IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 4816 of 1996 Date of Decision: 7.4.2010 Gram Panchayat of village Kum-Kalan ..Petitioner versus The State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present :- Mr. Mahavir Sandhu, Advocate, for the petitioners in CWP Nos.3722 and 5417 of 1997. Mr. S.D.Sharma, Sr. Advocate with Ms. Bindu Goel and Mr. Anupam Sharma, Advocates, for the petitioner in CWP No. 4816 of 1995. Mr. R.P.Singh Ahluwalia, Advocate, for the petitioners in CWP Nos. 15770-15771 of 2008. Mr. G.K.Chawla, Advocate, for the petitioner in CWP No. 14673 of 1997 Mr. Kanwaljit Singh, Sr. Advocate with Ms. Prachi Sharma, Advocate for respondents No. 13, 18, 20, 21, and 23 in CWP No. 5349 of 1986. Mr. Prem Nath Aggarwal, Advocate, Civil Writ Petition No. 4816 of 1996 for the petitioners in CWP Nos. 6954, 6955, 6956, 17720, 17721 and 17722 of 1996. Mr. S.S.Dinarpur, Advocate, for petitioner in CWP No. 1911 of 2004. Mr. R.S.Mamli, Advocate, for the petitioner in CWP No. 14110 of 2008. Mr. G.S.Nagra, Advocate, for petitioner in CWP No. 14673 of 1997. Mr. Balbir Singh, Advocate, for the petitioner in CWP No. 17722 of 1996. Mr. A.K.Jain, Advocate for the petitioners in CWP No. 15244 of 1997. Mr. Som Nath Saini, Advocate for petitioners in CWP No. 17915 of 2008 and 6428 of 2004 and for respondents in LPA No. 64 of 2006 and for respondents No. 2 to 6 in CWP No. 15244 of 1997 and for respondents No. 4 to 13 in CWP No. 14673 of 1997. Mr. Jaswant Jain, Advocate, for respondent No.13 in LPA No. 64 of 2006. Mr. J.S.Wasu, Sr. Advocate with Mr. Parveen Chauhan, Advocate for respondents in CWP No. 4816, 6954, 6955, 6956, 17720, 17721 and 17722 of 1996. Mr. M.L.Sarin, Sr. Advocate with Mr. Hemant Sarin, Advocate for respondents No. 5 to 12 in CWP No. 3722 of 1997. Mr. L.N.Verma, Advocate for respondents No. 3 to 6 in CWP No. 3166 of 1998 and for respondent No. 6 in CWP No. 5349 of 1986 Mr. Prem Singh Bhangu, Advocate, for respondents No. 5,7,8, 10, 12, 13, 16, 17, 19 to 20. Mr. Sanjeev Walia, Advocate, for respondents No. 4 to 18 in CWP No. 5417 of 1997. Mr. Satish Chaudhary, Advocate, for respondent No.6 in CWP Nos. 11001 & 11102 of 2008 and CWP No. 14110 of 2008, CWP No. 6777 of 2009, CWP No. 7702 of 2009, CWP No. 7846 of 2009, CWP No. 15771 of 2008. Mr. H.S.Sidhu, Addl. Advocate General, Punjab Mr. Randhir Singh, Addl. A.G. Haryana. 2 Civil Writ Petition No. 4816 of 1996 Jasbir Singh, J. 1. This order will dispose of Civil Writ Petitions bearing Nos.5349 of 1986, 4816, 6954, 6955, 6956, 17720, 17721, 17722 of 1996, 3722, 5417, 14673, 15244 of 1997, 3166 of 1998, 1220, 1911, 6428 of 2004, 17930 and 18909 of 2005, 11002, 14110, 15770, 15771 and 17915 of 2008, 6777, 7702, 7846 of 2009, COCP No. 190 of 2002 and LPA No.64 of 2006, as common question of law and facts are involved in these cases. For facility of reference, facts are being mentioned from CWP No.4816 of 1996. 2. The petitioner Gram Panchayat has filed this writ petition with a prayer to quash notification No.8-LEG/95 dated 8.5.1995 (P9), vide which, Punjab Act No.8 of 1995 (in short, Amendment Act of 1995), amending the provisions of Section 2 and 3 of the Punjab Village Common Lands (Regulation) Act, 1961 was notified. 3. The petitioner Gram Panchayat has asserted that in the year 1957, mutation of land measuring 242 kanals 11 marlas was sanctioned in its favour being shamilat deh land. In subsequent jamabandis, the Gram Panchayat continued to be shown as owner of the aforesaid land and the land was being leased out every year to the lessees. Respondent No.12, on 5.4.1976 allotted 230 kanals 10 marlas of shamilat deh land to respondent No.7. Thereafter, an attempt was made by respondent No.8, alleged attorney of respondent No.7 to take possession of the shamilat deh land on 8.7.1976. The petitioner filed CWP No.3560 of 1976 to lay challenge to the allotment of shamilat deh land in favour of respondent No.7. The said writ petition was allowed, allotment in favour of respondent No.7 was set aside by this Court on 23.8.1985 in terms of the ratio of the judgment dated 3 Civil Writ Petition No. 4816 of 1996 9.7.1985 of the Hon’ble Supreme Court in the case of Gram Panchayat of village Jamalpur v. Malwinder Singh and others, (AIR 1985 Supreme Court 1394). 