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2000 DIGILAW 81 (HP)

NARAIN SINGH v. STATE OF HIMACHAL PRADESH

2000-04-17

M.S.KAMLESH SHARMA, SURINDER SARUP

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JUDGMENT Surinder Sarup, J.—By this judgment, we propose to dispose of two writ petitions, namely, C.W.R No. 851/96 and C.W.R No. 1192/96, as common questions of law and fact arise in both these cases. C.W.R No. 851/96 has been filed solo by Narain Singh while C.W.R No. 1192/96 has been filed by three persons, namely, S/Shri Surat Singh, Shiv Singh Tegta and Murki Lal. In both these cases challenge has been laid to the various provisions as regards the constitutional validity of the Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996, hereinafter to be called the Act of 1996, in so far as it is stated to be in conflict and inconsistent 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. 2. The facts leading to the filing of these petitions are that the petitioners of C.W.R No. 1192 of 1996 and six other land owners of Tehsil Rohru and Chirgaon, District Shimla had earlier filed C.W.R No. 206 of 1988, titled as Thakur Gian Singh and others v. State of Himachal Pradesh and others, seeking the following reliefs: "(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 Himachal Pradesh 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 record of rights including wazib-ul-urs etc. 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 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 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 settlement proceedings; and (iv) 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." 3. After contest by the State and other three respondents herein, who are none other than various functionaries of the State Government, the said writ petition was disposed of by a well reasoned and detailed judgment of a Division Bench of this Court dated 13.1.1994. While accepting the said writ petition, this Court issued the following directions: "(1) The respondents are directed to complete the on going 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. (2) The compendium of instructions (P-21) be amended in consonance with and 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. (3) The 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." 4. Aggrieved against the abovmentioned judgment of the Division Bench of this Court in C.W.P. No. 206/88 dated 13.1.1994, the respondents herein, who are the same respondents in that writ petition also, filed Special Leave Petition in the Supreme Court of India. Leave to appeal was granted and Civil Appeal No. 6025 of 1994 was admitted for hearing by the Supreme Court. 5. Leave to appeal was granted and Civil Appeal No. 6025 of 1994 was admitted for hearing by the Supreme Court. 5. It is the case of the petitioners that while their appeal was still pending in the Apex Court, apparently to nullify materially the judgment of this Court referred to above, the respondents enacted the Act of 1996, whereby Sections 4, 16, 32, 33, 34, 36, 38, 47, 117 and 171 of the Principal Act were amended. 6. The petitioners of C.W.P. No. 1192/96 have given a brief history of the Principal Act as amended from time to time in paragraphs 8 and 9 thereof. In paragraph 10, it has been stated that from the bare perusal of the objects and reasons of the impugned amendments by the respondents, it is clear that the Act of 1996 is aimed at to nullify the judgment of this Court in C.W.P. No. 206 of 1988 dated 13.1.1994, which was earlier filed, in the nature of a public interest litigation. 7. The specific challenge, which has been laid to the Act of 1996 is that by amending Sections 32, 33, 34, 36, 38 and 47 contained in Chapter IV of the Principal Act which have been amended by the Act of 1996, thereby disturbing the whole Scheme of Chapter IV and also tampering with the same. Thereby, arbitrary powers have been conferred on the Collector (Revenue), which is against the letter and spirit of the original enactment. 8. Thereafter in paragraph 11 of C.W.P. No. 1192/96, the amended provisions have been reproduced in extenso. 9. The various provisions of the Act of 1996 introduced by way of amendment in the Principal Act have been challenged as being ultra vires the Constitution of India, mala fide and 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 judicial power exercised by it, which encroaches upon the judicial powers of the State exclusively vested in Courts. (See : case reported in 1995 (5) SCC 96). 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) SCC 96). (b) That 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. According 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 law. (c) That 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. (d) That 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. (e) That there are inherent conflicts between the original Sections of the Principal Act and the amended Sections of the Act of 1996. Moreover, the same suffer from the vice of excessive delegation and is against the Scheme of the Principal Act. (e) That there are inherent conflicts between the original Sections of the Principal Act and the amended Sections of the Act of 1996. Moreover, 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 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 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 apprehension 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 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. 