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TMI Blog1993 (3) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1977 and Special Leave Petitions (Civil) Nos. 1108 and 3042 to 3095 of 1978, the judgment in Civil Writ Petition No.565 of 1981. of the same High Court Bajinder Singh and another v. The Assistant Collector 1st Grade, Guhla, Dist(. Kurukshetra and others, (1983) 85 PLR 528 and other judgments rendered following it are impugned in Civil Appeals Nos. 1381 to 1387 of 1990. Since common questions arise for our decision in these Appeals and Special Leave Petitions, all of them could, conveniently be disposed of by this judgment. The High Court's judgments appealed against in these Appeals and Special Leave Petitions are since based on its view of unconstitutionality of certain provisions in the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1974 Amendment Act of 1974 and the Punjab Village Common Lands (Regulation) Haryana Act, 1980 Amendment Act of 1981, which have amended the provisions of the Punjab Village Common Lands (Regulation) Act of 1961 the principal Act, it would be advantageous to understand at the outset the historical background of the principal Act and the circumstances which led the State of Haryana to enact the Amendment Act of 1974 and further- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the rights in village common lands popularly and colloquially known as 'shamilat deh' and 'abadi-deh'. As 'shamilat deh' was not defined in the repealed Acts adverted to and there prevailed uncertainty as to its nature, the principal Act defined'shamilat deh'in section 2(g) thereof in an endeavour to achieve certainty, thus: '(g) 'Shamilat-deh or Charand' includes (1) Land described in the revenue records as shamilat deh or charand excluding abadi-deh; (2) Shamilat tikkas; (3) Land described in the revenue records as Shamilat Tarafs Patti, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) Lands used or reserved for the benefit of the village, community including, streets, lanes, playground, schools, drinking wells or ponds within abadi-deh or gora-deh; and (4a) 'Vacant land situate in abadi-deh or gora- deh not owned by any person'; (5) Lands in any village described as banjar quadim and used for common purposes of the village, according to revenue records; provided that Shamilat-deh or 'ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l lands which are 'shamilat deh' as defined in clause (g) of section 2 thereof, sub-section (2) thereof declared that notwithstanding, anything contained in sub-section (1) of section 4, where any land had vested in the Panchayat under the shamilat law, but such land had been excluded from 'shamilat deh' as defined in clause (g) of section 2, all rights, title and interest of the Panchayat in such land shall, as from the commencement of the Act, shall cease and such rights, title and interest shall be revested in the person or persons in whom they vested immediately before the commencement of the shamilat law and the Panchayat was directed to deliver possession of such land to such person or persons. No doubt, sub-sections (2) and (1) of section 4 delcared that any land which vested in a Panchayat under 'shamilat law' shall be deemed to have been vested in the Panchayat under the Act and notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instruments, custom or usage or any decree or order of any court or other authority, all rights, title and interest whatever in the land which is included in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its operation while the grounds under clause (g) of section 2 and the grounds under sub-section (3) of section 4 gave enormous scope for exclusion of certain lands and other immovable properties from 'shamilat deh'. These provisions, it appears, were utilized by several persons in the villages of State of Haryana to have recourse to civil courts and to obtain decrees therefrom in their favour and against the concerned Panchayats pleading that their lands and other immovable properties were excluded from 'shamilat deh' either under clause (g) of section 2 or sub-section (3) of Section 4. Unfortunately, several Panchayats against whom such suits had been filed, appear to have had not objection for grant of decrees in favour of persons who were not legally entitled for such decrees. Obtaining of the said decrees by innumerable persons against the Panchayats, establishing their title and right to possession respecting lands and immovable properties which would have otherwise been 'shamilat deh' vested in the concerned Panchayats, appears to have ultimately led the State to enact Amendment Act of 1974, in a bid to get rid of the said decrees of civil courts, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in respect of land or other immovable property wherein the relief had been claimed on the ground of its being excluded from 'shamilat deh' under clause (g) of section 2 or on any of the grounds mentioned in sub-section (3) of section 4 against the Panchayat to the Assistant Collector, First Grade. When the aforementioned decrees obtained by several persons from civil courts were sought to be interferred with by the Assistant Collector of First Grade and the Collector, purporting to exercise the powers conferred upon them under the said provisions Writ Petitions were filed by them in the Punjab and Haryana High Court challenging the constitutionality of the very provisions in the Amendment Act of 1974. The High Court which examined the constitutionality of the impugned provisions in Karnal Co- op. Fanners Society Ltd., Pehowa v. Gram Panchayat, Pehowa etc., (supra) expressed its view in the matter thus: The provisions of section 13A cannot be struck down on this ground (that the State Legislature cannot confer jurisdiction on tribunals to decide matters relating to lands and matters relating to procedure and limitation). The Legislature has, however, conferred arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, when tested in the High Court of Punjab and Haryana, certain of these provisions were struck down, vide judgment of the High Court. The present Bill seeks to remedy the infirmities found by the High Court. It also proposes to make some incidental changes to the Punjab Village Common Lands (Regulation) Act, 1961, to make some of its provisions more explicit so as to ensure more effective implementation. Bringing into force of the said Amendment Act in the State of Haryana gave rise once again, to a fresh flood of litigation and made the persons whose decrees obtained from the civil courts were likely to be interfered with by the authorities under the Amendment Act of 1981 to challenge the constitutionality of its provisions by filing Writ Petitions in the High Court. The main Writ Petition decided by the High Court is Civil Writ Petition No. 565 of 1981-Bajinder Singh