H.P. Vs. Narain Singh  INSC 1182 (8 July 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1678 OF
2002 State of Himachal Pradesh ...Appellant(s) - Versus - Narain Singh
CIVIL APPEAL NO. 1679 OF 2002
These appeals are directed against the judgment dated 17.4.2000 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.
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
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').
It was also contended in the writ petition that the amendment is
violative of the basic structure of the Constitution.
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
State of Himachal Pradesh and others wherein the petitioners sought the
following relief:- "(i) complete the going land revenue settlement
operations as second Revised Settlement strictly in accordance with the intent
of the two notifications one pertaining to the special revision of the existing
records of right under Section 33 of the H.P. Land Revenue Act, 1953 and the
other for general assessment of land revenue under Section 53 of the said Act;
withdraw Instruction Nos. 2, 4 and supplementary instruction Nos. 2, 23 and 32
of Compendium of Instructions, issued by the 4th respondent (Settlement Officer);
bring up-to-date at re-settlement the field map of the previous settlement
without recourse to re-measurement and preparation of the record of rights
including wazib- ul-urs etc. strictly in, accordance with Instructions
contained in Para 222 of the Settlement Manual read with Appendix XXI
thereunder and consequently directing the deletion of Naksha Bartan illegally
prepared and not to convert the 3 Classification of the government waste land
recorded in the revenue records as also in occupation of the estate-right
holders into various lands and directing the modification of the government
policy with respect to regularisation of encroachment detected during the
direct the respondents not to hand over/deliver the revenue records to the
revenue mohal staff till the completion of the settlement including assessment
of land revenue, incorporated in the jamabandies."
The said writ petition was disposed of by a reasoned and detailed
judgment of the Division Bench of the High Court on 13/01/1994. While accepting
the writ petition, the Division Bench issued the following directions:-
"1. The respondents are directed to complete the going on land revenue
settlement operations in the area in question as "second revised
settlement" in accordance with the instructions contained in Paragraph 222
and Appendix XXI of the Punjab Settlement Manual.
compendium of instructions (P- 21) be amended in consonance with and 4
pertaining to the procedure applicable to special revision of record-of-rights.
Resultantly, instructions continuing to be contained in P-21, contrary to
letter June, 1986 (P-22) are ordered to be deleted.
new record-of-rights pertaining to the areas in question, prepared in the
current settlement in relation to 'Mohal-Bandi', 'Naksha Bartan',
`Wazib-ul-urs', classification of land, proposed DPFs and UPFs etc., be ignored
and re-settlement be started subsequent to the stage of Forecast Report."
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.
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 conferred on the Collector
(Revenue). Such conferment of arbitrary power, it is alleged, is
Thus, those provisions of the Act of 1996, introduced by way of
amendment in the Principal Act, were challenged as being ultra vires the
Constitution of India and mala fide and also as a 6 piece of colourable
legislation on the following grounds:- "(a) That the impugned legislation
has been intended to nullify the judgment of this Court in C.W.P. No. 206 of
1988 dated 13.1.1994. In support of this ground, it has been stated that the
apex Court has held that a legislature has no power to render ineffective
earlier judicial decision by making a law. Such powers if exercised would not
be legislative power but a judicial power exercised by it, which encroaches
upon the judicial powers of the State exclusively vested in Courts. (See: case
reported in 1995 (5) S.C.C. 96).
the impugned legislation apparently seeks to validate the record of rights
prepared after 1976, which is opposed to rule of law and natural Justice. This
ground is purported to be supported by stating that in the earlier writ
petition, there was a challenge to the errors in the field maps and jamabandies
prepared during the settlement, which cannot be validated as has been done by
the impugned legislation, this amounts to denial of opportunity and equal
protection of law under Article 14 of the Constitution of India.
to the petitioners, if the impugned legislation stands, the land owners will be
rendered without any remedy to redress their grievances, hence the same is
against the rule of 7 law.
by making the impugned legislation i.e. Act of 1996 effective retrospectively
from 1976, the same is liable to be struck down as unreasonable and arbitrary.