4. The petitioner filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short, the 1961 Act) read with Section 5/7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 for ejectment of respondent No.7 from the land, in dispute. During pendency of those proceedings, respondent No.1 passed the impugned Act No.8 of 1995, which was notified vide notification dated 8.5.1995, effecting amendment in Section 2 and Section 3 of the 1961 Act. Hence, this writ petition. 5. It is apparent from the records that on 24.5.2000, a Division Bench of this Court, by taking note of the provisions of the Amendment Act of 1995, dismissed this writ petition, upholding the allotment made in favour of respondent No.7 in the year 1976. 6. Perusal of the order mentioned above indicates that no finding was given regarding validity or otherwise of the impugned notification. The petitioner went to the Hon’ble Supreme Court by filing Civil Appeal No.4145 of 2001, impugning order passed by this Court on 24.5.2000. The Hon’ble Supreme Court allowed the appeal on 11.2.2008 on the ground that practically, no reason was indicated in the order, with reference to challenge to the Amendment Act of 1995 and the writ petition was dismissed in a summary manner, without adverting to the relief claimed by the petitioner. The order passed by this Court, mentioned above, was set aside and the matter was remitted for fresh disposal in accordance with law by passing a reasoned order, particularly with reference to the challenge made in the writ petition to the Amendment Act of 1995. 7. This is how this matter has been put up before this Court. 4 Civil Writ Petition No. 4816 of 1996 8. Before proceeding further, to deal with the issue in dispute, it is necessary to refer to the dispute which was under consideration before the Hon’ble Supreme Court in Gram Panchayat of village Jamalpur’s case (supra). In the aforesaid case, the Hon’ble Supreme Court was dealing with a controversy regarding rights of the Gram Panchayat in the shamilat deh land in a village under its jurisdiction and on the other hand right of the Rehabilitation Department of the Central Government to allot ‘land of that description’, to the extent of evacuee interest therein, to the person(s) who had migrated from Pakistan to India after the partition of the Country in the year 1947. Before the Hon’ble Supreme Court, it was the contention of the Central Government and the allottees, that the interst in shamilat deh land of Mulsims, who migrated to Pakistan, is evacuee property and the Central Government has a right to allot it under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (in short, 1954 Act). On the other hand, it was the contention of the State of Punjab and the Gram Panchayats within the States of Punjab/ Haryana, that by reasons of the Punjab Act, 1953, the interest of all persons whether Hindus, Sikhs or Muslims in shamilat deh land stood extinguished and those lands were placed by the said law under the control and power of respective Gram Panchayats. The Hon’ble Supreme Court held that the Punjab Act of 1953 would prevail in the State of Punjab over the Central Act of 1954, even so far as shamilat deh lands are concered. It was also held that the State Legislature being a measure of agrarian reform, is conducive to the welfare of the community and there is no reason why that law should not have effect in its full amplitude. 9. After the judgment of the Supreme Court in Gram Panchayat of village Jamalpur’s case (supra), the petitioner Gram Panchayat started 5 Civil Writ Petition No. 4816 of 1996 asserting its rights over the land, which was allotted to respondent No.7 in the year 1976. It also so happened in the case of other Gram Panchayats, where dispute was raised regarding allotment of land, by the Rehabilitation Department to the migratories from Pakistan, out of the shamilat deh land in the respective villages. Dispute also arose regarding land sold by the Rehabilitation Department as per the provisions of 1954 Act to various persons and also regarding shamilat deh land, which was allowed to be retained by the unauthorized occupants under various policies framed by the State. 10. At that stage, the State of Punjab passed the impugned Act i.e. Amendment Act of 1995. 