Punjab-Haryana High Court
Ramkishan vs Gram Panchayat on 8 April, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
Neutral Citation No:=2024:PHHC:047502-DB
CWP-15621-1996 (O&M) -1- 2024:PHHC:047502-DB
In the High Court of Punjab and Haryana at Chandigarh
CWP No. 15621 of 1996 (O&M)
Date of Decision: 08.4.2024
Ram Kishan Aggarwal (since deceased) through LRs .....Petitioners
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE DEEPAK MANCHANDA
Present: Mr. Roopak Bansal, Advocate
for the petitioner.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana.
****
SURESHWAR THAKUR, J.
1. In the instant petition, the petitioners seek the quashing of the
order dated 20.3.1989 (Annexure P-9) passed by the Collector, Sonepat,
whereby the appeal filed by the Gram Panchayat Akbarpur Barota, thus was
allowed, and, mutation, in respect of the petition lands, was sanctioned in
favour of co-respondent No. 4. The petitioners also seek the quashing of the
order dated 9.5.1996 (Annexure P-11) passed by the Financial
Commissioner Haryana, whereby the revision petitions preferred by the
Gram Panchayat, Akbarpur Barota, became allowed,
Factual background
2. The order, carried in Annexure P-9, passed by the Collector,
Sonepat, on 20.3.1989, is the subject matter of challenge in the instant writ
petition, whereby the learned Collector concerned, accepted the motion to
make the mutation in favour of the Gram Panchayat concerned, and,
thereafter sanctioned mutation No. 2472 qua the Gram Panchayat concerned.
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3. Prior to the allotments, being made of the petition lands to the
allottees concerned, and, in pursuance to the incorporation of Section (ii-a)
in Section 2(g) of the Haryana Village Common Lands (Regulation) Act,
1961 (for short 'the Act of 1961), through an amending Act No. 13 of 1996,
the petition lands fell within the inclusionary definition of shamilat deh.
Prior to the said amending provision, being inserted in the Act of 1961,
through an amending Act No. 13 of 1996, the petition lands being obviously
shamilat deh lands, thus they completely vested in the Gram Panchayat
concerned. Therefore, the custodian concerned, was not ably empowered to
make allotments of the petition lands in favour of the allottees concerned.
4. The said disempowerment of the custodian concerned, but prior
to the amended provision becoming validly inserted in the Act of 1961,
whereby he became completely disempowered to make allotments of the
shamilat deh lands, to the allottees concerned, is banked, upon the judgment
rendered by the Hon'ble Apex Court in case titled as Gram Panchayat of
village Jamalpur versus Malwinder Singh, and, to which Civil Appeal No.
1401(N) of 1973 is assigned. From a reading of the said decision, it is but
clear, that after the coming into force of the Punjab Act of 1953, the
custodian concerned, was left with no vestige of jurisdiction to make
allotments of shamilat deh lands to the allottees concerned, as the said
shamilat deh lands, did rather on migrations of Muslims, from India to
Pakistan, became completely vested in the Gram Panchayat concerned.
5. However, through the amending Act No. 13 of 1996, Section
(ii-a) became inserted in Section 2(g) of the Act 1961, provisions whereof
are extracted hereinafter.
(ii-a) was shamilat deh, but has been allotted to any person by
the Rehabilitation Department of the State Government, after
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the commencement of this Act, but on or before the 9th day of
July, 1985 ;]
6. The said inserted provision though did assign retrospective
validity to allotments made of the shamilat deh lands, by the custodian
concerned, but with a cut-off date thereins, inasmuch as, the allotments
being required to be made before the 9 th day of July, 1985. It is pertinent to
mention here, that the vires of insertion of provision (supra) through the
amending Act No. 13 of 1996, was challenged before this Court, in a case
titled as Gram Panchayat of village Kum-Kalan versus State of Punjab
and others, and, to which CWP No. 4816 of 1996, is assigned. However,
through a decision made on the said petition, this Court had upheld the vires
of the said inserted provision hence through the relevant amending Punjab
Act No. 8 of 1995, and, Haryana Act No. 13 of 1996. Though the vires of
the provision, as challenged in the petition (supra), appertained to the
insertion of the relevant amended provision through an amending Act, as,
passed by the Punjab Legislative Assembly, but when the phraseology of the
above inserted provision in the Haryana Act of 1961, is but similar to the
phraseology of the amended provision, inserted in the Punjab Act 1961,
through the relevant amending Act. Therefore, the upholding, by this Court
in judgment (supra) qua the vires of the insertion of the amended provision,
through the relevant amending Act, does also with equal force apply, to the
insertion in the Haryana Act of 1961, of provisions similar to the one, as
became inserted in the Punjab Act of 1961.
7. It is but relevant to mention the reasons which prevailed upon,
this Court to uphold the vires of the amended provisions. The said reasons
are enunciated in paragraphs 39, and, 40 of the judgment (supra), paragraphs
whereof stand extracted hereinafter.
