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Surjit Singh Atwal and ors. Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 251 of 1974
Judge
Reported inAIR1975P& H101
ActsPunjab Consolidation of Land Proceedings (Validation) Act, 1972 - Sections 2
AppellantSurjit Singh Atwal and ors.
RespondentThe State of Punjab and ors.
Appellant Advocate H.R. Bansal, Adv.
Respondent Advocate S.K. Jain, Adv. for Adv. General and; S.C. Sibal, Adv.
DispositionWrit petition dismissed
Cases ReferredState of Tamil Nadu v. M. Ravappa Gounder
Excerpt:
.....the british cabinet, is a 'hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part' however, in ram jawaya v. indeed it is common knowledge that in pre-independence india there was a strong agitation that the judi-ciarv should be separated from the executive and that the aeitation was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. ' in short, whatever considerations may apply qua the legislative and the executive functions of the state, the same cannot be said to hold good in the case of the exercise of the judicial functions. failure to im-plead necessary parties in a cause constitutes a formal defect entailing the relection of the plaint, application or..........1951. and the 1st dav of januarv. 1956, in respect of land of an evacuee forming part of an estate or estates and no subsequent proceedings taken in relation thereto shall be and shall be deemed ever to have been invalid merely by reason of the fact that the punjab consolidation of land proceedings (validation) act. 1957. by which the said schemes and proceedings were validated, had been declared by anv court not being the supreme court of india, to be invalid.'3. the grievance of the petitioners is that the validation act. namelv. the punjab act no. 4 of 1972, itself is unconstitutional inasmuch as it has the effect of undoing the effect of judgments rendered by this court as well as the supreme court of india. secondly, it is urged that the case of the petitioners is not covered.....
Judgment:
ORDER

M.R. Sharma, J.

1. The petitioners are displaced land owners from West Pakistan and have settled in village Behram. district Jullundur, where they have been allotted evacuee land in lieu of the land left by them in Pakistan. The consolidation of holdings was introduced in this village in 1954 and a draft scheme was drawn up by the Consolidation Officer and confirmed by the Settlement Officer sometime in January, 1055. The scheme provided that in case of displaced, persons who had been allotted evacuee land the value of their holdings would be out in a common pool of all the displaced allottees and then distributed amongst them in accordance with their original shares in standard acres. The provisions o[ this scheme were challenged in a large number of writ petitions which were allowed. In the meantime, the Puniab Consolidation of Land Proceedings (Validation) Act (No. 6 of 1957) was passed At the stage of the Letters Patent Appeal, validity of this Act was also challenged. It was held by the Full Bench in State of Puniab v. S. Kehar Singh. AIR 1959 Punj 8 (FE) as under :--

The Act falls within the rule that a legislature cannot take what might be termed a natural class of persons, split that class in two and then arbitrarily designate the dis-severed factions of the original unit as two classes. Proprietary rights were conferred on all allottees of evacuee lands irrespective of the date of publication of consolidation schemes and thus they all form one class. That class has been split into two by Putting those with regard to whom the consolidation schemes were published between 31-12-1951 and 1-1-1956 into one class and those in whose cases the schemes were published after 1-1-1956. That is clearlv an arbitrary wav of designating the dis-sever-ed factions of the original unit as two classes and having two sets of laws. In case of former class, the Act extinguishes and modifies their rights in accordance with Section 4. whereas in case of the latter class, no such extinguishment and modification is to take place. Such a classification is based only on the difference in date or dates of publication of the consolidation schemes and therefore cannot be held to be anything but unreasonable and arbitrary. The classification cannot be justified on the ground that there has been segregation in classes which have a systematic relation usually found in common properties and characteristics.'

2. The State of Puniab challenged the decision rendered by the Full Bench in an appeal before the Supreme Court which was allowed (State of Puniab v. Kehar Singh. Civil Appeals Nos 116 to 119 of 1965 decided on March 31. 1967) The Supreme Court upheld the validity of the Puniab Consolidation of Land Proceedings (Validation) Act (No. 6 of 19571.

