TMI Blog2009 (7) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court of Himachal Pradesh at Shimla whereby the Division Bench of the High Court disposed of C.W.P. No.851/96 alongwith C.W.P. No.1192/96, as common questions of law and facts arose in those cases. C.W.P. No. 851/96 was filed by Narain Singh while C.W.P. No.1192/96 was filed by three persons namely Shri Surat Singh, Shiv Singh Tegta and Murki Lal and in both the writ petitions, the respondents were the same 2. In both these cases, the constitutional validity of the Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996 (hereinafter called `the amendment Act') was challenged as being in conflict with the original provisions of the various sections of the Himachal Pradesh Land Revenue Act, 1953 (Act No.6 of 1954) (hereinafter called `the Principal Act'). 3. It was also contended in the writ petition that the amendment is violative of the basic structure of the Constitution. 4. The petitioners of C.W.P. No. 1192/96 and six other land owners of Tehsil Rohru and Chirgaon, District Shimla had earlier filed a C.W.P. No.206 of 1998 titled as Thakur Gyan Singh and others Vs. State of Himachal Pradesh and others wherein the petitioners sought the following r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s', classification of land, proposed DPFs and UPFs etc., be ignored and re-settlement be started subsequent to the stage of Forecast Report." 6. Aggrieved by the abovementioned judgment dated 13/01/1994 of the Division Bench in C.W.P. No.206/1988, the State filed a Special Leave Petition before this Court. Leave was granted and the Civil Appeal No. 6025 of 1994 was admitted for hearing by this Court. This Court while granting the leave ordered a stay on the judgment of the High Court dated 13/01/1994. 7. It was contended by the respondents herein while the said special leave petition was pending before this Court, the State, in order to nullify the judgment of the High Court, dated 13/01/1994, enacted the amendment Act of 1996, whereby Sections 4, 16, 32, 33, 34, 36, 38, 47, 117 and 171 of the Principal Act were amended. The specific challenge to the amendment Act of 1996 is that by amending the Sections 32, 33, 34, 36, 38 and 47 contained in Chapter IV of the Principal Act, the whole scheme of Chapter IV of the Principal Act has been disturbed and arbitrary powers have been conferre on the Collector (Revenue). Such conferment of arbitrary power, it is alleged, is unconstit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. (e) That there are inherent conflicts between the original Sections of the Principal Act and the amended Sections of the Act of 1996. Moreover, the same suffer from the vice of excessive delegation and is against the Scheme of the Principal Act. This is sought to be shown by giving the example that prior to the amendment, only the State Government and Financial Commissioner had the rule making powers under the Principal Act, whereas now by virtue of Sections 4(5), 34-A and 47-A the respondent-State has descended down by one step whereby the Collector has been empowered to issue executive instructions, which are in the nature of the delegated legislation. This delegation of powers to the Collector has been challenged as being against the basic Scheme of the Principal Act. It has also been stated that the powers so delegated to the Collector are unfettered and unguided and are capable of being abused. (f) That by virtue of the amendments made by the Act of 1996, the sub-division of estates styled as 'Upmahal' are sought to be regularised and validated, which has been questioned as being an act of illegal splitting ab initio, making the same illegal. (g) Despite the dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 1996 is ultra vires to the extent that it has sought to nullify the earlier decision of this court rendered in CWP No.206/1988 dated 13.01.1994 between Thakur Gian Singh Ors. Vs. State of Himachal Pradesh Ors. 12. It may be noted that in the impugned judgment there is no finding that the amendment Act enacted suffers from lack of legislative competence of the State. 13. It is nobody's case that the State legislature is incompetent to enact the said amended Act. There is also no finding in the impugned judgment that the amendment Act in any way infringes or abridges any fundamental right of the petitioner. 14. Normally the restrain on the sovereign power of legislation of a State legislature is limited. The legislature has to exercise its legislative power, which is otherwise plenary, in accordance with the distribution of legislative power under Chapter Part XI Chapter I of the Constitution and it has also to exercise such power consistent with the mandate of Part III of the Constitution and other Constitutional limitations. 15. Learned High Court did not find that the impugned amendment Act transgresses either of these limitations in any way. But the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reover, there is no relief granted to any specific individual and the directions relate to the general revision of record-of-rights in the state which obviously has to be governed by the existing law applicable at the time of performance of the exercise. If any grievance is made of non-compliance of any of the al1eged surviving directions by the State Government before the High Court, it would be open to the State Government to show that the same have become infructuous for the reason given by them and in that situation it would be for the High Court to decide the contention on merits. In view of the statement made on behalf of the appellants that the directions given in the impugned judgment have become infructuous, the appeal is disposed of accordingly, without deciding any point on merits." 