- (1.) S. R. Singh, J. This bunch of 108 writ petitions - one filed by Shree Arya Dharm Sewa Sangh Birla Mills, Sabzi Mandi, Delhi (in short the Trust) and others by State of U. P.- may conveniently be disposed of by a common order in that the causes of action giving rise to these petitions are exactly similar identical and same questions of law are involved in these writ petitions It is not disputed that in proceeding for determination of surplus land, if any, held by the Trust, the prescribed authority, vide its order dated 29- 11-1974, had held that the Trust was entitled to be exempted under Section 6 (f) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (in short' the Ceiling Act') and provisional notice dated 2-3-1974 issued to the Trust for determination of surplus land as tenureholder was dropped vide order dated 22- 11-1974 on the finding that the Trust was created before the prescribed date i. e. 1-5-1959 wholly for charitable purposes and its income was being utilised for such purposes.
(2.) FOR the convenience it may be stated that writ petition No. 1682 of 1987 has been filed by Shree Arya Dharm Sewa Sangh, Birla Mills, Sabzi Mandi, Delhi against the notice dated 31-10-1986 under Section 9 (2) read with Sections 29, 30 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 whereby the Manager, Arya Dharm Sewa Sangh Trust, Haripar Kalan, Dehradun was called upon to show cause, within 15 days, as to how much total area of land was held by the Trust at the time of commencement of the Act and how much areas had been transferred by it in favour of individuals. The notice was alto called upon to disclose how much area remained with it on the date of notice, so that fresh proceeding, under the Ceiling Act be initiated, if necessary against the Trust, Writ Petition No. 17997 of 1987 and other connected writ petitions mentioned herein above have been filed by the State of Uttar Pradesh against the identically worded separate appellate orders dated 4-3-1987 whereby the Divisional Commissioner has allowed the appeals preferred by different transferees of the Trust aforesaid against identi cally worded separate orders passed by the Prescribed Authority (Ceiling) under Section 6 (2) of the Act. It appears that an area of 62. 01 acres was transferred by means of different sale deeds executed by the Trust (tenure holder) in favour of various persons between 6-3-1972 and 20-8-1974 (both dates inclu sive) and 0. 27 acre by sale deed dated 13-2-19 6 as per statement made be Sri K. N. Tripathi learned counsel appearing for the Trust and its vendees. Orders in respect of some transfers were passed by the Prescribed Authority while in respect of others the proceedings were stayed as a result of stay order dated 24-3-1987 passed by this Court on application for interim relief moved in writ petition No. 1682 of 1987. Orders already passed under Section 6 (2) of the Act were, however, reversed by the appellate authority vide separate but identi cal orders dated 4-3-1987 which orders are under challenge in writ petitions filed by the State of U. P. The Divisional Commissioner has taken the view that sub-section (2) of Section 6 of the Act does not have retrospective effect and hence the sale-deeds executed without prior permission were not void and consequently the land covered by the sale-deeds would not be deemed to be surplus. So far as the view taken by the Additional Commissioner is concern ed, it is pulpably and manifestly erroneous. According to Section 6 (1) (f) of the Act land held from before the 1st day of May, 1959 by or under a public and religious or charitable wakf, trust, endowment, or institution the income from which is wholly utilised for religious or charitable purposes, and not being a wakf trust or endowment of which the beneficiaries wholly or partly are settlor or members of his family or his descendants, is no doubt, not to be taken into consideration for the purposes of determination of ceiling area applicable to, and the surplus land of a tenure holder but sub-sections (2), (3) and (4) which were inserted and "deemed always to have been inserted" by Section 7 of the U. P. Imposition of Ceiling on Land Holdings (Amend ment) Ordinance, 1975 (U. P. Ordinance No. 31 of 1975) which cams into force on 10-10-1975 vide Notification No. 1 (36)-75-Revenue-1-75, dated 10-10-1975, makes it abundantly clear that any land transferred in contraven tion of Section 6 (2) by such wakf, trust or endowment, as is referred to above, would be deemed to be surplus land to which provisions of Section 14 (8) apply as if it were a land notified under sub-section (1) of Section 14 of the Act. The said Ordinance was repealed by U. P. Ordinance No. 1976 which was finally repealed and substituted by U. P. Imposition of Ceiling on Land Hold ings (Amendment) Act, 1976 (U. P. Act No. 20 of 1976) which received the assent of the President of India on April 10, 1976 and was published in U. P. Gazette Extraordinary dated May 3, 1976 vide Notification No. 1948/xvii-V-I-152-75. According to Section 1 (2) of the U. P. Act No. 20 of 1976, the said Act came into force on October 10,1975.