In the meantime. Civil Writ No. 612 of 1956. (Gulwant Singh v. State of Puniab) filed by the petitioners was also allowed by this Court on May 13, 1958. and the State of Puniab went in appeal to challenge the correctness of the decision rendered in this case. This appeal was dismissed on February 11. 1970. as having abated in the Supreme Court. The petitioners insisted that since the State aD-peal had been dismissed as having been abated in the Supreme Court, due effect should be given to the judgment rendered by a Single Bench of this Court in their cases. They also instituted contempt of Court proceedings in which some action was taken against the Secretary to the Government as well as the Director of Consolidation of Holdings. Faced with this situation, the State of Puniab passed the Puniab Consolidation of Land Proceedings (Validation) Act. 1972. The preamble of the Act shows that it had been passed to undo the effect of some decisions rendered by this Court, by which the Punjab Consolidation of Land Proceedings (Validation) Act. 1957. had been struck down and in which either appeals were not filed in the Supreme Court orthe appeals filed in the said Court had abated. Section 2 of the Act reads as under:--

'2. Validation of certain consolidationproceedings: Notwithstanding anv judg-ment. decree or order of anv Court, other than the Supreme Court of India, no scheme published under Section 19 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. between 31st day of December. 1951. and the 1st dav of Januarv. 1956, in respect of land of an evacuee forming part of an estate or estates and no subsequent proceedings taken in relation thereto shall be and shall be deemed ever to have been invalid merely by reason of the fact that the Punjab Consolidation of Land Proceedings (Validation) Act. 1957. by which the said schemes and proceedings were validated, had been declared by anv Court not being the Supreme Court of India, to be invalid.'

3. The grievance of the petitioners is that the Validation Act. namelv. the Punjab Act No. 4 of 1972, itself is unconstitutional inasmuch as it has the effect of undoing the effect of Judgments rendered by this Court as well as the Supreme Court of India. Secondly, it is urged that the case of the petitioners is not covered by Section 2 of the Validation Act. Because of the abatement of the Government appeal in the Supreme Court, the iudgments of the High Court in favour of the petitioners would be deemed to have been affirmed by the Supreme Court and the validation clause leaves the Iudgments of the Supreme Court untouched. There is no merit in either of these two submissions made on behalf of the petitioners.

4. In order to appreciate the argument advanced on behalf of the petitioners it becomes necessary to consider the doctrine of 'Separation of Powers' vis-a-vis our Constitution. This doctrine implies that three types of powers are invested in the Government, namelv. the legislative, the executive and the judicial. Further, these powers should be exercised by the various limbs of the Government without interference from one another. The other implication of this doctrine is that the three limbs of the Government should not abdicate their own functions. For instance, a Legislature is expected to apply its own mind for enacting laws for its State. If it enacts a law to the effect that a statute passed by another Legislature would be applicable to its State as amended by the Legislature from time to time, the law would be held to be bad. This doctrine found enthusiastic supporters in the United States of America, but even there its importance has been greatly diminished because of the growth of Presidential leadership in legislation. Our Constitution has adopted the principle of ministerial responsibility to the legislature which necessarily means the fusion of the executive and the legislative organs to a great extent. The theory of Separation of Powers as advocated by the American jurists has. to a great extent, been rejected in thus country. In re. Delhi Laws Act, AIR 1951' SC 332. Mu-kherjea, J., observed as under:

'It does not admit of any serious dispute that the doctrine of separation of powers has, strictly speaking, no place in the system of Government that India has at the present dav under her own Constitution or which she had during the British rule. Unlike the American and Australian Constitutions, the Indian Constitution does not expressly vest the different sets of powers in the different organs of the State. Under Article 53. Clause (1) the executive power is indeed vested in the President, but there is no similar vesting provision regarding the legislative and the judicial powers. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system, the essential feature of which is the responsibility of the Executive to the Legislature. The President, as the head of the Executive, is to act on the advice of the Council of Ministers, and this Council of Ministers, like the British Cabinet, is a 'hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part' '

However, in Ram Jawaya v. State of Punjab, AIR 1955 SC 549. the Court observed,

'our Constitution has not recognised the doctrine of Separation of Powers in its absolute rigidity, but it does not contemplate assumption by one organ or part of the State, of functions that essentially belong to another.'

