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Judgment
R.N. Mittal, J.—This judgment will dispose of a bunch of writ petitions which involve common questions of law and fact. The writ petitions can be divided into five categories. The number of the writ petitions, which are being disposed of by this judgment, are mentioned against each category:-
1st category: Civil Writ Petition Nos. 6798 and 6799 of 1974,and 91, 532 and 959 of 1975
2nd category: Civil Writ Petition No. 2390 of 1975.
3rd category: Civil Writ Petition No. 2391 of 1975.
4th category: Civil Writ Petition Nos. 466, 467, 487, 525, 918 and 2579 of 1975.
5th category: Civil Writ Petition No. 1248 of 1975.
First I will deal with the writ petitions which fall in the 1st category. In this Judgment, facts are being given from Writ petition No. 5799 of 1976.
The case of the Petitioner is that land measuring 382 Acres, 7 Kanals and 18 Marias (hereinafter referred to as the land in dispute), situated in the revenue estate of Pehowa, along with other land was taken possession of by the Collector, Karnal, u/s 3 of the East Punjab Utilization of lands Act, 1949, in the year 1949-50, and was leased out to the Petitioner in 1951, u/s 5 of the said Act. The land in dispute was mutated in the name of the Gram Panchayat, Pehowa (hereinafter referred to as the Panchayat), after the coming into force of the Punjab Village Common Lands (Regulation,) Act, 1953, (hereinafter referred to as the 1953 Act) In 1961, the 1953 Act was replaced by the Punjab Village Common Lard (Regulation) Act, 1961 (hereinafter referred to as the 1961 Act.) The term ''Shamilat-deh'' was defined in the 1961 Act. It is alleged by the Petitioner that by virtue of the definition of ''Shamilat-deh'' and Section 3(2) of the 1961 Act, the land in dispute ceased to vest in the Panchyat after the commencement of the 1961 Act, and revested in the proprietory body of the village. The members of the Petitioner society purchased the rights of some of the proprietors in the revenue estate of Pehowa. They allege that after purchasing the proprietory rights they became joint owners of the land in dispute. In 1971, the Petitioner instituted Suit No. 338 of 1971 in the Court of the Subordinate Judge, Kaithal, against the Panchayat, lor a declaration to the effect that the members of the Petitioner-society, possessing proprietory rights, are the joint owners (proportionate to their proprietory rights) and in possession of the property in dispute. The Sarpanch of the Panchayat admitted the claim of the Petitioner-society and consequently the suit of the Plaintiff was decreed by the Subordiate Judge on July 1, 1971 (Copy Annexure-1) and a declaration was given as claimed by the Petitioner society.
The Panchayat, through its Administrator, instituted a civil suit in the court of the Subordinate Judge, Kaithal, District, Kurukshe-tra, in December, 1973, for possession of the land in dispute on the ground that the decree for declaration dated July 1, 1971 was null and void and as such, not binding on the rights of the Panchayat During the pendency of the suit, the 1961 Act was amended by the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1974 (hereinafter referred to as the Amendment Act), which was enforced on November 12, 1974. By virtue of this Act, Section 13 of the 1961 Act was substituted and two new sections, namely, Section 13-A and 13-B were added to that Act. In Section 13-B, it was provided that all suits pending in any civil Court in respect of any land wherein relief had been claimed on the ground of its being excluded from the Shamilat-deh, u/s 2(g) of the 1961 Act, against the Panchayat, shall stand transferred to the Assistant Colletor Ist Grade, having jurisdiction in the village where the lard is situated, who shall dispose of the same in the manner laid down in Section 13-A (5) and (7). In view of the aforesaid provision, the Panchayat filed an application on December 10, 1974 (copy Annexure P/3) in the court of the Subordinate Judge for the transfer of the case to the Court of Assistant Collector Ist Grade, Kaithal. The court, without issuing any notice to the Petitioner, passed an order on the same day (copy Anrexure P/4) to the effect that the file of the case be sent to the Court of Assistant Collector Ist Grade, Kaithal, for its disposal in accordance with law, and directed the Panchayat to appear before him on December 26, 1974. The Petitioner has challenged the order of the Court dated December 10, 1974 inter alia, on the ground that the case could not be transferred by the Subordinate Judge to the Assistant Collector 1st Grade, u/s 13-B and that Section 13-A added by the Amendment Act is ultra vires the Constitution of India.
The writ petitions have been contested by the Respondents. There is no dispute regarding the aforesaid facts except that the Respondents say that the property in dispute is covered by the definition of '' Shamilat deh '' as given in the 1961. Act and vested in the Panchayat. The Respondents have, however, pleaded that the Court has correctly interpreted Section 13-B and transferred the proceedings to the Assistant Collector and that the sections added by the Amendment Act are ultra vires.
The first contention of Mr. Anand Swaroop, Learned Counsel for the Petitioner, is that the present suit could not be transferred by the Subordinate Judge to the Assistant Collector 1st Grade, u/s 13-B introduced by the Amendment Act. He says that the suit filed by the Panchayat against the Petitioner was for possession of the land on the ground that the decree passed by the civil court in favour of the Petitioner on July 1, 1971, was null and void and not binding on the Petitioner and such a suit could not be transferred under the said section. I have given a thoughtfull consideration to the argument of the Learned Counsel for the Petitioner and find subsistance in it. In order to determine this question, it will be advantageous to reproduce Section 13 B which is as follows:
13-B. Transfer of pending suits and institution of fresh proceedings.-All suits pending in any Civil Court in respect of land or other immovable property wherein relief has been claimed on the ground of is 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, shall stand transferred to, and the fresh proceeding for seeking relief on the aforesaid grounds shall be instituted before the Assistant Collector of the first grade having jurisdiction in the village where in the land or other immovable property is situate, who shall dispose of the same in the manner laid down in Sub-sections (5) and (7) of Section 13 A.
