PUNJAB PROVINCE Vs. DAULAT SINGH

JUDGEMENT

(1.) This is an appeal from the judgment and order of the Federal Court of India, dated 8 May 1942 by which the judgment and decree of the High Court of Judicature at Lahore, dated 27 February 1941, dismissing appeals by the appellant and respondents 2 and 3 respectively from the judgment and decree of the Subordinate Judge, 4 Class, Sialkot, dated 22 July, 1940 were set aside and the case sent back to the High Court with a direction for the framing of proper issues and the remittal of the case to the trial Court for further trial and decision.

(2.) The only question in this appeal is whether, and, if so, to what extent, S. 5, Punjab Alienation of Land (Second Amendment) Act, 1938, Punjab Act 10 [X] of 1938 is rendered invalid by S. 298, Government of India Act, 1935, as being ultra vires of the Punjab Provincial Legislature. The Punjab Act of 1938, which may be conveniently referred to as the impugned Act, by S. 5 purported to insert a new S. 13A in the Punjab Alienation of Land Act, 1900 (Indian Act 18 [XIII] of 1900), which may be referred to as the principal Act, the new section being expressly given retrospective effect. The principal Act, as amended up to 1 June 1939, when the impugned Act came into operation, deals with permanent alienation of land in part II (Ss. 3 to 5), and temporary alienation of land in Part III (Ss. 6 to 13) of the Act. The expression "land" is defined in S. 2 (3), and, broadly stated, it covers agricultural land and buildings, and excludes building sites and buildings in a town or village; and by S. 2 (4), "permanent alienation" is defined to include sales, exchanges, gifts, wills and grants of occupancy rights. By S. 3 it is provided that, except where the alienor is not a member of an agricultural tribe, or the alienor is a member of an agricultural tribe and the alienee is a member of the same tribe or of a tribe in the same group, a permanent alienation of land shall not take effect as such unless and until sanction is given thereto by a Deputy Commissioner, and S. 14 provides that any such permanent alienation shall, until such sanction is given, or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by S. 6 for such term not exceeding 20 years and on such conditions as the Deputy Commissioner considers to be reasonable.

(3.) As regards temporary alienations of land, S. 6 (1) provides that if a member of an agricultural tribe mortgages his land and the mortgagee is not a member of the same tribe, the mortgage shall be made in one of certain prescribed forms, and S. 9 (l) provides that, if a member of an agricultural tribe makes a mortgage of his land in any manner or form not permitted by or under the Act, the Deputy Commissioner 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 the Act as the mortgagee appears to him to be equitably entitled to claim. Perhaps the most important section of the principal Act for present purposes is S. 4, under which the Local Government, for which the Provincial Government was substituted in 1937, were, by notification in the Official Gazette, to determine what bodies of persons in any district or group of districts were to be deemed to be agricultural tribes or groups of agricultural tribes for the purposes of the Act. Accordingly, by Punjab Government Notification No. 68, dated 18 April 1904, it was determined that for the purpose of the Act: "(1) In each district of the Punjab mentioned in column 1 of the Schedule attached to this notification, all persons either holding land or ordinarily residing in such district and belonging to any one of the tribes mentioned opposite the name of such district, in column 2, shall be deemed to be an 'agricultural tribe' within the district. (2) All the 'agricultural tribes' within any one district shall be deemed to be a group of agricultural tribes."