P L D 1956 (W (PLP)

In pursuance of this application, the land was ordered to be redeemed on payment of Rs. 1,126 and the defendant put in possession thereof. The possession was finally delivered to the defendant on the 15th of June 1947, vide Exhs. D. 27, D. 28, D. 29, D, 32 and D. 33 in the Urdu record and D 30 in the English record. This fact, though originally denied by the learned counsel for the plaintiff, was later admitted by him to be correct and is now no longer in dispute. The learned counsel for the plaintiff has raised the following three points before us :‑ (1) That his client had no notice of the enquiry held by the Deputy Commissioner under section 4 (2) of the Alienation of Land Act and the finding of the Court below to the contrary was not correct; (2) That the Notification, No. 657‑R, dated the 3rd of April 1950, had a retrospective effect, and as such, his client should be deemed to have been an agriculturist at all times and that this subsequent improvement, in his status entitled him to the land in dispute and that by virtue of the retrospectivity of the notification .the order of the Deputy Commissioner dated the 19th of March 1946, was non est; and (3) That in any case his client was entitled to succeed by virtue of the provisions of section 43 of the Transfer of Property Act (a point which was neither urged in the Court below nor specifically 'taken up in the grounds of appeal in this Court). We will now take up these points ad seriatim :‑ There have been two distinct enquiries under section 4(2) of the Punjab Alienation of Land Act, though both related to the question of the determination of the status of the plaintiff. One concluded in March 1945 and the other, which is now the subject of decision, in March 1946. The application by Ghulam Qadir for review of the Mutation No. 149 in favour of the plaintiff was made on the 6th of October 1944, and the Deputy Commissioner forwarded this application to the Tehsildar, Multan, on the 7th of October 1944. The order (Exh. D. 15) of the Deputy Commissioner reads as follows :‑ "Tehsildar, Multan, to report after enquiry through the Revenue Assistant". This order was obviously passed under the rules framed under section 4 (2) of the Punjab Alienation of Land Act. Now, according to rule 6 of the Punjab Alienation of Land Act Rules, which is to the effect that "every enquiry under section 42) of the Act shall be held by the Deputy Commissioner or by an Assistant Collector under the orders of the Deputy Commissioner", the Deputy Commissioner was fully competent to order the Tehsildar to hold this enquiry on his behalf. The enquiry was concluded by the Tehsildar on the 20th of December 1944, who forwarded his report to the Revenue Assistant, who, in his turn, sent his report to the Deputy Commissioner on the 8th of January 1945. The Deputy Commissioner by his order dated the 19th of March 1945, passed an order declaring the plaintiff to be a non‑agriculturist and ordered the Tehsildar to review the mutation. The learned counsel for the plaintiff has not challenged the order of the Deputy Commissioner in the earlier enquiry and it stands intact. Therefore, so far as the enquiry under section 4 (2) was contemplated, it had been complete for all intents and purposes and it was not necessary to hold another enquiry into the status of the plaintiff. The Tehsildar, however, conducted another enquiry in pursuance of the order of the Deputy Commis sioner dated the 19th of March 1945, relating to the review of mutation No. 149 of 1936. During the review proceedings, the revenue officers obviously treated the first enquiry into the status of the plaintiff only in the nature of a preliminary enquiry and proceeded to launch another enquiry into his status. On perusal of the proceedings in the two enquiries, we find that one was as complete and thorough as the other. In our opinion, the second enquiry was wholly unnecessary and superfluous but it cannot be said that it was to the disadvantage of the plaintiff. The declaration against the plaintiff in the first enquiry had, therefore, become final against him and this case could have been thrown out on that ground alone. We have, however, thought it proper to assume that the second enquiry was only in continuation of the first and that the plaintiff has rightly sought to challenge the second order of the 19th of March 1946. In order to appreciate the fullness with which the enquiry was conducted against the plaintiff by the Deputy Commissioner, we shall refer to the entire proceedings con tained in the file relating to the first enquiry also, to which we were referred frequently by the learned counsel for the plaintiff though the whole of that file did not form part of the printed record. The important steps taken in the first enquiry which culminated in the order of the Deputy Commissioner asking the Tehsildar to review the previous mutation may be stated as under in a chronological order :‑ 6th October 1944.‑Ghulam Qadir, brother of the defendant, made an application (Exh. D. 14) requesting the Deputy Commissioner to review the mutation of sale. 7th October 1944.‑Order of the Deputy Commissioner (Exh. D. 16) asking the Tehsildar to make a report, after enquiry. 9th October 1944.‑The Tehsildar recorded `the statement of Ghulam Qadir, and asked him to produce his evidence on 19th October 1944, and also summoned Bagghu Khan for that date. 19th October 1944.‑‑The Tehsildar recorded the statement of the two witnesses produced by Ghulam Qadir and ordered that Bagghu Khan who had not come on that date should again be summoned for 3rd November 1944. 3rd November 1944.‑Bagghu Khan appeared before the Tehsildar and the case was adjourned at his request to the 17th of November 1944. The substance of the application of Ghulam Qadir was explained to him by the Tehsildar (Exh. D. 19). 17th November 1944.