A reading of this section shows that the suits pending in civil Courts agaist the Panchayats, wherein relief has been claimed on the ground that the land be excluded from Shamilat-deh, shall be transferred to the Assistant Collector 1st Grade. Emphasis has been laid by Mr. Anand Swaroop, on the words'' excluded '' and '' against the Panchayat '' which I have underlined in the section reproduced above. It is noteworthy that the suits which are contemplated to be transferred from the civil court, to the Assistant Collector Ist Grade, must have two in-gradients namely (i) it should be for exclusion of the land from the Shamilat-deh and (ii) it should be against the Panchayat. In case any suit does not contain the aforesaid ingredients, it cannot be transferred by the civil Court to the Assistant Collector Ist Grade. It is a well known principle of interpretation of statutes that where the grammatical construction is clear and manifest, that construction ought to prevail unless there is some strong reason to the contrary. In case the language of the statute is unambiguous, the Court must give effect to it, and it has no right to extend its operation in the order to carry out the supposed intention of the Legislature. It is the duty of the Court to take the statute as it stands and to construe its words according to its natural significance. The intention of the Legislature is to be given effect as expresased in the words used in the statute, outside consideration can be called in aid to find that intention. In the above section, in my view the words used by the Legislature, are clear and unambigous. They cannot be interpreted in such away that all the cases relating to the Shamilat-deh, pending in the civil Court, shall be transferred to the Assistant Collector 1st Grade. If the intention of the Legislature had been to that effect, the language of the section would have been different. In my view, Section 13-B covers only such suits which have been instituted in the civil courts against the Panchayat for exclusion of certain lands or other properties from Shamilat-deh u/s 2(g) or on any of the grounds mentioned in Section 4(3) of 1961 Act. A suit instituted by a Gram Panchayat for declaration to the affect that certain land should be included in Shamilat-deh, is not covered by the provisions of the aforesaid section.
Now I advert to the facts of the present case. The suit has been instituted by the Panchayat against the Petitioner for possession of the property on the ground that the decree obtained by the Petitioner for declaration to the effect that the land in dispute does not form part of the Shamilat-deh, is null and void and ineffective against it the suit is neither for exclusion of land from Shamilat deh for it is against the Panchayat. On the other hand, it is for inclusion of land in Shamilat-deh and by the Panchayat In the circumstances, I am unable to hold that the aforesaid suit can be transferred by the civil Court to the Assistant Collector Ist Grade.
The second contention of the Learned Counsel for the Petitioner is that assuming Section 13-B is applicable to the facts of the present case, the suit could be transferred by the civil court to the Assistant Collector Ist Grade, without issuing a notice of the Application to the Petitioner and giving a hearing to it This contention of the Learned Counsel has also substance. It is a fundamental principle of law that no order should be passed against an effected party unless he has been given a hearing. In the present case, on the basis of the application moved by the Panchayat, the Subordinate Judge, without hearing the Petitioner, transfarred the proceedings to the civil court. The proper course for the Court was to issue notice of the application for transfer to the Petitioner and to decide it in its presence after hearing the parties. The impugned order is liable to the struck down on this ground also.
The third contention of Mr. Anand Swaroop, Learned Counsel for the Petitioner, is that Sub-section (sic) of Section 13-A is ultra vires, the constitution. He argues that the Legislature, in adding this section, has trespassed on the functions of the judiciary. According to the Learned Counsel, the Legislature, by enacting Section 13A(3) has virtually set aside the decrees passed by the Courts of plenary jurisdiction which the Legislature could not do. He submits that the Legislature has got no power to declare the decision of a court of law to be void and of no effect, without amending the statute.
In order to decide the question, it will be necessary to give a his (sic) background of the law relating to Shamilal(sic) lands. In the 193(sic) Act, the terms ''Shamilat deh'' had not been defined By virue(sic) of Section 3, the rights, title and interest, included in Shamilat deh of any village, were vested in the Panchayat, having jurisdiction of that village with effect from the appointed date as defined in the Act.
Thereafter disputes arose as to what was ''Shamilat-Deh.''. The Legislature, in 1961, substituted the 1953 Act by the 1961 Act, and defined the term ''Shamilat-deh'' as follows:-
2(g) ''Shamilat-deh'' or ''Charand includes.
Lands described in the revenue records as Shamilat-deh or Charand excluding abadi deh.
Shamilat, tikkas;
Lands described in the revenue records as Shamilat Tarafs, Pattis, pannas, and thola and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village.
Lands used or reserved for the benefit of the village, community including streets, lanes, playgrounds, schools, drinking walls, or ponds within abadi deh or gora-deh, and
(4a) Vacant land situate in abadi-deh or gora-deh not owned by any person.
