Pathandhare Anveshan Grahanirman Sanstha Maryadit (Proposed) Through Its Chief Promoter Vs. Nagpur Improvement Trust - Court Judgment

M.S. Deshpande, J.

1. It will be convenient to take up these three petitions together for decision as the facts are identical. In all the three cases the petitioners were allotted certain land for being converted into plots by the resolution dated 30th October, 1981 passed by the respondent Nagpur Improvement Trust. In respect of the property which was allotted in Writ Petition No. 2461 of 1932, the respondent issued a notice on November 14, 1982 regarding the proposed construction of certain tenements within the limits of Shambagh which was the area from which the land was allotted to the petitioners in that petition. In respect of the land alloted to the petitioners in Writ Petitions Nos. 2691 of 1983 and 2892 of 1983, notices were issued on November 2, 1983 by the respondent withdrawing the allotments made to them under the resolution dated 30th October, 1981. There is no dispute that the land came to be allotted to the petitioners in pursuance of the power which the respondent had in pursuance of the notification dated 2nd July, 1955 under Rule 3(a) of Land Disposal Rules of the Nagpur Improvement Trust which permitted the respondent to transfer the Trust Land by direct negotiations with the party. By the decision of this Court rendered on 29th June, 1982 in Writ Petition No. 1418 of 1978 Pushpa v. The Nagpur Improvement Trust, Rule 3(a) of the land Disposal Rules, was struck down as violative of Article 14 of the Constitution. According to the petitioners, the respondent took action against them evidently relying on the decision of this Court, overlooking the transactions by which the allotments came to be made to them prior to the invalidation of Rule 3(a) of the Land Disposal Rules. On the other hand it was urged on behalf of the respondent that since this Court found that Rule 3(a) was violative of the fundamental rights and had been declared to be so, the prohibition which applied, was the one to be found under Article 13(2) of Chapter III of the Constitution under which the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void, Relying on this provision it is urged that even though the allotment may have been made to the petitioners prior to the decision in Writ Petition No. 1418 of 1978, the Land Disposal Rules were not enforceable even at the time of the allotment.

2. The only limited point for our consideration is whether the decision in the Writ Petition No. 1418 of 1978 would apply to the transactions which had been finalised prior to the date of invalidation of Rule 3(a) of the Land Disposal Rules by the decision which was rendered on 20th June, 1982, the allotment having taken place on 30th October, 1981. Shri Manohar the learned. Counsel for the petitioners relied on an observation in Judicial Review of Legislation by V.S Deshpande to the following effect an page 205 :

'A statute which is void either partly or wholly does not cease to exist. It is only presently unenforceable. But it will still exist for various purposes. Things which have been done under it and which cannot be re-opened either because of the principle of res judicata or for other reasons would be construed to have been validly done because the statute existed when they were done.'

Unfortunately, there is no further discussion or reference to any decided cases for the proposition which has been started. Shri Manohar relied on the observation in Sunelararamier and Co. v. State of Andhra Pradesh, : [1958]1SCR1422 and sought to draw cl distinction between the laws enacted by legislation which has no competence to do so and the laws the provisions of which offend some constitutional restrictions. However, the Supreme Court observed that a legislation on a topic not within the competence of the Legislature and a legislation within its competence but violative of Constitutional limitations have both the same reckoning in a Court of law; they are both of them unenforceable. While answering the question it followed from this that both the laws are of the same quality and character, and stand on the same footing for all purposes. It was said that if a Law was 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. It is unnecessary for the purpose of this case to dilate on this point because there has been no change in the constitutional prohibitions which rendered Rule 3(a) of the Land Disposal Rules bad and though it continued from very inception under the shadow of Constitutional Prohibition.

3. In Deep Chand v. State of UP., : AIR1959SC648 , it. has been pointed out that the words 'any law' in Clause (2) of Article 13 can only mean an Act passed or made factually notwithstanding the prohibition, and the result of such contravention is stated in that clause. A plain reading of the clause indicates without any reasonable doubt, that the prohibition goes to the root of the matter and limits the State's power to make law, the law made in spite of the prohibition is a stillborn law. While referring to this Position it was stated in Mahendra Lal Jaini v. State of Uttar Pradesh, : AIR1963SC1019 that such a law is dead from the beginning and there can be no question of its revival under the Doctrine of eclipse, and the voidness of post-constitution law is there from its very inception and they cannot, therefore, continue to exist for any purpose.

4. Shri Manohar tried to draw support from the State of Gujarat v. Shri Ambika Mills Ltd., : [1974]3SCR760 , but there the position was different and the Court observed that for its purpose it was enough to say that the law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the voidness of the law for the reason that it contravened the fundamental right of citizens and claim that there is no law at all. Such a position does not emerge here. For the view we are taking, we find support in the observations of the Madhya Pradesh High Court in Babulal Sharma v. The Vice Chancellor, : AIR1976MP98 where it was stated that once a law has been struck down as void being in excess of the competence of the Legislative body, it becomes non est from its very inception and rights cannot be claimed except in the matter of penalty on the ground that during a particular period it was operative as having not been quashed by the superior Courts.

5. Shri Manohar strenuously urged that after Rule 3(a) of the Land Disposal Rules was held invalid, the decision can operate only prospectively and wanted to rely on the observations in Golak Nath v. State of Punjab, : [1967]2SCR762 but the limitations have been categorically stated in Para 51 of the judgements in the following words :

'As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions : (1) The doctrines of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest Court of the country, i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the Courts in India; (3) the scope of the refractive operation of the law declared by the Supreme Court superseding its 'earlier decisions' is left to its discretion to be moulded in accordance with the justice of the cause or matter before if.'

Even Shri Manohar found it difficult to contend in view of these propositions that we could resort to the theory of prospective overruling in the present case. The conclusion would ultimately be that the provisions of Rule 3(a) of the Land Disposal Rules, 1955 would be bad from its inception and would not become bad by virtue of the judicial declaration, but on account of the vice inherent in it as it contravened the constitutional provisions. The allotment of land which was done pursuant to the power which could be traced only under Rule 3(a) cannot, therefore, be supported and the petitioners would not be entitled to claim any relief in respect of the transactions in their his favour. The action of the respondent in withdrawing the allotment and regarding the allotment as non-est would not be open to question.

6. In the result, the writ petitions are dismissed and the rule is discharged. There will be no order as to costs. Shri Manohar states that we should suspend the operation of this judgment because he wants to approach the Supreme Court against the order which we propose to pass. Since we have only followed the dicta laid down by the Supreme Court, we do not see any justification for grant of stay.