Full Judgment Text
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PETITIONER:
STATE OF HARYANA AND ORS.
Vs.
RESPONDENT:
KARNAL CO-OP. FARMERS’S SOCIETY LIMITED ETC. ETC.
DATE OF JUDGMENT04/03/1993
BENCH:
VENKATACHALA N. (J)
BENCH:
VENKATACHALA N. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1994 AIR 1 1993 SCR (2) 193
1993 SCC (2) 363 JT 1993 (2) 235
1993 SCALE (1)812
ACT:
The Punjab Village Common Lands(Regulation) Act, 1961/The
Punjab Village Lands(Regulation) Haryana Amendment Act, 1980
: ss. 2, 4, 5, 7, 13/ss, 4, 5, 7-Village Common lands-
Shantilal deh’-Vesting of ill Panchayat Exceptions-Civil
Court decrees, orders allowing claims of persons in
possession of certain lands-Enactment by State Legislature
abrogating Civil Court decrees/orders-Held Legislature has
no power to abrogate civil court decrees/orders by a mere
declaration by an enactment to that effect. A competent
Legislature can make judicial adjudications ineffecting only
by altering, removing or neutralising the legal basis in the
unamended law on which such decisions were founded.
HEADNOTE:
The Punjab Village Common Lands(Regulation) Act, 1961 which
operated in the State of Haryana, provided for regulating
the rights in village common lands popularly and
colloquially known as ’Shamilat deh’. Section 13 of the Act
barred jurisdiction of civil courts, over any matter arising
out of the operation of the Act. However, Sections 2(g) and
4(3) provided for exclusion of certain ’Shamilat deh’ from
their vesting in Panchayats. These provisions were utilised
by innumerable persons to have recourse to civil courts and
to obtain decrees against the panchayats concerned pleading
that their lands and other properties were excluded from
’Shamilat deh’ either under clause(g) of s.2 or sub-section
(3) of s.4. Several Panchayats had no objection for grant of
decrees in favour of persons who were not legally entitled
for the decrees.
The State, in a bid to get rid of the decrees of civil
court, enacted the Punjab Village Common Lands (Regulation)
Haryana Amendment Act, 1974 and substituted ss.7 and 13 of
the Punjab Village Common Lands (Regulation) Act, 1961 (The
Principal Act) and incorporated new ss.13-A and 13-B
therein. The substituted s.7 empowered an Assistant
Collector to eject any person in wrongful or unauthorised
possession of land or other immovable property in the
’shamilat deh’ of the concerned village vested
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or deemed to have been vested in Panchayat under the
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principal Act and put the Panchayat in possession thereof.
The appellate power was vested in the Collector. Section 13
barred jurisdiction of civil court to entertain or
adjudicate upon any question as to whether any land or other
immovable property vests or does not vest in a panchayat
under the Act. Section 13-A enabled the Assistant
Collector, having jurisdiction over the village to set aside
civil court decrees obtained by persons against Panchavats
in respect of land or other immovable property on the ground
of its being excluded from ’shamilat deh’ under clause (g)
of section 2 or any of the grounds mentioned in sub-section
(3) of section 4 after examining the records and hearing the
decree-holders.
When the decrees obtained by several persons from civil
courts were sought to be interfered with by the Assistant
Collector and the Collector, purporting to exercise the
powers conferred upon them as a result of the Amendment Act
of 1974, writ petitions were riled in the High Court
challenging the constitutionality of the said provisions.
The High Court held s.13A of the Amendment Act of 1974 as
ultra vires, allowed the Writ Petitions and quashed the
proceedings. The St,-ate riled civil appeals and special
petitions before this Court.
During the pendency of the civil appeals and special leave
petitions before this Court which arise due to the Amendment
Act of 1974, the State enacted the Punjab Village Common
Lands (Regulation) Haryana Amendment Act, 1980 (Amendment
Act of 1981) to get over the judgments of the High Court.