17. The said order was passed after hearing learned counsel for both the parties. From a perusal of the aforesaid order, it is clear that the appeal was disposed of as it was contended before this Court by the learned counsel for the State that in view of the subsequent amendment of the law, the contentions of the appellant have become infructuous. This court recorded the said submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplete remeasurement of all estates based upon metric system, giving directions/issuing instructions to carry out the settlement operations and for the effective implementation of the provisions of the Himachal Pradesh Land Revenue Act, 1954. This Bill seeks to achieve the aforesaid objectives." 20. From a perusal of the aforesaid statement of objects and reasons it is clear that the amendment has been necessitated in view of certain factors which are predominantly in public interest and the said amendment has been made in view of the interest of land revenue, land settlement and for the purpose of updating the same. 21. In fact the amendments have been made for an effective implementation of the provisions of the Himachal Pradesh Land Revenue Act, 1954. 22. It is provided in sub-section (2) of section 1 of the amendment Act that the said amendment shall come into force at once except section 2 (b), 5, 6 and 10 which shall be deemed to have come into force on the 23rd of September 1976. Section 13 of the said act provides for validation. The said section runs as follows:- "13. Notwithstanding anything contained in the Himachal Pradesh Land Revenue Act, 1954 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has the powers by virtue of such validating legislation, to "wipe out" judicial pronouncements of the High Court and the Supreme Court by removing the defects in the statute retrospectively when such statutes had been declared ultra vires by Courts in view of its defects. This Court has held that such legislative exercise will not amount to encroachment on the judicial power. This Court has accepted that such legislative device which removes the vice in previous legislation is not considered an encroachment on judicial power. In support of the aforesaid proposition, this Court in Bhubaneshwar Singh (supra) relied on the proposition laid down by the Chief Justice Hidayatullah, speaking for the Constitution Bench in Shri Prithvi Cotton Mills Ltd. and another Vs. Broach Borough Municipality and others -(1969) 2 SCC 283. 28. Again in the case of Indian Aluminium Company etc. etc. Vs. State of Kerala and others -AIR 1996 SC 1431, this Court while summarizing the principle held that a legislature cannot directly overrule a judicial decision but it has the power to make the decision ineffective by removing the basis on which the decision is rendered, while at the same time adhering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that the defects which were pointed out were never on statute for effective enforcement of the law. This Court has considered in extenso the case law in a recent judgment in Indian Aluminium Co. V. State of Kerala (1996) 2 JT (SC) 85: (1996 AIR SCW 1051) had held that such an exercise of power to amend a statute is not an incursion on the judicial power of the Court but is a statutory exercise of the constituent power to suitably amend the law and to validate the actions which have been declared to be invalid..." 32. A Constitution Bench of this Court in the case of State of Tamil Nadu Vs. M/s. Arooran Sugars Limited - AIR 1997 SC 1815, reiterated the same principle after analyzing several cases on the point. The Court has summed up the position as follows:- "16. ...It is open to the legislature to remove the defect pointed out by the courtor to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A court's directive must always bind unless the conditions on which it is based are so fundamentally altered that under alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated as firmly established since the decision of the Federal Court in the case of United Provinces v. Mst. Atiqa Begum, 1940 FCR 110: (AIR 1941 FC 16)." 35. See the decision of this Court in Satnam Overseas (Export) and others Vs. State of Haryana and another - (2003) 1 SCC 561, para 52 where reference was made to the ratio in Rai Ramkrishna (supra). 36. Recently in the case of State of Bihar and others Vs. State Pensioners Samaj - (2006) 5 SCC 65, this Court reiterated the same position in paragraph 16 at page 71, which is reproduced below:- "16. ......It is always open to the legislature to alter the law retrospectively as long as the very premise on which the earlier judgment declared a certain action as invalid is removed. The situation would be one of a fundamental change in the circumstances and such a validating Act was not open to challenge on the ground that it amounted to usurpation of judicial powers. 37. For the reasons aforesaid, this Court finds that in the instant case the amending Act read with its validation clause correctly passed the tests laid down by this Court. The appeals are allowed. The judgment of the High Court is thus set aside with no o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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