IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.1077 of 2006 Reserved on: 8 .11.2007 Date of decision 22.11.2007 Khatri Ram and another. Petitioners Vs. State of H.P. and others Respondents Coram: The Hon’ble Mr. Justice V.K.Gupta, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioners: Ms.Jyotsna Rewal Dua, Advocate. For the respondents: Mr.M.S.Chandel, Advocate General, with Mr.J.K.Verma, Deputy Advocate General, for respondents No.1 and 2. Mr.Bhupender Gupta, Senior Advocate, with Ms.Charu Gupta, Advocate, for respondent No.3. Mr.Deepak Kaushal, advocate, for respondents No.4 to 329. Per Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioners along with other villagers owned and possessed 5679 bighas of village common land i.e. Shamlat Deh assessed to land revenue well within the ceiling as laid down in the Himachal Pradesh Ceiling in Land Holdings Act. The Himachal Pradesh Village common Lands Vesting and Utilization Act, 1974 received the assent of the President of India on 9th August, 1974 and it was 1 Whether reporters of local papers are allowed to see the judgment? 2 placed at Serial No.139 of the 9th Schedule, as per 40th Amendment of the Constitution. As per provision of the Act, 5614.04 bighas of village common land owned by the petitioners with other co-owners assessed to land revenue got vested in the State of Himachal Pradesh. The entry to this effect was carried out in Mutation No.663 dated 9.9.1975. An amendment was carried out in the Principal Act in the year 1981 vide Act No.18 of 1981, whereby Section 8-A was inserted in the Act. The amendment carried out by way of Act No.18 of 1981 did not receive the assent of the President. The respondent No.3 was sanctioned mining lease on 20th March, 2001 for a period of 30 years for a total area measuring 39.5 bighas. The amendment was carried out by way of Act No.20 of 2001 assented to by the Governor of Himachal Pradesh on 27.9.2001, whereby sub clause (d) was added to sub section 2 of Section 3 retrospectively i.e. from the date of the Himachal Pradesh Village Common Land vesting and Utilization Act No.18 came into force on 29.8.1974. Consequently the land vested in the State was required to be returned to the original owners. The State returned proprietary rights of the Village common land measuring 4276.01 bighas to the owners vide a Mutations No.1145 dated 21.5.2004 and 1157 dated 29.9.2004. A total land measuring 1338.03 bighas inclusive of 39.5 bighas comprised in Khasra Nos. 1926/1886/131/1 and 148/1 over which mining lease was sanctioned in favour of respondent No.3 by the State Government was not returned to the petitioners and co-villagers. The petitioners have prayed for declaring Section 8-A introduced in Act No.18 of 1974 vide Act of 18 of 1981 unconstitutional with a further prayer that it should be struck down. They have also prayed that the proprietary rights of 1338.03 bighas of erstwhile village Shamlat land be returned to them and the mining lease granted in favour of respondent No.3 be cancelled. The respondent No.1 has filed reply to the writ petition. The reply of respondent No.1 is vague and the specific averments made in the writ petition 3 have not been dealt with in the right perspective. The State ought to have filed a detailed reply in view of the fact that the vires of section 8-A have been challenged by the petitioners. The main thrust of respondent No.1 is about the mining lease and other ancillary issues related to lease executed in favour of respondent No.3. The respondent No.2 has filed detailed reply to the writ petition. The respondent No.2 in his reply has justified the insertion of Section 8-A in the Principal Act. The respondent No.2 has taken the stand that in view of the provisions of Section 14 the amendment could be carried out in the Principal Act in the year 1981. It is further averred in the reply that insertion of Section 8-A vide Act No.18 of 1981 is in consonance with the provisions of the Principal Act and the mining lease has been executed in favour of respondent No.3 out of the allotable pool since the land classified is “Gair Mumkin/Nakabil Charand” in the revenue record which was not fit for allotment for agriculture and purposes subservient to agriculture by way of allotment to landless and eligible persons. It is further stated in the reply that the petitioners were not entitled to any compensation and the State could utilize the land for the development purposes. The thrust in the reply is also on the proviso of sub clause (d) of sub-section 2 of section 3 on the basis of which it had been contended that the land which had already been used for development activities could not revert back to the owners. It is further averred in the reply that the petitioners have no right to challenge the constitutional validity of the Principal Act which is protected under the 9th schedule of the Constitution. There is no denial by respondents No.1 and 2 in the reply that section 8-A has not received the presidential assent. The respondent No.3 has filed a separate reply. The main points urged in the reply filed by respondent No.3 are that he had applied for the mining lease in the year 1982 and the same was granted to him on 1.3.2001 and the mining plan was approved on 9th May, 2001. It is further contended in the reply filed by respondent No.3 that he was contributing to the State exchequer by paying 4 royalty, taxes, fees and other charges. The bonafide of the petitioners have also been challenged by respondent No.3 in his reply. It is further stated in the reply that the respondent was instrumental in giving employment to 50 persons and had also contributed funds for the development of