BHAVE J. -
(1.) - The respondent No. 1 had purchased a piece of malik makbuza land, measuring 0.26 acres, assessed to land revenue at Rs. 0.62, of village Sausar, under a registered sale deed dated 26-10-1928. After the said purchase, the respondent No. 1 constructed a house on the said plot and thus diverted the agricultural land to non-agricultural purposes. The Sub-Divisional Officer, Sausar, acting under section 59 (2) of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as 'the Code'), by his order dated 10th March 1964, revised the assessment of the land and fixed it at Rs. 48.40. The assessment so fixed was to come into effect from the agricultural year 1963-64. That order was set aside by the Board of Revenue by its order dated 16th July 1966 wherein it was held that section 59 (2) of the Code was prospective in operation and the provisions thereof could not be relied on for re-assessment of the land which was diverted to non-agricultural purposes before the Code came into operation. This order is being challenged before us by the State of Madhya Pradesh by this petition under Article 226 of the Constitution.
(2.) THE relevant provisions of section 59 of the Code are as under :
"59. Variation of land revenue according to purpose for which land is used.- (1) .................................................. (2) Where land assessed for use for any one purpose is diverted to any other purpose, the land revenue payable upon such land shall, notwithstanding that the term for which the assessment may have been fixed has not expired, be liable to be altered and assessed in accordance with the purpose to which it has been diverted." THE respondents' argument is that the expression "is diverted" is indicative of the fact that the diversion must take effect after the Code was enacted. THE present tense used in sub-section (2) is indicative of the fact that the provisions of the sub-section are not applicable to past acts of diversion. In our view, the contention is not correct, and the Board of Revenue was clearly in error in accepting it. THE recognised canon of interpretation is that a statute, unless it is made retrospective by use of specific words or by reason of necessary implication, must be treated as prospective. But it is equally well settled that a prospective statute can rely on past acts for fastening a a liability or conferring a benefit on a person. In Ex Parte Pratt(1884 12 QBD 334), interpretation of section 5 of the Bankruptcy Act, 1883 (46 and 47 Vict.) was involved. Section 5 of the Act provided: "If a debtor commits an act of bankruptcy", a receiving order could be made on a petition presented under the Bankruptcy Act, 1883. THE question was whether any act of bankruptcy committed before the Act came into force could be relied on for making the receiving order. All the three Judges concurred in holding that such an order could be made. Bowen L.J. expressed his opinion thus: "I think that the more the Act is studied the more it will be found that it is framed in a very peculiar way. I do not mean to say that it is inartistically framed. I think it is framed on the idea that a bankruptcy code is being constructed, and when the present tense is used, it is used, not in relation to time, but as the present tense of logic. I think that is the true view of it." (P. 340 ) Fry L.J. observed as under: "I entirely agree with Bowen L. J., as to the meaning of the present tense in this section; it is used, I think, to express a hypothesis, without regard to time, just as in stating the proposition 'if A. is B, then B. is C.' It is equivalent to saying, 'if at the time when the petition is presented the debtor shall have committed an act of bankruptcy'. This construction of the Act appears to me convenient and just (p. 341) In State of Bombay v. Vishnu Ramchandra(1961 NLJ 449=AIR 1961 SC 307), their Lordships of the Supreme Court referred to the above said decision, with approval. THEir Lordships also referred to the decision in Bourke v. Nutt(1894 1 QB 725), where Lord Esher referred to the decision in Ex Parte Pratt1 and observed: '.....the case seems to show that when the present tense is used in this statute (S. 32 of the Bankuptcy Act, 1883) the time to be considered is the time at which the Court has to act, and not the time at which condition of things on which it has to act came into existence."
THEir Lordships of the Supreme Court, in that case, came to the conclusion that the language of section 57 of the Bombay Police Act, 1951, did not bar an action based on past actions of the offender before the Act was passed. THE verb "has been" used in section 57 of that Act was interpreted to mean "shall have been". It was held that the verb "has been" describes past actions and is used to express a hypothesis, without regard to time. A similar view was taken by their Lordships of the Supreme Court in Sajjan Singh v. State of Punjab(AIR 1964 SC 464) while interpreting section 5 (3) of the Prevention of Corruption Act, 1947. 1 heir Lordships held:
"To take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date of the Act is not in any way giving the Act a retrospective operation. A statute cannot be said to be retrospective because a part of the requisites for its actions is drawn from a time antecedent to its passing".
In Re A Solicitor's Clerk(1957 3 All ER 617 at p. 619) Lord Goddard C. J., while considering the question as to whether the Solicitors (Amendment) Act, 1956, was retrospective or not expressed his view as under:
"In my opinion, however, this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order; but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past. Accordingly, in our opinion the disciplinary committee had jurisdiction to make the order complained of."
From all these decisions it is clear that where an enactment uses the present tense for describing certain set of facts justifying a certain action it is used to express a hypothesis, without regard to time. In this view of the matter, it must be held that the expression "is diverted" is used in subsection (2) of section 59 of the Code without any reference to time. When proceedings are initiated under section 59 (2), what must be seen is whether on that date the land stood actually diverted or not, irrespective of the fact whether the diversion took place before or after the Code came into force. When the section is so interpreted, the question of giving it retrospective effect does not arise The decision of the Board of Revenue, therefore, cannot be sustained.
(3.) IT may be mentioned that under section 104-A of the C.P. Land Revenue Act, 1917, and section 58 of the Madhya Pradesh Land Revenue Code, 1954, similar provisions were made. When the Madhya Pradesh Land Revenue Code, 1954, was enacted and the C.P.Land Revenue Act, 1917 was repealed, the operation of the law so repealed was preserved with respect to the liabilities incurred under the repealed Act. Similarly, when the Madhya Pradesh Land Revenue Code, 1954 was repealed by the present Code (1959 Code), the previous operation of any law so repealed was saved, and any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactments was also saved. In this view also, it must be held that proceedings could be initiated against the respondent No. 1 for revision of the land revenue on the ground that the land was diverted to non-agricultural purposes, even when the diversion took place before the present Code came into operation.
Shri Pandey, learned counsel for the respondent No. 1, advanced another argument basing himself on sub-section (1) of section 59 (before its amendment by Act No. 25 of 1964) which read thus: "59. (1) The assessment of land revenue on any land shall be made, or shall be deemed to have been made as the case may be, with reference to the use of land - (a) for the purpose of agriculture; (b) as sites for dwelling houses; (c) for purposes other than those specified in items (a), (b) or (d); (d) for industrial or commercial purpose." He urged that the expression "shall be deemed to have been made" in section 59 (1) created a legal fiction by which the land, which was already diverted, shall be deemed to have been assessed for the specific purpose, namely, as a site for dwelling house, and no new assessment could now be made. We find it difficult to accept this argument. The assesment with respect to the land in question was made before it was diverted to non-agricultural purposes and it was assessed on the basis that the land was used for agricultural purposes. So long as no new assessment was made, it cannot be held that by operation of the deeming clause the land shall be deemed to have been assessed as 'diverted land'. The deeming clause can come into operation only if there was fresh assesment after diversion. This is not the case here. In those cases where the land revenue is settled afresh but the authorities fail to take into consideration the fact of diversion, the deeming clause may come into operation, and in that case it may be held that the land was assessed for the purpose for which it was being used. In the circumstances of the case, the argument of Shri Pandey is without substance.;