11. Before looking into validity of the Act, mentioned above, it is necessary to set out some relevant provisions of the 1961 Act. Section 2 contains the definitions. Clause (g) defines shamilat deh land as under:- “(g) “Shamilat deh” includes- (1) lands described in the revenue records as shamilat deh excluding abadi deh; (2) shamilat tikkas, (3) lands described in the revenue records as shamilat, Tarafs, Pattis, Pannas and Tholas and used according to 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, playgrounds, school, drinking wells, or ponds within abadi deh or gorah deh; and (5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records; but does not includes land which— (i) omitted (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamilat deh, but, has been allotted on quasi- permanent basis to a displaced person, or, has been otherwise transferred to any person by sale or by any other manner whatsoever after the 6 Civil Writ Petition No. 4816 of 1996 commencement of this Act, but on or before the 9th day of July, 1985. (emphasis supplied) (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 co-sharer in the shamilat deh and is so recorded in the Jamabandi or is supported by a valid deed and is not in excess of the share of the co-sharer in the shamilat deh. (v) is described in the revenue records as Shamilat, Taraf, Pattis, 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; (vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act. (vii) omitted (viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possessin of co-sharers not being in excess of their respective sharers in such shamilat deh on or before the 26th January, 1950; or (ix) was being used as a place of worship of for purposes, subservient thereto, immediately before the commencement of this Act; Clause (h) defines shamilat law as under:- (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 (Regulatin) Act, 1953; or (ii) in relation to land situated in territory which immediately before the 1st November, 1956 was comprised in State of Patiala and East Punjab States Union; the Pepsu Village Common Lands (Regulation) Act, 1954” Section 3 defines the Lands to which provisions of the 1961 Act shall be applicable. Section 3 of the 1961 Act mandates that the Act shall apply to all lands which are shamilat deh as defined in clause (g) of Section 2. Provisions of Section 3 read as under:- 7 Civil Writ Petition No. 4816 of 1996 “3. Lands to which this Act applies.—(1) This act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause (g) of section 2. 2. Notwithstanding anything contained in sub-section (1) of section 4.— (i) where any land has vested in a Panchayat under the shamilat law, but such land has been excluded from shamilat deh under clause (g) of section 2 other than the land so excluded under sub-clause (ii-a) of that clause, all rights, title and interest of the Panchayat in such land as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall cease and all such rights, title and interest shall vest in the person or persons in whom they were vested, immediately before the commencement of the shamilat law; (ii) where any land has vested in a Panchayat under this act, but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause(g) of section 2, all rights, title and interest of the Panchayat in such land, as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall, cease, and all such rights, title and interest shall on or before the 9 th day of July, 1985, revest in the person or persons to whom the land so excluded has been allotted or otherwise transferred by sale or by any other manner whatsoever, subject to the condition that— (a) any sum of money realised by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land shall alongwith interest at the rate of three per cent payable from the date of such allotment or transfer, or (b) where no money was realizable by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land, the amount of compensation in respect of such land as determined by the Collector of the District in which such a land is situated along with interest at the rate of three per cent payable from the date of allotment or transfer, as the case may be; shall be paid by the Rehabilitation Department of the Government of Punjab to the Department of Rural Development and Panchayats for onward disbursement to the Panchayat to which such shamilat deh belonged. (emphasis supplied) 