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. (i) 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 Act. 10. On the above facts and grounds of attack, legally and factually the petitioners have prayed 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. (ii) 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. (iii) To 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 Act. 11. Similar reliefs have been prayed for in the other connected writ petition, namely, C.W.R No. 851 of 1996. 12. A joint reply has been filed on behalf of the four respondents, namely, State of Himachal Pradesh through Secretary (Revenue), the Secretary (Forests), The Financial Commissioner and the Settlement Officer, Shimla and Kinnaur Districts. The same is in the shape of an affidavit of Shri G.D. Khachi, Under Secretary (Revenue) to the Government of Himachal Pradesh. 13. 12. A joint reply has been filed on behalf of the four respondents, namely, State of Himachal Pradesh through Secretary (Revenue), the Secretary (Forests), The Financial Commissioner and the Settlement Officer, Shimla and Kinnaur Districts. The same is in the shape of an affidavit of Shri G.D. Khachi, Under Secretary (Revenue) to the Government of Himachal Pradesh. 13. Preliminary objections have been taken in the reply of the respondents that the writ petition is not maintainable as no rights of the petitioners have been infringed in any manner by any of the provisions of the Act of 1996, which are not in conflict with any of the original Sections of the Principal Act, as alleged and that the State Government is empowered to legislate on any matter, which is in the State list under the Constitution of India and this law making power cannot be challenged as the amendments impugned in the writ petition are constitutionally valid and not ultra vires the Constitution of India. 14. On merits, it has been stated that the impugned amendments are valid and not inconsistent with the original provisions of the Principal Act, the rights of the petitioners have not been affected in any manner, hence the writ petition is not maintainable. It has further been stated that the decision of this Court in CWP No. 206/88 dated 13.1.1994 was challenged by the State in the Apex Court and the operation of the judgment and order of this Court aforesaid was stayed there on 12.9.1994, vide copy Annexure R-I to the written statement. A perusal of the same shows that the Apex Court granted special leave to appeal to the State of Himachal Pradesh against the aforementioned judgment of this Court and the stay already granted by an earlier order of the Apex Court was directed to continue. 15. In paragraph 3 of the reply, it has been pleaded that as the matter is sub judice in the Apex Court, the issue raised by the petitioners in the corresponding paragraph of the writ petition cannot be raised. Reply to paragraph 4 is that the forest settlement has been carried out in accordance with law The reply contained in paragraph 5 of the written statement is the reiteration of the earlier part of the reply regarding the pendency of the case in the Apex Court. Reply to paragraph 4 is that the forest settlement has been carried out in accordance with law The reply contained in paragraph 5 of the written statement is the reiteration of the earlier part of the reply regarding the pendency of the case in the Apex Court. It has been stated that the State Government has filed an additional affidavit in the Apex Court in its appeal pending there, copy whereof is Annexure R-2. The rest of the reply of the respondent-State states that the Act of 1996 is not aimed to nullify the directions contained in the judgment of this Court in C.W.P No. 206/88. It has further been stated that the statement of objects and reasons of the impugned legislation cleraly spells out the aims of bringing the legislation, for which the State Legislature was competent to enact and that the Act of 1996 is constitutionally valid. The ground of attack as contained in paragraph 11 of the writ petition has been controverted in the reply by stating that the powers so conferred upon the Collector are essential and are not arbitrary, as alleged. 16. It has further been stated in the reply in respect of the grounds of attack raised in the writ petition that paragraph 124 of the Punjab Settlement Manual, as applicable to Himachal Pradesh alongwith paragraphs 239 and 240 has been amended by the State Government on 19.4.1996, vide Annexure R-3. It has been stated that the Collector has been empowered by the impugned legislation to correct clerical or arithmetical errors apparent on the face of the record from any accidental slip or omission during special revision. These powers are not arbitrary and have been conferred upon the Collector for the benefit of the general public and there is no question of abusing these powers after the records are consigned after completion of settlement. It has further been stated that the Collector has been empowered to issue instructions for the smooth functioning of settlement operations in any tract. This power is legally valid. Further grounds of attack have also been controverted in the reply of the respondents. 17. The petitioners have filed a rejoinder in C.W.P. No. 1192 of 1996 to the reply of the respondents, wherein the stand taken by the respondents has been controverted and the pleas raised in the writ petitions have been reiterated. 18. This power is legally valid. Further grounds of attack have also been controverted in the reply of the respondents. 17. The petitioners have filed a rejoinder in C.W.P. No. 1192 of 1996 to the reply of the respondents, wherein the stand taken by the respondents has been controverted and the pleas raised in the writ petitions have been reiterated. 