It amended s.7 and substituted ss.13, 13A and 13B of the
Principal Act which had been incorporated by Amendment Act
of 1974 and further incorporated ss.13C and 13D in the
Principal Act. The new provisions were made operative
retrospectively from 4.5.1961, the date of commencement of
the Principal Act, with the result that s.13 barred the
jurisdiction of civil courts retrospectively from 4.5.1961
to entertain or adjudicate upon any question whether any
land or immovable property was ’shamilat deh’ or was not
’shamilat deh’ whereas s.13A empowered the Assistant
Collector to adjudicate any right title or interest in any
land or immovable property claimed to have vested or not
vested in a Panchayat or whether such property was ’shamilat
deh’ or not, on a suit filed within two years from the date
of commencement of the Amendment Act of 1981. The Proviso
added to s.7 of the Principal Act invested in the Assistant
195
Collector the exclusive power of deciding the question of
title in respect of ’shamilat deh’ whenever raised. S.13C
clothed the order made under new ss.13A and 13B with
finality. S.13D, being given the overriding effect, enabled
the Asstt. Collector exercising his powers under the new
proviso to s.7 and new s.13A to exercise the same
notwithstanding any contrary law, agreement, instrument,
usage, decree or order of any court or authority. Section 7
of the Amendment Act, 1981 validated actions taken or
decisions rendered there-under as if the Principal Act as
amended by the Amendment Act of 1981 had been in force at
all material times when such action was taken or a decision
was rendered.
Several persons whose decrees obtained from the civil courts
were likely to be interfered with by the authorities under
the Amendment Act of 1981 challenged the constitutionality
of its provisions by filing writ petitions in the High
Court. It was contended that the State Legislature had no
power to abrogate civil court decrees and orders passed in
respect of the properties which were executed from ’shamilat
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deh’ after the provisions of the Principal Act came into
force from 4.5.1961, by making a mere declaration under the
provisions of the Amendment Act of 1981 that such decrees or
orders could be treated as nullifies by the Assistant
Collector while deciding the claim afresh.
The High Court allowed the writ petitions holding that the
retrospective abrogation of the jurisdiction of civil
courts, validly exercised by them from 1961 onwards amounted
to a trenching upon the judicial power by the legislature,
and fictional substitution of the provisions with effect
from the 4th day of May, 1961 and thereby giving
retrospectivity thereto from the said date, was
unconstitutional. The State riled the appeals.
The appeals and the special leave petitions arising out of
the Amendment Act of 1974 were dismissed as infructuous.
Dismissing the appeals arising out of Amendment Act of 1981,
this Court,
HELD: 1.1. Under our Constitution no Legislature has the
power to abrogate civil courts’ decrees or orders or
judicial adjudications by merely declaring under a law made
by it that such decrees or orders or adjudications are no
longer valid or binding on the parties, for such power of
declaration would be a judicial function which cannot be
encroached upon
196
by a Legislature and the only way by which a competent
Legislature can make the judicial adjudications, decrees or
orders ineffective is by fundamentally altering, removing or
neutralising the legal basis in the unamended law on which
they are based. [pp.213E-G;,216G-H; 217A]
Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough
Municipality & Ors., [1970] 1 SCR 368, followed.
Government of Andhra Pradesh and Kutubullahpur Gram
Panchayat v. Hindustan Machine Tools Lid, [1975] (Supp.) SCR
394; Smt. Indira Nehru Gandhi v. Shri Raj Narain, [1976] 2
SCR 347 and I.N. Saksena v. The State of Madhya Pradesh,
[1976] 3 SCR 237, relied on.
Misrilal Jain etc. etc. v. State of Orissa & Another, [1977]
3 SCR 714, referred to.
Bajinder Singh and another v. The Assistant Collector 1st
Grade, Guhla, Distt. Kurukshetra and others, 1983 (85) PLR
528, approved.
Sunder Dass v. Ran? Prakash, [1977] 3 SCR 60,
distinguished.
1.2. In the instant case, the State Legislature, by the
Amendment Act of 1981, has not made any provision to include
the lands and immovable properties the subject of the civil
court decrees in ’shamilat deh’ so as to bring them within
the purview of the principal Act. But, the provision made
therein merely directs the Assistant Collector, in effect,
to disregard or disobey the earlier civil courts’ decrees
and judicial orders by which it had been held that certain
lands and immovable properties fell outside ’shamilat deh’
regulated by the principal Act. Such provisions inserted by
the Amendment Act of 1981 in the principal Act by a
Legislature are clearly unconstitutional for they are to be
regarded as provisions made by encroaching upon the judicial
power. [p.217A-C]
1.3. The High Court was right in holding that the provisions
of the Amendment Act of 1981 which merely authorised the
Assistant Collector to decide the claims to be made before
him claiming certain lands or immovable properties as
’shamilat deh’ vesting in Panchayats ignoring the judicial
orders or decrees, by which any right, title or interest of
private parties in such lands or immovable properties were
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recognised, were unconstitutional. [p.217C-D]
197
1.4. Consequently, the provisions of the Amendment Act of
1981, insofar as they are intended to operate
retrospectively for nullifying the adjudications made by
civil courts prior to that amendment Act, are invalid,
inoperative and unconstitutional. [p.217D-E]
1.5. However, the provisions in the Amendment Act of 1981,
can undoubtedly operate prospectively for adjudicating upon
claims to ’shamilat deh’ in proceedings initiated subsequent
to the commencement of that Act, if they do not, in any way,
disturb the finality of adjudications made earlier. [p.217E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2605,
2607, 2608, 2610, 2611 and 2615 of 1977.