8 Civil Writ Petition No. 4816 of 1996 (3) As soon as may be, on the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995 the Department of Rural Development and Panchayats shall make a reference to the Collector of the District to determine the amount of compensation under sub-clause (b) of clause (ii) of sub-section (2) and the Collector of the District shall, keeping in view the market value of the shamilat deh at the time it was allotted or transferred determine the amount of compensation.” Note: Underlined provisions were added vide the Amendment Act of 1995 12. Section 4 of the 1961 Act deals with rights of the Panchayats and non-proprietors with regard to the lands described under that provision. Section 5 lays down the norms regarding regulation of use and occupation of land vested or deemed to have been vested in the Gram Panchayat. Section 7 deals with power of the Gram Panchayat to take possession of the shamilat deh land. Section 10-A deals with power of the Collector to cancel or vary leases etc. of the land vested in the Gram Panchayats. Section 11 of the 1961 Act lays down the procedure regarding decision on claims, right, title or interest in shamilat deh land. 13. It appears that the State of Punjab, with a view to curtail litigation, which would have arisen on account of cancellation of the allotments of shamilat deh land made to the migratories and sale of that land under various policies of the State Government, enacted the Amendment Act of 1995 and added clause (ii-a) in clause (g) of Section 2 of the 1961Act defining shamilat deh land and also substituted sub-section 2 in Section 3 of the Act wherein it was provided that the land which has been excluded from operation of clause (g) of Section (2) of the 1961 Act, other than so excluded under sub clause (ii-a) of that clause, all rights, title and interest of the Panchayat in such land from the commencement of the Amendment Act 9 Civil Writ Petition No. 4816 of 1996 of 1995, shall cease and all such rights, title and interest shall vest in the person or persons in whom they were vested immediately before commencement of the shamilat law. 14. It was further provided that shamilat deh land excluded from the ownership of the Gram Panchayat under sub clause (ii-a) of clause (g) of Section 2, rights etc. of the Gram Panchayat shall come to an end from the date of commencement of Amendment Act of 1995 and shall re-vest in the person or persons to whom the land, so excluded, was allotted or otherwise transferred by sale or any other manner whatsoever on or before 9th of July 1985 i.e. the date when judgment was pronounced by the Hon’ble Supreme Court in Gram Panchayat of village Jamalpur’s case (supra). Exclusion was subject to some conditions contained therein. 15. Mr.Sharma, learned senior Advocate, counsel for the petitioner has laid challenge to the Amendment Act of 1995 primarily on the following grounds:- (a) that the Amendment Act of 1995 was bad for want of consent of the President, (b) that the State Legislature was not competent to nullify effect of the judgment of the Hon’ble Supreme Court in Gram Panchayat of village Jamalpur’s case (supra) by passing Act No.8 of 1995, (c) that to give retrospective effect to Act No.8 of 1995 was not within the legislative competence of the State Legislature and (d) that Act No.8 of 1995 being repugnant to the provisions of Section 8 of the Administration of Evacuee Property Act 1950 (in short 1950 Act) cannot be sustained. 10 Civil Writ Petition No. 4816 of 1996 16. So far as point (a) is concerned, the same was not raised in the writ petition, however, we allowed Mr.Sharma to raise the same at the time of arguments. 