2001 and 31st October, 2003 were in contravention of Section 34 of the OCH & PFL Act. Accordingly Respondent No.1 was asked to be evicted from the land in question.

8. Admittedly at the time the Collector, Bhadrak passed the aforementioned order the amendment to Section 34 of the OCH & PFL Act had not become effective. However, by the time Respondent No.1 filed W.P.(C) No.15048 of 2013 in this Court on 5th July, 2013 the said amendment came into effect on 8th March, 2013.

9. Prior to the amendment Section 34 of the OCH & PFL Act read as under:

"34. Prevention of fragmentation-

(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 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.

(3) When a person, intending to transfer a fragment, is unable to do so owing to restrictions imposed under Sub section (2), he may apply in the prescribed manner to the Tahasildar of the locality for this purpose where upon the Tahasildar shall, as far as practicable within forty-five days from the receipt of the application determine the market value of the fragment and sell it through an auction among the landowners of contiguous Chakas at a value not less than the market value so determined.

(3) (a) Any person aggrieved by an order of the Tahasildar under Sub-section (3) may, within sixty days from the date of such order, prefer an appeal in the prescribed manner before the concerned Sub-divisional Officer, whose decision thereon shall be final.

(4) When the fragment is not sold in course of the auction it may be transferred to the State Government and the State Government shall, on payment of the market value determined under Sub-section (3), purchase the same and thereupon the fragment shall vest in the State Government free from all encumbrances.

(5) Nothing in Sub sections (1) and (2) shall apply to a transfer of any land for such public purposes as may be prescribed by notification in this behalf by the State Government."

10. By the aforementioned Amendment Act, 2012 sub-section 5 of Section 34 of the OCH and PFL Act was substituted as under:

"(5) Nothing in sub-sections (1) and (2) shall apply to-

(a) any land which is covered under the approved Master Plan published under the Odisha Town Planning and Improvement Trust Act, 1956 or as the case may be approved development plan published under the Odisha Development Authorities Act, 1982; or

(b) a transfer of any land for such public purposes, as may be specified, from time to time, by notification in this behalf, by the State Government."

11. The text of the OCH & PFL (Amendment) Act, 2012 as gazetted on 8th March, 2013 reveals that it was notified on 8 th March, 2013 there was no indication therein that it was to have retrospective effect from any particular date. Therefore, in the absence of anything to the contrary, the said amendment was intended to be prospective.

12. The learned Single Judge, however, without examining if the land in question which was transferred to Respondent No.1 by way of aforementioned registered sale deeds in fact, while in the TP area straight away proceed to treat them as such and then posed the question whether the aforementioned amendment would have retrospective effect.

13. The learned Single Judge referred to the decisions of the Supreme Court in Lakshmi Narayan Guin v. Niranjan Modak AIR 1985 SC 111, United Bank of India v. Abhijit Tea Co. Pvt. Ltd. (2000) 7 SCC 357 and Subash Chandra Panigrahi v. Rajib Lochan Panigrahi 2014 (Supp.-I) OLR 1089 to conclude that in 2012 Amendment could have retrospective effect and therefore the three parcels of land would not be affected by the rule against fragmentation.

14. The Court in the first place like to observe that at the time when the Collector decided the application filed by the present

Appellant, the aforementioned amendment of 2012 had, admittedly, not being notified. In other words there was no occasion for the Collector to have examined whether in terms of the 2012 amendment, the land in question should be exempted from the rule of fragmentation.

15. Section 34 as it stood prior to the 2012 amendment expressly prohibited any agricultural land in a locality from being transferred or partitioned "so as to create a fragment". The expression "fragment" has been defined in Section 2(m) of the OCH & PFL Act as under:

"Fragment" means a compact parcel of agricultural land held by a land-owner by himself or jointly with others comprising an area which is less than-

(i) one acre in the district of Cuttack, Puri, Balasore and Ganjam and in the Anandpur subdivision in the district of Keonjhar, and

(ii) two acres in the other areas of the State."

16. In the present case the extent of land under each of the the three registered sale deeds was undoubtedly a „fragment‟ within the meaning of the OCH & PFL Act. Further, in terms of Section 35 (1) of the OCH & PFL Act the transfer or partition in contravention of the provisions of Section 34 was void. In terms of Section 35 (2) of the OCH & PFL Act a person under occupation of any land by virtue of a transfer or partition which is void is liable to be summarily evicted. Therefore, no fault can be found with the impugned order of the Collector,

Bhadrak in proceeding to order the eviction of Respondent No.1 from the land in question.