From the Judgment and Order dated 9.3.76 of the Punjab &
Haryana High Court in C.W.P. Nos. 6799/74, 91/75, 466, 487,
532, & 2579 of 1975.
WITH
Special Leave Petitions (C) Nos. 1108 and 3042 to 3095 of
1978.
From the Judgment and Order dated 19.3.76, 6.4.77, of the
Punjab & Haryana High Court in C.W.P. Nos. 1413, 1415/76,
5159/75, 164, 136, 138/76, 168/77, 284/76, 369, 237/76,
7448/75 5163//75, 177, 733, 893, 370, 236, 170, 144, 234,
139/76, 4509/75, 235, 368,145, 843/76, 7318/75, 894, 888/76,
5161/75, 1232, 137/76, 4940/75, 231, 238/76, 5522/75, 1197,
233, 163, 166, 5769/76, 5162, 5158, 5429/75, 140, 443, 239,
165, 1203, 734, 232, 889/76, 6562/75, 735 and 743 of 1976.
AND
Civil Appeals Nos. 1381 to 1387 of 1990.
From the Judgment and Order dated 18.3.83 of the Punjab &
Haryana High Court in C.W.P. Nos. 5264-67/82 & 162-64 of
1983.
Avadh Behari, Mrs. Nisha Bagchi and Ms. Indu Malhotra for
the Petitioners/Appellants.
M.L. Verma, S.K. Bagga, T.V. Mehta, Seeraj Bagga, Mrs.
S.Bagga, Jitendra Sharma, P.P. Juneja, Ms. SJanani, Ms. H.
Wahi for Gagrat & Co. (NP), G.D. Gupta and A.D. Sikri for
the Respondents.
198
The Judgment of the Court was delivered by
VENKATACHALA. J. The above Civil Appeals and the Special
Leave Petitions (Civil) are that of the State of Haryana.
While the judgment in Civil Writ Petition No. 6799 of 1974
of the Punjab and Haryana High Court Kamal Co-op. Farmers
Society Lid, Pehowa v. Gram Panchayat, Pehowa etc., 1976,
Current Law Journal (Civil), 417 and other judgments
rendered following it are impugned in Civil Appeals Nos.
2605, 2607,2608,2610,2611 and 2615 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
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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- to enact the Amendment
Act of 1981.
Villages in pre-independent rural India having village
common or communal lands meant for use by the whole village
community was their common redeeming feature, in that, the
inhabitants of the villages whose occupation was
predominantly agriculture dependent on their livestock
needed to give manure to their lands, to cart manure to
their lands, to plough their lands and the carry on several
other incidental agricultural operations, required common
lands for using as pasturagcs, pools, ponds, thrashing-
floors, cowdung pits, have stack areas, tethering areas and
the like. Villages in the States of Punjab and Pepsu were
of no exception. With the dawn of independence and rise in
land value even in villages, powerful and greedy inhabitants
in Villages became grabbers of village common lands
depriving their use to the village community. Some of the
State which were enabled by the Constitution of
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India organise village Panchayats as units of self-
Government and encourage growth of agriculture and animal
husbandry in villages by suitable legislative measures took
prompt steps to legislate on common lands of the villages,
so as to restore such lands for communal use and common
benefit of all the inhabitants of the villages by vesting
them in their respective Panchayats. Punjab Village Common
Lands (Regulation) Act, 1953 and Pepsu Village Common Lands
(Regulation) Act, 1954 are 1954 are two legislative measures
enacted by the respective States of Punjab and Pepsu to vest
the common lands of villages in their Panchayats for common
benefit and advantage of the whole community of the village
concerned. When under the States, Re-organisation Act, 1956
Pepsu State merged in Punjab State, the said Papsu Act
continued to operate in the area of erstwhile Pepsu. When
the operation of two legislative measures in the new Punjab
State, which were in come respects not common, was found to
be undesirable, the State of Punjab enacted the Villages
Common Lands (Regulation) Act, 1961 referred to by us
already as ’principal Act’ and made it operative in the
whole territory of Punjab State, with effect from 4th day of
May, 1961. By the principal Act the two earlier Acts which
had covered the field till then were repealed, as well. The
principal Act, as stated in its preamble, sought by its
provisions to consolidate and amend the law regulating 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
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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
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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 ’charand’ 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 ’cherand’ due to
river action or has been reserved Shamilat or charand in
village subjects to river action except Shamilat-deh or
’Charand’ entered as pasture, pond, or playground in the
revenue records;
(ii) has been allotted 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 jamna-bandi or is supported by a valid deed;
(v) is described in the revenue records as Shamilat Taraf,
Petti, Panna and Thola and not used according to revenue
records for the benefit for the village community or a part
thereof or for common purpose of the village;