18. We have heard the learned Counsel for the parties at length spread over a period of four days of hearing. The learned Counsel for the petitioners have taken us through the relevant portion of the earlier judgment of a Division Bench of this Court in C.W.P. No. 206 of 1988 dated 13.1.1994. It may be stated here that this decision has been reported in AIR 1996 HP 38. It transpires that after the filing of the present two writ petitions, the appeal filed by the respondents in the Apex Court against the said earlier judgment of this Court had been decided. It would be pertinent to state here that C.W.P. No. 1192 of 1996 had already been filed on 24.5.1996 while the earlier writ petition C.W.P. No. 851/96 was filed oh 8.4.1996. A copy of the decision of the Apex Court in Civil Appeal No. 602/94 (State of Himachal Pradesh and others v. Thakur Gian Singh and others) dated 16th July, 1996 has been annexed as P-4 to the rejoinder filed by the petitioners in C.W.P. No. 1192 of 1996. At the time of hearing, it is the common ground of the parties that the appeal of the State and other respondents in the earlier writ petition No. 206/88 stands disposed of by the Apex Court by the said decision contained in Annexure P-4. The operative part of the same is as follows : "In view of the common ground emerging from the above submissions, it appeals to us that it is needless to consider the merits of the points raised in this appeal 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. 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 alleged 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. 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." 19. It is thus clear from the above observations contained in the decision of the Apex Court that the petitioners are well within their rights to challenge the Act of 1996 by way of the present writ petitions. This is clear from the facts that the Apex Court has observed in its decision that it would be open to the State Government to show that the surviving directions have become infructuous and in that situation, it would be for the High Court to decide the contention on merits. Even otherwise, there is nothing in the decision of the Apex Court to indicate that the petitioners are debarred from challenging the Constitutional validity and raising other grounds of attack, as they have done, to the provisions of the Act of 1996. 20. We also find force in the submissions of the learned Counsel for the petitioners that the decision of the Supreme Court, referred to above, does not have the effect of setting aside the judgment of this Court as reported in AIR 1996 HP 38 (C.W.P. No. 206 of 1988 dated 13.1.1994). This is so because as is apparent from the operative part of the judgment of the Supreme Court the appeal there has been disposed of without deciding any points on merits. It is also clear from the decision of the Supreme Court that their Lordships of the Apex Court have observed that it is needless to consider points on merits raised in that appeal. It is also clear from the decision of the Supreme Court that their Lordships of the Apex Court have observed that it is needless to consider points on merits raised in that appeal. These observations as well as the fact that the appeal has been disposed of by the Supreme Court without deciding any points on merits, can only be interpreted to mean that the judgment of this Court, referred to above, holds the field till date and has thus become final and binding inter partes. It may be stated here that the learned Additional Advocate General during the course of his submissions made before us was not able to controvert this argument raised on behalf of the petitioners. Therefore, we have no hesitation in coming to the conclusion that the judgment of the Division Bench of this Court in C.W.P. No. 206 of 1988 dated 13.1.1994 (AIR 1996 HP 38) continues to be in force and has become final and, therefore, is binding between the parties. 21. It has then been argued on behalf of the petitioners by their learned Counsel that the Act of 1996 is ultra vires the Constitution and the principal Act inasmuch as it seeks to nullify the judgment of this Court vide AIR 1996 HP 38, retrospectively. This argument is sought to be met on behalf of the State by the learned Additional Advocate General submitting that by the impugned Amendment Act i.e. Act of 1996 the earlier decision of this Court referred to above has not been overruled, but it has been made ineffective and infructuous, which the Legislature was competent to do so. 22. After giving thoughtful consideration to the respective contentions raised on behalf of both the parties, we are of the considered view that the enactment of Act of 1996 is a colourable piece of legislation and is, thus, unsustainable in law. The reasons for this are: (i) The effect of the Act of 1996 is to nullify the directions contained in the judgment of this Court referred to above, which otherwise has become final and binding on both the parties under the law. This is not permissible; (ii) That the Act of 1996 has been made applicable retrospectively in order to render the said judgment of this Court ineffective and infructuous, which is again impermissible under the law. This is not permissible; (ii) That the Act of 1996 has been made applicable retrospectively in order to render the said judgment of this Court ineffective and infructuous, which is again impermissible under the law. In this connection Section 13 of the Act of 1996 may be referred to which is the Validation clause which 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 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." It is manifest from the provisions of Section 13 above that it seeks to nullify the judgment of this Court referred to above and seeks to render valid any record-of-rights or special revision of record-of-rights in respect of lands situated in the State of Himachal Pradesh with effect from 23rd September, 1976 and before the commencement of the Act of 1996. 