the area. An Averment has been made in the reply to the effect that on 14.12.2006 a meeting of the right holders of Banor Estate was held in which about 90% of the owners had passed a resolution to the effect that they do not object to the mining operations carried out by respondent No.3. Respondents No.4 to 329 have also filed a separate reply, it has been primarily contended by them that the mining activities being carried out in the area have benefited them and they have no objection to the grant of lease in favour of respondent No.3. They have also supported the version of respondent No.3 that he had contributed considerable funds for the development of the remote area. They have also justified the insertion of Section 8-A by the state. Ms. Jyotsna Rewal Dua, Advocate had strongly argued that section 8-A of the H.P. Village Common Lands Vesting and Utilization Act, 1974 is ultra vires the Constitution and is liable to be struck down. She also contended that the H.P. Village Common Lands Vesting and Utilization Act, 1974 is an agrarian piece of legislation and the mining lease granted in favour of respondent No.3 by the respondents No.1 and 2 is against the legislative intent. She then contended that since the Act No.18 of 1981 has not received the Presidential assent the immunity granted to the Principal Act cannot be presumed in favour of the amendment. Ms. Dua further submitted that the petitioners have the necessary locus standi to file and maintain the writ petition on their behalf as well as on behalf of the other co-villagers for the enforcement of their constitutional and legal rights. She also contended that respondents No.4 to 329 neither can waive nor barter away their fundamental rights. Her contention with regard to delay and laches is that there cannot be any delay and laches for the enforcement of fundamental rights and she further buttressed her 5 submission by submitting that earlier the challenge to the vires of the Act placed in Schedule-IX in view of Waman Rao’s case was restricted but the scope of challenge has now been enlarged extensively by the Hon’ble Supreme Court in 2007 (2) SCC 1. Enlarging the scope of her submission based on 2007 (2) SCC 1, she contended that the vires of the act now can be challenged if the same is against the basic structure of the Constitution as well as against the rights enshrined in Part-III of the Constitution, which are treated as the basic structure of the Constitution. The learned Advocate General submitted that section 8-A has been added by invoking section 14 of the Principal Act to remove the difficulties. His second contention is that mining activities is to be treated as a step towards the development of the State as per section 8-A of the Act. Mr. Bhupender Gupta, Sr. Advocate had strenuously argued that the present petition on behalf of the petitioners cannot be treated as public interest litigation and the same has been filed with ulterior motive to settle the score with his client. His further contention is that his client had been granted mining lease in the year 2001 though he had submitted application in the year 1982. Mr. Gupta also contended that his client is paying royalty, taxes, fee etc. to the State Exchequer and has also contributed funds for the development of the area and the respondents No.4 to 329 are not against the mining lease granted to his client. Mr. Deepak Kaushal, Advocate appearing on behalf of respondents No.4 to 329 had adopted the arguments addressed by the learned Advocate General and Mr. Bhupender Gupta, Sr. Advocate and had also taken additional plea that Mines and Minerals (Development and Regulation) Act, 1957 has also been placed in Schedule-IX of the Constitution of India and on that basis he had justified the grant of mining lease in favour of respondent No.3. 6 In view of the pleadings of the parties as well as on the basis of their extensive arguments, the following questions are formulated for consideration in seriatim: 1) Whether the petitioners have the necessary locus standi to file and maintain the writ petition on their behalf and on behalf of co-villagers for returning their land on the basis of insertion of clause (d) in sub- section (2) of section (3) of the H.P. Village Common Lands Vesting and Utilization Act, 1974? 2) Whether the present writ petition can be termed as public interest litigation in view of the constitutional issues raised for protecting the fundamental rights of the petitioners as well as the rights of co- villagers for the restoration of their land on the basis of amendment carried out in the year 2001, which earlier stood vested in the State in the year 1974? 3) Whether the present writ petition suffers from the vice of delay and laches and negligence on the part of the petitioners? 4) Whether respondents No.4 to 329 could waive or barter away their fundamental rights after passing of the 2001 Act? 5) What is the effect of the amendment carried out by way of Act No. 18 of 1981 in the Principal Act by adding section 8-A? 6) Whether the H.P. Village Common Lands Vesting and Utilization Act, 1974 is an agrarian piece of legislation and whether granting lease for mining purposes falls out side the scope of agrarian reform and thus not entitled to the protection of Article 31-A of the Constitution of India? 7) Whether the immunity enjoyed by the Principal Act being placed in Schedule-IX can be extended to section 8-A added in the year 1981? 