# STATE OF HARYANA AND ORS v. "'tKARNAL CO-OP. FARMERS' SOCIETY LIMITED ETC. ETC

- **Citation:** [1993] 2 S.C.R. 193
- **Court:** Supreme Court of India
- **Decided:** 1993-03-04
- **Case number:** Civil Appeals Nos. 2605, C 2607, 2608, 2610, 2611 and 2615 of 1977
- **Bench:** l.S. VERMA, N. Venkatachala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-haryana-and-ors-v-tkarnal-co-op-farmers-society-limited-etc-etc-11746
- **Pages:** 25

## Headnote

The Punjab Village Common Lands( Regulation) Act, 1961/17ie Punjab
Village Lands(Regulation) Haryana Amendment Act, 1980: ss. 2, 4, 5, 7,
13/ss, 4, 5, 7-Village Common /ands-'Shamilat deh'-Vesting of in
Panchayats-Exceptions-Civi/ 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
B
c
A competent Legislature can make judicial adjudications ineffecting only by
altering, removing or neutralising the legal basis in the unamended law on D
which such decisions were founded.
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 E
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
F
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, G
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 orther
immovable property in the 'shamilat deh' of the concerned village vested H
193
194
SUPREME COURT REPORTS
[1993) 2 S.C.R.
A
or deemed to have been vested in Panchayat under the 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
B
c
13-A enabled the Assistant Collector, having jurisdiction over the village
to set aside civil court decrees obtained by persons against Panchayats in
respect of land or other immovable property on the ground of its being
excluded from 'shamilat deb' 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 filed in the High Court
D challenging the constitutionality of the said provisions.
E
F
The High Court held s.13A of the Amendment Act of 1974 as ultra
vird, allowed the Writ Petitions and quashed the proceedings. The State
filed 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, 13.A and 138 of the
Principal Act which had been incorporated by Amendment Act of 1974 and
further incorporated ss.13C and 130 in the Principal Act. The new
provisions were made operative retrospectively from 4.5.1961, the date of
commencement of the Princip