Moreover, it has been stated that the said validation is bad in law inasmuch as
the executive instructions earlier issued by the Settlement Officer, Shimla and
Kinnaur Districts, respondent No.4, were held to be without any authority of
law by this Court in its earlier decision because the same were inconsistent
with the provisions of the Principal Act.
the Act of 1996 being retrospective in its application adversely affects the
rights of estate right holders of Rohru and Chirgaon, which is
unconstitutional. It has also been highlighted in this ground that the
retrospective effect given to the Act of 1996 is from the year 1976, being for
a period of about 20 years, which itself is illegal.
there are inherent conflicts between the original Sections of the Principal Act
and the amended Sections of the Act of 1996.
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 8 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
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
Despite the directions of this Court in the earlier case that fresh measurement
should be carried out, the earlier incorrect measurement and assessment of land
revenue, which was held to be so by this Court, have been declared as having
been validly prepared by the Act of 1996. It has been stated that the
petitioners have apprehensions that respondent No.4. Settlement Officer, will
go ahead with the assessment of the land revenue of this area on the basis of
invalid records and complete the settlement operations. This will result in
irreparable injury to the rights of the petitioners.
That the Act of 1996 takes away the remedy of review under Section 16 of the
Principal Act, thus debarring the Financial Commissioner to review the order
passed by him in revision. In this manner, the impugned amendment in Section 16
of the Principal Act has deprived the public at large from one channel from
remedy of review, and on the other hand, the highest authority under the
Principal Act has been debarred from reviewing the order passed in revision.
The amendment in question is against the principle of natural justice besides
being against the basic structure of the Constitution of India and the
Principal Act, as per the petitioners.
Lastly, that the impugned amendments by way of the Act of 1996 are in direct
conflict with the relevant provisions of the Principal Act, if they are allowed
to stand, it will result in changing the basic structure of the Principal
Thus, the writ petition prayed before the High Court for:-
"(i) Issuance of an order, writ or direction declaring the Act of 1996 as
ultra vires the law and as also being violative of the basic structure of the
Constitution of India.
For issuing a writ of mandamus directing the respondents/State not to give
effect to Sections 2-B, 2-C, 3 to 6, 9, 10, 12 and 13 of the Act of 1996.
declare the aforesaid Sections as bad, in law, they being in direct conflict
with the original Sections/provisions of Sections 4, 16, 32 to 35, 38 and 47 of
the Principal Act and as also being against the basic Scheme of the said
Same relief was also prayed for in the other connected writ
petition, namely, C.W.P. No.851/1996.
In the impugned judgment, the Division Bench of the High Court did
not uphold all the contentions mentioned above but came to a finding that the
Amendment Act 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 11
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
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.
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
12 Constitution and other Constitutional limitations.
Learned High Court did not find that the impugned amendment Act
transgresses either of these limitations in any way. But the High Court found
that the impugned amendment Act is ultra vires the Constitution as it seeks to
nullify the previous judgment.
This Court is not called upon to pronounce on the correctness or
otherwise of the previous judgment rendered by the Division Bench of the High
Court dated 13.01.1994. The appeal from the said judgment, being Civil Appeal
6025 of 1994, came to be heard by this Court and was disposed of by a judgment
and order dated 16.07.1996 to the following effect:- "Learned counsel for
the appellant submits that the Himachal Pradesh Land Revenue (Amendment and
Validation) Act, 13 1996 (Act No.3 of 1996) has further amended the Himachal
Pradesh Land Revenue Act, 1954 and validated certain actions taken in relation
to the making or special revision of record-of-rights in the State.
counsel adds that the revision of record-of-rights in the State is, therefore,
to be made in accordance with the law so amended with retrospective effect; and
the directions to the contrary in the impugned judgment of the High Court
rendered prior to enactment of Act No. 3 of 1996 have become infructuous.
Learned counsel also submits that no specific relief has been granted to any
individual by the impugned judgment which merely gives some directions
regarding the general revision of record-of-rights. For this reason, learned
counsel submits that it is not necessary for the State Government to pursue
counsel for the respondents, while conceding that the effect of the aforesaid
Act No. 3 of 1996 is to 'amend the law relating to revision of record-of-
rights, further submits that the effect thereof is not to render infructuous
all the directions given in the impugned judgment. According to learned counsel
for the respondents, some part of these directions remains effective even after
the enactment of Act No. 3 of 1996. He also states that the validity of Act No.