Lands in any village described as banjar gadim and used for common purposes of the village according to revenue records ; Provided that Shamilat-deh at least to the extent of twenty-five percent of the total area of the village does not exist in the village ; but does not include land which:-
(i) becomes or has become Shamilat-deh or ''Charand'' due to river action or has been reserved Shamilat or charand in village subject to river section except Shamilat-deh or charand entered as pasture, pond, or playground in the revenue records ;
(ii) has been alloteed on quasi permanent basis to displaced persons;
(iii) has been partitioned and brought under cultivation by individual landholders before the 26th January; 1950,
(iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a cosharer in the shamilat-deh or charand and is so recorded in the jambandi or is supported by a valid deed ;
(v) is described in the revenue records as shamilat taraf, patti, panna and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village ;
(vi) lies outside the abadi-deh and is used as gitwar, bara, manure pit or house or for cottage industry.
(vii) is shamilat-deh or "charand" of village included in the fourteen revenue estate called Bhojas of Naraingarh Tehsil of Ambala District.
(viii) was shamilat-deh or "charand" was assessed to land revenue and has been in the individul cultivating possession of cosharers not being in excess of their respective shares in such shamilat-deh or charand on or before the 26th January, 1950, or
(ix) is used as a place of worship or for purposes sub ervient(sic) thereto.
After coming into force of the 1961 Act, various suits were instituted by the rightholders against the Panchayats for declaration that certain lands were not included in the definition of ''Shamilat deh''. In some cases, the Panchayats admitted the allegations in the suits and suffered decrees against them. In this way, great chunk of land was taken out from the ownership of the Panchayats. The Legislature, taking into consideration the aforesaid circumstances, passed the Amendment Act. In the Objects and Reasons of the Amendment Act, it is mentioned that certain persons obtained collusive decrees from civil courts in respect of Shamilat lands wherein the ''Panchayats'' interests were not properly represented. Due to that sizeable area of Shamilat lands stands transferred to such persons resulting in heavy loss of income to the Panchayats. The Amendment Act was passed to make provision for getting such decrees set aside and to bar civil courts'' Jurisdiction in such matters. In the amendment Act, reference may be made to Section 13-A, which is as follow:
13 A. Certain decrees to be set aside and fresh trial of cases.
(1) Where a decree has been obtained from a civil court by any person against any Panchayat in respect of any land or other immovable property on the grounds 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, and the copies of the relevant entires of the revenue records had not been produced in support of the averments made in the plaint, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer authorised by the State Government or any inhabitant of the village, wherein the land or other immovable property is situate, may, within a period of two years from the date of coming into force of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1974, make an application for setting aside the decree to the Assistant Collector of the first grade having jurisdiction in the village wherein the land or other immovable property is situate.
(2) On receipt of the application, the Assistant Collector of the first grade shall summon the record of the suit from the civil Court concerned and also serve a notice, in the manner prescribed, on the decree-holder.
(3) After the record of the suit has been received and the service of the notice has been effected on the decree-holder the Assistant Collector of the first grade shall exaime the record and bear the decree-holder in order to satisfy himself as to whether the copies of the relevant entires of the revenue records in support of the averments made in the plaint bad been produced during the trial of the suit If he is satisfied that the copies of the said entises had not been so produced, be shall set aside the decree.
(4) On sitting aside of the decree, all rights, title and interests whatsoever in the land or other immovable property shall vest in the Panchayat and the Assistant Collector of the first grade shall put the Panchayat in possession of the same and for so doing he may exercise the powers of a revenue Court in relation the execution of a decree for possession of land under the Punjab Tenancy Act, 1887.
(5) Notwithstanding anything hereinbefore contained, any person aggrieved by the order passed under Sub-section (3) may, within a period of thirty days from the date of setting aside of the decree or within such further period as the Assistant Collector of the first grade may allow on sufficient cause being shown make an application to the Assistant Collector of the first grade for seeking relief in respect of any land or other immovable property 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. He may also claim the relief of possession or compensation or both. The State Government, along with the Panchayat, shall also be impleaded as a party in these proceedings. The Assistant Collector of the first grade may, on such application, pass such order as he deems proper.
(6) The State Government shall be represented in such application by the concerned Block Development and Panchayat Officer or any other Officer appointed by the State Government for this purpose. The notice of application shall be served on such officer.
(7) The procedure for deciding the application under Sub-section (5) shall be the same as laid down in Section 88 of the Punjab Tenancy Act, 1887.
(8) No such application shall be allowed only on the basis of any admission made by the sarpanch or any representative of the Panchayat with respect to any right, title or interest in the land.
(9) Any person aggrieved by an order of the Assistant Collector of the first grade passed under Sub-section (5) may, within a period of thirty days from the date of the order, prefer an appeal to the Collector in such form and manner as may be prescribed.
(10) The Commissioner may suo motu at any time call for the record of any proceedings of order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and may pass such order in relation thereto as he may deem fit.
Sub-section (3) is the main provision in Section 13-A and other subsections revolve around this provision,
After giving the aforesaid background, I will now deal with the contention of the Learned Counsel for the Petitioner. It is a well-known or non of last that the Legislature and the Judiciary have their defined functions and the Legislature has no right to trespass over the functions of the judicary. The Legislature is not competent to perform judicial functions. It can do away with the judgment of a civil Court by amending law so as to nullify the effect of the judgment, but it cannot set at naught the judgment by saying that the law has not been correctly or property interpreted. The matter has been noticed by the Supreme Court in various cases. In Shri Prithvi Cotton Mills Ltd. and Another Vs. Broach Borough Municipality and Others, , it been observed that it is not sufficient for the Legislature to declare merely that the decision of the court shall not bind, for that tantamounts to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court''s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. To the same effect are the observations made in The Municipal Corporation of the City of The Municipal Corporation of The City of Ahmedabad and Another, Vs. The New Shrock Spg. and Wvg. Co. Ltd. etc. etc., State of Tamil Nadu v. M. Rayappa Gounder, AIR 1971 SC 232 and Janapada Sabha Chhindwara Vs. The Central Provinces Syndicate Ltd. and Another, Khanra J. in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, , after noticing the aforesaid cases made the following observations, in paragraph 190:
A declaration that an order made by a Court of law is void is normaly part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial Junction and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the Judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature (sic) declare the judgment of the Court to be void or not binding.