23. It is settled law that vested rights cannot be taken away by retrospective amendment legislation, which is the case here. What is sought to be done is that the right which has vested in the holders thereof as per the records prepared from time to time, or special revision of that record are sought to be undone by this retrospective piece of legislation. 24. For the above propositions we derive support from the case law which has been cited before us at the time of arguments. A Division Bench of this Court in M/s. Jai Mata Rolled Glass Ltd. v. State of Himachal Pradesh and another etc. etc. (1995 (1) Sim. 24. For the above propositions we derive support from the case law which has been cited before us at the time of arguments. A Division Bench of this Court in M/s. Jai Mata Rolled Glass Ltd. v. State of Himachal Pradesh and another etc. etc. (1995 (1) Sim. LC 480) has laid down that the distinction between making a decision "ineffective" by amending the law on which it is based and "overruling" the decision must, therefore, be clearly understood, where the impugned Act seeks to overrule the decision of this Court, it must for that reason held to be invalid. 25. In G.C. Kanungo v. State of Orissa etc., (1995) 5 Supreme Court Cases 96, the Apex Court has clearly laid down that a Legislature has no legislative power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or not binding, for such power if exercised would not be a legislative power exercised by it but a judicial power exercised by it encroaching upon the judicial power of the State exclusively vested in Courts. 26. In Indian Aluminium Co. and others v. State of Kerala and others, (1996) 7 Supreme Court Cases 637, the Apex Court held that the validity of the Validating Act is to be judged by the following tests: (i) whether the legislature enacting the Validating Act has competence over the subject-matter; (ii) whether by validation, the legislature has removed the defect which the Court had found in the previous law; (iii) whether the validating law is consistent with the provisions of Chapter III of the Constitution. If these tests are satisfied, the Act can validate the past transactions which were declared by the Court to be unconstitutional. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without properly removing the base on which the judgment is founded. 27. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without properly removing the base on which the judgment is founded. 27. In Madan Mohan Pathak and another v. Union of India and others, AIR 1978 SC 803, the facts were that a settlement regarding payment of cash bonus to Class III and Class IV employees of Life Insurance Corporation was arrived at between the Corporation and its employees and the same was declared valid and enforceable by a High Court. On the facts of that case the Apex Court held that the Parliament could not pass an Act invalidating the Settlement by simply excluding specific settlement between the Corporation and its employees from the purview of Section 18 of the Industrial Disputes Act, 1947, which had been held to be valid and enforceable by a High Court. 28. In the matter of Cauvery Water Disputes Tribunal AIR 1992 SC 522, the Apex Court laid down that the principle which emerges from various authorities of the Apex Court itself is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and the functioning as an appellate Court or Tribunal. 29. In The Municipal Corporation of the City of Ahmedabad and another v. The New Shrock Spg. and Wvg. Co. Ltd. etc., AIR 1970 SC 1292, it was laid down that the legislatures under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers the legislature can remove the basis of a decision rendered by a competent Court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by Courts. 30. By exercise of those powers the legislature can remove the basis of a decision rendered by a competent Court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by Courts. 30. In S.S. Bola and others v. B.D. Sardana and others, (1997) 8 SCC 522, it was laid down that "when a particular Rule or the Act is interpreted by a Court of law in a specified manner and the law-making authority forms the opinion that such an interpretation would adversely affect the rights of the parties and would be grossly inequitous and accordingly a new set of rules or laws is enacted, it is very often challenged as in the present case on the ground that the legislatures have usurped the judicial power. In such a case the Court has a delicate function to examine the new set of laws enacted by the legislatures and to find out whether in fact the legislatures have exercised the legislative power by merely declaring an earlier judicial decision to be invalid and ineffective or the legislatures had altered and changed the character of the legislation which ultimately may render the judicial decision ineffective. It cannot be disputed that the legislatures can always render a judicial decision ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively as was held by this Court in the case of Indian Aluminium Company v. State of Kerala, (1996) 7 SCC 637. What is really prohibited is that the legislature cannot in exercise of its plenary power under Articles 245 and 246 of the Constitution merely declare a decision of a Court of law to be invalid or to be inoperative in which case it would be held to be an exercise of judicial power. Undoubtedly under the scheme of the Constitution the legislature does not possess