Smt. Shanti Devi and others vs The Chief Commissioner, Delhi, and others

S.B. Capoor, J.—This writ petition under Articles 226 and 227 of the Constitution of India involves determination of the question whether sub section (2) of section 15 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the Act), as amended by the Delhi Land Reforms (Amendment) Act (No. IV of 1959) which came into force on the 12th of March, 1959, will also affect the cases decided before that date. P. D. Sharma J. considered that the decision would be of general importance and deserved authoritative pronouncement by a larger Bench, and that is how the writ petition was placed before the Division Bench.

The material facts are not in dispute and are as follows:

The land in dispute measuring 50 Bighas 18 Biswas is situated in village Saboli (Delhi State) and was mortgaged by Udmi and Chhajjan by means of a registered deed, dated the 12th of July, 1959, in favour of Gyasa and Bahal. Sub-section (1) of section 15 of the Act provided that a mortgagee in possession of an estate or share therein shall cease to have any right in such estate or share if the proprietor-mortgagor deposited the mortgage money together with interest thereon in Government treasury and applied for redemption of the mortgage in the proper Court within a period of nine months from the commencement of this Act. The Act came into force on the 20th July, 1954, and within nine-months thereof the mortgagors applied for redemption of the mortgage and also deposited the mortgage money. In the meanwhile, they sold their rights in the property to Shrimati Shanti Devi and Shri Yashpal (the present petitioners), who also joined in the application for redemption of the mortgage. The respondents to that application were Gyasa (respondent No. 2), one of the original mortgagees, and Mst. Bharto, the widow and successor-in-interest of Bahal. The case was heard and decided on the 21st of September, 1957, by Shri Harphool Singh, Revenue Assistant, Delhi, and the decision was according to the provisions of subsection (2) of section 15 of the Act which are as follows:

15(2). If the proprietor mortgagor shall forthwith produce the treasury challan and a copy of the plaint before the Revenue Assistant, who shall, after giving the interested parties an opportunity of being heard direct that so much of the mortgaged area, as, have been the Sir or Khud Kasht of the mortgagor on the date of the mortgage was under the personal cultivation of the mortgagee on the date of application for redemption by the proprietor mortgagor under sub-section (1) be included in the proprietor mortgagees Bhumidari area.

The two questions, therefore, which under this provision fail for decision were:

Was the land in the cultivation of the mortgagors at the time of the mortgage?

Was the land in the cultivation of the mortgagees on the date the application for redemption by the proprietor-mortgagor under subsection (1) of section 15 of the Act was made?

and, accordingly, the issues as under were trained by the Revenue Assistant:

Was the land in the cultivation of the mortgagor at the time of the mortgage ?

Was the land in the cultivation of the mortgagees at the time the application was made?

Relief?

On issue No. 2, he held on the basis of the Khasra Girdawari that the entire mortgaged land was in the cultivating possession of Gyasa as tenant-at-will at the time of the making of the application for redemption, and that Bahal had since died issueless. The second issue was therefore, decided in favour of the applicants, and on that there was no controversy at any stage. On issue No. 1, he held that in Rabi 1945 the land was in the cultivating possession of Bahal and not in the cultivation of the mortgagors. In the result, he concluded that the applicants, viz., the mortgagors, could not be declared Bhumidars of the land under mortgage, and he declared that the disputed land shall be included in the Bhumidari of Gyasa mortgagee. Against this order an appeal under the provisions of section 185 read with Schedule I of the Act was taken to the Collector, and the Additional Collector, by his order date 1 the 18th of February, 1959, dismissed the appeal with costs.

Section 187 of the Act gives a revisional power to the Chief Commissioner, Delhi, and is in the following terms:

Power of Chief Commissioner to call for cases.-

The Chief Commissioner may call for the record of any suit or proceedings referred to in Schedule I decided by any subordinate Court in which no appeal lies, or where any appeal lies but has not been preferred, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law,

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of jurisdiction illegally or with material irregularity, the Chief Commissioner may pass such order in the case as he thinks fit.

On the 20th of April, 1959, i.e., after the date of the coming into force of the amending Act, which date was the 12th of March, 1959, Shrimati Shanti Devi, and Shri Yashpal the vendees from the mortgagors, filed a revision petition in pursuance of section 187 in the Court of the Chief Commissioner, Delhi, who by his order, dated the 3rd of November, 1959, dismissed the revision petition. That order is being impugned in the present case by this writ petition.