## Text

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STATE OF HARYANA AND ORS.
v.
"'tKARNAL CO-OP. FARMERS' SOCIETY LIMITED ETC. ETC.
MARCH 4, 1993
[.l.S. VERMA AND N. VENKATACHALA, JJ.]
The Punjab Village Common Lands( Regulation) Act, 1961/17ie Punjab
Village Lands(Regulation) Haryana Amendment Act, 1980: ss. 2, 4, 5, 7,
13/ss, 4, 5, 7-Village Common /ands-'Shamilat deh'-Vesting of in
Panchayats-Exceptions-Civi/ 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
B
c
A competent Legislature can make judicial adjudications ineffecting only by
altering, removing or neutralising the legal basis in the unamended law on D
which such decisions were founded.
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 E
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
F
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, G
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 orther
immovable property in the 'shamilat deh' of the concerned village vested H
193
194
SUPREME COURT REPORTS
[1993) 2 S.C.R.
A
or deemed to have been vested in Panchayat under the 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
B
c
13-A enabled the Assistant Collector, having jurisdiction over the village
to set aside civil court decrees obtained by persons against Panchayats in
respect of land or other immovable property on the ground of its being
excluded from 'shamilat deb' 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 filed in the High Court
D challenging the constitutionality of the said provisions.
E
F
The High Court held s.13A of the Amendment Act of 1974 as ultra
vird, allowed the Writ Petitions and quashed the proceedings. The State
filed 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, 13.A and 138 of the
Principal Act which had been incorporated by Amendment Act of 1974 and
further incorporated ss.13C and 130 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 immornble property was
G 'sbamilat deb' or was not 'shamilat deb' 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.
H The Proviso added to s.7 of the Principal Act invested in the Assistant
-
Sl'ATE OF HARYANA "· FAR\IERS' SOCIETY
195
Collector the exclusive power of deciding the question of title in respect of A
f
'shamilat deb' 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 execuded from 'shamilat 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 nullities 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 filed 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,
B
c
D
E
F
G
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 H
196
SUPREME COURT REPORTS
(1993] 2 S.C.R.
A by a Legislature and the only way by which a competent Legislature can
make the judicial adjudications, decrf\'S or orders ineffective is by fun·
damentally altering, removing or neutralising the legal basis in the unamended law on which they are based. [pp.213E-G; .216G-H; 217 A)
B
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 Ltd., [1975) (Supp.) SCR 394; Smt. Indira
Nehm Gandhi v. Shri Raj Narain, [1976) 2 SCR 347 and /.N. Saksena v.
C The State of Madhya Pradesh, [1976) 3 SCR 237, relied on.
Misrila/ Jain etc. etc. v. State of Orissa & Another, [1977) 3 SCR 714,
referred to.
Bajinder Singh and another v. The Assistant Collector /st Grade, Guh/a,
D Distt. Kuf1fkshetra and others, 1983 (85) PLR 528, approved.
E
F
Sunder Dass v. Ram Prakasl~ [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 deb' 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 deb' 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
G 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 deb' 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 recognised, were
H unconstitutional. [p.217C-D)
...
SfATE OF HARYANA '"FARMERS' SOCIETY
197
1.4. Consequently, the provisions of the Amendment Act of 1981, A
r
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 noconstitutional. [p.217D-E]
)-·
"i
,...,_
,..
1.5. However, the provisions in the Amendment Act of 1981, can
undoubtedly operate prospectively for adjudicating upon claims to B
'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]
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2605, C
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. 6799n4, 9In5, 466, 487, 532, & 2579 of 1975.
WITH
D
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, 1415n6, 5159n5, 164, 136,
138n6, 168n1, zs4n6, 369, 231n6, 7448n5 5163Jn5, 111, 733, 893, 310, 236, E
'
110, 144, 234, B9n6, 4509n5, 235, 368,145, 843n6, 7313n5, 894, 888n6,
516In5, 1232, B7n6, 494Dn5, 231, 238/76, 5522n5, 1197, 233, 163, 166,
5769n6, 5162, 5158, 5429175, 140, 443, 239, 165, 1203, 734, 232, ss9n6,
6562/75, 735 and 743 of 1976.
AND
F
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 G
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.O. Sikri for the Respondents.
H
198
SUPREME COURT REPORTS
(1993] 2 S.C.R.
A
The Judgment of the Court was delivered by
B
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. 6799of1974 of the Punjab and Haryana High Court Kamal
Co-op. Famiers Society Ltd., 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 3095of1978,
the judgment in' Civil Writ Petition No.565 of 1981 of the same High Court
Bajinder Singh and another v. T7ie Assistant Collector !st Grade, Guh/a, Distt.
C 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.
D
E
The High Court's judgments appealed agianst in these Appeals and
Special Leave Petitions are since based on its view of unconstitutionality of
certain provisions in the Punjab Village Common Lands (Regulation}
Haryana Amendment Act, 1974 - Amendment Act of 1974 and the Punjab
Village Common Lands (Regulation) Haryana Act, 1980 - Amendment Act
of 1981; which have amended the provisions of the Punjab Village Common
Lands (Regulation) Act of 1961- the principal Act, it would be advantageous
to understand at the outset the historical background of the principal Act and 'r'
the circumstances which led the Slate of Haryana to enact the Amendment
F
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 \illages whose occupation
was predominantly agriculture dependent on their live-stock 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 comG mon lands for using as pasturages, pools, ponds, thrashing-floors, cowdung
pits, hay 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
H
community. Some of the State which were enabled by the Constitution of
_..,
:r-ATE OF HARYANA "· FARMERS' SOCIErY [VENKATACHAI.A. J.]
199
r India organise village Panchayats as units of self-Government and encourage A,
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 B
'1 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 legisla- c
tive measures in the new Punjab State, which were in come respects not
'r
common, was found to be undesirable, the State of Punjab enacted the Vil-
!ages 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 D
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
l
its nature, the principal Act defined 'shamilat deb' in section 2{g) thereof in an E
endeavour to achieve certainty, thus:
'(g) 'Shamilat-deh or C/1arand' includes
( 1) Land described in the revenue records as shamilat deh
F
or charllnd excluding abadi-deh;
(2) Shami/at tikkas;
(3) Land described in the revenue records as Shami/at
Tarafs Pattis, Pannas and Tho/as and used according to
G
revenue records for the benefit of the village community
or a part thereof or for common purposes of the village;
>-
( 4) Lands used or reserved for the benefit of the village,
community including, streets, lanes, playground,
schools, drinking wells or ponds within abadi-deh or
H
200
A
B
c
D
E
F
G
SUPREME COURT REPORTS
(1993] 2 S.C.R.
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 'charand' due
to river action or has been reserVed Shami/at 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 jama-bandi or is supported by a valid
deed;
(v) is described in the revenue records as Shami/at Taraf,
Petti, Panna and Tho/a 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,
-1_
manure pit or house or for cottage industry;
(vii) is shamilat-deh or 'charand' of village included in the
H
fourteen revenue estates called Bhojas of Naraingarh
....
;
STATE OF HARYANA "· FA~\IERs· SOCIETY (VENKATACHALA, J.)
201
Tehsil of Ambala District;