‑Bagghu Khan, though present, did not wish to make a statement, as he stated that he was suffering from fever. The case was, therefore, adjourned at his request to the 4th of December 1944. (Exh. D. 20). 4th December 1944.‑Bagghu Khan appeared before the Tehsildar and stated: "There is no further proof about my status in the revenue papers and the only proof I had with me, I have produced its copy. As neither my father nor my grandfather had owned any land, there is no entry about them in the revenue papers. I was a camel driver and a contractor by profession before I purchased this land and started agriculture only after I had bought it. Now, after all the steps tabulated above, had been taken by the Tehsildar to complete the enquiry, it cannot be legitimately argued that the plaintiff had no notice of the case which he had to meet. Coming now to the second enquiry held under sub section (2) of section 4, we find that Bagghu Khan had appeared before the Tehsildar for the first time on the 19th of July 1945 and the case had been adjourned eleven times after that date, each time at his request, in order to enable him to adduce evidence, both documentary and oral, until the case was finally closed by him on the 29th of October 1945. The Tehsildar submitted his report (Exh. D. 30) to the Revenue Assistant on the 26th of February 1946, who, in his turn, forwarded it to the Deputy Commissioner on the 4th of March 1946. There could be no objection to the Tehsildar sending his report to the Deputy Commissioner through the Revenue Assistant because he could not contact the Deputy Commissioner directly both as a matter of practice and as that of discipline. This was purely a formal matter and did not in any manner vitiate the enquiry. The treatment meted out to the plaintiff during the course of this enquiry was nothing but magnanimous and the attitude of the Tehsildar is fully borne out by his orders contained in Exhs. D. 4 to D.

12. Under these circumstances, it was futile for the learned counsel for the plaintiff to argue that no proper notice was served upon his client during the enquiry before it was finally concluded and that any principle of natural justice had been contravened by the Deputy Commissioner during the course of the enquiry, because section 4 (2) of the Punjab Alienation of Land Act did not enjoin upon the Deputy Commissioner the giving of any formal notice to the plaintiff, and the only notice required is under rule 6 of the Punjab Alienation of Land Act Rules 1939, which is the manner "prescribed" by section 4 (2) for holding enquiries under that section. Section 4 of the Punjab Alienation of Land Act reads thus :‑ "4. (1) The Provincial Government shall by notification in the Official Gazette determine what bodies of persons in any district or group of districts are to be deemed to be agricultural tribes or groups of agricultural tribes for the purposes of this Act. (2) If any question or doubt should arise as to whether a person is or is not a member of a notified agricultural tribe, the Deputy Commissioner shall after such enquiry as may be prescribed determine whether that person is to be deemed to be a member of the said agricultural tribe for the purposes of this Act. (3) In passing an order under the above subsection, the Deputy Commissioner shall not be bound by any decree of a Civil Court, and may review any order previously passed under that subsection. Provided that nothing in this section shall affect a decree passed in a suit instituted before the 15th of June 1938". In order to define the "prescribed" manner the Govern ment framed the Punjab Alienation of Land Act Rules, 1939, and provided in rule 6 that‑ "Every enquiry under section 4 (2) of the Act shall be held by the Deputy Commissioner or by an Assistant Collector under the orders of the Deputy Commissioner. The enquiring officer shall cause notice to be served on the person concerned and shall record the statement of witnesses produced by the person concerned or summoned by himself and shall examine such documentary evidence as may be produced". It is, therefore, quite clear that the enquiry officer in this case was the Tehsildar who was duly appointed by the Deputy Commissioner to hold the enquiry and not the Deputy Commissioner, and as the plaintiff had full notice of the case which he had to meet and had been appearing before the Tehsildar throughout the proceedings, the objection that the enquiry was conducted in his absence is without any substance, and the statements that were recorded on the 19th October 1944, by way of a preliminary inquiry in the absence of the plaintiff need not be considered at all and have not been considered. We, therefore, fully concur in the finding of the trial Court on this issue. The learned counsel then relied on section 43 of the Transfer of Property Act, which is as follows :‑ "

43. Where a person fraudulently or erroneously represents that he is authorized to transfer certain im movable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transfer or may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option." He argued that when the defendant, who was a member of an agricultural tribe, sold the land to the plaintiff, who was a non‑agriculturist, lie should be deemed to have made an erroneous representation to the plaintiff that he was compe tent to pass a valid title to the plaintiff, and since the bar on transactions of sales and mortgages between agriculturists and non‑agriculturists has since been removed by the notification of the 3rd of April 1950, and the contract of transfer still subsists, the plaintiff was entitled to get back the land on account of improvement in his status. We do not appreciate this argument. Firstly, there is no evidence on the record to show that the defendant made any fraudulent or erroneous representation to the plaintiff at the time of the sale. The argument