It will also be advantageous to refer to the observations of Mathew. J. in the aforesaid judgment which are as follows:
There is also nothing to show that the amending body validated the election with reference to any change of the law which formed the foundation of the judgment. The cases cited by the Solicitor General to show that a competent legislature has power to validate an invalid election do not indicate that there can be a validation without changing the law which invalidated the election. Nor do I think that a contested election can be validated without an authority applying the new law to the facts as ascertained by judicial process
Chandrachud, J. in the same report; observed thus:-
(sic) The Parliament, by Clause (1) of Article 329-A has decided a matter of which the country''s Courts were lawfully seized. Neither more nor less. It is true, as contended by the learned Attorney-General and Shri Sen, that retrospective validation is a well-known legislative process which has received the recognisation of this Court in tax cases, pre emption cases, tenancy cases and a variety of a other matters. In fact, such validation was resorted to by the legislature and upheld by this Court in at least four election cases, the last of them baing Srimati Kanta Kathuria Vs. Manak Chand Surana, . But in all of these cases, what the legislature did was to change the law retrospectively so as to remove the reason of disqualification, leaving it to the Courts to apply the amended law to the decision of the particular case. In the instant case the Parliament has withdrawn the application of all laws whatsoever to the disputed election and has taken upon itself to decide that the election is valid. Clause (5) commands the Supreme Court to dispose of the appeal and the cross appeal in confirmity with the provisions of Clause (4) of Article 229-A that is in confirmity with the "judgment" delivered by the Parliament. The "separation of powers does not mean the equal balance of powers" says Harold Laski, but the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co operative federalism which contains no rigid distribution of powers but, which provides a system of salutary checks and balances,
I find it contrary to the basic tenants of our Constitution to hold that the Amending Body is an amalgam of all powers Legislative, executive and Judicial "Whatever pleases the emperor has the force of law" is not an article of democratic faith. The basts of our Constitution is a well-planned legal order, the presuppositions of which are accepted by the people as determining the methods by which the functions of the Government will be discharged and the power of the State shall be used.
Mr. Chetan Dass Dewan Learned Counsel for the State, in the first instance sought to contend that the powers of the Legislature in India are very wide, and it can even set aside the decrees. In support of his contention he has placed reliance on AIR 1944 1 (Federal Court) The facts of that case were that the Appellants had been convicted by the Courts functioning under the Special Criminal Courts Ordinance (Ordinance 2 of 1942). The Fedral Court, on June 4, 1943 held that the Courts constituted under the aforesaid ordinance, had not been duly invested with jurisdiction, in view of the nature of the provisions contained in Sections 5, 10 and 16 of that ordinance. The next day, the Governor General made and promulgated another ordinance (Ordinance 19 of 1943) whereby the former ordinance was repealed and certain provisions were made in respect of sentences which had been passed by the special Courts and in respect of cases which were pending before them on that date. By Section 3(2) of the new ordinance a right of appeal against sentences which had already been passed by the special Courts, was given and appeals were accordingly preferred to to the High Court in some cases. In certain other cases, applications for a writ in the nature of habeas corpus were made. In both sets of cases, it wag contended on behalf of the accused that the new ordinance did not and, in any event, could not give validity to the sentences which had been passed by the special Courts. Consequently it was claimed that the sentences should be treated as void or set aside'' without any examination of the merits of the case and that the accused should, if necessary, be directed to be tried by ordinary criminal Courts in due course of law. It may be relevant, at this stage, to refer to Sections 3 and 4 of the new ordinance. Sub-section (1) of Section 3 provides that any sentence passed by a Special Judge, a Special Magistrate or a summary Court in exercise of jurisdiction conferred or purporting to have been conferred by or under the old ordinance, shall have effect and subject to the succeeding provisions of that section, shall continue to have effect, as if the trial at which at was passed, had been held in a accordance with the Code of Criminal Procedure, 1898, by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the first class, respectively, exercising competent jurisdiction under this said code. Section 4 provided that where the trial of any case pending before a court constituted under the old ordinance has not concluded before the date of commencement of this ordinance, the proceedings of the said Court in the case shall be void and the case shall be deemed to be transferred to the ordinary criminal Courts for enquiry or trial in accordance with the Criminal Procedure Code. As mentioned above, the validity of the aforesaid sections was challenged. Spens, C. J. dealt with the legislative powers in the united States of America and in India and observed thus:
As a general proposition, it may be true enough to say that the legislative function belongs to the Legislature and the judicial functions to the judicialy. Such differentiation of functions and distribution of powers are in a sense part of the Indian law as of the American law. But an examination of the American authorities will show that the development of the results of this distribution in America has been influenced not merely by the simple fact of the distribution of functions, but by the assumption that the constitution was intended to reproduce the provision that had already existed in many of the State Constitutions, positively forbidding the legislature from exercising judicial powers.
