TaxTMI 
TaxTMI 
2009 (7) TMI 747
X X X X Extracts X X X X
X X X X Extracts X X X X
....evenue Act, 1953 (Act No.6 of 1954) (hereinafter called `the Principal Act'). 3. It was also contended in the writ petition that the amendment is violative of the basic structure of the Constitution. 4. The petitioners of C.W.P. No. 1192/96 and six other land owners of Tehsil Rohru and Chirgaon, District Shimla had earlier filed a C.W.P. No.206 of 1998 titled as Thakur Gyan Singh and others Vs. State of Himachal Pradesh and others wherein the petitioners sought the following relief:- "(i) complete the on 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; ii) withdraw Instruction Nos. 2, 4 and supplementary instruction Nos. 2, 23 and 32 of Compendium of Instructions, issued by the 4th respondent (Settlement Officer); iii) bring up-to-date at re-settlement the field map of the previous settlement without recourse to re-measurement and preparation of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... nullify the judgment of the High Court, dated 13/01/1994, enacted the amendment Act of 1996, whereby Sections 4, 16, 32, 33, 34, 36, 38, 47, 117 and 171 of the Principal Act were amended. The specific challenge to the amendment Act of 1996 is that by amending the Sections 32, 33, 34, 36, 38 and 47 contained in Chapter IV of the Principal Act, the whole scheme of Chapter IV of the Principal Act has been disturbed and arbitrary powers have been conferre on the Collector (Revenue). Such conferment of arbitrary power, it is alleged, is unconstitutional. 8. 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 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 judici....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which are in the nature of the delegated legislation. This delegation of powers to the Collector has been challenged as being against the basic Scheme of the Principal Act. It has also been stated that the powers so delegated to the Collector are unfettered and unguided and are capable of being abused. (f) That by virtue of the amendments made by the Act of 1996, the sub-division of estates styled as 'Upmahal' are sought to be regularised and validated, which has been questioned as being an act of illegal splitting ab initio, making the same illegal. (g) Despite the 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. (h) That the Act ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....endment Act in any way infringes or abridges any fundamental right of the petitioner. 14. Normally the restrain on the sovereign power of legislation of a State legislature is limited. The legislature has to exercise its legislative power, which is otherwise plenary, in accordance with the distribution of legislative power under Chapter Part XI Chapter I of the Constitution and it has also to exercise such power consistent with the mandate of Part III of the Constitution and other Constitutional limitations. 15. Learned High Court did not find that the impugned amendment Act transgresses either of these limitations in any way. But the High Count found that the impugned amendment Act is ultra vires the Constitution as it seeks to nullify the previous judgment. 16. 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 appellan....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and in that situation it would be for the High Court to decide the contention on merits. In view of the statement made on behalf of the appellants that the directions given in the impugned judgment have become infructuous, the appeal is disposed of accordingly, without deciding any point on merits." 17. The said order was passed after hearing learned counsel for both the parties. From a perusal of the aforesaid order, it is clear that the appeal was disposed of as it was contended before this Court by the learned counsel for the State that in view of the subsequent amendment of the law, the contentions of the appellant have become infructuous. This court recorded the said submissions and disposed of the said appeal as such. 18. 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. 19. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re predominantly in public interest and the said amendment has been made in view of the interest of land revenue, land settlement and for the purpose of updating the same. 21. In fact the amendments have been made for an effective implementation of the provisions of the Himachal Pradesh Land Revenue Act, 1954. 22. It is provided in sub-section (2) of section 1 of the amendment Act that the said amendment shall come into force at once except section 2 (b), 5, 6 and 10 which shall be deemed to have come into force on the 23rd of September 1976. Section 13 of the said act provides for validation. The said section runs as follows:- "13. Notwithstanding anything contained in the Himachal Pradesh Land Revenue Act, 1954 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 lan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed that such legislative device which removes the vice in previous legislation is not considered an encroachment on judicial power. In support of the aforesaid proposition, this Court in Bhubaneshwar Singh (supra) relied on the proposition laid down by the Chief Justice Hidayatullah, speaking for the Constitution Bench in Shri Prithvi Cotton Mills Ltd. and another Vs. Broach Borough Municipality and others -(1969) 2 SCC 283. 28. Again in the case of Indian Aluminium Company etc. etc. Vs. State of Kerala and others -AIR 1996 SC 1431, this Court while summarizing the principle held that a legislature cannot directly overrule a judicial decision but it has the power to make the decision ineffective by removing the basis on which the decision is rendered, while at the same time adhering to the constitutional imperatives and the legislature is competent to do so [See para 59 sub-para (9) at page 1446.] 29. In the case of Comorin Match Industries (Pvt.) Limited Vs. State of Tamil Nadu - AIR 1996 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Court but is a statutory exercise of the constituent power to suitably amend the law and to validate the actions which have been declared to be invalid..." 32. A Constitution Bench of this Court in the case of State of Tamil Nadu Vs. M/s. Arooran Sugars Limited - AIR 1997 SC 1815, reiterated the same principle after analyzing several cases on the point. The Court has summed up the position as follows:- "16. ...It is open to the legislature to remove the defect pointed out by the courtor to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A court's directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not 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 effect..." 33. In Indra Sawhney Vs. Union of India - AIR 2000 ....