Utkarsh Ottalwar Vs Ashok Kumar Tiwari

2 (a) Vaibhav Ottalwar S/o Late V.C. Ottalwar, Aged about 45 years, R/o Appolo Hospital Campus, Lingiadih, Raj Kishor Nagar, Bilaspur, Distt. Bilaspur (Chhattisgarh)

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... Appellant(s)

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versus

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1. Ashok Kumar Tiwari S/o Late Shri Taturam Tiwari, Aged about 50 years, R/o Vidhya Nagar, Bilaspur, District Bilaspur (Chhattisgarh)

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2. State of Chhattisgarh, Through Collector, Bilaspur, District- Bilaspur, Chhattisgarh

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... Respondent(s)

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For Appellant(s) : Mr. T.K. Jha, Advocate. For Respondent No. 1 : Mr. Vaibhav A. Goverdhan, Advocate. For State : Mr. Kalpesh Ruparel, Panel Lawyer.

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Hon'ble Shri Justice Narendra Kumar Vyas

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(CAV Judgment)

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This is plaintiffs’ second appeal under Section 100 of Civil Procedure Code, 1908 against the judgment and decree dated 24.03.2011 passed by the learned 5^th Additional District Judge, District Bilaspur (C.G.) in Civil Appeal No. 21A/2010 against the

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Digitally signed by MANISH MANISH YADAV YADAV Date: 2025.09.09 14:59:35 +0530

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judgment and decree dated 30.07.2010 passed by the learned First Civil Judge, Class-II, Bilaspur (C.G.) in Civil Suit No. 130-A/2008 by which the suit filed by the plaintiffs for title and declaration has been dismissed.

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The parties have been described as per their description before the trial Court in Civil Suit No. 130-A/2008.

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The second appeal has been admitted by this Court on 01.07.2021 on the following substantial question of law:-

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“Whether both the Courts below were justified in holding that the alienation made by defendant No. 1 in favour of plaintiffs is barred by Section 158(3) of the Chhattisgarh Land Revenue Code, 1959 by recording a finding which is perverse to the record?”

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Brief facts as reflected from the record are that:

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(a) The plaintiffs have filed a suit on 05.10.2005 for declaration and permanent injunction before learned Civil Judge, Class-II Bilaspur mainly contending that the plaintiffs have purchased the land from defendant No. 1 situated at village Mohtarai, Patwari Halka No. 14, Rajasv Nirikshak Mandal Bilaspur, Block Bilha, Gram Panchayat Bharari, Tehsil and District - Bilaspur bearing Khasra No. 702/2 area 4.75 acre (hereinafter referred to as “suit property”) through registered sale deed on 24.09.1990 and they are in possession of the suit property.

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(b) It is also the case of the plaintiffs that the defendant No. 1 denying the title of the plaintiff for the last one year and creating nuisance infringing peaceful possession and enjoyment of the suit property by the plaintiffs which has

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necessitated them to file a suit. It is also the case of the plaintiffs that the defendant No. 1 has denied the possession of the suit property of the plaintiff for the reason that the value of suit property has been increased sharply by denying the execution of the sale deed in favour of the plaintiffs. During pendency of suit plaint was amended and it was contended that the Sub-Divisional Officer (Revenue) has no legal right to cancel the title of the plaintiffs vide its order dated 04.09.1991 whose names have been recorded in the revenue records. It has also been contended that the suit property was beyond 5 Km. distance from jurisdiction of Sub-Divisional Officer, therefore, he has no right to inquire in the matter, as such, order passed by the Sub-Divisional Officer is illegal.

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The defendant No. 1 has filed his written statement denying the allegations mainly contended that:

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(a) The defendant No. 1 is the title holder of the suit property which has been given on lease by the Naib Tehsildar on 24.04.1984 in Revenue Case No. 10-A/79/83-84, a Rin Pustika was also provided and it has also been contended that the defendant No. 1 is in possession of the suit property since 24.09.1984 and the then Revenue Inspector has also recorded his name in the revenue records, therefore, he is entitled to get the decree on the basis of adverse possession. He has also denied that plaintiff No. 1 is doing agricultural work on the said property. But he has admitted that he has given the possession to the plaintiff of the suit property

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through registered sale deed dated 24.09.1990.