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One result of the application of this rule in the United States has been to hold that Legislative action cannot be made to retroact upon past controversies and to reverse decisions which the courts in the exercise of their undoubted authority have made The reason given is that this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the Legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the Courts."
In India however, the legislature has more than once enacted laws providing that suits which had been dismissed on a particular view of the law must be restored and retired.
It is evident from the facts that in that case certain emend-ments were introduced by a new ordinance. The above observations were made in the context of that case. The learned Chief Justice was drawing a distinction between the legislative and judicial powers as existed, in America and in India. In the aforesaid circumstances the observations have to be read in the context in which these were made.
It follows from the aforesaid discussion that the Legislature and the Judiciary have defined functions and the Legislature cannot travel in the field which is demarcated for the Judiciary Both these organs have to function in different spheres. The legislature does not exercise overriding judicial or quasi-judicial powers. It cannot declare the judgment of a Court to be void or not binding as it is a judicial function and not a legislative one.
Mr. Dewan, Learned Counsel for the State, next urges that it is not necessary for the legislature to amend the law retrospectively in order to nullify the decree or judgment of a Court. He argues that the Legislature has power to annual the decision in other ways, for example by removal of basis of decision or by amending the law prospectively and validating the part acts. In support of the contention he has mainly placed reliance on the State of Orissa Vs. Bhupendra Kumar Bose, Mohammadbhai Khudabux Chhipa and Another Vs. The State of Gujarat and Another, and Udai Ram Sharma and Ors. v. The Union of India AIR 1968 SC 1138. It is not necessary to go into the facts of these cases as the contention of Mr. Dewan finds full support from various cases, including the above mentioned cases and the observations of Chandrachud, J. in Smt Indra Nehru Gandhi''s case (supra). The Learned Judge, after noticing two of the above authorities, namely, Bhupendra Kumar Bose''s case and Udai Ram Sharma''s case, and a large number of other cases, held thus:
A number of cases have been cited before us: Some on retrospective validation of taxing provisions, by removing defects, others on removal of the basis of or grounds of decisions given by Courts making their judgments ineffective. Others effecting the jurisdiction of Courts in cases pending, either in the original Courts or in Courts of Appeal so as to render proceedings infructuous.and still others curing legally defective appointments or elections. It is not necessary to discuss these cases separately and individually as the principles laid down there are well recognised. I will be content. With mentioning the cases cited. The were.
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Cases were also cited where rights having been altered during the pendency of proceedings Courts had to give effect to the rights as altered, and judgments already given on the strength of the previous law and cased to have a binding force as res judicate between parties or had to be set aside where appeals against them were pending, these were
608, Cases were also cited of the exercise of Constitutional power of amendment by placing Acts in the 9th Schedule, under the provisions of Article 31-B of the Constitution, such a Jagannath Vs. The Authorised Officer, Land Reforms and Ors, so that Acts so included in the 9th Schedule were immune from attack on the ground of alleged violation of any fundamental rights. It is not necessary to cite them as this is now a well recognised constitutional device whose validity has been upheld by this Court in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala,
Muhammaddhai Khudabux Chhipa''s case is also covered by the above observations of the learned judge as in that case the Legislature amended the Act prospectively by an ordinance and validated certain acts and things prior to the promulgation of the ordinance. From the above cases it is concluded that the decision of the Court can be made void or ineffective by the Legislature not only by amending the law retrospectively, but in other ways also. No general rule can he laid down in what way the Legislature can do it. One thing is, how-ever, clear and it is that the Legislature cannot encroach upon the sphere of the judiciary and declare the decision of a Court void by acting like a judicial authority.
Now I will advert to the amendments made by the Legislature in the 1961 Act. In Section 13A(3) it has been provided that the Assistant Collector of the Fist Grade shall examine the record and hear the decree-holder in order to satisfy himself as to whether copies of the relevant entiries of the revenue record in support of the ever-ments made in the plaint, had been produced during the trial of the suit. It further provides that if he is satisfied that the copies had not been produced he shall set aside the decree. Mr. Dewan has argued that in the present case, the Legislature in its wisdom, has said that if the decree has been passed by a Civil Court in a case where revenue records in support of the everments made in the plaint had not been produced, the decree would be ineffective and the Assistant Collector of the First Grade, after perusing the record, can declare it to be so. According to the Learned Counsel, sufficient guidance has been provided in the section for setting aside the decrees of the civil courts and, therefore, Section 13A cannot be declared ultra vires. In order to determine this question, I shall refer to the definition of ''Shamilat-deh'' again. In Sub-clauses (2) (4) and (5), (iv), (vi) and (ix) of Section 2(g) no reference has been made to revenue entires Thus it is evident that for finding out as to whether the land is Shamilat-deh or not, it is tot necessary in all the cases that a reference to the revenue entries is required. In the Amendment Act, the Assistant Collector Ist Grade has been empowered to set aside the decree of the civil Court, which is court of plenary jurisdiction, on the ground that relevant entries of the revenue records in support of the everments made in the plaint had not been produced during the trial of the suit. In case certain land in abadi was declared to be Shamilat-deh on the basis of Section 2(g) (2) or (4) and a suit was instituted for declaration that the said land did not constitute a part of the Shamilat-deh, wherein the Court, after taking into consideration the evidence led by the parties, held that it was not so, the decree can still be reviewed by the Assistant Collector on the ground that go revenue records had been produced even though no revenue record are prepared for such land. It creates anomalous position. Sub-section (5) of Section 13-A says that any person aggrieved by an order passed by an