The only contention advanced on behalf of the petitioners is based on the amendment effected to sub-section (2) of section 15 of the Act by section 7 of Act IV of 1959. By that amendment the following sub-section was substituted for sub-section (2):

(2) If the proprietor mortgagor deposit the amount and applies for redemption as provided in sub-section (1), he shall be declared as Bhumidar in respect of the'' mortgaged area which was under the personal cultivation of the mortgagee on the date of such application for redemption, and if any part of the mortgaged area was on the said date let out to a tenant, such tenant shall be declared as Bhumidar in respect of the area that was so let out to him.

Sub-section (2) of section 1 of Act IV of 1959 provided that section 7 was one of the sections of the amending Act, which shall be deemed to have come into force on the 20th of July, 1954. The result, therefore, was that sub-section (2) of section 15, as amended, must be deemed to have been a part of the principal Act as originally enacted. The difference in the two provisions was that it was no longer necessary for the mortgagor to prove that any part of the mortgaged area was his own sir or khud kasht, and in order to have the area included in the proprietor mortgagor''s bhumidari area all that he was required to establish was that the land in dispute was under the personal cultivation of the mortgagee on the date of application for redemption by the proprietor mortgagor under sub-section (1). On this point, the findings, of the Revenue Assistant as well as of the Additional Collector, Delhi, were in favour of the mortgagor and ipso facto in favour of the petitioners who are their successors-in-interest. The argument based on the amended version of sub-section (2) of section 15 was pressed before the Chief Commissioner who was, however, of the view that after the right of appeal had been exhausted and the decision of the appellate Court had gone in favour of the mortgagees, the revisional Court would not be justified in giving retrospective effect to the amending Act. The learned counsel for the petitioners strongly urged that this view is legally wrong, and further that in not giving full effect to the retrospective provision of the amending Act the Chief Commissioner failed to exercise the jurisdiction which was vested in him by law.

Now there is no doubt that on the facts found by the Revenue Assistant the decision given by him was in accordance with the law as then existing, and the same was true at the stage of appeal before the Additional Collector. But the amending Act had come into force before the revision was filed in the Court of the Chief Commissioner, and the situation at the hearing of the revision petition was that by operation of law the amended provision was to be deemed to have been incorporated in the principal Act from the time the latter came into force. The principle of law to be applied in such matters has been laid down in Ahmedabad Manufacturing and Calico Printing Company Limited v S.G. Mehta, income tax Officer and another A. I. R. 1963 S. C. 1436 at p. 1445 and is as follows:

The date on which the amendment comes into force is the date of the commencement of the amendment. It is read as amended from that date. Under ordinary circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the date of the commencement of the Act. But this rule is not unalterable. The legislature may effect substantial rights by enacting laws which are expressly retrospective or by using language which has that necessary result.

In the instant case, the amended provision has been expressly made retrospective from the date of the inception of the principal Act, and when the Chief Commissioner heard the revision petition it was incumbent on him to apply the amended provision with retrospective effect. While it is true, as observed in Man Mohan Lal v. B. D. Gupta (1962) 64 P. L. R. 51, which was cited on behalf of the respondent that a revision petition is not a rehearing of the suit in the same way as appeal, still it cannot be said that by the appellate order of the Additional Collector any final rights had been acquired by the respondents which could not be affected by retrospective operation of the statute. The Chief Commissioner u/s 187 of the Act was empowered to pass in revision such order in the case as he thought fit, and even after he had made the order in revision he had under rule 32 of Part B of Appendix VI to the Delhi Land Reforms Rules, 1954, a power to review any order made by himself in the course of business connected with settlement or otherwise. The Chief Commissioner was, therefore, in error in holding that the respondent-mortgagees had acquired some sort of vested right which could not be affected by the retrospective operation of the statute.

Lastly, it was urged by the learned counsel for the respondents that even if the decision of the Chief Commissioner was erroneous, it was not such an error which could be cured by a writ of certiorari, and in this connection reliance was placed on T.P. Ansari v. The Union of India and another (1963) 65 P. L. R. 152 at p. 156 and Inder Singh Nihal Singh Vs. Chief Commissioner, Delhi and Another, at p. 163. The error, however, is an error of law patent on the record, I and as observed by their Lordships of the Supreme Court in M.K. Venkatachalam I.T.O. and another v. Bombay Dyeing and Manufacturing Company Limited A.I. R. 1058 S. C. 875 at p. 880-in which case there was a somewhat similar situation-when a mistake of law is glaring and obvious, there is no reason why it should not be rectified.

The result, therefore, is that the writ petition is allowed and the impugned order of the Chief Commissioner, Delhi, dated the 3rd of November, 1959, quashed with the direction that the revision petition be decided by him afresh in accordance with sub-section (2) of section 15 as amended by Act IV of 1959.

As the legal point involved is one of first impression, there will be no order as to costs in this Court.

Mehar Singh, J.

I agree.