the same." 31. Undoubtedly under the scheme of the Constitution the legislature does not possess the same." 31. Applying the ratio of the decisions of the Apex Court discussed above, to the Act of 1996, the subject-matter for consideration in the present case, it would be seen that from the statements of objects and reasons for enacting the same, it can clearly be made out that in the garb of stating that due to the different scales of measurements prevailing in various parts of Himachal Pradesh, the conversion of metric system involves, the complete remeasurements in all the revenue estates in the State so that the settlement operations are avoided so that it does not cause any public inconvenience and loss to the State exchequer, the intention clearly is to make ineffective the directions given by this Court vide its judgment in A.I.R. 1996 H.R 38. In other words, by the Act of 1996 the State Legislature has taken upon itself the task of exercising judicial powers of the State by setting at nought the judgment of the Court (supra) rendered in an individual case inter partes so as to adversely affect the rights and liabilities of the parties to that case. It is manifest that in view of the settled law, as discussed above, the Amending Act is ultra vires the Constitution as well as the principal Act itself. By Section 2 (b) of the Act of 1996, the Collector has been empowered to declare an area as an estate without any requirement of approval by any higher authority like the Commissioner, Financial Commissioner or even the State Government. Prior to the amendment, under the principal Act, only the State Government was empowered to declare an area as an estate. It is thus manifest that the Act of 1996 vests unfettered, unbridled and arbitrary powers on the Collector, without providing any checks or balances to ensure that the same is exercised according to law, justice, equity and good conscience. Not only that, no guidelines have been provided as to how the power thus vested in the Collector is to be exercised by him. Logically speaking, absurd though it may sound, theoretically even the State Government has been left powerless to exercise any check on the use of discretion by the Collector by virtue* of the Act of 1996. Not only that, no guidelines have been provided as to how the power thus vested in the Collector is to be exercised by him. Logically speaking, absurd though it may sound, theoretically even the State Government has been left powerless to exercise any check on the use of discretion by the Collector by virtue* of the Act of 1996. Consequently, it fails to meet the touchstone and test of Article 14 of the Constitution. Similarly, the insertion of Section 33-A in the Principal Act by the Act of 1996 has the effect of vesting arbitrary powers in the Settlement Collector which would enable him potentially to mis-use the re-measurements, for which provision has been made therein. For facility of reference Section 33-A may be reproduced herebelow : "Units of measure to be based on metric system.—In case the measurements of any land in the record-of -rights are recorded in non-mertic system there shall, during making record-of-rights or special revision of record-of-rights under Section 33 of this Act, be a complete remeasurement of the estate or sub-estate based on the units of metric system in accordance with the provisions of the Standards of Weights and Measures Act, 1976." This is yet another ground which renders the Act of 1996 unconstitutional. 32. The language of Section 47-A as inserted by the Act of 1996 suggests that it has been applicable with retrospective effect. This has obviously been done to nullify and overrule the judgment of this Court vide AIR 1996 H.P. 38. Moreover, it has the effect of equating the Settlement Collector with the Financial Commissioner in the matter of issuing directions/ instructions to the Revenue Officer/Officials for their guidance in matters relating to the provisions of Chapter IV and V of the Principal Act. 33. Moreover, it has the effect of equating the Settlement Collector with the Financial Commissioner in the matter of issuing directions/ instructions to the Revenue Officer/Officials for their guidance in matters relating to the provisions of Chapter IV and V of the Principal Act. 33. The amendments made in the principal Act by the Act of 1996 are ultra vires for a number of reasons, namely : (a) They are against the basic scheme and structure of the principal Act; (b) They suffer from the vice of excessive delegation; (c) There has been abdication of legislative powers of the State Government which have now been vested arbitrarily in the Collector; (d) Even powers of the subordinate legislation have been vested in the Collector; (e) No rule making power is provided under any provision of the Act of 1996 which is otherwise inconsistent with the provisions of the principal Act; (f) They have the effect of nullifying and over-ruling the earlier decision of this Court vide AIR 1996 H.P. 38, retrospetively; and lastly (g) Instead of curing the defect in the settlement operations, as pointed out in the decision of this Court vide A.I.R. 1996 H.P. 38, these amendments have rendered its operation nugatory and of no effect. 34. On behalf of the State it has been submitted by the learned Additional Advocate General, assisted by the learned Asstt. Advocate General, that by virtue of the amendments carried out by the Act of 1996 the Settlement Collector has been vested with the power of issuing directions/instructions to the Revenue Officer/ Officials for their guidance in matters relating to the provisions of Chapters IV and V of the Principal Act. This is for the obvious reason that the Settlement Collector, being a State functionary at the spot is more of an expert in the matter of carrying out settlement operations in the field area than the higher ranking officer e.g. the Divisional Commissioner and the Financial Commissioner. 