Assistant Collector for setting aside a decree under Sub-section (3), made within a period of 30 days from the date of setting aside of the decree, make an application to the Assistant Collector of the first grade for seeking relief in respect of any land or other immovable property on the ground of its being excluded from Shamilat-deh u/s 2(g) or on any of the grounds mentioned in Sub-section (3) of Section 4. It further says that the State Government along with the Panchayat shall be impleaded as a patty in these proceedings. This Sub-section or any other Sub-section does not provide that the Assistant Collector decide the matter after taking into consideration the revenue records. He has been authorised to decide the question which was earlier decided by the civil court in any manner and by taking into consideration any evidence. It appears strange that the decrees of the civil court ate liable to be set aside by the Assistant Collector on the ground that revenue records had not been taken into consideration by it whereas the orders passed by the Assistant Collector, without taking into consideration the revenue records, cannot be assailed. No provision has been made in Section 13-A by which an aggrieved person from an order of The Assistant Collector under Sub-section (3) can go up in appeal or revision saying that the Assistant Collector has not properly exercised its powers under the aforesaid Sub-section. In the case of orders passed under Sub-section, (5), appeals have been provided to the higher authorities. Cases may also arise where revenue records were produced on the record, but were neither exhibited nor taken into consideration by the civil Court while excluding area from Shamilat land. From the aforesaid circumstances, it is clear that no rational basis has been provided for setting aside the decrees of the civil Court by an Assistant Collector u/s 13-A(3) Even an aggrieved party has not been provided with any remedy to challenge the order of the Assistant Collector Ist Grade before a higher authority. The Assistant Collector has thus been clothed with unguided powers, which may enable him to discriminate.
Mr. Anand Swaroop, Learned Counsel for the Petitioner, has next contended that the Legislature has added Section 13-A, by virtue of the power vested init under item No. 18 of List II of Schedule 7 of the Constitution According to the Learned Counsel, no such legislation could be made by the State Legislature under the aforesaid entry.
I am not impressed with the contention of Mr. Anand Swaroop. In order to determine this question, It will be relevant to refer to some of the items in Lists II and III Item No. 3 of List II, relates to administration of justice, constitution and organisation of all courts, except the Supreme Court and the High Court ; officers and servants of the High Court; procedure in rent and revenue Courts, fees taken in all Courts except the Supreme Court: Item 18, to land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents, transfers and alienation of agriculture land ; land improvement and agricultural loans ; colonization: and item No. 65, to jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List Item No. 13 of list III is regarding civil procedure, including all matters included in the CPC at the commencement of this Constitution, limitation and arbitration. A combined reading of the aforesaid items shows that the State Legislature is entitled to legislate regarding the matters relating to land, constitution and organisation of all courts, except Supreme Court and the High Courts, jurisdiction and powers of all courts except the supreme and Civil Procedure. It is a basic principle of law that items in schedule 7 of the Constitution are to be given the widest construction (see Megh Rai and Anr. v. Rakhia AIR 1947 P.C. 72. The Legislature, thus, has the power to decide as to which matters are to be entrusted to civil courts and which to other type of Tribunals. In case the legislature authorises a particular Tribunal to go into a particular matter which falls within any item of List II, that is good and cannot be challenged. The Legislature can also prescribe the procedure to be followed by the Tribunal constituted for that purpose. A faint attempt was made by Mr. Anand Swaroop, the Learned Counsel for the Petitioner, to contend that the State Legislature could not make provision regarding procedure in the Amendment Act which impugned against the provisions of the CPC Code. He contends that the civil procedure is covered by item No. 13 of List III and in case any law has been enected by the State legislative regarding procedure which is against the provisions of the Code of the Civil Procedure, that will be hit by Article 254(1) of the Constitution). J (sic) inability to accept this contention of the Learned Counsel. In my view it shall not be governed by Article 254(1) but my by Article 254(2), wherein it is provided that there a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent list containes any provision repugnent to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, than the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. It is evident from the aforesaid Article in case such an enactment has received the assent of the President, then it cannot be said to be repugnent on the ground that it contravenes any law made by the Parliament. Such an Act will prevail in the State in which it was enacted. In the present case, the assent of the President on the Amendment Act was of tained.(sic) In this situation, the provisions of Section 13-A cannot be held to be void even if these are contrary to the provisions of the CPC Code. An argument his also been raised that a period of two years, from the date of coming into force of the Amendment Act, has been prescribed u/s 13-A (1) for making applications for setting aside decrees to the Assistant Collectors of the First Grade. Reference has been made to Article 59 of the limitation Act, 1963, where in it is provided that a suit to cancel a decree can be filed within three years from the date when the facts entitling the Plaintiff to have the decree set aside, become known to him. According to the Learned Counsel, the State Legislature could not provide at different period for making applications for setting aside the decrees, then that provided in Article 56, and that the provision continued in Article 13-A (1) is violative of Article 59 of the Limitation Act. I have already mentioned above that limitation has been provided in Item No. 13 of List III. For the reasons mentioned above, while dealing with the procedural matter, the State Legislature could make law regarding limitation, and the same cannot be struck down on the ground that a is against the provision of the limitation Act, as the Amendment Act has got the approval of the President of India, in my view, the provision incorporated in the Amendment Act, is in consonance with the powers conferred on the Legislature under items in Lists II and III. In this view, I get support from the observations of their Lordships of the Prive Council in Megh Raj''s case (supra). In that case the vires of the Punjab Restoration of Mortgagee, Lands Act, 1938, was challenged. In that Act, a