State of H.P. v. Chander Dev & Ors.

decided is as to whether the plaintiff could have been divested of the rights vested in him.

13. There cannot be any dispute with the well- settled proposition that the Union Parliament as also the State Legislature have the plenary powers of legislation within the field of legislation committed to them and subject certain constitutional restrictions they can legislate prospectively as well as retrospectively. It is also one of the cardinal principle of construction of statute that it prima facie 7 is prospective unless is expressly or by necessary implication made to have retrospective operation. This rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only and not retrospective.

14. x x x x x x x x x x x x x x x x x x x x

15. x x x x x x x x x x x x x x x x x x x x

16. The aforementioned decisions also elaborate the proposition that retrospective operation is not to be intended unless intention manifest by express words or necessary implication. Now in case, reference is made to the proviso added towards the end of sub-section (9) of Section 104 of the Act, in the light of the language used, sub-section (3) of Section 1 of the amendment Act; which says that the same shall be deemed to have come into force on the date when the Act became operative; and that of the proviso which states that nothing contained in Section 104 shall apply to any land owned or vested in the State Government, either before or after the commencement of the Act, there is no escape in concluding that the intention of the State Legislature is manifest by express words that the amendment carried out to Section 104 of the Act shall have retrospective effect. In other 8 words, the proviso added towards the end of sub- section (9) shall be deemed to be have always existed in Section 104 of the Act.” The aforesaid decision was rendered on 23rd March, 1994. An identical question came up consideration before another learned Single Judge of this court (Justice Kamlesh Sharma ) in Dinesh Kumar Vs. State of H.P. and others 1994(Supplement) SLC, 385. This matter was decided on 30th December, 1994. It, however, appears that the earlier decision delivered by Justice Gupta in Devi Chand’s case was not brought to the notice of Justice Kamlesh Sharma. The learned Single Judge clearly held that there is no manner of doubt the proviso in question has been made retrospectively applicable. However, she went on to hold that the legislature did not intend to take away the substantive right which had already vested and according to her the proprietary rights which had already accrued and stood automatically conferred could not be taken away by the proviso inserted by way of amendment. It would be relevant to refer to certain portions of the said judgment. 9 “7. Applying the above stated principles of interpretation of Statutes to the proviso in question, it is clear that though it is not declaratory or procedural, yet, it has been given retrospective effect. The Legislature intended that it should be read in section 104 of the Act from the date of commencement thereof. Therefore, there is no doubt that the proviso in question has been made retrospective expressly. The real question whether the legislature intended to take away the vested substantial rights which had accrued to those in whose favour proprietary rights stood conferred and mutations thereof attested and they had made further transfers resulting in creation of further substantial rights in favour of other persons. In other words, this court is to examine from the language used in the proviso in question to what extent retrospectivity was intended by Legislature.” Thereafter the learned Judge refers to the objects and reasons of the Amending Act and goes on to hold as follows:- “9. From the Statement of Objects and Reasons, it appears that it was not in the mind of the Legislature to put the clock back to the date of commencement of the Act and take away the substantial rights vested in the tenants of the Government land from the date of commencement 10 of the Act to the date of promulgation of the Amendment Act of 1987. Nothing has been said in respect of necessity of giving retrospective effect to the proviso in question. Reading the proviso in question in the backdrop of Objects and Reasons, it is clear that the retrospectivity has been given only in respect of those lands of the Government which continue to be under the lease and in respect of which proprietary rights had not been conferred in between 21.2.1974 and 14.4.1988. Though the word `lease’ has not been defined in the principal Act, but looking to the definition given under section 105 of the Transfer of Property Act, though under section 117 thereof agricultural lands are exempt from the provisions of Chapter V of that Act, it the word `lease’ has been used synonymous to the word `tenancy’ as defined in Clause (18) of section 2 of the Act. It is :- “ `tenancy’ means a parcel of land held by a tenant of land owner under one lease or one set of conditions.”

