William Broome, J. - (1.) This writ petition, filed in January 1966 by M/s. Kesar Sugar Works, Ltd. of Baheri (Distt. Bareilly), asks for the quashing of notices issued on 15 -10 -1965 and 30 -10 -1965 by the Tahsildar of Kichha (Distt. Naini Tal) to Jiwan Lal, who is said to be the Manager of the petitioner's agricultural farm in the village of Khurpia, threatening him with prosecution on a charge of criminal trespass, if he did not vacate a certain piece of land in the adjoining village of Bandiya. Admittedly, some plots in the village of Khurpia were allotted by the Superintendent, Tarai Bhabhar, to M/s. Kila Chand Dev Chand (claimed by the petitioner company to be its managing agents) in the year 1935. According to the allegations in the petition some land in Bandiya village was also included in the area allotted; but this is denied by the State. The Khurpia farm was being managed by Jiwan Lal (son of Chhota Lal, who represents the firm of Kila Chand Dev Chand); and in 1961 proceedings were taken by the Distt. authorities under the provisions of the UP Public Land (Eviction & Recovery of Rent and Damages) Act, 1959 for the ejectment of this Jiwan Lal from the disputed land in Bandia village. He appears not to have contested the notice and consequently an order was passed for his eviction from plot 8 -B in Bandia. He filed no appeal against this order. Instead, an appeal was filed by the petitioner company, but was dismissed by the Addl. Distt. Judge of Kumaun on 29 -5 -1965 on the ground that the Company was not a party to the original case and had no right to file any appeal. The order of eviction against Jiwan Lal thus became final; but it appears that he failed to vacate the land in question and consequently the impugned notices were issued to him in October 1966, threatening him with criminal prosecution, if he did not vacate within a specified time. In the present proceedings I do not propose to go into the question of whether Jiwan Lal is liable to be prosecuted for criminal trespass or whether the proceedings should have been taken against the petitioner instead of Jiwan Lal; nor is it necessary for me to consider the question of whether the disputed Bandia land was allotted along with the land in Khurpia village for the establishment of the farm. All these are matters that can be left for decision by the Magistrate who takes cognizance of the criminal proceedings that are to be instituted in pursuance of the impugned notices. The only question that I propose to deal with in this writ petition is the question of the vires of the UP Public Land (Eviction & Recovery of Rent and Damages) Act, 1959, as amended by the UP Public Land and Premises Laws (Amendment and Validation) Act, 1970. The notices that have been issued to Jiwan Lal seek to impose criminal liability on him because he has failed to obey an order passed under the UP Public Land (Eviction & Recovery of Rent and Damages) Act, 1959, requiring him to vacate the disputed land but if the petitioner can show that the Act in question is ultra vires, the proceedings, taken under the Act will have to be treated as invalid and ineffective and any prosecution launched on the basis of disobedience of an order passed under the Act must automatically fail.
(2.) In Raja Ram Verma v/s. State of UP ( : 1968 AWR 409) a Full Bench of this Court struck down the original Public Land (Eviction and Recovery of Rent and Damages) Act, 1959, on the ground that it infringed Art. 14 of the Constitution because it permitted the State to discriminate between different unauthorized occupants by pursuing against some of them by the more drastic remedies provided by the Act, while taking proceedings against others in the shape of ordinary civil or revenue suits. The Legislature sought to remedy this defect by enacting the UP Public Land and Premises Laws (Amendment and Validation) Act, 1970, S. 19 of which runs as follows: - - 19. After S. 10 -A of the principal Act, the following Sec. shall be inserted and be deemed always to have been inserted, namely: 10 -B. Bar of suits, etc., for certain reliefs. - - No suit or other proceeding for any of the following reliefs, namely: - - (a) recovery of arrears of rent for occupation of any public land; (b) eviction from public land; (c) recovery of damages for use or occupation of such land, where the like relief is available under this Act, shall lie in any civil or revenue Courts.
(3.) Learned counsel for the petitioner argues, however, that this Amendment Act could not have any effect, because it is not possible to amend an Act which is void and dead from its inception, and in this connexion places particular reliance on the Supreme Court pronouncement in B. Shama Rao v/s. Union Territory of Pondicherry ( : AIR 1967 SC 1480). In that case it was found that the Pondicherry General Sales Tax Act, 1965, which extended to Pondicherry the provisions of the Madras General Sales Tax Act, 1959, as they stood immediately before the date on which the Pondicherry Act would be brought into force by a notification issued by the Govt., was void and still -born, because the Pondicherry Legislature had abdicated its legislative functions, inasmuch as it had passed the Act without knowing what amendments might be introduced in the Madras Act by the time it became operative in Pondicherry; and it was further held that being void and still -born, the Pondicherry Act could not be amended by the, subsequent Pondicherry Sales Tax (Amendment) Act of 1966. The learned Advocate General, however, seeks to distinguish that case from the one with which we are at present concerned. He points out that the Pondicherry Act was in effect not a real piece of legislation at all, as is clear from the finding that in adopting it the Legislature had abdicated its legislative functions. But the UP Public Land (Eviction and Recovery of Rent and Damages) Act stands on quite a different footing, for it was passed by the Legislature within the ambit of its normal legislative competence, even though there was a flaw in this Act that prevented it from being enforceable. It is true that Art. 13(2) of the Constitution lays down that no law can be made which takes away or abridges a Fundamental Right and that "any law made in contravention of this clause shall to the extent of the contravention be void". But the contention is that the word 'void' in this context merely means inoperative and devoid of legal force; and it is argued that such a void law can subsequently be made operative and enforceable by means of a suitable amendment that has the effect of removing the defect that has prevented it from operating. In this connexion reliance is placed on the Supreme Court pronouncement in M.P.V. Sundararamier & Co. v/s. State of Andhra Pradesh ( : AIR 1958 SC 468), which is expressed in the following terms: If a law is on a field not within the domain of the Legislature, it is absolutely null and void, and a subsequent cession of that field to the Legislature will not have the effect of breathing life into what was a still -born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard Constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re -enactment. The Pondicherry case relied upon by learned counsel for the petitioner dealt with a statute which was totally null and void, due to abdication by the legislature of its legislative function and could not therefore be brought to life by subsequent legislation; but it is contended that the case with which we are at present concerned deals with an Act which falls into the second category mentioned in the foregoing quotation and therefore could become effective without re -enactment once the disregard of a Constitutional prohibition had been removed.;