(vi) lies outside the abadi-deh and is used at gitwar, bara,
manure pit or house or for cottage industry;
(vii) is shamilat-deh or ’charand’ of village included
in the fourteen revenue estates called Bhojas of Naraingarh
201
Tehsil of Ambala District;
(viii) was Shamilat or ’charand’ was
assessed to land revenue and has been in the
individual cultivating possession of cosharers
not being in excess of their respective shares
in such shamilat-deh or charand or or before
the 28th January 1950; or
(ix) is used as a place of worship or for
purposes subservient thereto."
By section 2(h) thereof meaning of ’shamilat-
law’ was given thus:
"(h) ’Shamilat-Law means :-
(i) in relation to land situated in the
territory which immediately before the 1st
November, 1956, was comprised in State of
Punjab; the Punjab Village Common Lands
(Regulation) Act, 1953, or
(ii) in relation to land situated in
territory immediately before the 1st November
1956, was comprised in the State of Patiala
and East Punjab States Union; the Pepsu
Village Common Land (Regulation) Act, 1954."
While sub-section (1) of section 3 of the principal Act
declared that the Act shall apply and before the
commencement of the Act the Shamilat Law shall be deemed to
have applied to all 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
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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,
202
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 the shamilat deh
of any village and which and not vested in a panchayat under
the shamilat law’ shall, at the commencement of the Act,
vest in a Panchayat. But sub-section (3) thereof declared
that nothing contained in clause (a) of sub-section (1) in
sub-section (2) shall affect or shall be deemed ever to have
affected the (i) existing rights, title or interests of
persons who, though not entered as occupancy tenants in the
revenue records, are accorded a similar status by custom or
otherwise, such as Dholidars, Bhondedars, Butimars,
Basikhupopohus, Sounjidars, Muqurridars; (ii) rights of
persons who were in cultivating possession of ’shamilat
deh’, on the date of the commencement of the Act and were in
such cultivating possession for more than twelve years
immediately preceding the commencement of the Act without
payment of rent or by payment of charges not exceeding the
land revenue and ceases payable thereon; and (iii) rights of
a mortgaged to whom such land is mortgaged with possession
before 26th January, 1950, while sub-section (2) of section
3 delcared that notwithstanding, anything contained in sub-
section (1) of section 4, where any land has vested in the
Panchayat under the ’shamilat law’, but such land has 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
principal Act, 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 shall deliver possession of such land
to such person or persons.
Then section 5 thereof provided for regulation of use and
occupation, etc, of ’shamilat deh’ lands vested or deemed to
have been vested in Panchayats while section 13 thereof
imposed a bar on the jurisdiction of civil courts, declaring
that no civil court shall have any jurisdiction over any
matter arising out of the operation of the Act.
Thereafter, when certain districts of the Punjab State were
carved out to form Haryana State under the Punjab State Re-
organisation Act, 1966, the principal Act came to operate in
the newly formed Haryana State. Section 13 of the principal
Act, as already pointed out, barred civil courts’
jurisdiction only over matters which arose out of 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 ap-
203
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pears, 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, as becomes obvious from
the nature of its salient provisions to which we shall
presently advert.
Section 2 of the Amendment Act of 1974 by substituting the
provision in section 7 of the principal Act empowered
thereunder an Assistant Collector of First Grade to eject
any person who is in wrongful or unauthorised possession of
land or other immovable property in the ’shamilat deh’ of
the concerned village vested or deemed to have been vested
in Panchayat under the principal Act and put the Panchayat
in possession thereof, besides vesting in the Collector the
appellate power to hear appeals preferred against the order
of Assistant Collector of First Grade. Further, section 4
thereof substituted the provisions in section 13 of the
principal Act, which read:-
"13. Bar of jurisdiction. No civil court
shall have jurisdiction
(a) to entertain or adjudicate upon any
question as to whether any land or other
immovable property or any right or interest in
such land or other immovable property vests or
does not vest in a panchayat under this Act;
or
(b) in respect of any other matter which any
officer is empowered by or under this Act to
determine; or
204
(c) to question the legality of any action
taken or any matter decided by any authority
empowered to do so under this Act.’
