Punjab-Haryana High Court
Dalbir Kaur vs State Of Haryana And Ors on 10 April, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:049063-DB
CWP-14117-2010 (O&M) -1- 2024:PHHC:049063-DB
In the High Court of Punjab and Haryana at Chandigarh
CWP No. 14117 of 2010 (O&M)
Date of Decision: 10.4.2024
Dalbir Kaur (since deceased) through LRs. .....Petitioner
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Present: Mr. Atul Lakhanpal, Senior Advocate with
Ms. Neha Lakhanpal, Advocate
for the petitioner.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana.
Mr. Radhe Shyam Sharma, Advocate
for respondent No. 5-Gram Panchayat.
****
SURESHWAR THAKUR, J.
CM-5626-CWP-2024
1. It is averred in the instant application, that during the pendency
of the instant petition, before this Court, the demise of sole petitioner one
Dalbir Kaur had occurred on 16.1.2013. The deceased petitioner concerned,
is averred in the application, to be succeeded by her legal representatives, as
enumerated in paragraph 2 of the application. It is further averred that for
the continuation of the instant writ petition, the substitution of the legal heirs
of the deceased petitioner, is imperative.
2. Therefore, the prayer made in the application for the
substitution of the deceased petitioner, being made by her LRs, is accepted.
3. Accordingly, the application stands allowed. Amended memo
of parties is taken on record. Registry is directed to tag the same at the
appropriate place.
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1. In the instant petition, the petitioner seeks the quashing of the
order dated 15.4.2010 (AnnexureP-4) passed by the District Development
and Panchayat Officer-cum- Assistant Collector Gr-I, Fatehabad, the order
dated 25.5.2010 (Annexure P-5) passed by the Collector, Fatehabad, and, the
order dated 20.7.2010 (Annexure P-6) passed by the Commissioner, Hissar
Division, Hissar.
Factual background
2. The petitioner Dabir Kaur (since deceased) is stated to be the
owner in possession of land measuring 152 kanals and 12 marlas, situated in
the revenue estate of Hijrawan Kalan, Tehsil and District Fatehabad. Out of
the above mentioned lands, 47 kanals 12 marlas of land equivalent to 5
standard acres 9-1/4 units was allotted to one Baij Nath son of Kirpa Ram
through an order dated 16.6.1982 passed by the Tehsildar, Managing
Officer, Hisar. Similarly vide order dated 16.6.1982 passed by the
Tehsildar, Managing Officer, Hisar 5 standard acres and 7 units of land
equivalent to 46 kanals 6 marlas was alloted to one Deen Mohd. Son of
Maniya. Moreover, 5 standard acres and 7 units of land equivalent to 46
kanal 8 marla was alloted to one Santa Singh @ Banta Singh on 16.6.1982,
besides 1 standard acre and 5-3/4 units equivalent to 11 kanals 10 marlas of
land was allotted to one Labh Sinjgh son of Wadhava Singh on 16.6.1982.
The possession of the above said lands were given to the allottees concerned
on 23.6.1982. It is further stated in the petition that the petitioner (since
deceased) purchased the above mentioned lands from their respective
owners vide four registered sale deeds dated 29.6.1982, 21.2.1984,
29.6.1982 and 21.2.1984. Mutation Nos. 818, 819 and 820 also became
sanctioned in favour of the petitioner (since deceased).
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3. The Assistant Collector concerned, after having effected the
partition of the land measuring 367 kanals 16 marlas entered 11/12 share of
the shamlat deh in favour of the custodian, and, the remaining 1/12 share in
favour of Gram Panchayat concerned, vide rapat No. 468 dated 8.6.1982,
and, on the basis of the said partition, mutation No. 692 was registered and
sanctioned on 13.6.1982. The Gram Panchayat concerned, challenged the
said rapat, and, mutation No. 692 by filing CWP-5280-1983 before this
Court. This Court through an order made on the above petition, on
23.8.1985, allowed the said petition, and, cancelled the rapat (supra), and,
mutation (supra). Thereafter, keeping in view the order (supra), the Chief
Settlement Commissioner, Haryana, Chandigarh vide order(s) dated
8.10.1987 cancelled all the allotments made in favour of Baij Nath, Santa
Singh @ Banta Singh and Din Mohammad alias Dina Nath. The above
order(s) had been challenged before this Court by filing of CWP Nos. 2116,
2117 and 7259 of 1988, whereby the order(s) (supra) were stayed by this
Court, and, were also ultimately quashed by this Court.
4. The Gram Panchayat concerned, filed a petition under Section
7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 seeking
thereby the eviction of the petitioner (since deceased) from the petition
lands, and, through the order made thereons on 15.4.2010 (Annexure P-2),
the said petition was allowed to the extent that the decision in regard to land
measuring 47 kanalas 12 marlas, was deferred till the final decision of this
Court on CWPs (supra). Being aggrieved from the said order, the petitioner
(since deceased) preferred an appeal, and, through a verdict made thereon by
the statutory appellate authority below on 16.6.2009 (Annexure P-3), the
said appeal was allowed, and, the case was remanded to the District
Development and Panchayat Officer, to decide afresh the application of the
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respondent.
5. After remand of the said case, the same was allowed by the
DDPO-cum-Assistant Collector concerned, through an order made thereons
on 15.4.2010 (Annexure P-4). Being aggrieved therefrom, the petitioner
preferred an appeal before the statutory appellant authority below, who
through an order made on the said statutory appeal, on 25.5.2010 (Annexure
P-5), dismissed the said appeal. The petitioner challenged the said order by
filing revision petition before the Commissioner concerned, who through an
order made thereons, on 20.7.2010 (Annexure P-6), dismissed the said
revision petition.
For the reasons to be assigned hereinafter, the orders challenged before
this Court are quashed and set aside, and, the instant writ petition is
allowed.
6. 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,
rather 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.
7. 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
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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.
8. 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
the commencement of this Act, but on or before the 9th day of
July, 1985 ;]
9. 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,
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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.
10. 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.
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.
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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
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)."
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11. 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.
12. Resultantly, the impugned orders are contrary to the mandade
enclosed in the said inserted provisions through the amending Act No. 13 of
1996, besides contravenes the judgment made by this Court, whereby this
Court in CWPs (supra) had set aside the order passed by the authorities
concerned, whereby the allotments made in favour of the predecessor(s)-in-
interest of the present petitioner were quashed and set aside. Since
apparently the present petitioner is the vendee from the allottees concerned,
thereby she acquired a valid title qua the disputed lands from such allottees,
as such, there was no occasion for the statutory authorities below, to order
for the eviction of the present petitioner from the petition land(s).
Final order
13. In view of the above stated reasons, this Court does find merit
in the instant petition, and, is constrained to allow it.
14. 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
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attested by the Assistant Collector concerned, but in favour of the
allottees/vendees concerned.
16. The pending application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(LALIT BATRA)
JUDGE
April 10, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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