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Issues Involved:
1. Validity of Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938 under Section 298 of the Government of India Act, 1935. 2. Retrospective application of Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938. Issue-wise Detailed Analysis: 1. Validity of Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938 under Section 298 of the Government of India Act, 1935: The primary question was whether Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938, which introduced Section 13A into the Punjab Alienation of Land Act, 1900, was ultra vires the Punjab Provincial Legislature under Section 298 of the Government of India Act, 1935. Section 298(1) prohibits discrimination based on religion, place of birth, descent, or color. The impugned Act aimed to prevent benami transactions where the beneficial interest passed to non-agricultural tribes, thus potentially contravening Section 298(1) by discriminating on the grounds of descent. The judgment clarified that the proper test to determine contravention of Section 298(1) is the effect of the Act on the personal rights conferred by the sub-section. The impugned Act prohibited transactions based on descent, thereby violating Section 298(1). The court held that the avoidance of benami transactions and the recovery of possession by the alienor constituted a prohibition under Section 298(1). 2. Retrospective application of Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938: The second issue was whether the impugned Act could apply retrospectively to transactions made before its enactment. The court examined whether Sub-section 2(a) of Section 298, which allows for prohibitions on the sale or mortgage of agricultural land, could authorize retrospective legislation. The court concluded that the word "prohibit" in Sub-section 2(a) refers to future transactions and cannot include reopening or setting aside completed transactions or vacating titles already acquired. The judgment emphasized that the retrospective element of the impugned Act was beyond the legislative powers of the Provincial Legislature. However, this retrospective element was severable from the rest of the provisions. By deleting the words "either before or" from Section 13A(1), the remaining provisions could operate validly. Conclusion: The court held that the impugned Act, in so far as it purports to operate retrospectively, was ultra vires the Provincial Legislature. The retrospective element was severable, allowing the rest of the Act to remain valid. The appeal was allowed, the order of the Federal Court was set aside, and it was declared that the impugned Act's retrospective operation was ultra vires. A permanent injunction was granted restraining the appellant and respondents from taking proceedings under the impugned Act. The appellant was ordered to pay the respondent's costs of the appeal.
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