Then section 5 thereof inserted new sections 13-A and 13-B
in the principal Act. Section 13-A enabled the Assistant
Collector, First Grade having jurisdiction over the village
to set aside civil court decrees obtained by person against
Panchayats in respect of land or other immovable property of
the ground of its beign excluded from ’shamilat deh’ under
clause (g) of section 2 or any of the grounds mentioned in
sub-section (3) of section 4 with power conferred upon him
under sub-section (3) thereof to examine the records and
hear the decree-holder in order to satisfy himself as to
whether the copies of the relevant entries of the revenue
records in support of the averments made in the plaint had
been produced during the trial of the suit and if satisfied
that the copies of the said entries had not been so
produced, to set aside the civil court decree concerned. It
provided also for appeals being filed by the persons
aggrieved by the order of the Assistant Collector, First
Grade, to the Collector.
Section 13-B provided for transfer of suits pending in civil
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courts 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 con-
stitutionality 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
205
and matters relating to procedure and
limitation). The Legislature has, however,
conferred arbitrary and unguided powers on the
Assistant Collector to set aside the decrees
of the civil Courts. The safeguard 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 carte blanche to discriminate.
Consequently, sub-section (3) of section 13-A
is ultra vires the Constitution. The other
sub-sections 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."
Because of the said view expressed by the High Court on the
constitutionality of the impugned provisions of the
Amendment Act of 1974, it allowed the Writ Petitions in
which the proceedings initiated before the Assistant
Collector of 1st Grade and the Collector under the Amendment
Act of 1974 had been questioned and quashed those
proceedings by several judgments rendered in those Writ
Petitions. The State of Haryana which felt aggrieved by the
said judgments of the High Court filed before this Court
various Civil Appeals and Special Leave Petitions (Civil)
questioning the aforesaid view of the High Court expressed
on the constitutionality of the provisions of the Amendment
Act of 1974 and the judgments rendered based on such view,
as is indicated by us in the beginning of this judgment.
However, during the pendency of the said Civil Appeals and
Special Leave Petitions (Civil) before this Court, the State
of Haryana took recourse to bringing a legislative measure
to get over the said judgments of the High Court rendered in
the Writ Petitions. The said legislative measure is the
Amendment Act of 1981. Statement of Objects and Reasons
accompanying the Bill has given the objects and reasons as
the why the Amendment Act of 1981 was being enacted thus :
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206
"In many places the shamlat deh has been
occupied unlawfully by unscrupulous persons,
acting some times in collusion with the
representative of the Gram Panchayats. To
combat this evil certain amendments were made
to the Punjab Village Common Lands
(Regulation) Act, 1961, in 1974. However,
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 its view in the matter, thus :
"that the retrospective abrogation of the
jurisdiction of civil courts, validly
exercised by them from 1961 onwards by the
impugned Section 4 of the Punjab Village
Common Lands (Regulation) Haryana Amendment
Act 2 of 1981, clearly amounts to a trenching
upon the judicial power by the legislature.
Consequently, the relevant part of the
aforesaid section fictionally substituting
section 13 with effect from the 4th day of
May, 1961 and thereby giving retrospective
thereto from the said date, is held to be
unconstitutional and is hereby struck down."
It is the said view in the judgment which is made the basis
for
207
deciding the Writ Petition concerned and for deciding
similar Writ Petitions by the judgments of the High Court
rendered in that regard. Civil Appeal Nos. 1381 to 1387 of
1990 before us are those filed by the State of Haryana
aggrieved by the said judgments and they are the Appeals
which we are required to deal with.