10. The proviso in question applied to the leases in existence on the date it stood promulgated and so far retrospectivity is concerned, it is given to the extent that these leases might be created before the coming into force of the Act or thereafter. The tenants over the land belonging to the Government cannot claim proprietary rights under section 104 of the Act on the ground that since their tenancy/lease 11 was created before the proviso in question was added, they had already acquired proprietary rights which were not affected by the proviso in question. In view of this interpretation, this Court does not find any substance in the argument of Sh. Kuldip Singh, learned Counsel for the appellants, that the proviso in question applies only to lease created after the coming into force of the Act. Therefore, in the absence of any specific provision incorporated in the proviso in question taking away substantial rights which vested during the period from 21.2.1974 to 14.4.1988 on the tenants/lessees and on others by virtue of legal transfers made by them, the only interpretation possible of the proviso in question is that, by its retrospectivity, it does not take away the rights of those tenants who have been conferred proprietary rights and mutations have been attested in their favour and those persons who have got the said land by way of transfer.” The dispute before us is, which of the aforesaid two decisions lays down the correct law. We have heard Mr.M.S.Chandel, learned Advocate General, on behalf of the State and Mr.G.D.Verma, learned Senior Advocate, on behalf of the respondents. 12 At the outset we may notice that both the learned Judges have clearly held that the Amending Act specifically and expressly makes the amendment to Section 104 retrospectively applicable. There can be no manner of doubt that by virtue of sub section (3) of Section 6 of the Amendment Act, noted hereinabove, the proviso is deemed to have come into force from the date of commencement of the Act. Learned counsel for the parties have referred to a large number of decisions in respect of the principles of Interpretation of Statutes. The contention of Mr. G.D.Verma, learned Senior Advocate, is that since the vested rights of the tenants who have been granted proprietary rights are being affected, the law should be interpreted in such a manner so as to further their cause and their vested rights should not be taken away by the interpretation given. On the other hand learned Advocate General has argued that when the language and meaning of the Act is absolutely clear and unambiguous, no other meaning should be given to it. It is not necessary to refer to all the judgments cited, but a few important ones are being noted. 13 In Ahmedabad Manufacturing and Calico Printing Co., Ltd. Vs. S.G. Mehta, Income Tax Officer and another AIR 1963 SC 1436 the Apex Court held as follows:- “ Under ordinary circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the date of the commencement of the Act. But this rule is not unalterable. The Legislature may affect substantial rights by enacting laws which are expressly retrospective or by using language which has that necessary result. And this language may give an enactment more retrospectivity than what commencement clause gives to any of provisions. When this happens the provisions thus made retrospective, expressly or by necessary intendment, operate from a date earlier than the date of commencement and affect rights which, but for such operation, would have continued undisturbed.” In Amireddi Raja Gopala Rao and others Vs. Amireddi Sitharamamma and others AIR 1965 SC 1970 the Apex Court held thus :- “A statute has to be interpreted, if possible, so as to respect vested rights, and if the words are 14 open to another construction, such a construction should never be adopted.” In M/s Punjab Tin Supply Co., Chandigarh etc. etc. Vs. Central Government and others AIR 1984 SC 87 the Apex Court held as follows:- “All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. It the language is clear and unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the Court has to decide whether in the light of the surrounding circumstances retrospective effect should be given to it or not.” In Gurudevdatta VKSSS Maryadit and others Vs. State of Maharashtra and others AIR 2001 SC 1980 the Apex court held as follows:- 15 “It is a cardinal principle of interpretation of statute the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that where the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect that meaning irrespective of consequences. It is said that the words themselves best declare the intention of the law giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute.” In Commissioner of Central Excise, Chandigar II (2005) 8 SCC 308 the Apex Court held that the basic rule in interpretation of any statutory provision is that the plain words of statute must be given effect to. 16 The law with regard to the interpretation of statute has now been succinctly laid down in Vemareddy Kumaraswamy Reddy and another Vs. State of A.P. (2006) SCC 670. “12. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sentential legis of the legislature. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous.

13. Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the “language” is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making. 17

14. Statute being an edict of the legislature, it is necessary is expressed in clear and unambiguous language. In spite of courts saying so, the draftsmen have paid little attention and they still boast of the old British jingle “I’m the parliamentary draftsman I compose the country’s laws And of half the litigation I’m undoubtedly the cause”, which was referred to by this Court in Palace Admn. V. Rama Board Bharathan Thampuran1(SCC at p. 244, para 21; AIR at p. 1195). In Kirby Vs. Leather2 the draftsmen were Varma severely criticized in regard to Section 22(2)(b) of the (UK) Limitation Act, 1939, as it was said that the section was so obscure that the draftsmen must have been of unsound mind.

15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a law- maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can 1 1980 Supp SCC 234: AIR 1980 SC 1187 2 (1965) 2 All ER 441: (1965) 2 QB 367: (1965) 2 WLR 1318 (CA) 18 be vouchsafed by “an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so”. (See Frankfurter “Some Reflections on the Reading of Statutes in `Essays on Jurisprudence’”, Columbia Law Review, p. 51)

16. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of legislature enacting it. (See Institute of Chartered Accountants of India Vs. Price Waterhouse3.) The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford Vs. Spooner4, courts cannot aid legislatures’ defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See State of Gujarat Vs. Dilipbhai Nathjibhai Patel5). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. {See Stock v. Frank Jones