17. It is the contention of Mr.Sharma that the Punjab Village Common Lands (Regulation) Act, 1953, the subsequent amendments made therein and the Punjab Village Common Lands (Regulation) Act, 1961, were all notified after getting assent of the President of India, whereas Act No.8 of 1995 was notified on assent received from the Governor of State of Punjab. To strengthen his argument, he has submitted that custody management and disposal of property, declared by law to be evacuee property, would fall in list III (concurrent list) of 7th Schedule of the Constitution of India and as per provisions of Sub-clause 2 of Article 254, it was mandatory for the State of Punjab to reserve Amendment Act of 1995 for consideration of the President. He further argued that the State Legislature is not competent to take away rights of the petitioner, which were conferred upon it by judgment of the Hon’ble Supreme Court in Gram Panchayat of village Jamalpur’s case (supra) and further that State Legislature was not empowered to give retrospective effect to the Amendment Act of 1995 w.e.f. 9.7.1985, to negate the effect of the aforesaid judgment. He further urged that the Amendment Act of 1995 is repugnant to the provisions of Section 8 of the 1950 Act, which provides that evacuee property, declared under Section 7 of that Act, shall be deemed to have been vested in the custodian for the State. 18. Mr.P.N.Aggarwal, Advocate, who has put in appearance in connected CWP No.17722 of 1996 has also assailed the impugned notification on similar grounds, as agitated by Mr.Sharma and has supported the arguments raised by Mr.Sharma to lay challenge to the impugned 11 Civil Writ Petition No. 4816 of 1996 notification by stating that the shamilat deh land, under any circumstances, cannot be alienated and allotted to the migratories from Pakistan and others, further by stating that the amendment under challenge, was a colorable exercise of jurisdiction, which he argued cannot be sustained. He also argued that once the custodian has no interest in the property in dispute, the sale etc. made by the custodian cannot be validated by the provisions of Amendment Act of 1995. 19. It is necessary to mention here that in connected CWP No.3722 of 1997, Gram Panchayat Chhoti Kohri district Amabla versus State of Haryana, exactly, similar amendment made by the State of Haryana in clause (g) of section 2 and Section 3 of the 1961 Act, i.e. Haryana Act No.13 of 1996 is under challenge. Vide that amendment the State of Haryana has added sub-clause (ii-a) in clause (g) of Section 2 and has substituted sub-section 2 of Section 3 of the 1961 Act. 20. Mr.Mahavir Sandhu, Advocate and others who have put in appearance in the connected cases have virtually adopted the arguments raised by Mr.Sharma and Mr.Aggarwal to lay challenge to the Haryana amendment. 21. Arguments raised as above, were vehemently controverted by Mr.H.S.Sidhu, Additional Advocate General, Punjab. He argued that once consent has been given to the Principal Act i.e. 1961 Act by the President for subsequent amendments, consent of the President is not necessary. He also argued that as per ratio of the judgment of the Hon’ble Supreme Court in Gram Panchayat of village Jamalpur’s case (supra), the evacuee shamilat deh land shall not vest in the custodian, rather it will vest in the Gram Panchayat. If that is so, there was no necessity to get assent of the President to the Amendment Act of 1995 in terms of Article 254 and the 12 Civil Writ Petition No. 4816 of 1996 Entry No.41 of List III (concurrent list) of 7th Schedule of the Constitution of India. He further argued that the State Legislature is competent to enact law retrospectively as well as prospectively and to take away effect of any judgment, by fundamentally amending the law on the basis of which judgment was passed. By making reference to the provisions of Section 8 of the 1950 Act and the provisions of the Amendment Act of 1995, he argued that provisions of Amendment Act of 1995 are not repugnant to the aforesaid provisions. Both operate in different fields. He also brought it to our notice that such discussion will only be an academic one, because in the year 2005, the 1950 Act was repealed by the Central Legislature. He also asserted that the Gram Panchayat is claiming ownership under a Statute and as such, it cannot claim any protection under Article 14 and Article 19 of the Constitution of India. To support his contention he has placed reliance upon judgments of the Hon’ble Supreme Court in I.N. Saksena v. State of Madhya Pradesh, AIR 1976 Supreme Court 2254 and in State of Haryana and others v. The Karnal Co-op Farmers’ Society Limited, etc. etc., AIR 1994 Supreme Court 1. He further argued that vide the impugned amendment, only that portion of the shamilat deh land has been taken away from the petitioner, which stood already allotted in the year 1976. It serves the public cause because if allotments were quashed at this stage,