Before proceeding to deal with the said Appeals of 1990, it
would be convenient to dispose of Civil Appeals Nos. 2605,
2607, 2608, 2610, 2611 and 2615 of 1977 and Special Leave
Petitions (C) Nos. 1108 and 3042 to 3095 of 1978. These
Appeals of 1977 and Special Leave Petitions (Civil) of 1978
are those filed by the State of Haryana aggrieved against
the High Court judgments based on its view of the provisions
in section 13A(3) and other sub-sections of that section of
the principal Act, as stood amended by the Amendment Act of
1974. But by enacting and bringing into force the Amendment
Act of 1981, the Haryana Legislature has substituted the
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controversial provisions of the principal Act which had
stood amended by the Amendment Act of 1974. Hence, the view
expressed by the High Court in its judgments under Appeals
of 1977 and SLPs of 1978 of the State of Haryana of the now
non-existing controversial provisions, does not survive for
consideration. Consequently, Civil Appeals of 1977 and SLPs
of 1978 are liable to be dismissed as having become
infructuous.
As Civil Appeals Nos. 1381 to 1387 of 1990 which we shall
now proceed to deal with are since directed against the
judgments based on the view of the High Court that the
material provisions in the Amendment Act of 1981 are, to a
certain extent, unconstitutional it would be useful to
advert to them and know the object sought to be achieved
thereby before 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
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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 Panchayat under this Act;
(b) in respect of any matter which any
revenue court, officer or authority is
empowered by or under this Act to determine;
or
(c) to question the legality of any action
taken or matter decided by any revenue court,
officer or authority empowered to do so under
this Act.’"
Further, section 5 of the Amendment Act of 1981 has inserted
new sections 13A and 13B in the principal at Act by omitting
old sections 13-A and 13-B, which had stood amended by
Amendment Act of 1974, and it reads:
"In the principal Act, the existing sections
13A and 13B shall be omitted and shall be
deemed to have been omitted, with effect from
the 12th day of November, 1974; and following
new sections shall be inserted and shall be
deemed to have been inserted, with effect from
the 4th day of May1961, namely
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’13A. Adjudication. (1) Any person or in the
case of a Panchayat, either the Panchayat or
its Gram Sachiv, the concerned Block
Development and Panchayat Officer
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Social Education and Panchayat Officer or any
other Officer duly authorised by the State
Government in this behalf, claiming right,
title or interest in any land or other
immovable property vested or deemed to have
been vested in the Panchayat under this Act,
may, within a period of two years from the
date of commencement of the Punjab Village
Common Lands (Regulation) Haryana Amendment
Act, 1980, file a suit for adjudication,
whether such land or other immovable property
is shamlat deh or not and whether any land or
other immovable property or any right, title
or interest therein vests or does not vest in
a Panchayat under this Act, in the court of
the Assistant Collector of the first grade
having jurisdiction in the area wherein such
land or other immovable property is situate.
(2) The procedure for deciding the suits
under sub-section (1) shall be the same as
laid down in the Code of Civil Procedure,
1908.
13B. Appeal and revision
(1) Any person, aggrieved by an order passed
under section 13A, 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, and the
Collector may after hearing the appeal,
confirm, very or reverse the order as the
deems fit.
(2) The Commissioner may suo motu at any
time, call for the record of any proceedings
before, or order passed by any authority
subordinate 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 af-
forded an opportunity of being heard.
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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
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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 to have been
validly taken, made or passed, as the case may
be, as if the principal Act, as amended by the
Punjab Village Common Lands (Regulation)
Haryana Amendment Act, 1980, had been in force
at all material times when such action was
taken, rules were made and judgments, orders
or decrees were passed by the Revenue Court,
Officer or authority."
What is sought to be achieved by the above provisions of the
Amendment Act of 1981, as seen from their purport is this :
Section 7 of the principal Act as stood amended by the
Amendment Act of 1974, had empowered the Assistant Collector
of First Grade to eject any person in wrongful possession of
land or other immovable property in ’shamilat deh’ of the
concerned village vested or deemed to have been vested in
its Panchayat under the principal Act and to put such land
or other immovable property in possession of the concerned
Panchayat. But new section 13A of the principal Act
inserted by the Amendment Act of 1981, empowered the
Assistant Collector of First Grade to adjudicate upon any
right, title or interest in any land or other immovable
property claimed to be vested or not vested or deemed to
have been vested or not vested in a
211
Panchayat and such land or immovable property is ’shamilat
deh’ on a suit filed within two years from the date of
commencement of the Amendment Act of 1981. Proviso to
section 7 inserted in the principal Act by the Amendment Act
of 1981 further invested in the Assistant Collector of First
Grade who was empowered under section 7 of the principal Act
to eject any person in wrongful possession of land or other
immovable property in shamilat deh’ of the concerned
village, the exclusive power of deciding the question of
title in respect of such land or property, whenever raised.
