- (1.) B. Dikshit, J. This writ petition arises out of proceeding under Section 12 of the U. P. Consolidation of Holdings Act (in short Act') for mutating the name of Smt. Saraswati.
(2.) THE facts relevant for the purpose of present controversy are that petitioner Smt. araswati Devi applied for mutation on the basis of a sale deed dated 22-3-1979 ex ecuted by Chhotey Lal in respect of 1/4 share in plot Nos. 8437-275, 844/-272, 945/890, 846/-570, 853/-112, 952/-174 total area 2. 293 acres. THEre is no dispute be tween parties that Chhotey Lal by said sale deed transferred whole of his share in said holding. An objection was filed by opposite party Akchhaibar, who is a co-tenure holder with Chhoteylal, that the transfer is bad in law and sale deed cannot be given effect as no prior permission of Settlement Officer Consolidation required to be taken under Section 5 (1) (c) (ii) of the Act was obtained by transferor before executing the sale deed. THE Consolidation Officer, after hearing the parties, rejected the mutation applica tion holding that the sale deed is bad in absence of prior permission of Settlement Officer Consolidation. THE petitioner preferred an appeal against the order passed by Consolidation Officer. THE Assistant Settlement Officer, Consolidation Azam-garh by order dated 16-7-1984 allowed the appeal and directed mutation in favour of petitioner. He held that Chhotey Lal trans ferred his whole share in the Khata in dis pute for which no prior permission was necessary. THE contesting opposite parties preferred revision. THE Deputy Director of Consolidation by order dated 17-8-1987 reversed the finding recorded by Assistant Settlement Officer Consolidation. He held that prior permission of Settlement Officer Consolidation was necessary before execut ing the sale deed. He allowed the revision and restored the order of Consolidation Of ficer. Aggrieved, the petitioner has come up before this Court in writ petition. The learned counsel for petitioner argued that Section 5 (1) (c) (ii) of the Act puts an unreasonable restriction on the right of bhumidhar and, therefore, it is ultra vires. He relied upon the case of Shim Singh Ji v. Union of India, AIR 1981 SC 234 in support of his argument that the validity of the aforesaid provision cannot be allowed to be challenged by petitioner on the ground of unreasonableness which means violation of Article 14 of the Constitution of India. Sec tion 5 (1) (c) (ii), as it stands for present controversy, has been incorporated by Sec tion 5 of Uttar Pradesh Land Laws (Amend ment) Act, 1974, which is under protective umbrella provided by Article 31-B of the Constitution as it stands incorporated in Nineth Schedule of Constitution of India and therefore, it cannot be challenged on the ground that it is unreasonable. The case of Bhim Singh Ji v. Union of India (supra) is distinguishable. The majority judgment of that case held Section 27 (1) of Urban Land (Ceiling and Regulation) Act, 1976 invalid in so far as it imposed restriction on transfer of any urban or urbanisable land with a building in ceiling area. From the judgment cited it appears that the provision having protection against challenge on the ground of violation of fundamental right enshrined in Chapter III of the Constitution was declared invalid on the ground of legislative incompetency. It has not been declared ultra vires on the ground of unreasonable restric tion which means violation of Article 14 of the Constitution. In view of the majority judgment that provision was outside legislative competence of Parliament, which enacted the law, the provision has been declared ultra vires. This is not case here as U. P. Legislature is competent to enact the law. in question. The next contention which is on merit and requires consideration is as to what is the effect of Section 5 of Uttar Pradesh Land Laws (Amendment) Act, 1991, whereby Section 5 (1) (c) (ii) of the Act has been omitted with effect from 19-2-1991. The learned counsel for petitioner argued that the provision is retrospective and, therefore, even if the sale deed was initially invalid for want of prior permission of Settlement Officer Consolidation as the Act has been amended during pendency of writ petition and the amendment in ques tion is amendment in procedural law, there fore, the change in law being made during pendency of writ petition has to be taken into consideration. According to him