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The defendant No. 2 filed written statement denying the title and possession of the plaintiff mainly contending that the suit property bearing Khasra No. 702/2 area 1.901 hectare is a part of Khasra No. 702 area 8.64 acre which has been described as chhote-bade Jhad ka jungle and grass land in the Nirstar Patrak. The said land is also described in rights of record as grazing land as well as in the Khasra Panchshala and owned by the Government. The defendant No. 1 was never in possession of the suit property. It has also been contended that the Sub-Divisional Officer in Revenue Case No. 145-B/12-90-91 in the proceedings under Section 167-B of Land Revenue Code read with memo dated 09.07.1990 bearing No. F/6/234/7B-89 has passed the order on 04.09.1991 and recorded the suit property in the name of the Government in revenue records. It has also been contended that the sale deed has been executed after issuance of memo dated 09.07.1990, therefore, on the basis of sale deed no right has been accrued to the plaintiff, as such, he is not entitled to get decree of declaration and possession with regard to said property.

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On the pleadings of the parties, learned trial Court has framed as many as 3 issues which are extracted below:-

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^^1- D;k oknhx.k xzke eksgrjkbZ i-g-ua- 14 fLFkr [k-ua- 702@2 {ks=Qy 4-75 ,- Hkwfe ds Lokeh ,oa vkf/kiR;/kkjh gS\

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2- D;k oknh;ksa ds vkf/kiR; ij izfr0 Ø0 1 us n[kyankth djus ls fu"ksf/kr fd;s tkus dk vkns’k fn;k tkuk mfpr gS\

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3- lgk;rk ,oa O;;**

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The plaintiffs to substantiate their case have exhibited Sale deed

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(Exhibit P/1) and Receipt (Exhibit P/2). The plaintiff No. 1 examined himself as PW-1 and in examination-in-chief he has reiterated the same stand taken in the plaint. The said witness was extensively cross-examined by the defendant No. 2 wherein he has admitted that he has not produced any document to demonstrate that in the revenue records name of seller Ashok Kumar Tiwari has been recorded. He has also stated that he cannot say how the suit property has been acquired by the seller Ashok Kumar Tiwari. He has also admitted that before execution of sale deed he has not inquired that the seller Ashok Kumar Tiwari has obtained the suit property on lease from the Government and he has not produced order dated 04.09.1991. He has also admitted that he has not prayed for declaration of order dated 04.09.1991 to be null and void in the suit or before any higher Court. He has admitted that the original Khasra No. 702 area 8.64 acre is recorded as grazing land in the Nistar Patrak. He has also admitted that he has not produced any document to demonstrate that he is in possession of the suit property. The other witness Ganesh Prasad Shashtri (PW-2) who was examined in support of the plaintiff in the cross-examination has admitted that no physical possession was given by the defendants to the plaintiffs in his presence, he has also admitted that in the Clause 2 of the affidavit he has mentioned wrong facts.

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The defendant No. 2 exhibited documents Adikar Panji (Exhibit D/1) Revenue record (Exhibit D/2) and Khasra Panchshala (Exhibit D/3 & D/4). The defendant No. 1 witness J.K. Tiwari the then Revenue Officer has examined before the trial Court wherein he has stated that the suit property is a part of Chhote-Bade Jhad ka Jungle and

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in the Nistar Patrak he has stated that in Nistar Patrak the suit property has been recorded as grass land and was never removed from Nistar Patrak. The witness has admitted in the crossexamination that the suit land was given to the Ashok Kumar Tiwari by lease through Exhibit D/4 and his name was recorded, he has also admitted that the land which was given to the Ashok Kumar Tiwari which is Khasra No. 702/2 was part of original Khasra No. 702, he has also admitted that Girdawali is done every year and according to the Girdawali entry made in the revenue records and also admitted that on the basis of possession the Government can give lease.

