D. K. Seth, J. - (1.) Opposite party Nos. 3, 4 and 5 instituted Suit No. 1951 of 1958 before the Munsif. Deoria against the petitioner as defendant for injunction and demolition of Kuchha structure made by the defendant, on the alleged ground that the said opposite parties had purchased the said land by a registered deed of sale dated 29.8.1953, after which their names were so recorded as tenure-holders in respect of the said land. The suit was decreed on 7.9.1962 on contest. An appeal being Appeal No. 3667 of 1962 was filed by the petitioner against the said order. The appeal was dismissed on contest by an order dated 25.9.1968. The opposite parties decree holders levied Execution Case No. 67 of 1968 on 15.11.1968. In the said execution case, the petitioner-judgment debtor filed an objection under Section 47 of the Civil Procedure Code on 12.9.1977. In the said objection, it was pleaded that the land being an agricultural land, it is subject to Section 122C of the U. P. Zamindari Abolition and Land Reforms Act, 1951, (hereinafter referred to as the Act) and thereby liable to be settled with the petitioner, a member of Scheduled Caste under Section 123 (2) of the Act. This objection was allowed by the executing Court by an order dated 26.2.1979. A revision being Revision No. 94 of 1979 was filed against the said order. By an order dated 29.1.1980, the revision was allowed and the order dated 26.2.1979 was set aside. It is this order dated 29.1.1980 which is the subject-matter of challenge in the present writ petition.
(2.) Mr. Swaraj Prakash. Learned counsel for the petitioner, contends that Section 122C of the Act provides for settlement of housing site for members of Scheduled Caste and agricultural labours. According to him, the petitioner belongs to Gond community, which was declared within the list of Scheduled Caste on 8.12.1978. Therefore, according to him, the petitioner is eligible for settlement of such housing site under Section 122C of the Act according to preference provided in the said section. He further contends that Section 123 prescribes the manner for settlement of such housing sites with the existing owners. According, to him, the land being a land held by the decree holders as tenure-holders, the same is to be settled by virtue of Section 123 (2) of the said Act in favour of the petitioner. He stresses on the expression "notwithstanding anything contained in this Act" in sub-section (2) and contends that by reason of such non-obstante clause, the land held by the petitioner is to be settled with the petitioner notwithstanding anything contained in the Act. According to him, this non-obstante clause has the effect of nullifying the decrees which had not yet been satisfied or executed. He further contends that by virtue of Act No. XXI of 1971, Section 123 was re- enacted which was subsequently described as sub-section (1) after Act No. XXXIV of 1974, was enacted. According to him, the scheme of Act No. XXI of 1971, read with that of Act No. XXXIV of 1974, makes it clear that the provisions contained in Section 123 (1) and 123 (2) were given retrospective effect by implication. Since nothing has been mentioned in the said two Acts, the said section shall be deemed to have always been in the Act. The intention of the legislature can be gathered from the very expression used in the said Act to the extent that the date provided in Act No. XXXIV of 1974 prescribes 15th March, 1974 as the prescribed date. Since the petitioner had been holding the land under a tenure-holder where the house existed on 15th March, 1974, the provisions of sub-section (2) of Section 123 is very much applicable since the decree had not been executed till then. According to him, the said section has not made any distinction with regard to holding of the house or existence of any decree or otherwise. Since it does not recognise any of the contingencies specifically in the said section, the decree shall be deemed to have become nullified and cannot override the provisions contained in the said Act as brought by amendment though Act No. XXXIV of 1974, since according to him, the U.P.Z.A. and L.R. Act is a special statute which will override such situation.
(3.) Mr. A. B. Singh. learned counsel for the opposite party, on the other hand contends that the petitioner was not declared Scheduled Caste till 8.12.1978 since only by virtue of notification issued on the said date the Gond community was included within the list of Scheduled Caste and therefore on 15th March. 1974, the petitioner cannot be said to be a member of Scheduled Caste. He further contends that there is nothing either in the Act No. XXI of 1971 or in Act No. XXXIV of 1974. which renders a valid decree of a Court void or nullified. The said amending Acts has not provided any overriding effect nor retrospective operation. The U.P.Z.A. and L.R. Act also does not contain anything which has the effect of nullifying a decree or rendering it void. It may be a special statute which may have special application, but unless it is expressly provided that it has the effect of nullifying a decree on certain contingencies, such a situation cannot be presumed. If the legislature had such intention, in that event it should have been expressed in the legislation itself or could have been intended such provision which by implication would mean as such. Then again, he contends that Section 123 stood deleted between 1958 and 1971. When the decree was passed in 1962. Section 123 was not there. Even execution was levied before Section 123 was re-enacted by 1971 Act. However, land of the decree holder could not be brought within the purview of Section 123 until Act No. XXXIV of 1974 was enacted. In such circumstances, by no stretch of imagination, this provision could be said to have retrospective effect or could have been deemed to have the effect of nullifying a decree or rendering the same void or in other words to render the decree inexecutable. Therefore, according to him, the order passed by the revisional Court is perfectly justified. He also contends that even on merits, the petitioner is not entitled to such benefits. He further contends that subsequent amendment cannot nullify the judgment or decree and cites a few decisions which will be dealt with at appropriate stage. Similarly, Mr. Swaraj Prakash has also cited certain decisions which will be dealt with at appropriate stage.;