(3.) SUB-section (2), (3) and (4) of Section 6 of the Act being relevant are quoted as below: " (2) No person shall transfer any land referred to in clause (d) or clause (e) or clause (f) of clause (g) or sub-section (1) without prior permission of the State Government, and every transfer made without such permission shall, notwithstanding anything contain- ed in any other law for the time being in force, be void : Provided that nothing in this sub-section shall apply to any transfer by or in favour of any person specified in sub-section (2) of Section 5. (3) Any land which it the subject of any transfer which by virtue of sub-section (2) is void, shall be deemed to be surplus land and shall with effect from October 10, 1975 or the date of such purported transfer, whichever is later, stated transferred to and vest in the State Government free from all encumbrances, and all rights, title and interests of all persons in such land shall stand extinguished: Provided that the encumbrances, if any, shall be attached to the amount payable under Section 17 in substitution for the said land. (4) Where any land deemed to be surplus land under sub-section (3)- (i) the provisions of sub-section (8) of Section 14 shall apply as if it were a land notified under sub- section (1) of that Section: (iii) the amount payable, therefore, under Section 17 shall be paid to the person in whose favour such transfer was purported to be made. " Section 7 of the U. P. Act No. 20 of 1976 provides in no uncertain language that sub-sections (2), (3 ). and (4) as inserted thereby to Section 6 "shall be deemed always to have been inserted. " Retrospectivity given to sub sections (2), (3) and (4) of Section 6 of the Act is thus writ large on the face of the Amending Act. The contrary view taken by the Additional Commis sioner is patently erroneous. Sri R N. Tripathi, learned Senior Counsel appear ing for the Trust and its vendees did not dispute that sub-sections (2), (3) and (4) were retrospective in their operation. What Sri Tripathi contended is that the requirement of taking prior permission of the State Government for transfer under sub-section (2) was impossible to be performed at least in respect of sale deeds executed prior to 10-10-1975 and, therefore, urged Sri Tripathi the performance of the obligation as to obtaining prior permission of the State Government for transferring land could be deemed to have been dispensed with as per legal mixim "lex non cogit ad impossibilia"- (law does not compel a man to do that which he cannot possibly perform ). In support o his contention Sri Tnpathi placed reliance on Legislation and interpretation by Sri Jagdish Swarup, 2nd Edition page 527-28, wherein it has been propounded that, "if in the interpretation of a Statute the court finds duty enjoined by it either impossible of performance and beyond the normal capacity of a reasonable or prodent man, or when the performance in the strictest language of the enact ment is idle or impossible, then the enactmeat must be understood as dispensing with the strict performance of duty". Sri Tripathi also placed reliance on "maxwell. On the Interpretation of Seatutes" 12th Edition by P St. J. Langan page 326, wherein it has been propounded that "enactments 'which impose duties upon conditions precedent to the exercise of a jurisdiction are subject to the maxim, 'lex non cogit and impossibilia. ' They are understood as dispensing with the performance of what is prescribed when performance of it is impossible. "reliance was also placed on the Apex Court's decision In re Presidential Election, 1974, A. I. R. 1974 S. C. 1682 paragraph 15 wherein it has been held as under: "the impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of the office in the case of death of a candidate as may appear from Sec. 7 of the 1952 Act does not rob Article 62 (1) of its mandatory character. The maxim of law impotentia excusat legem is inti mately connected with another maxim of law lex non cogit ad im- possibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia exceses. The law does not compel one to do that which one cannot possibly perform. "whether the law creates a duty or charge and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him. " Therefore when it appears that the performance of the formalities prescribed by a Statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a Statute, the Statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edition at pp. 162-163 and Craies on Statute Law 6th Edn. at p. 268.)";