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The defendant No. 1 was not examined himself and he was proceeded ex-parte on 11.09.2008 and no application for setting aside ex-parte proceedings has been moved.

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The learned trial Court after appreciating evidence and material on record vide judgment and decree dated 30.07.2010 has dismissed the suit by recording its finding that the suit property was given on lease to Ashok Kumar Tiwari on 25.04.1984 and without permission from the Collector in violation of Section 165(7-B) and after cancellation of lease he has sold the suit property, therefore, the sale is without title or permission from the Collector therefore, plaintiff has no title over the suit property as the suit property merged with the Government.

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Being aggrieved with this judgment and decree, the plaintiff has preferred an appeal before the learned first appellate Court. The learned first appellate Court vide its judgment and decree dated 24.03.2011 has dismissed the appeal. The learned first appellate

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Court while dismissing the appeal has recorded its finding that the submission made by the appellant before cancel of lease no notice was given to them, therefore, cancellation of lease is illegal, this submission has been rejected by the first appellate Court by recording its finding that there is no challenge to cancellation order by the appellant, therefore, the same has attained finality and accordingly, it has dismissed the appeal. Being aggrieved with this judgment and decree the appellants have preferred present second appeal before this Court.

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This second appeal has been admitted by this Court on 01.07.2021 on substantial question of law as mentioned above.

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Learned counsel for the plaintiffs/appellants would submit that the judgment and decree passed by both the Courts below are perverse contrary to the law and would submit that the amendment made in Section 158(3) of Land Revenue Code and Section 165(7)1-B will not be given effect retrospectively owner right and sale deed executed on 24.09.1990 cannot be set aside by applying amended provisions retrospectively. Thus, he has prayed for allowing the appeal. To substantiate his submission he has referred to the judgment of Hon’ble the Supreme Court in case of Sree

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Sankaracharya University of Sanskrit and Others vs. Dr. Manu and another reported in AIR 2023 SC 2645 wherein the Hon’ble Supreme Court has held in paragraphs 8.1 to 8.3 as under:

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“8.1. It is trite that any legislation or instrument having the force of law, which is clarificatory or explanatory in nature and purport and which seeks to clear doubts or correct an obvious omission in a statute, would generally be retrospective in operation, vide Ramesh Prasad Verma: (AIR 2017 SC 734). Therefore, in order to determine whether the Government Order dated 29th March, 2001

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may be made applicable retrospectively, it is necessary to consider whether the said order was a clarification or a substantive amendment.

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8.2. In order to effectively deal with the aspect as to retrospective operation of the Government Order dated 29th March, 2001 it may be useful to refer to the following extract from the treatise, Principles of Statutory Interpretation, 11th Edition (2008) by Justice G.P. Singh on the sweep of a clarificatory/declaratory/explanatory provision:

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“The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court: For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any Statute. Such acts are usually held to be retrospective.

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[…] An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. The language 'shall be deemed always to have meant' or 'shall be deemed never to have included' is declaratory and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law.”

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[Emphasis by us]

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8.3. This Court in Commissioner of Income Tax, Bombay vs. Podar Cement Pvt. Ltd., (1997) 226 ITR 625 (SC) noted that circumstances under which an amendment or modification was introduced and the consequences thereof would have to be borne in mind while deciding the issue as to whether the amendment was clarificatory or substantive in its nature and whether it would have retrospective effect or not.”

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He has also referred to the judgment of Hon’ble Division Bench of Madhya Pradesh in case of State of Madhya Pradesh vs. Adhunik Grih Nirman Sahakari Samiti wherein the provisions of Section 158(3) of MPLRC have come up for consideration and

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would refer to paragraph 39 which reads as under:

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“39. Thus, it is clear from the provisions of the Section that it takes away the vested rights acquired by Bhumiswamia and it creates a new obligation or imposes a new duty in regard to taking prior permission from the Collector in the event of sale of land, hence, the section could not be presumed to be retrospective in operation. The Bhumiswami rights, which were granted to the original lease holders, namely, Mukhtyar Singh, Vijay Singh, Sahib Singh were prior to 1980 and could not be taken away by the provisions of the aforesaid Code. A Bhumiswami had vested rights to sell the land and their rights are unfettered and unaffected by introduction of Section 165 (7-b) of the Code of 1959. The same position is with Section 158 (3) of MPLRC because it was introduced by way of amendment dated 28.10.1992 which according to this Court is reasonable and plausible introduction of the enunciations of the Hon'ble Apex Court as well as the principles of statutory interpretation.”