special Tribunal was constituted to provide for restitution of certain mortgageo lands, he Act also prescribed the procedure to be followed by the special Tribunal. Item No. 2 of the Provincial List in the Gov-eiaiueni of India Act, 1935, is incorporated in item Nos. 3 and 65 of List if, and Item No. 21 of the Provincial of the Government of India Act in Item No. 18 of List. II. While dealing with item No 2 and 21 of the Provincial List and the aforesaid Act, their Lordships observed that the particular and limited specification of agricultural land proves that '' land '' is not used in item No. 21, with restricted reference to agricultural Sand but relates to land in general. Item No. 2 is sufficient to give express powers to the Provinces to create and determine the powers and jurisdiction of Courts in respect of land, as a matter ancillary to the subject of Item No 21. A special Bench consisting of three Judges, presided over by S, . Das, J. (later on appointed as a Judge of the Supreme Court) made similar observations in Brij Bhukan Kalwar and Others Vs. S.D.O. Siwan and Others, . It was held that none of the items in any of the Lists is to be read in a narrow or restricted sense. Each general word should be hold to extend to all anctallary of subsidiary matter which can fairly and reasonably be said to be comprehended in it. Undoubtedly, the language employed in Items 18 and 65 shows beyond a shadow of doubt that the State Legislature has got ample powers with regard to the jurisdiction and powers of Courts for dealing with the properties described in Item No. 18. The words of Item No. 18 read with the words of Item No. 65, are comprehensive enough to include the remedies as we (sic) as the procedural provisions concerned with reliefs in respect of several rights and remedies erumerated in Item No. 18, and item No. 18 is wide enough to include rights in land, such as rights like full ownership or leashold or all such rights and rights over land which include ensements and other collateral rights of different nature.
From the aforesaid discussion it emerges that the State Legislature can confer jurisdiction on certain Tribunals to decide matters relating to land, and it can also make laws regarding matters relating to procedure and limitation.
The provisions of Section 13-A cannot be struck down on this ground. The Legislature has, however, conferred arbitrary and unguided powers on the Assistant Collector to set aside the decrees of the Civil Courts. The safeguards provided in Section 13-A (3) to the effect that the Assistant Collector shall satisfy himself as to whether the copies of relevant entries of revenue records in support of averments in the plaint had been produced during the trial of the suit, is not a sufficient safeguard, and it may enable him to discriminate. He has been given almost uncanalised powers which may amount to a certe blanche to discriminate. Consequently Sub-section (3) of Section 13-A is ultra vires the Constitution. The other Sub-section in Section 13-A revolve around Sub-section (3) and are, therefore, also ultra vires. It may be mentioned that the counsel for the Petitioner has not challenged vires of Section 13-B added by the Amendment Act. For the foregoing reasons, the impugned order is liable to be quashed. The other writ petitions mentioned in this catagory have almost similar facts. For the reasons recorded above, the impugned orders in those writ petitions are also liable to be quashed.
The Petitioners'' case in C.W. No. 2390 of 1975, is that they along with one Bakhtawar Singh, instituted a suit on May 23, 1968, on their own behalf and also on behalf of other proprietors of village Jhagroli, Tehsil and District Mohindergarh, in the Court of Subordinate Judge 1st Class, Mohindergarh, for possession of agricultural land measuring 2421 Kanals and 14 Marias, situated in village Jhagroli, on the ground that they being the proprietors of the village, were the owners of the said land and the Gram Panchayat, Jhagroli, had wrongly got attested a mutation about the said land in its favour on May 3, 1966. It was also pleaded that the Gram Panchayat had taken forcible possession of the land in dispute. The suit was contested by the Gram Panchayat and as many as nine issues were framed. The Subordinate Judge, after recording the evidence of the parties, passed a decree for possession of the land in dispute in favour of the Petitioners on February 24, 1972. After the passing of the decree, the Petitioners and others took possession of the property in dispute. Against the judgment and decree of the Subrdinate Judge, the Gram Panchayat filed an appeal in the Court of District Judge, Gurgaon on March 13, 1972. The appeal was later on entrusted by the District Judge to the Senior Subordinate Judge, Narnaul, for decision. During the pendency of the appeal, the Amendment Act came into force. In view of Section 13-B inserted by Section 5 of the Amendment Act, the Senior Subordinate Judge has transferred the file of the appeal to the Collector, Mohindergarh, at Narnaul, for further Proceeding in the matter and directed the parties to appear before him vide order dated April 22, 1975.
It is contended by Mr H. L. Sarin, the Learned Counsel for the Petitioners, that the Senior Subordinate, Judge could not transfer the appeal u/s 13-B to the collector. He argues that under the said section only a suit could be transferred, and that too, to an Assistant Collector and not to a Collector. I have given a thought to the argument of the Learned Counsel and find force in it. Section 13-B has already been reproduced above. The language used in the section established that the suits pending in the civil Courts, in respect of land or other immovable properties, wherein relief has been claimed for being excluded from the Shamilat-deh, can be transferred by the civil courts to the Assistant Collectors of the first grade. Appeal is a remedy provided by law for getting decree of the lower court set aside. Section 13-B does not authorise a Collector to set aside a decree passed by the Civil Court. There is no provision in the Amendment Act by which an appeal can be transferred from a Civil Court to the Court of an Assistant Collector Ist Grade, or a Collector. From a tare reading of Section 13-B, it is clear that a suit is to be transferred by the Civil Court to an Assistant Collector. It does not appear from the language of the section that it was the intention of the Legislature that the appeal pending before the appellate Courts should be transferred to the Assistant Collectors or Collectors for decision by them. It is a cardinal principle of the construction of statutes that the intention of the Legislature should be gathered from the language of the statute. If the words are clear, it is the duty of the court to give effect to their plain meaning-neither adding to nor substracting from them. No doubt it is true that appeal is continuation of suit, but in the context of the present section, a suit cannot be field to include an appeal. In the circumstances, the Senior Subordinate Judge could not transfer the appeal to the Collector for disposal. The impugned order in this petition, is therefore, liable to be set aside.