17. The learned Single Judge ought to have first examined, if at all the 2012 amendment would apply, whether in fact the fragment in question within a TP area. This is because the amended Section 34(5) clearly states that only that portion of fragment which is covered under the "approved Master Plan‟ published under the Odisha Town Planning and Improvement Trust Act, 1956" which would stand exempted from the rule against fragmentation contained in Section 34(1) and (2) of the OCH & PFL Act. In the present case since no document was placed by Respondent No.1, the learned Single Judge ought not to have proceeded to examine the applicability of the amended provision at all.

18. Nevertheless even on the question of retrospective applicability of the amended Section 34 (5) of the OCH & PFL Act, the learned Single Judge appears to have erred in accepting the plea of Respondent No.1 that the amendment would have retrospective effect and cover the three registered sale deeds, two of which were dated 12th June, 2001 and one of which was dated 13th October, 2003, i.e., nearly 10 years prior to the amendment itself. There was no warrant for such conclusion particularly since even as per the settled legal position explained by Supreme Court of India the amended provision was not „declaratory‟ in nature.

19. In Francis Bennion's Statutory Interpretation, 2nd Edn, the legal position is stated as follows:

"The essential idea of legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex-post facto law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction carried on upon the faith of the then existing law."

20. In Maxwell v. Murphy (1957) 96 CLR 261 @ 637-8, Dixon C.J. observed:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had define by reference to the past events."

21. In Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540, the Supreme Court of India adopted the same line of reasoning and held:

"The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."

22. In Smt. Dayawati v. Inderjit AIR 1966 SC 1423, it was reiterated as under:

"Now as a general proposition, it, may be admitted that ordinarily a Court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of Coke whose maxim - a new law ought to be prospective, not retrospective in its operation - is off-quoted, Courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. 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."

23. The legal position was summarized succinctly in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 thus:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."

24. In the present case, Section 34 (5) of the OHC & PFL Act carves out an exception to the instances of fragmentation of land that are generally prohibited, and accordingly partakes the character of a substantive change. Also, there is nothing in the

language of the amendment that explicitly makes it retrospective.

25. The decisions cited by learned counsel for the Respondent No.1 do not in fact state anything to the contrary. To elaborate, in United Bank of India v. Abhijit Tea Co. Pvt. Ltd. (supra), the Supreme Court was considering whether Section 13 and 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (DRT Act) should be interpreted to apply to all pending matters before a Civil Court of High Court so that they are decided not by the respective forum but only by the Debts Recovery Tribunal (DRT). In answering the said question, the Supreme Court observed as under:

"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."

26. In the present case there was no pending matter when the aforementioned amendment to the OCH & PFL Act came into force on 8th March, 2013. The Collector had already passed an order on 1st February, 2013. There was no question of therefore the Collector having to apply the amended provision at all.

27. Further, as explained in Subash Chandra Panigrahi v. Rajib Lochan Panigrahi (supra), it is only where the act was a declaratory one that it would have implied retrospective effect. This is because, as explained in Shyam Sunder v. Ram Kumar AIR 2001 SC 2472 "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." However, in the present case the amendment brought out in 2012 by insertion of the new Section 34 (5) of the OCH & PFL Act was not „declaratory‟ and did not "supply any omission". In fact, it carved out an exception to the Section 34 (1) and (2) which prohibits fragmentation of a land or selling fragmentated pieces of land. It was therefore not „declaratory‟ of an existing situation or of any ambiguity in law. Therefore the a reliance by Respondent No.1 on the decisions in United Bank of India v. Abhijit Tea Co. Pvt. Ltd. (supra) and Subash Chandra Panigrahi v. Rajib Lochan

Panigrahi (supra) in support of plea for retrospective applicability of 2012 amendment, is misplaced.

28. Again in Lakshmi Narayan Guin v. Niranjan Modak (supra) the question was whether the first appellate court was bound to take into account the change of law brought out by the West Bengal Premises Tenancy Act, 1956 while deciding the appeal. In the present case the change in law did not take place during the pendency of any petition in a Court. The change in law came into force after the decision of the Collector, Bhadrak and even before the writ petition was filed in this Court. Since the writ petition before the learned Single Judge was to determine the correctness of the order of the Collector, the decision of the Collector could not be invalidated by applying a law that was not in force when the Collector decided the matter.

29. For the aforementioned reasons, the impugned order dated 21st December, 2016 of the learned Single Judge is hereby set aside and the order dated 1st February, 2013 of the Collector, Bhadrak is restored to file.

30. The writ appeal is allowed in the above terms. But in the circumstances, no order as to costs.

31. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court‟s website, at par with certified copy, subject to attestation by the concerned

advocate, in the manner prescribed vide Court‟s Notice No.4587, dated 25th March, 2020 as modified by Court‟s Notice No.4798, dated 15th April, 2021.

(Dr. S. Muralidhar) Chief Justice

(S.K. Panigrahi) Judge

KC Bisoi