5. Again in Chandra Mohan v. State of U. P.. AIR 19G6 SC 1987. Subba Rao, C. J., observed as under:

'The Indian Constitution, though it does not accept the strict doctrine of se-paration of powers, provides for an in-dependent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it tp issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all Courts and tribunals in the territory over which it has jurisdiction. But the makers of the Con-stitution also realised that 'it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less importantperhaps indeed even more important that their independence should be placed beyond question in the case of superior Judges'. Presumably to secure the independence of the Judiciary from the executive, the Constitution introduced a group of Articles in Chapter VI of Part VI under the heading 'Subordinate Courts'. But at the time the Constitution was made, in most of the States the magistracy was under the direct control of the executive. Indeed it is common knowledge that in pre-independence India there was a strong agitation that the judi-ciarv should be separated from the executive and that the aeitation was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So Article 50 of the Directive Principles of Policy states that the State shall take steps to separate the iudiciarv from the executive in the public services of the States. Simplv stated, it means that there shall be a separate 'judicial service free from the executive control.'

In short, whatever considerations may apply qua the legislative and the executive functions of the State, the same cannot be said to hold good in the case of the exercise of the judicial functions. These functions have to be discharged by the Courts established by law with regard to matters which fall within their iurisdiction. This implies that if the judgment rendered by a Court falls sauarely within the four corners of a law, it is not open to either the Legislature or the Executive to declare it null and void. At the same time, the iurisdiction to enact laws vests in the Legislature. The ple-nary power which it possesses in this behalf entitles it to make laws or to substitute the old laws by the new laws even with retrospective effect. If, as a consequence of the modification of a law with retrospective effect, a judgment given by a Court becomes contrary to law. it is open to the legislature to declare such a judgment to be a nullity. In Janapada Sabha Chhindwara v. The Central Provinces Syndicate Ltd.., AIR 1971 SC 57. the Court held as under:

'On the words used in the Act. it is plain that the legislature attempted to overrule or set aside the decision of this Court. That in our judgment, is not open to the Legislature to do under our Constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of the Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a iudement of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.'

The same view was affirmed in the State of Tamil Nadu v. M. Ravappa Gounder, AIR 1971 SC 231.

6. The instant case has to be decided in the light of observations madeabove. In Kehar Singh's case AIR 1959Punj 8 (FB) (supra) a Full Bench of thisCourt took the view that the lands of displaced allottees could not be put in acommon pool and then re-allotted tothem in partition proceedings under theConsolidation Act. Civil Writ No. 612 of1956 (Punj) filed by the petitioners wasdismissed on the basis of the decisionrendered by a Full Bench in KeharSingh's case (supra). When the decisionin Kehar Singh's case (supra) was reversed by the Supreme Court, the sameresult would normally have followed inCivil Writ No. 612 of 1956. This did nothappen because the appeal having beenabated, the Supreme Court could not givea decision on merits. The State Government was obviously confronted by a difficult situation. The law laid down by theSupreme Court is binding on all theCourts within the territory of India aslaid down by Article 141 of the Constitution, but a contrary decision rendered in Civil Writ No. 612 of 1956. by thisCourt, also came to hold the field becausethe appeal against that judgment hadabated. Under these circumstances, theGovernment rightly approached the Legislature to Pass the Validation Act of 1972.By enacting this statute, the Legislatureonly removed a iudement which, in principle, had been wrongly decided on thebasis of the existing statute. In my considered opinion, nothine stood in the wayof the Legislature in taking the impugnedaction. It was not a case in which anintrinsically correct Judgment given onthe basis of the existing law was declaredto be non e.st. The Legislature only accepted the correctness of the interpretation placed by the Supreme Court on the,provisions of the existing statute whichin my humble opinion it was bound to doIf it had not stepped in to undo the mischief, there would have been differentsets of law for different citizens. I

7. The second submission made by the learned counsel for the petitioners need not detain me for long because the result of the abatement of the appeal before the Supreme Court was that there was, in fact, no appeal in the eye of law before that Court. The word, 'abate' has been defined in Shorter Oxford English Dictionary to mean--to beat down, des-tory, to put an end to an action or a writ; to become null and void. Failure to im-plead necessary parties in a cause constitutes a formal defect entailing the relection of the plaint, application or memorandum of appeal. The result of such a rejection of memorandum of appeal ig as if no appeal has been filed before the higher Court. In other words. final judgment in Civil Writ No. 612 of 1956 (Punj) was that of this Court and not of the Supreme Court of India because the appeal in that Court had abated. Section 2 of the Validation Act of 1972 would, therefore, apply with full vigour and remove the judgment out of the wav of the parties concerned.

8. For the reasons recorded above, this petition deserves to fail and I order accordingly. There shall, however, be no order as to costs. C. M. No. 8727 of 1974 is dismissed as infructuous.


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