3rd Cotegery
The case of the Petitioner is Civil Writ No. 2391 of 1975, is that he instituted a suit in the Court of the Subordinate Judge Ist Class, Mohindergarh, on July 23, 1974 against the Gram Panchayat, Jant, for declaration that the order of the Assistant Collector Ist Grade, Mohindergarh, dated April 27, 1973, in application u/s 7 of the 1961 Act, was illegal, void and without jurisdiction and be was not liable to ejectment on its basis as he was a tenant at will of land measuring 32 Kanals comprised in Khewat No. 138, Khatauni No. 249, situated in village Jant. District Mohindergarh, and the land also did not fall within the definition of ''Shamilat-deh'', During the pendency of the suit, the Amendment Act came into force The Subordinate Judge, in view of the provisions of Section 13-B, transferred the suit to the Assistant Collector Ist Grade, Mohindergarh. and directed the parties to appeal before him, vide order dated December 13, 1974. The Petitioner has challenged the aforesaid order of the Sub-ordinate Judge.
The Learned Counsel for the Petitioner contends that the civil court has the jurisdiction to decide whether the land is Shamilar-deh or not. In support of his contention, he has placed reliance on Deiyaram and Anr. v. State of Haryana 1971 PLR 264 and Surinder Singh v. The State of Punjab 1973 PLR 701. I have conesidered the argument, but it has not impressed me. Section 13-B of the 1961 Act provides for transfer of pending suits in civil courts for excluding certain areas of Shamilat-deh to the Assistant Collectors Ist Grade, having jurisdiction in the matter. It also provides that fresh proceedings for that purpose shall be taken in the court of the Assistant Collector. Section 13 of the 1961 Act bars the jurisdiction of the civil court to entertain or adjudicate upon any question as to whether any land or immovable property or any right or interest in such land or other immovable property vests or does not vest in a Panchayat under the Act. The vires of the aforesaid sections have not been challenged before me. The Legislature has got a right to exclude the jurisdiction of the civil courts if it so requires. There is nothing illegal in it. Section 13-B specifically excludes the jurisdiction of civil court to grant the relief as has been claimed by the Petitioner. He can get this matter adjudicated after coming into force of the Amendment Act, only from an Assistant Collector of the 1st Grade. The cases cited by the Learned Counsel for the Petitioner, have no applicability to the present case. Those cases were decided in view of the provisions of the 1961 Act, as they stood before the amendment. In the aforesaid circumstances, I reject the contention of the Learned Counsel for the Petitioner. The present writ petition in my view, is liable to be dismissed.
4th Category.
Briefly the case of the Petitioner in this category of cases is that they riled suit in the civil courts for declaration to the effect that they were the owners in possession of the property in dispute and the Gram Panchayat be restrained from interfering with their peaceful possession. The suits were decreed by the Subordinate Judge either on the basis of concession made by the Gram Panchayat or on merits. Applications were filed u/s 13 4, in which notices were issued by the Assistant Collector to the Petitioners. The Petitioners have challenged the notices, inter alia, on the ground that the provisions of Section 13 A are ultra vires the Constitution.
I have already held above that the provisions of Section 13-A are ultrta vires. In the circumstances the Assistant Collector had no jurisdiction to issue notices. The notices are therefore, liable to be quashed.
5th Category.
The case of the Petitioner is that one Jati Ram, Sarpanch, Gram Panchayat village Phus District Karnal, made an application before the Assistant Collector Ist Grade for the ejectment of the Petitioner from the land in dispute on the ground that it was Shamilat land. The Petitioner contested the application, inter alia, on the ground that the land in dispute was not Shamilat land. The Assistant Collector, vide order dated July 26, 1974 held that the land dispute was Shamilat land and ordered eviction of the Petitioner from it. He went up in appeal hefore the Collector who dismissed the same by his order dated December 16, 1974. It is stated by the Petitioner that he wanted to file a civil suit because a question of title had arisen, but in view of the fact that the Amendment Act had come on the statue book on November 4, 1974, he did not do so he has filed the writ petitions, praying that the Amendment Act be quashed. In the present writ petition, no order, either of the civil court or of the revenue Court is sought to be quashed. The prayer made by the Petitioner is that the provisions of the Amendment Act be declared to be ultra, vires the Constitution so that his remedy for instituting the suit in the civil court, may become available to him. I regret my inability to grant the prayer made by the Petitioner in this writ petition. Such a relief cannot be granted under Article 226 of the Constitution. The writ petition is, therefore, liable to be dismissed.
For the reasons recorded above, I accept the writ petitions mentioned in categories 1, 2 and 4 and quash the impugned orders. I, dismiss the writ petitions, mentioned in categories 3 and 5. In view of the difficult questions of law involved in the cases, and leave the parties to bear their own costs.