3 of 1996 has also been challenged by a separate writ petition in the High
Court of Himachal Pradesh.
of the common ground emerging from the above submissions, it appears to us that
it is needless to consider the merits of the points raised in the appeal 14
since even according to the appellant -State of Himachal Pradesh the directions
given in the impugned judgment are no longer effective having been rendered
infructuous by the subsequently enacted Act No. 3 of 1996. Moreover, 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.
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."
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 15 the law, the
contentions of the appellant have become infructuous. This court recorded the
said submissions and disposed of the said appeal as such.
Therefore, the only question which survives in this case is
whether the State can in exercise of its sovereign legislative power enact an
amendment Act seeking to remove and cure the defects in the previous law
despite there being a judgment on the previous law.
In the instant case before we examine these questions it would be
appropriate to consider the statement of objects and reasons for enacting the
amendment act. The statement is as under:- "The volume of land records in
each 16 revenue estate has considerably increased due to the increase in number
of holdings partially on account of increase in population and partially on
account of decrease of extent of land holdings under the agrarian reforms, to
bring the volume of the land records maintained in each revenue estate within
manageable size, it has become essential to create more estates or sub-estates.
Apart from this, with the enactment the Standards of Weights and Measures Act,
1976, it is now mandatory to convert the non-metric measurements into metric
different scales of measurements prevalent in various parts of the State, the
conversion to metric system involves the complete remeasurements of all the
revenue estates in the State. There is no provision either in the Himachal
Pradesh Land Revenue Act, 1954 or in the Punjab Settlement Manual, as
applicable to Himachal Pradesh, for the creation of estates/sub-estates by the
Collectors or for the complete remeasurements of the estates. In the absence of
these statutory provisions of the creation of more estates or sub divisions of
estates and the complete remeasurement of the estates for conversion into
metric measurements and the instructions/ directions given by the Collectors,
during the settlement operations are not sustainable in the eyes of law.
the settlement operations already carried out in various parts of the State are
likely to become infructuous and resettlement operations are likely to cause
great public inconvenience and loss to the State Exchequer. Besides this
certain other minor amendments in the Act 17 are essential in the changed
circumstances. It is also essential to validate the action of the Collector
already taken by him during the special revision of record-of-rights in
relation to the creation of estates/sub-division of estates, complete
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.
seeks to achieve the aforesaid objectives."
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.
In fact the amendments have been made for 18 an effective
implementation of the provisions of the Himachal Pradesh Land Revenue Act,
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
13 of the said act provides for validation.
section runs as follows:- "13. Notwithstanding anything contained in the
Himachal Pradesh Land Revenue Act, 1954 and rules, instructions, notifications
made or issued thereunder, or in any law for the time being in force or in any
judgment, decree or order of any court or other authority, where at any time
after the 23rd day of September, 1976 and before the commencement of the
Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996, if any
record- of-rights or special revision of record- of-rights has been made in
respect of the lands, situated in the State of Himachal Pradesh, such making or
special revision of record-of-rights shall, and shall be 19 deemed always to
have been valid and shall not be questioned on the ground that the amendments
made vide sections 2 (b), 5, 6 and 10 of this Act were not in force at that
time when such record-of-rights were made or specially revised."
An argument was, however, made before the High Court that the
aforesaid amendment is actuated by a mala fide motive and is a piece of
colourable legislation. The aforesaid contention was, however, not accepted by
the High Court in the impugned judgment. In fact such contention is not tenable
Reference in this connection be made to a decision of this Court
in the case of K. Nagaraj & 1985 1 SCC 523, wherein Chief Justice
Chandrachud, speaking for a three-Judge Bench said that the legislature, as a
body, cannot be accused of having passed a law for an extraneous purpose.
Learned 20 Chief Justice held that the concept of "transferred
malice" is unknown in the field of legislation provided the legislature
enacts the law within its powers.
The aforesaid principle in K. Nagaraj (supra) has been accepted by
this Court in many cases and a reference in this connection may be made to a
decision of this Court in G.C. Kanungo
The power of the Sovereign legislature to legislate within its
field, both prospectively and retrospectively cannot be questioned. This
position has been settled in many judgments of this Court.
them may be considered below.
of India & others - (1994) 6 SCC 77, the Court 21 expressly
approved the aforesaid position in Para 9 at page 82-83. In so far as
validating Acts are concerned, this Court in Bhubaneshwar Singh (supra) also
considered the question in para 11 and held that the Court 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 22 and others -(1969) 2 SCC
Again in the case of Indian Aluminium -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 to the constitutional imperatives and the legislature is
competent to do so [See para 59 sub-para (9) at page 1446.]