of the learned counsel presupposes, contrary to his own averments in the pleadings, that the plaintiff was a non‑agriculturist and that this fact was known to the defendant at the time of the transaction of sale. It over looks the fact that the plaintiff's claim all along has been that he is an agriculturist and it is on this very ground that he has throughout the course of this litigation challenged the order of the Deputy Commissioner as incorrect. Under these circumstances there could hardly arise any necessity for the defendant to make any erroneous representation to the plaintiff that he was competent to sell. The defendant was undoubtedly competent to sell the suit land, and if any mis representation was made during the transaction of sale it was by the plaintiff who represented himself to be a member of an agricultural tribe. Secondly, the notification of 3rd of April 1950, has only improved the status of the plaintiff and not that of the defendant. The defendant cannot be deemed to have acquired any new interest in the property which he did not have at the time of the sale. Thirdly, we do not think that the contract of sale still subsists. Now, the contract must be held to be subsisting so long as it is not rescinded or extinguished in some other manner. A transferee, for example, who finds subsequent to his transfer that the transferor had no title to transfer, may rescind the contract and sue for damages. He cannot, subsequently thereto, exercise his option to enforce his rights under this section against the property acquired by the transfer after the date of its transfer. The contract of sale between the parties in this case had been extinguished, though by operation of law, as soon as the Collector revised the previous mutation declaring A the plaintiff to be a non‑agriculturist and changed the sale into a usufructuary mortgage, which was later redeemed by the defendant in 1947 under the provisions of section 7 of the Punjab Alienation of Land Act. The learned counsel for the plaintiff then argued that Notification No. 657‑R dated the 3rd of April 1950 should be held to have a retrospective effect and, therefore, any bar that existed in the plaintiff at the time of the sale in 1936 to acquire property on account of his being a non‑agriculturist should be regarded as having never existed. He argued that, according to the language of the last 3 clauses of the notification, the status of an agriculturist in certain parts of the late Punjab had been conferred on certain classes of persons only from the date of the notification and not before. He, there fore, maintained that as the words "on the date of this notification" in the last 3 clauses of the notification clearly contemplated futurity and as no such words had been employed in clause 1 of that notification, clause 1 should by necessary implication be deemed to have a retrospective effect. After carefully going through the four clauses of this notification, which has been reproduced earlier, we find that there is no substance in the contention of the learned counsel. The fixation of specific date in clauses 2, 3 and 4 was merely intended to debar persons who were not holding land as landlord or tenant or were not ordinarily residing in those areas before the date of the notification from acquiring land in those parts of the late Punjab in future. By virtue of these clauses, no person is now competent to acquire land in those areas unless he held land either as a landlord or as a tenant or was ordinarily residing in these areas before the 3rd of April 1950. This bar to the rights of the persons who did not hold land or reside in the areas enumerated in the clauses before the date of this notification was created only in the interests of the local inhabitants of what is known as the Thal area, where outsiders were smuggling themselves in by reason of its growing importance as a new canal colony. As no such protection was needed in the case of other persons residing in the remaining parts of the late Punjab, the words in question were not used. Therefore the omission of those words cannot import retrospectivity into the clause. Further, a notification which is ordered to take effect retrospectively is in the nature of legislation and legislation by notifications F cannot be permitted because such legislation is a negation of the very basis of democracy. Lastly, if we hold that the notification has a retrospective effect, absurd results will follow. Take a simple illustration: A was a non-agriculturist and had purchased land from B who was an agriculturist, in 1930, and this sale was changed by the Deputy Commissioner into a usufructuary mortgage for fifteen years. In 1945, the land stands redeemed and B sells it to C. Could A have come forward in 1951, and asked the Court to put him into possession of it by virtue of this notification? Surely such a situation could not have been contemplated by the Government when they issued the notification in 1950. This notification merely wanted to remove the disability which attached to certain classes of persons in the Province to acquire landed property in the rural areas and had obviously no intention to create chaos in the Province by undoing past transactions. Nor do we think that section 4 of the Punjab Alienation of Land Act is itself retrospective in effect. The learned counsel for the plaintiff argued that according to the decision in Karam Chand v. Punjab Province (A I R 1943 Lab. 305), the Government could not only issue a notification under section 4 of the Punjab Alienation of Land Act but it could also cancel a notification which had already been issued, and went on to argue that as the cancellation of a notification has the effect of taking away the status already conferred on a person, this could only happen if the section was interpreted as having a retrospective effect. He, therefore, maintained