While new section 13B inserted in the principal Act by the
Amendment Act of 1981 created appellate and revisional
authorities to sit in judgment over the orders to be made by
the Assistant Collector of First grade under new section 13A
investing in such authorities the needed appellate or
revisional power, new section 13C inserted in the principal
Act by the Amendment Act of 1981 provided for clothing of
the orders made under new section 13A and new section 13B
with finality. Then, the above new section 13D inserted in
the principal Act by the Amendment Act of 1981 enabled the
Assistant Collector 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. Further more, 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
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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, from 4th
day of May 1961, the date of commencement of the principal
Act itself
Finally, section 7 of the Amendment Act of 1981, validated
actions taken or decisions rendered or actions deemed to
have taken or decisions deemed to have renderd under the
principal Act, as amended by the Amendment Act of 1981.
212
When the constitutionality of the above provisions in the
Amendment Act of 1981 was challenged before the High Court
of Punjab and Haryana, by filing Writ Petitions, the
question which arose for its decision was whether the
provision in new section 13 inserted in the principal Act
barring the jurisdiction of civil courts on matters
enumerated therein retrospectively with effect from the 4th
May, 1961, and the provisions in new proviso to section 7
and new section 13A empowering the Assistant Collector of
First Grade to decide on matters covered by the new section
13 notwithstanding, that is, by overlooking or brushing
aside or disobeying or disregarding civil courts’ decrees or
orders already made on such matters as provided for in new
section 13D are to be regarded as constitutionally valid
provisions.
Since the High Court, as already mentioned, took the view
that the impugned provisions of the Amendment Act of 1981
were unconstitutional to the extent they sought to abrogate
the existing civil courts’ decrees or orders and allowed the
Writ Petitions accordingly by the orders rendered in them,
the State of Haryana feeling aggrieved by the said orders
has questioned their correctness in the present Civil
Appeals of 1990.
It would now be convenient to turn to the argument of the
learned counsel for the State of Haryana directed against
the High Court’s view of unconstitutionality of the
provisions of the Amendment Act of 1981 and the argument of
learned counsel for respondents advanced supporting that
view.
The High Court’s view of the unconstitutionality of the
provisions of the Amendment Act of 1981 insofar as they had
the effect of abrogating the civil courts’ decrees or orders
on lands or immovable properties in ‘shamilat deh’ which had
been made after coming into force of the principal Act and
before the Amendment Act of 1981 was, according to the
argument of the learned counsel for the appellant,
unsustainable. That the State Legislature according to him,
when undisputably had legislative competence to enact a law
on ’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
constitu-
213
tional. 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
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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, legislated on the
subject of ’shamilat deh’, retrospectively was also not
under challenge. What was under challenge before the High
Court was the Haryana State Legislature’s power to abrogate
the civil courts’ decrees and orders granted in favour of
certain persons after the coming into force of the principal
Act from 4th May, 1961, to the effect that several lands
and’ immovable properties in villages formerly regarded as
’shamilat deh’, were excluded from ’shamilat deh’ under the
principal Act and that they being in possession or enjoyment
of them were their absolute owners, by making a mere
declaration under the provisions of the Amendment Act of
1981 that such civil courts’ decrees or orders could be
disregarded or disobeyed as nullities by the Assistant
Collector of First Grade while deciding claims under section
7 and new section 13A of the principal Act that those lands
or immovable property were ’shamilat deh’ of the village.
Under our Constitution no Legislature has the power to
abrogate civil courts’ decrees or orders or judicial
adjudications by merely declaring under a law made by it
that such decrees or orders or adjudications are no longer
valid or binding on the parties, for such power of
declaration would be a judicial function which cannot be
encroached upon by a Legislature and the only way by which a
competent Legislature can make the judicial adjudications,
decrees or orders ineffective is by fundamentally altering
the law on which they are based, is well-settled.
In Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough
Municipality & Ors., [1970] 1 SCR 388, a Constitution Bench
of this Court considered the constitutionality of the
Gujarat Imposition of Taxes by Municipalities (Validation)
Act, 1963, which had validated the imposition
214
of tax declared to be illegal by Courts, and held thus
"Granted legislative competence, it is not
sufficient to declare merely that the decision
of the Court shall not bind, for that is (it)
tantamount(s) 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."
In Government of Andhra Pradesh and Kutubullahpur Grain
Panchayat 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
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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 or illegal is a wellknown pattern.