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39. To the same effect is the judgment of the Hon'ble
Supreme Court in The Govt. of A.P. and another v. Hindustan
Machine Tools Ltd., AIR 1975 Supreme Court 2037. In that
case, it was held as under:-
"8. We see no substance in the respondent's contention
that by redefining the term 'house' with retrospective
effect and by validating the levies imposed under the
unamended Act as if, notwithstanding anything contained
in any judgment decree or order of any court, that Act as
amended was in force on the date when the tax was
levied, the Legislature has encroached upon a judicial,
function. The power of the Legislature to pass a law
postulates the power to pass it prospectively as well as
retrospectively, the one no less than the other. Within the
scope of its legislative competence and subject to other
constitutional limitations, the power of the Legislature to
enact laws is plenary.
9. The State legislature, it is significant, has not
overruled or set aside the judgment of the High Court. It
has amended the definition of 'house' by the substitution
of a new section 2(15) for the old section and it has
provided that the new definition shall have retrospective
effect, notwithstanding anything contained in any
judgment, decree or order of any court or other
authority. In other words, it has removed the basis of the
decision rendered by the High Court so that the decision
could not have been given in the altered circumstances.
10. In Tirath Ram Rajindra Nath v. State of U. P. (2),
the Legislature amended the law retrospectively and
thereby removed the basis of the decision rendered by
the High Court of Allahabad. It was held by this Court
that this was within the permissible limits and validation
of the old Act by amending it retrospectively did not
constitute an encroachment on the functions of the
judiciary. (emphasis supplied).
40. The Hon'ble Supreme Court while dealing with a similar
controversy in M/s Utkal Contractors & Joinery (P) Ltd.'s case
(supra), regarding competency of the legislature to pass Act
retrospectively/ prospectively, observed as under:-
"14. The next question to be considered is whether the
State while purporting to amend the Act has encroached
upon the judicial power and set aside the binding
judgment of this Court. We do not think that Mr.Nariman
was justified in contending so. The principles have been
well established in a string of decisions of this Court,
and we may briefly summarise as follows:
The legislature may, at any time, in exercise of the
plenary power conferred on it by Arts. 245 and 246
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of the Constitution render a judicial decision
ineffective by enacting a valid law. There is no
prohibition against retrospective legislation. The
power of the legislature to pass a law postulates the
power to pass it prospectively as well as
retrospectively. That of course, is subject to the
legislative competence and subject to other
constitutional limitation. The rendering ineffective of
judgments or orders of competent Courts by
changing their basis by legislative enactment is a
well known pattern of all validating acts. Such
validating legislation which removes the causes of
ineffectiveness or invalidity of action or proceedings
cannot be considered as encroachment on judicial
power. The legislature, however, cannot by a bare
declaration, without more, directly overrule, reverse
or set aside any judicial decision. Hari Singh v.
Military Estate Officer (1973) 1 SCR 515: (AIR 1972
Supreme Court 2205), Govt. of Andhra Pradesh v.
Hindustan Machine Tools Ltd. 1975 Suppl SCR 394:
(AIR 1975 Supreme Court 2037), I.N. Saksena v.
State of M.P. (1976) 3 SCR 237: (AIR 1976 Supreme
Court 2250) and Misri Lal Jain v. State of Orissa
(1977) 3 SCR 714: (AIR 1977 Supreme Court
1686)."
8. A deep reading of the above extracted paragraphs, do make
imminent emergences, qua the legislature being conferred with a plenary
power by Articles 245 and 246 of the Constitution, to render a judicial
decision ineffective by enacting a valid law. Moreover, it has also been
pronounced thereins, that to such an enacted law, retrospectivity can be
assigned. Therefore, but obviously the insertion of the provision (supra) to
the amending Act No. 13 of 1996, did vest, in the custodian concerned, an
able empowerment to allot even shamilat deh lands to the allottees
concerned. However, obviously with a rider that such allotments were
required to be made on or before the 9th day of July, 1985.
9. A reading of the order passed by the learned Collector, as
enclosed in Annexure P-9, and, as became drawn on 20.3.1989, does
exemplify, that the learned Collector concerned, did not make any
declaration thereins, about the incapacity of the custodian concerned, to
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make the relevant allotments to the allottees concerned, and, proceeded to, in
respect of the allotments made to the allottees concerned, hence annul the
mutations, as became sanctioned in favour of the allottees concerned, and,
thereafter proceeded to attest the mutations of the lands rather in favour of
the Gram Panchayat concerned.
10. Resultantly, when rather all the statutory mandates, as carried in
the above statutory provision, became complied with hence at the instance of
the writ petitioner. Therefore, also there was no occasion for the Collector
concerned, to, through the impugned order cancel the allotments, as were
made in favour of the allottees concerned, and, nor was he empowered to
mutate the petition lands, in favour of the Gram Panchayat concerned.
Final order
11. In view of the above stated reasons, this Court does find merit
in the instant petition, and, is constrained to allow it.
12. Consequently, the instant petition is allowed. The impugned
orders are quashed, and, set aside. If the said mutations are earlier entered in
favour of the Gram Panchayat concerned, thereupon, the said mutations are
cancelled, and, rescinded, also obviously thereupon fresh mutations be
attested by the Assistant Collector concerned, but in favour of the allottees
concerned.
13. The pending application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(DEEPAK MANCHANDA)
JUDGE
April 08, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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