8) Whether section 8-A could be inserted in the year 1981 in the Principal Act by invoking section 14 of the Act? 9) Whether the Court can read down section 8-A to avoid striking it down, if it is found violative of Articles 14 and 19 of the Constitution of India? Since the Court has to go into the entire gamut of the questions raised and formulated by this Court, it will be more congenial at this stage to have a complete view of the legislative history of the Punjab Village Common Lands (Regulation) Acts and H.P. Village Common Lands Vesting and Utilization Act, 1974. 7 The origin of the concept of the village common land and earlier Legislation. The entire concept of village common land has been explained in detail by Sir. W.H. Rattigan in Digest of Customary Law (15th Edn.) 1989) as under: “The land is the true basis of unity in village groupings, supplying the ultimate real bond of union between the members who constitute the aggregate proprietary body generally called the “village community”, is a fact which may be verified by the most superficial observer of the organization which underlines those communities in the Punjab. Thus, whatever may be the type to which a particular village may belong, and to whatever extent individualistic notions of property may have superseded the earlier ideas of jointness and common holdings, there will be found still surviving very distinct evidence of the fact that in its origin the village association was bound together by the acquisition of a definite space of land, which, as Sir Henry Maine has so abundantly demonstrated, began at once to become the basis of its capacity instead of kinship, ever more and more vaguely conceived. This evidence is to be found in the reservation within the territorial limits of every village of some portions of the uncultivated waste for purposes of common pasture, for assemblies of the people, for the tethering of the village cattle, and for the possible extension of the village dwellings. Lands so reserved are jealously guarded as the common property of the original body of settlers who founded the village or of their descendants, and occasionally also those who assisted the settlers in clearing the waste and brining it under cultivation are recognized as having a share in these reserved plots. Even in village which have adopted separate ownership separate ownership as to the cultivated area, some such plots are usually reserved as village common, and in pattidari villages (see para-137). It is not unusual to find certain portions of the waste reserved for the common use of the proprietors of each patti, and other portions for common village purposes the former is designated shamilat-patti and the latter shamilat-deh. As a general rule, only proprietors of the village (malikan- deh) as distinguished from proprietors of their own holdings (malikan-makbuza khud) are entitled to share in the shamilat-deh.” 8 A Division Bench of the Lahore High Court has held in Malik Mohammad Sher Khan and others Versus Ghulam Mohammad and others, 1932 Vol-XIII Indian Law Reports 92 that rules pertaining to village common land originated and had been made applicable principally to those parts of the country where agriculture was the predominant feature of village life and cultivation of land was the main source from which the inhabitants draw their income and the State derives its revenue. Their Lordships have held as under: “It must, however, be borne in mind that these rules originated in, and have been made applicable principally to, those parts of the country where agriculture is the predominant feature of village life and cultivation of land is the main source from which the inhabitants draw their income and the State derives its revenue.” The Punjab Assembly has enacted the Act called “the Punjab Village Common Lands (Regulation) Act, 1953 to regulate the rights in shamlat-deh and abadi-deh, the Statement of Objects and Reasons for introducing the Bill as published in the Punjab Gazette Extraordinary dated 6th April, 1953 reads thus: “When the villages were originally founded it is believed that the shamlat was really meant for the use of all the inhabitants of the village. At present the position is that all the shamlat is the property of the proprietary body of a village and the rights of non- proprietors are in the shape of grants for certain purposes. Though the non-proprietary classes also presumably settled in villages with txhe founders thereof and have been rendering essential services to the proprietary body in matters relating to farm operations, they do not enjoy equal rights in the shamlat lands and they are not the proprietors of the sites under their houses even in the abadis. It seems that in the course of time conditions to the determent of Harijans and other similar non-proprietary classes have come into vogue. They feel their position insecure in so far as enjoyment of essential rights in sites of their residential houses. Discontentment over this matter has been expressed by the members of these classes. Government consider that these conditions should no longer exist. It is with a view to giving these 9 classes of residents in villages an opportunity to live with security and self respect that the proposed legislation is being undertaken.” Section 3 of the Punjab Village Common Lands (Regulation) Act, 1953 reads thus: “3. Vesting of rights in panchayats and in non-proprietors.- Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement; instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land- (a) which is included in the Shamlat Deh of any village, shall, on the appointed date, vest in a panchayat having jurisdiction over the village; (b) which is situated in the Abadi Deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of the Act vest in the said non-proprietor.” The Punjab Village Common Lands (Regulation), 1953 and the Pepsu Village Common Land (Regulation) Act, 1954 were repealed by the Punjab Village Common Lands (Regulation) Act, 1961. The Punjab and Haryana High Court has categorically laid down in AIR 1964 (Punjab) 503 that the Punjab Village Common Lands (Regulation) Act, 1953 was an agrarian piece of legislation. The Hon’ble Supreme Court in AIR 1965 SC 632 and 1985 PLJ 463 had laid down that the Punjab Village Common Lands (Regulation), 1953 is an agrarian piece of legislation. The Hon’ble Supreme Court has explained in Gram Panchayat v. Malwinder Singh, 1987 PLJ 463 the true nature of shamlat-deh as under: “Prior to the partition of India on August 15, 1947 the Shamlat-deh lands in Punjab were owned by the proprietors of the other lands in the village, “Hasab Rasad Khewat”, that is to say, in the same proportion in which they owned the other lands. Therefore, a person who did not own any other land in the village could have no proprietary right or interest in the Shamlat-deh lands. But, though the interest of the proprietors of the other lands, in Shamlat-deh lands, was incidental to their proprietary interest in those other 10 lands, such interest in the Shamlat was not a mere appendage to their interest in the other lands. Our learned Brother, Chinnappa Reddy, has referred in his judgment to a leading decision of the Lahore High Court, Rahman v. Sai, I.L.R. 9 Lahore 501, in which it was held that, if a proprietor alienated his land, the alienee would not acquire any interest in the Shamilat by mere virtue of the alienation. That was but consequential to the well established legal position in Punjab that the Shamlat-deh lands were intended for the common use of all shares.” Legislative History of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (Act No.18 of 1974) hereinafter referred to as the Act for brevity sake was enacted to provide for vesting and utilization of village common land in the State of Himachal Pradesh. The Act was passed by the Legislative Assembly, Himachal Pradesh on 11.4.1974. The Act received the assent of the President of India on 9.8.1974 and thereafter the same was published in Rajpatra, Himachal Pradesh Extra Ordinary dated 29.8.1974 as Act No.18 of 1974. Before this Court considers the salient features of the Act it will be apt to re-produce the statement of objects and reasons for legislating the same. They read as under: At present in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966, the Punjab Village Common Lands (Regulation) Act, 1961 is applicable. Under this Act the shamilat land vests in the Panchayats who in turn, can lease out such land in accordance with the provisions of the Act. It was found from experience that the implementation of the Act was not properly done by the Panchayats in respect of leases. Moreover, with respect to Hilly Areas of Kangra, Shimla, Una and Nalagarh, the leasing out of land was considered against the National Forest Policy. Therefore, the Punjab Village Common Lands (Regulation) (Amendment) Act, 1964 was enacted prohibiting leases in the said areas. Inspite of the said amendment Act things 11 have not improved. Irregularities continue to be committed by the Panchayats in leasing out the land. It has been, therefore, considered proper to vest the shamilat land in the State Government for its proper management and utilization. In the old areas there is no shamilat law corresponding to that applicable in the new areas. The samilat land in the old areas also is not being properly managed and utilized. It is, therefore, considered expedient to have a uniform policy, by way of enacting a law on the subject, throughout the Pradesh. The Himachal Pradesh Common Lands Vesting and Utilization Act, 1974 was placed in the 9th schedule at Serial No.139 by the Constitution (Fortieth Amendment) Act, 1976. Now we have to consider the various Sections of the Act to appreciate the submissions made by the learned counsel for the parties. Sections 3, 4, 5,6, 7 and 8 read thus: 3. Vesting of rights in the State Government:- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority all rights, title and interest including the contingent interest, if any, of the landowner in the lands in any estate- (a) vested in a Panchayat under section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) as in force in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organization Act, 1966 (31 of 1966) except lands used or reserved for4 the benefit of village community including streets, lanes, playgrounds, schools, drinking wells and ponds within abadi deh or grah deh; (b) described in the revenue records as shamilat tarat potties, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966; (31 of 1966) and (c) described in revenue records as shamilat, shamilat deh, shamilat toraf and potti in the areas comprised in Himachal Pradesh, immediately before first November, 1966; 12 (2) The provisions of sub-section(1) of this section shall not apply to lands described in clauses (b) and (c) of that sub-section if, before the date of commencement of this Act- (a) partition of such lands is made by the individual co-sharers through a process of law by a competent court or authority, (b) Transfer of such lands is made by the landowner by way of sale, gift or exchange. (c) Such land built upon by an inhabitant by raising a residential house or cow-shed. (3) The State Government shall be liable to pay, and the landowners whose rights have been extinguished under sub- section (1) of this section shall be entitled to receive the amount in lieu thereof at the following rates:- (i) for the land reserved for grazing and other common purposes under clause (a) of sub-section (1) of section8, five times the annual land