A
(viii) was Shami/at 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 sliamilat-deh or charand or
or before the 28th January 1950; or
(ix) is used as a place of worship or for purposes subservient thereto.
11
By section 2(h) thereof meaning of 'shamilat-law' was given thus:
"(h) 'Shamilat-Law' means :-
(i) in relation to land situated m the territory which
immediately before the !st 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
Pcpsu Village Common Land (Regulation) Act, 1954."
While sub-section (l) of section 3 of the principal Act declared that the
B
c
D
E
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 deb' 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
F
land had vested in the Panchayat under the shamilat law, but such land had
been excluded from 'shamilat deh' as defined in clause (g) of section 2, all
rights, title and interest of the Panchayat in such land shall, as from the
commencement of the Act, shall cease and such rights, title and interest shall
be revested in the person or persons in whom they vested immediately before
the commencement of the shamilat law and the Panchayat was directed to G
deliver possession of such land to such person or persons. No doubt, sub-sections (2) and (I) 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, H
202
SUPREME COURT REPORTS
(1993] 2 S.C.R.
A
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.
Bu\, sub-section {3) thereof declared that nothing contained in clause {a) of
B
c
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 morgagee to whom such land is
mortgaged with possession before 26th January, 1950, while sub-section {2) of
D 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
E
F
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 deb' 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,
G
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 q:rtain lands and
H other immovable properties from 'shamilat deb'. These provisions, it ap-
' r
y
!
-
STATE OF llARYANA •·.FARMERS' SOCIETY [VENKATACllALA. J.l
203
pears, were utilized by several persons in the villages of State of Haryana A
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 B
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' C
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 D
in section 7 of the principal Act empowered thereunder an Assistant
Collector of Frist 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 E
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
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(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 civii court decree concerned.
D 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 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
E 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.
F
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 up.on them under the said provisions, Writ Petitions were filed by
them in' the Punjab and Haryana High Court challenging the constitutionality of the very provisions in the Admendment Act of 1974. The
High Court which examined the constitutionality of the impugned
G provisions in Kamal Co-op. Faf!ners Society Ltd., Peltowa v. Gram
Pancltayat, 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 jurisH
diction on tribunals to decide matters relating to lands
STATE OF HARYANA "·FARMERS" SOCIETY [VENKATACllALA. J.J
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 11/tra 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."
205
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
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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 F
based on such view, as is indicated by us in tbe 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
re.course 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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"In many places the shamlat deh has been occupied unlawfully b~ 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, - \ide 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
D 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. T7Je Assistant
Collector /st Grade, Gull/a, Distt. Kumkshetra a.nd others (supra). ·The High
E Court on a detailed examination of the constitutionality of the impugned
provisions of the Amendemnt 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 :
F
G
"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 amonts 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
retrospectivity thereto from the said date, is held to be
unconstitutional and is hereby struck down."
H
It is the said view in the judgment which is made the basis for
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STATE OF HARYANA "· FARMERS. SOCIETY [VENKATACHALA. J.)
207
deciding the Writ Petition concerned and for deciding similar Writ PetiA
tions. 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
B
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 \lcW ofthe provisions in section 13A(3) and C
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
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 D
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
E
proceed to deal with are since directed agsinst 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 Assistent 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
F
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13 of the principal Act, which had stood amended by the Amendment Act H
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A
of 1974, and it reads :
B
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'4. For section 13 of the principal Act, the following
section shall be substituted and shall be deemed to have
been substiiuted 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 138 in the principal 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 138
shall be omitted and shall be deemed to have been
omitted, with effect from the 12th day of Novemhcr, 1974;
and following new sections shall be inserted and shall be
deemed to have been inserted, with effect from the 4th
day of May, 1%1, namely :-
'13A. Adjudication. - (1) Any person or in the case of a
Panchayat, either the Panchayat or its Gram Sachiv, the
H
concerned Block Development and Panchayat Officer
;iSTATE OF HARYANA v. FAR.i'.IERS" SOCIETY (VENKATACHALA. J.)
209
Social Education and Panchayat Officer or any other
A
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 yeras from the date of commencement
B
of the Punjab Village Common Lands "(Regulation)
~-
Haryana Amendment Act, 1980, file a suit for adjudica-
'
tion, whether such land or other immovable property is
shamlat deb 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
c
the court of the Assistant Collector of the first grade
ha,ing jurisdiction in the area wherein such land or
other immovable property is situate.
{2) The procedure for deciding the suits under
D
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
E
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.
F
(2) The Commissioner may SLIO 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
G
order and pass such order in relation thereto,
as he may deem fit.
)_
Provided that no order adversely affecting any
person shall be passed unless he has been afforded an opportunity of being heard.
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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.
130. Provisions of this Act to be over-riding the provisions
of this Act shall have effect notwithstanding anything
to the contrary contained in any law, agreement, instrument, custom, usage, decree or order of any court
or other authority."
Lastly, section 7 of the Amendment Act of 1981 which is a validation
provision, reads :
"7. Notwithstanding any judgment, decree or order of any
civil court, all actions taken, rules made and orders or
decrees passed by Revenue Court, Officer or authority
under the principal Act as amended by the Punjab Village
Common Lands (Regulation) Haryana Amendment Act,
1980, shall be deemed 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."
F
·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
G Panchayat under the principal Act and to put such land or other immovable property in possession of the concerned Panchayat.