The Legislature validates acts and things done
by which the basis of judgments or orders of
competent courts and Tribunals is changed and
the judgments and orders are made
ineffective.......... The effect of validation
is to change the law so as to alter the basis
of any judgment which might have been given on
the basis of old
215
law The rendering of a judgment ineffective by
changing its basis by legislative enactment is
not an encroachment on judicial power, but a
legislation within the competence of the
Legislature rendering the basis of the
judgment non-est Where invalid elections
declared by reason of corrupt practices have
been validated by changing the definition of
corrupt practices in the Representation of the
People Act, 1951, retrospectively the original
judgment is rendered ineffective."
In Misrilal Jain etc. etc. v. State of Orissa & Another,
[1977] 3 SCR 714, a seven-judge Bench of this Court, while
considering the constitutional validity of certain
provisions in Orissa Taxation (On Goods carried by Roads or
Inland Waterways) Validation Act 18 of 1961, where fraud had
been attributed to the Legislature, observed thus
"The impugned enactment is a valid exercise of
legislative power and is in no sense a fraud
on the Constitution. Since it is well
established that the power to legislate
carries with it the power to legislate
retrospectively as much as prospectively, the
circumstance that an enactment operates
entirely in the past and has no prospectiv
e
life cannot affect the competence of the
Legislature to pass the enactment if it falls
within the fist on which that competence can
operate. As regards the power to pass a
validating Act, that power is essentially
subsidiary to the legislative competence to
pass a law under an appropriate entry of the
relevant fist If the vice from which an
enactment suffers is cured by due compliance
with the legal or constitutional requirement,
the Legislature has competence to validate the
enactment and such validation does not
constitute an encroachment on the functions of
the judiciary. The validity of a validating
taxing law depends upon whether the
legislature possesses the competence over the
subject-matter of the law;"
In LN. Saksena v. The State of Madya Pradesh, [1976] 3 SCR
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237, dealing with the well-known pattern by which a
competent Legislature could render judicial decisions
ineffective observed, thus
216
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 Legislature to a law so as to remove the
basis on which a decree for eviction had been made. The
Legislative device which had been adopted by the Legislature
in that case for rendering the decree of a court ineffective
by having recourse to retrospective amendment of the law so
as to change the foundation of the decree which was sought
to be made ineffective, was upheld as the right device.
Hence, the decision relied upon for the appellant instead of
sustaining the bare declaration with which we are concerned
makes it unsustainable.
Thus, it becomes clear that a Legislature while has the
legislative power to render ineffective the earlier judicial
decisions, by removing or altering or neutralising the legal
basis in the unamended law on which such decisions were
founded, even retrospectively, it does not have the power to
render ineffective the earlier judicial decisions by making
a law which simply declares the earlier judicial decisions
as invalid or not binding for such power if exercised would
not be a legislative power but a judicial
217
power which cannot be encroached upon by a Legislature under
our Constitution.
In the instant case, the Haryana State Legislature, by the
Amendment Act of 1981, has not made any provision to include
the lands and immovable properties the subject of the civil
court’s decrees, in ’shamilat deh’ so as to bring them
within the purview of the principal Act. But, the provision
made therin merely directs the Assistant Collector of First
Grade, in effect, to disregard or disobey the earlier civil
courts’ decrees and judicial orders by which it had been
held that certain lands and immovable properties fell
outside ’shamilat deh’ regulated by the principal Act. Such
provisions inserted by the Amendment Act of 1981 in the
principal Act by a Legislature are, clearly unconstitutional
for they are to be regarded as provisions made by
encroaching upon the judicial power. Hence, the view of the
High Court that the provisions of the Amendment Act of 1981
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which merely authorise the Assistant Collector of First
Grade to decide the claims to be made before him claiming
certain lands or immovable properties as ’shamilat deh’
vesting in Panchayats ignoring the judicial orders or
decrees, by which any right, title or interest of private
parties in such lands or immovable properties are
recognised, are unconstitutional requires to be upheld.
Consequently, the provisions of the Amendment Act of 1981,
insofar as they are intended to operate retrospectively for
nullifying the adjudications made by civil courts prior to
that Amendment Act, are invalid, inoperative and
unconstitutional. However, the provisions in the Amendment
Act of 1981, can undoubtedly operate prospectively for
adjudicating upon claims to ’shamilat deh’ in proceedings
initiated subsequent to the commencement of that Act, if
they do not, in any way, disturb the finality of
adjudications made earlier.
For-the foregoing reasons, all these Civil Appeals and
Special Leave Petitions fail and are accordingly dismissed.
No costs.
R.P.
Appeals dismissed.
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