and another v. The Assistant Collector 1st Grade, Guhla, Distt. Kurukshetra and others (supra). The High Court on a detailed examination of the constitutionality of the impugned provisions of the Amendment Act of 1981 relying upon the decided cases of this Court, of the Federal Court and of its own expressed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore examining their constitutionality on the basis of arguments of learned counsel for the State of Haryana addressed to us. Section 3 of the Amendment Act of 1981 has introduced a proviso in sub-section (1) of section 7 of the principal Act, which had stood amended by the Amendment Act of 1974, and it reads Provided that if in such proceedings the question of title is raised', the Assistant Collector of the first grade shall first decide the question of title under section 13A. Then section 4 of the Amendment Act of 1981 has substituted section 13 of the principal Act, which had stood amended by the Amendment Act of 1974, and it reads : 4. For section 13 of the principal Act, the following section shall be substituted and shall be deemed to have been substituted with effect from the 4th day of May, 1961, namely :- '13. Bar of jurisdiction No civil court shall have jurisdiction (a) to entertain or adjudicate upon any question whether- (i) any land or other immovable property is or is not shamlat deh; (ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto, as he may deem fit. Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard. 13C. Finality of orders. Save as otherwise expressly provided in this Act, every order made by the Assistant Collector of the first grade, the Collector or the Commissioner shall be final and shall not be called in question in any manner in any court. 13D. Provisions of this Act to be over-riding the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any law, agreement, instrument, custom, usage, decree or order of any court or other authority.' Lastly, section 7 of the Amendment Act of 1981 which is a validation provision, reads : 7. Notwithstanding any judgment, decree or order of any civil court, all actions taken, rules made and orders or decrees passed by Revenue Court, Officer or authority under the principal Act as amended by the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980, shall be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of First Grade exercising his powers under the aforementioned new proviso to section 7 and new section 13A, to exercise the same, notwithstanding any contrary law, agreement, instrument, usage, decree or order of any court or other authority, due to the overriding effect given by it. Further, section 5 of the Amendment Act of 1981 made new sections 13A, 13B, 13C and 13D retrospective in their operation with effect from the 4th day of May, 1961, the date of commencement of the principal Act, itself. Furthermore, section 4 of the Amendment Act, of 1981 barred the jurisdiction of civil courts to (a) entertain or adjudicate upon any question whether (i) any land or immovable property is 'shamilat deh' or is not 'shamilat deh'; (ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under the Act, or (b) to determine any matter which is required to be determined under the Act by any specified authority or officer or (c) to question the legality of any action taken or any matter decided by the authority or officer empowered by the provisions in the principal Act, that too, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 'shamilat deh', the High Court should have seen that such Legislature had the necessary competence to enact law on shamilat deh' retrospectively and, therefore, the provisions empowering the Assistant Collector of First grade to ignore or brush aside or disregard the civil courts' decrees or orders made earlier declaring that the lands or properties concerned in them as not being 'shamilat deh', were constitutional. Argument of the learned counsel was sought to be supported relying upon the decision of this Court in Sunder Dass v. Rant Prakash, [1977] 3 SCR 60, even though some other decisions were referred to incidentally. On the other hand, learned counsel for the respondents, who refuted the argument advanced for the appellant, urged that the view taken by the High Court on the unconstitutionality of the provisions of the Amendment Act of 1981, was required to be upheld. Haryana State Legislature had the competence to legislate on the subject of common lands in villages, that is, land or immovable property in shamilat deh' of the village was not under challenge. Haryana State Legislature could have, in exercise of its ancillary amending power, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hayat v. Hindustan Machine Tools Ltd., [1975] (Supp.) SCR 394, a three judge Bench of this Court considered the ambit of amended definition of 'house' in Andhra Pradesh Gram Panchayat Act, 1964, which included retrospectively factories, to get over the High Court's earlier judgment by which it was held that the tax imposed on factories by the Panchayat under the unamended Act was illegal, and held thus : The Legislature has power to pass a law prospectively as well as retrospectively. The Legislature can remove the basis of the decision rendered by a court. The Amending Act does not ask the instrumentalities of the State to disobey or disregard the decision given by the High Court, but merely removes the basis of that decision. In Smt. Indira Nehru Gandhi v. Shri Raj Narain, [1976] 2 SCR 347, this Court dealt with the question of Legislature's competence to validate the matters invalidated by orders of Courts by changing the law. Ray, C.J., adverted to the settled legal position, governing such situation, thus : The power of the legislature to validate matters which have been found by judgments or orders of competent Courts and Tribunals to be invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er judicial decisions ineffective observed, thus without more, directly over-rule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective. by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. of competent Courts and Tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts In Sunder Dass v. Ram Prakash [1977] 3 S. C. R 60 a decision of this Court, on which the learned counsel for the appellant placed heavy reliance to sustain the constitutional 'validity of the provisions in the Amendment Act of 1981 which contained a bare declaration that the earlier judicial adjudication being not valid and binding could be ignored. The decision does not refer to anything which could sustain the validity of a bare declaration as the one with which we are concerned. In fact, this Court was concerned in that decision with a retrospective amendment made by a Legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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