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On the other hand, learned State counsel opposing the submission would submit that the judgment and decree passed by both the Courts below are justified as the order passed by the Sub-Divisional Officer is not subject matter of challenge before any Court of law, as such, it has attained finality, therefore, the impugned judgment and decree passed by the Courts below are legal, justified and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the records of both the Courts below with utmost circumspection.

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To appreciate the substantial question of law, it is expedient for this Court to go through the statement of objects and reasons of amendment in Section 158 and Section 165 (7-B) of the Land Revenue Code, 1959. It is quite vivid that the legislature to remove the anomaly between the persons who have been allotted land by the State Governments consequently such persons are always deemed to be leased but in order to remove this discrepancy

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propose to grant Bhumiswami right to such persons like Collector or the allotment officer subject to the condition that such person would not be entitled to transfer such land within a period of 10 years from the date of lease or allotment, accordingly, the amendment was made.

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For better understanding the issue raised in the appeal, it is expedient for this Court to extract Sections 158(3) and 165(7-B) of Land Revenue Code, 1959 which reads as under:

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Section 158: Bhumiswami

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(3) Every person-

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(i) who is holding land in bhumiswami right by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Chhattisgarh Land Revenue Code (Amendment) Act, 1992 from the date of such commencement, and

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(ii) to whom land is allotted in bhumiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Chhattisgarh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment, shall be deemed to be a bhumiswami in respect of such land and shall be subject to all the rights and liabilities conferred and imposed upon a bhumiswami by or under this Code :

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Provided that no such person shall transfer such land within a period of ten years from the date of lease or allotment.

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Explanation. - In this section, the expression "Ruler" and "Indian State" shall have the same meanings as are assigned to these expressions in clauses (22) and (15) respectively by Article 366 of the Constitution of India.]

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Section 165. Rights of transfer

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(7-B): Notwithstanding anything contained in sub-section (1), a person who holds land from the State Government or a person who holds land in bhumiswami rights under subsection (3) of Section 158 or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes bhumiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing.

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From the perusal of the Section 158(3) the person who is holding land in Bhumiswami right by virtue of lease granted by the State Government or the Collector the Allotment Officer on or before the commencement of the MP Land Revenue Code (Amendment) Act, 1992 from the date of such commencement and to whom land is allotted will have right Bhumiswami right from the date of allotment such land and shall be subject to all the rights and liabilities conferred and imposed on a Bhumiswami. The amendment provides further no such person shall transfer such land within a period of 10 years from the date of lease or allotment and similarly Section 165(7-B) has been amended and a person who holds land from the State Government or a person who holds land in a Bhumiswami Right under (3) of Section 158 and who subsequently become Bhumiswami of such land, shall not transfer such land without permission from the Collector. It means the Bhomiswami rights have been conferred to a person on or before the commencement of amendment Act, 1992 who is holding a land as a lessessee by virtue of lease granted by the State Government. Thus, the defendant No. 1 will be declared as Bhumiswami over the suit property which has been allotted to him on lease on 24.04.1984 by virtue of amendment Act, 1992 from the date he has granted lease by the State Government. Since he has been granted lease by the State Government on 24.04.1984 and a Bhumiswami right will be conferred upon him from 1984, therefore, without permission from the Collector or within a period of 10 years from the date of lease or allotment he cannot transfer the suit property.