it has to be given effect and, therefore, the petitioner is entitled for relief in this writ petition. To support his argument that the provision is restrospective in operation, the learned counsel for petitioner argued that as no benefit accrues to anyone by transfer while the chaks were carved out before the sale was made and Chhotey Lal has trans ferred whole of his share, the transfer is to be protected. For proposition that proce dural law is retrospective, the counsel for petitioner relied on cases of Jose Da Costa v. Bascora, AIR 1975 SC 1843; Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209 and Lalta Prasad Srivastava v. IXth Additional District Judge, Agra, 1996 U. P. Civil and Revenue Cases 370. He also relied upon the statement of objects of amending Act in support of his argument and submitted that as the provision has been omitted to prevent corruption and ensure quick disposal of cases, the statute has been passed for protection the public against evil and abuse and, therefore, it has to be given retrospec tive effect. In support of his argument that if a statute is passed for the purpose of protecting public against some evil or abuse then it is to be deemed to be effective retrospectively, the learned counsel for petitioner cited case of Sree Bank Ltd. v. Sarkarduttroy and Co. AIR 1966 SC 1953.
(3.) THE learned counsel for contesting opposite parties opposed the petition and contended that the sale is void ab initio as it violates Section 5 (1) (c) (ii) of the Act. He also argued that the omission of said section by Section 5 of Uttar Pradesh Land Laws (Amendment) Act, 1974 does not give it retrospective operation and relying on the case of Coates v. Diment 1951 (1) All. E. R. 890 argued that the contracts which were void from inception under repealed section are not to be accepted valid when statutory provision declaring such transaction as void are repealed. He relied upon following por tion of judgment of Coates case (supra) to substantiate his argument: "i do not consider that Section 33 (3) of the Act of 1947 means more than that Section 50 of the Act of 1923 is to cease to have effect with respect to any future contracts. In future the tenant's rights are to be governed by Section 33 (1) and (2) notwithstanding any agreement to the contrary, but no contrary intention is indicated with regard to earlier contracts which have already been rendered void by repealed section, and I am unable to accept that a clause in an agreement long ago rendered void at the moment of its incep tion springs into life when the statutory provision declaring it void is itself repealed. By virtue of Section 50 of the Act of 1923 declaring Cl. 1 void in part, the tenant had long ago acquired a right or privilege from being ejected without notice from the whole or part of his holding under clause 1, and, in my opinion Section 38 (2) of the Inter pretation Act, 1889, preserved that right or privilege notwithstanding the repeal of Section 50 of the Act of 1923. " The learned counsel for petitioner is not right in his submission that Section 5 of Uttar Pradesh Land Laws (Amendment) Act, 1991 has a retrospective effect as it is procedural law. Section 5 (1) (c) (ii) puts a fetter on the right of a bhumidhar to transfer his holding during consolidation operations without prior permission of Settlement Of ficer Consolidation. A law which effects a right to transfer without seeking permission effects substantive right and is not a proce dural law. The procedural part in seeking permission is confined to the procedure to be adopted for obtaining permission. As it puts fetter on the power of a bhumidhar to transfer his holding, which effects a substan tive right, it cannot be given effect retrospectively. From reading of Uttar Pradesh Land Laws (Amendment) Act, 1991 the said section is not retrospective. There is neither any express provision nor there is anything to indicate impliedly that the Section 5 (1) (c) (ii) has been omitted by Amending Act, 1991 with intention to give effect to Uttar Pradesh Land Laws (Amend ment) Act, effect retrospectively. So far the cases of Jose Da Costa (supra) and Gur- bachan Singh (supra) wherein it has been laid down that procedural law is retrospec tive, the petitioner does not get any benefit, as I am of the opinion that said section of Uttar Pradesh Land Laws (Amendment) Act, 1991 amends substantive law and not procedural law.;