KHARGA BAHADUR GURUNG Vs. INDRAMAYA CHETTRINI AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 4th June, 1986 of the learned District Judge, Sikkim, dismissing the appellant's suit brought for specific performance of contract and other consequential reliefs on a point of law covered by issue No. 8, heard as a preliminary issue No. 8 is as under:

(2.) The learned District Judge held that the transaction was forbidden by law and was also opposed to public policy and was, therefore, void, illegal and non-existent in the eye of law. Accordingly, he dismissed the suit.

(3.) In appeal, the same arguments have been repeated. The question for decision is whether the sale transaction was void in view of the provisions of aforesaid Act. Sec. 2(1)(a) of the Act provided that notwithstanding anything to the contrary contained in any other law, custom or contract, no landowner shall transfer by sale, lease or any whatsoever, any land or right or interest in any without the permission in writing of the District officer within whose jurisdiction the land is situated or of such other officer as may be specially empowered by the Government in this behalf. Explanation (2) to the section provided that 'landowner' means any person owing land more than 10 acres area whether in his own possession or otherwise in the State of Sikkim. The land covered by the present Sale Deed is more than 10 acres. Thus the transfer could not be effected without the permission of the District Officer. Sec. 3(1) further provided that any transfer made in contravention of the provision of clause (a) of sub section (1) of Sec. 2 shall be void. Thus, the Act, besides prohibiting a landowner possessing land more than 10 acres from transferring his land without the permission of the District Officer, also specifically declared such a transfer to be void. Since the Sale Deed was thus void and non-existent in the eye of law, there was no question of its being registered after the aforesaid Act was repealed. Shri N.B. Kharga appearing on behalf of the appellant has, however, contended that the aforesaid Act of 1975, however, contended that the aforesaid Act of 1975 and been enacted as a pre-emptive measure so as to prohibit big landowners from transferring lands and thus to evade the provisions of the contemplated land ceiling law which was subsequent enacted as the Sikkim Agricultural Land Ceiling and Reforms Act, 1977 which put the ceiling of 12 standard acres, whereas by the sale Deed in question only an area of 11.10 acres was sold and, therefore, the sale deed in question was not intended to frustrate the intent of the Legislature, and so should not be treated as void. He also contended that the prohibition was not complete, since sale was permissible by any landowner having in excess of 10 acres with the permission of the District Officer. However, there is no merit in any of these submissions. Effectiveness of the ban imposed by Sec. 3(l)(a) of the subsequent enactment, even though the purpose of the former enactment was to ensure effectiveness of the subsequent enactment. The fact that the ban could be lifted, if the District Officer had granted the permission, did not mean that the ban had no effect, even when the permission was not granted. The permission of the District Officer, if it had been granted, would have the effect of lifting the ban. Though, according to the learned counsel, an application had been made for permission, admittedly, permission was never granted by the District Officer and so the Sale Deed was forbidden by Sec. 3(1)(a) of the Act.