that if the notification of 3rd April 1950 was interpreted as having a retrospective effect, this would be completely in accord with the policy of the Government as laid down in section 4 of the Act. Now this decision does not lay down anywhere that if a previous notification is cancelled by the Govern ment, such a cancellation will have a retrospective effect and will reopen the past transactions which might have been entered into by the persons who enjoyed a special status under the notification before its cancellation. This judg ment did not deal with the subject of retrospectivity either directly or indirectly. The sole question for determination in that case was whether the Civil Court had jurisdiction to entertain a suit for a declaration to the effect that Bhatias were a sub‑sect of Rajputs and that the Notification' No. 675‑R of 1936 according to which they were not to be regarded as falling within the category of Rajputs was ultra‑vires and void. The Government had declared in 1904 by its notification No. 60 of the same year that Rajputs were members of an agricultural tribe. The Government re‑affirmed its previous decision in 1936 by Notification No. 675‑R in which they again declared the Rajputs to be members of an agricultural tribe. It was, however, added in the later notification that the term "Rajput" would not include "Bhatias". The learned judge deciding this case did not accept the contention of the learned counsel who argued that the Government having once determined that all the Rajputs in the Shahpur District were members of an agricultural tribe, it was not open to them to determine the same question again and to hold that Bhatias were not members of an agricultural tribe. The learned judge repelling this contention made the following obser vation :‑ "First of all, the Government had never decided that Bhatias were to be regarded as members of an agricultural tribe or that they were a sub‑sect of Rajputs who were members of an agricultural tribe. The later notification does not, therefore, come into conflict with any prior noti fication of the Government. But I would go a step further and say that even if the Government bad decided in 1904 that Bhatias were members of an agricultural tribe, there is nothing in the Act that could have precluded it from determining subsequently that those who were once held to be members of an agricultural tribe would not in future continue to be regarded as members of such a tribe, Section 4 of the Act does not provide that the power of the Provincial Government will be exhausted if it has once been exercised. It can, in my opinion, continue to determine from time to time what bodies of persons in any district or groups of districts are to he deemed to be as agricultural tribes or groups of agricultural tribes. In either view of the case, the Government had the power to dispose of the matter and a Civil Court's jurisdiction to entertain the suit is barred by section 21, Punjab Alienation of Land Act." The learned counsel then referred us to the case Kahka Prasad v. Ajudhia Prasad (A I R 1929 All. 421) and contended that as an order in circumstances similar to the present case under section 4 of the Bundelkhand Land Alienation Act, 1903 was considered to have a retrospective effect, the Notification No. 657‑R of 1950 must also be held to have that effect. It is true that the provisions of section 9 of the Bundelkhand Act correspond substantially with the relevant provisions of our Act, but with great respect we wish to point out that where the Legislature intended any part of the Act to be retrospective, as in subsections (2) and (3) of section 9 aforesaid, the intention was made clear by the use of appropriate language. The same could not, however, be said about subsection (1) which relates to the period "after the com mencement of this Act." For facility of reference, we reproduce section 9 : Section 9. "(1) If after the commencement of this Act a member of an agricultural tribe makes a mortgage of his land in any manner or form not permitted by or under this Act, the Collector shall have authority to revise and alter the terms of the mortgage so as to bring it into accordance with such form of mortgage permitted by or under this Act as the mortgagee appears to him to be equitably entitled to claim. (2) If a member of an agricultural tribe has before the commencement of this Act made a mortgage of his land in which there is a condition intended to operate by way of conditional sale, the Collector shall have authority to put the mortgagee to his election whether he will agree to the said condition being struck out, or to accept, in lieu of the said mortgage a mortgage in form (a) as provided by section 6 which shall be made for such period not exceed ing the period permitted by the said section, and for such sum of money as the Collector considers to be equitable. (3) If a suit is instituted in any Civil Court on a mortgage to which subsection (1) applies, or if a suit for the enforcement of a condition intended to operate by way of conditional sale in a mortgage made before the commence ment of this Act, is instituted or is pending at the com mencement of the Act, in any Civil Court, against a member of an agricultural tribe or if any appeal in any such suit is instituted, or is pending at the commencement of this in any Civil Court other than the High Court, the Court shall if it finds that the mortgage is enforceable or that the mortgagee is entitled to a decree absolute for foreclosure, refer the case to the Collector with a view to the exercise of the power conferred by subsections (1) and (2) respectively. After carefully considering all the pleas raised by the learned counsel in favour of his client, we have come to the conclusion that none of them can prevail. Accordingly this appeal is dismissed with costs. A. H. Appeal dismissed.