In the case of Comorin Match Industries SC 1916, the facts were
that the assessment orders passed under Central Sales Tax Act were set aside by
the High Court and the State was directed to refund the amount to the assessee.
As the State failed to carry it out, contempt petitions were filed but the
assessment orders were validated by 23 passing the amendment Act of 1969 with
retrospective effect and the Court held that the tax demanded became valid and
enforceable. The Court held that in such a situation the State will not be
precluded from realizing the tax due as subsequently the assessment order was
validated by the amending Act of 1969 and the order passed in the contempt
proceeding will not have the effect of the writing off the debt which is
statutorily owed by the assessee to the State. The learned Judges held that the
effect of the amending Act is retrospective validation of the assessment orders
which were struck down by the High Court.
the assessment order is legislatively valid and the tax demands are also
paras 33 and 35 at page 1925]
It is therefore clear where there is a competent legislative
provision which retrospectively removes the substratum of foundation of a
judgment, the said exercise is a 24 valid legislative exercise provided it does
not transgress any other constitutional limitation.
this Court cannot uphold the reasoning in the High Court judgment that the
impugned amendment is invalid just because it nullifies some provisions of the
The aforesaid principles have been reiterated by a three-Judge
Bench in Meerut others - AIR 1997 SC 1467, Justice Ramaswamy speaking for the
Court summed up the position in para 10 as follows:- "10. It is well
settled by catena of decisions of this Court that when this Court in exercise
of power of judicial review, has declared a particular statute to be invalid,
the Legislature has no power to overrule the judgment; however, it has the
power to suitably amend the law by use of appropriate phraseology removing the
defects pointed out by the Court and by amending the law inconsistent with the
law declared by the Court so that the defects which were pointed out were never
on statute for effective enforcement of 25 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
A Constitution Bench of this Court in the 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 court or 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 altered circumstances such decisions could not 26 have been given.
This will include removal of the defect in a statute pointed out in the
judgment in question, as well as alteration or substitution of provisions of
the enactment on which such judgment is based, with retrospective
498, Justice Jagannadha Rao speaking for a three-Judge Bench explained the
position by saying that it would be permissible for the legislature to remove
the defect which is the cause for discrimination and which defect was pointed
out by the Court. The learned Judge made it very clear that this defect can be
removed both retrospectively and prospectively by legislative action and the
previous actions can be validated.
But where there is a mere validation without the defect being
legislatively removed the legislative action will amount to overruling the
judgment by a legislative fiat and that will be invalid. In the instant case
the amendment Act has removed the defect of the previous law and therefore, the
27 validation exercise is perfectly sound and cannot be faulted with. State of
Bihar - AIR 1963 SC 1667, a Constitution Bench of this Court speaking through
Justice Gajendragadkar, as His Lordship then was, explained the principle with
characteristic clarity, which is reproduced hereinbelow:- "10. The other
point on which there is no dispute before us is that the legislative power
conferred on the appropriate Legislatures to enact law in respect of topics
covered by the several entries in the three Lists can be exercised both
prospectively and retrospectively.
Where the Legislature can make a valid law, it may provide not
only for the prospective operation of the material provisions of the said law
but it can also provide for the retrospective operation of the said provisions.
Similarly, there is no doubt that the legislative power in question includes
the subsidiary or the auxiliary power to validate laws which have been found to
be invalid. If a law passed by a legislature is struck down by the Courts as being
invalid for one infirmity or another, it would be competent to the appropriate
Legislature to cure the said infirmity and 28 pass a validating law so as to
make the provisions of the said earlier law effective from the date when it was
is treated 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
See the decision of this Court in Satnam and another - (2003) 1
SCC 561, para 52 where reference was made to the ratio in Rai Ramkrishna
Recently in the case of State of Bihar and 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 29 and such a validating Act was not
open to challenge on the ground that it amounted to usurpation of judicial
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 orders as to costs.
.................J. (MARKANDEY KATJU)