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The submission made by the learned counsel for the appellant that

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the amendment made in the Land Revenue Code in the year 1992, cannot be given retrospective effect if it is accepted then defendant No. 1 who has been granted lease by the State Government, will not have a Bhumiswami right under the provisions of Section 158 of the Land Revenue Code and he will be remained as lessessee only and the lessessee cannot transfer the suit property. As such, the sale deed which has been set aside by the Collector vide order dated 04.09.1991, cannot be found faulty.

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The defendant No. 1 has transferred the suit property to the plaintiff claiming himself to be Bhumiswami which has been conferred upon him by virtue of amendment of the Land Revenue Code, 1992 only, therefore, the plaintiff cannot claim title on the strength of sale deed executed by defendant No. 1 who has no authority by partially relying the amendment made in the Land Revenue Code and by declining the other restriction imposed by the said amendment. The amendment either has to be accepted in full or it has to be rejected as a whole. The plaintiff cannot accept the provisions which are according to him beneficial to him and reject other which is not in his interest.

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Further submission of learned counsel for the appellant that the amendment cannot be given retrospective effect, is misconceived and liable to be rejected in view of the judgment passed by Hon’ble Division Bench of Madhya Pradesh High Court in case of Mulayam Singh & Another vs. Buadhawa Chamar & Others reported in 2002 (2) MPLJ 480 wherein it has been considered the effect of amendment made in the Land Revenue Code and has held in paragraph 6 as under:-

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“6. …This provision was enacted on 28.10.1992, much after the transaction of sale in this case. Though it provides that after expiry of a period of ten years, the land may be transferred, but it is also subject to the prohibition of Section 165(7-B) of the Code. So until and unless such a permission is granted by the Collector with cogent reasons, the sale is not permissible. The abovesaid enactment has been made to restrict the transfer of the land which has been granted on lease by the State Government to landless person and such person cannot be deprived of the land by any transfer except as permissible under Section 165(7-B) of the Code and gives jurisdiction to the Collector to consider such a prayer only after a period of ten years and not before that.”

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Learned counsel for the appellant has referred to the judgment of Madhya Pradesh High Court Division Bench in case of State of Madhya Pradesh (Supra) wherein the judgment of Division Bench of Madhya Pradesh High Court in case of Mulayam Singh (Supra) has not been referred, therefore, the judgment referred by the learned counsel for the appellant is not applicable to the present facts of the case. So far as judgment referred by the counsel for the appellant in case of Sree Sankaracharya (Supra) the legal position is not in dispute, but it is equally well settled by the Hon’ble Supreme Court that while considering the retrospective application of the amendment in the statute, the certain parameters have to be considered. Hon’ble the Supreme Court in case of Hitendra Vishnu Thakur Vs. State of Maharashtra [(1994) 4 SCC 602] has considered the parameters for applying the amendment retrospectively in paragraphs 26 & 27 as under:-

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“26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its

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retrospective operation may be culled out as follows:

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(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

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(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

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(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

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(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

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(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."

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In fairness to the learned Additional Solicitor General Mr Tulsi, it may be stated that he did not controvert the legal position (both in his oral submissions and written arguments) that Amendment Act 43 of 1993 regulating the period of compulsory detention and the procedure for grant of bail, being procedural in nature, would operate retrospectively. We need not, therefore, detain ourselves to further examine the question of retrospective operation of the Amendment Act. On the basis of the submissions made by learned counsel for the parties, we uphold the finding of the Designated Court, for the reasons recorded by it and those noticed by us above that the Amendment of 1993 would apply to the cases which were pending investigation on 22-5-1993 and in which the challan had not till then been filed in court.”

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Hon’ble the Supreme Court again in case of National Agricultural

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Cooperative Marketing Federation of India Vs. Union of India &

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others [(2003) 5 SCC 23] has held in paragraphs 15 & 16 as

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under:-

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“15. The Legislative power either to introduce enactments for the first time or to amend the enacted law with retrospective effect, is not only subject to the question of competence but is also subject to several judicially recognized limitations with some of which we are at present concerned. The first is the requirement that the words used must expressly provide or clearly imply retrospective operation . The second is that the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional . The third is apposite where the legislation is introduced to overcome a judicial decision. Here the power cannot be used to subvert the decision without removing the statutory basis of the decision.

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There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. "Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re- enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them".”

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Hon’ble the Supreme Court in case of Vijay Vs. State of Maharashtra & others [(2006) 6 SCC 289] has held in paragraphs

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10 to 12 as under:-

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“10. It may be true the amendment came into effect on 8.8.2003. The legislative policy emanating from the aforesaid provision, in our opinion, is absolutely clear and unambiguous. By introducing the said provision, the legislature, inter alia, intended that for the purpose of bringing grassroot democracy, a person should not be permitted to hold two posts created in terms of Constitution (73rd Amendment) Act. It is true that ordinarily a statute is construed to have prospective effect, but the same rule does not apply to a disqualifying provision. The inhibition against retrospective construction is not a rigid rule. It does

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not apply to a curative or a clarificatory statute. If from a perusal of the statute intendment of the legislature is clear, the Court will give effect thereto. For the said purpose, the general scope of the statute is relevant. Every law that takes away a right vested under the existing law is retrospective in nature. [See Govt. of India & Ors. vs. Indian Tobacco Association, (2005) 7 SCC 396.]

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"The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either expressly or by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a clear intendment that they are to be applied to past events. The reason why penal statutes are so construed was stated by Erle, C.J., in Midland Rly. Co. v. Pye, (1861) 10 C.B. NS 179 at p.191 in the following words:

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"Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment."

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This principle has now been recognised by our Constitution and established as a Constitutional restriction on legislative power."

¶113

While construing the beneficial provisions of 428 of the Criminal Procedure Code, 1973 in Boucher Pierre Andre vs. Superintendent, Central Jail, Tihar, New Delhi & Anr. [(1975) 1 SCC 192], this Court opined:

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"This section, on a plain natural construction of its language, posits for its applicability a fact situation which is described by the clause "where an accused person has, on conviction, been sentenced to imprisonment for a term". There is nothing in this clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into force of the new Code of Criminal Procedure. The language of the clause is neutral. It does not refer to any particular point of time when the accused person should have been convicted and sentenced. It merely indicates a fact situation which must exist in order to attract the applicability of the section and this fact situation would be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new Code of Criminal Procedure. Even where an accused person has been convicted prior to

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the coming into force of the new Code of Criminal Procedure but his sentence is still running, it would not be inappropriate to say that the "accused person has, on conviction, been sentenced to imprisonment for a term". Therefore, where an accused person has been convicted and he is still serving his sentence at the date when the new Code of Criminal Procedure came into force. Section 428 would apply and he would be entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial of the case should be set off against the term of imprisonment imposed on him and he should be required to undergo only the remainder of the term.

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The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now wellsettled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf.”

¶118

From the above stated legal position and considering the amendment which has been beneficial amendment granting Bhumiswami right to the leasee who has been granted lease by the State Government and close reading of above-stated amended provision which clearly show the intension of the State Government as it starts from on or before the commencement of the amendment act which has been given effect on 28.10.1992 which clearly shows the intension of the State Government to give its retrospective effect as it is beneficial to the public at large. The amended provision also restricts the transfer of the land, which has been granted on lease by the State Government to landless person and such person cannot be deprived of the land by any transfer except as permissible under Section 165(7-B) of the Code. Thus, from the

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perusal of Sections 158(3) and 165(7-B) of Land Revenue Code as amended, it is quite vivid that the legislature in its wisdom has enacted law which has been made applicable on 28.10.1992 or prior to it, therefore, the submission made by the learned counsel for the appellant that the amendment cannot be given retrospective effect, is misconceived and deserves to be rejected.

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Accordingly, the substantial question of law is answered against the appellant and in favour of respondents.

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Consequently, the appeal is dismissed. A decree be drawn up accordingly.

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Sd/(Narendra Kumar Vyas) Judge

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Manish

Utkarsh Ottalwar v. Ashok Kumar Tiwari

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Utkarsh Ottalwar v. Ashok Kumar Tiwari

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