35. It has also been submitted on behalf of the State that the Act of 1996 does not have the effect of overruling the judgment of this Court vide AIR 1996 HP 38. On the other hand the said judgment has been made ineffective and infructuous, which is within the jurisdictional domain of the State Executive and the Legislature. 36. In support of his submission the learned Additional Advocate General, assisted by the learned Asstt. On the other hand the said judgment has been made ineffective and infructuous, which is within the jurisdictional domain of the State Executive and the Legislature. 36. In support of his submission the learned Additional Advocate General, assisted by the learned Asstt. Advocate General, has relied on case law. He has placed reliance on a Constitution Bench ruling of the Apex Court reported as Smt. Indira Nehru Gandhi v. Shri Raj Narain (AIR 1975 S.C. 2299), more particularly on the following two paras (Nos. 137 and 138): "137. The constitutional validity of a statute depends entirely on the existence of the legislative power and the express provision in Article 13. Apart from the limitation the legislature is not subject to any other prohibition. The amendments made to the 1951 Act by the Amendment Acts, 1974 and 1975 are to give effect to certain views expressed by this Court in preference to certain views departed from or otherwise to clarify the original intention. It is within the powers of Parliament to frame laws with regard to elections. Parliament has power to enumerate and define election expenses. Parliament has power to lay down limits on election expenses. Parliament has power to state whether certain expenses can be included or may be excluded from election expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment, resignation or termination of service. Parliament has power to state what can be considered to be office of profit. Parliament has power to state as to what will and what will not constitute corrupt practice. Parliament has power to enact what will be the ground for disqualification. Parliament has power to define "candidate". Parliament has power to state that symbols will be allotted to candidates at election. These are all legislative policies. 138. The conclusive evidence or conclusive proof clause is an accepted legislative measure. Similarly, giving retrospective effect to legislative amendment is accepted to be valid exercise of legislative power. The well known pattern of all Validation Acts by which the basis of judgments or orders of competent Courts and Tribunals is changed and the judgments and orders are made in-effective is to be found in M.P.V. Sundararamier & Co. v. The State of Andhra Pradesh, 1958 SCR 1422: (AIR 1958 SC 468). The power of the legislature to pass a law includes a power to pass it retrospectively. v. The State of Andhra Pradesh, 1958 SCR 1422: (AIR 1958 SC 468). The power of the legislature to pass a law includes a power to pass it retrospectively. An important illustration with reference to retrospective legislation in regard to election is the decision of this Court in Kanta Kathurias case (AIR 1970 SC 694) (supra). Kanta Kathuria was disqualified by reason of holding an office of profit. First the Ordinance and later the Act was passed to nullify the decision of the High Court. The Ordinance as well as the Act stated that notwithstanding any judgment or order of any court or Tribunal, the officer shall not be disqualified or shall be deemed never to have disqualified the holders thereof as a member of the Legislative Assembly. The rendering of a judgment ineffective by changing the basis by legislative enactment is not encroachment on judicial power because the legislation is within the competence of the legislature." 37. In so far as para 137 ibid is concerned, it expounds the power of the legislature to frame laws with regard to elections, otherwise provided by the Representation of the People Act, 1951. It is manifest that the same has no bearing in so far as the present case is concerned, where the earlier decision of this Court has been rendered nullified and overruled. 38. In so far as para 138 ibid is concerned, it only restates the law as has been laid down by a catena of decisions of the Apex Court. 39. Reliance has then been placed on the case of The Registrar of Cooperative Socioeties, Trivandrum and another v. K. Kunjabmu and others, (1980) 1 SCC 340. It has been laid down therein as follows : "Parliament and the State Legislatures function best when they concern themselves with general principles, broad objectives and fundamental issues, instead of technical or situational intricacies which are better left to better equipped full time expert executive bodies and specialist public servants. Parliament and the State Legislatures have neither the time or expertise to be involved in detail or circumstance, nor can visualise and provide for new strange unforeseen or unpredictable situations. That is the raison detre for delegated legislation. The power to legislate carries with it the power to delegate. But excessive delegation may amount to abdication. Delegation unlimited may invite despotism uninihibited. That is the raison detre for delegated legislation. The power to legislate carries with it the power to delegate. But excessive delegation may amount to abdication. Delegation unlimited may invite despotism uninihibited. So the theory has been evolved that the legislature cannot delegate its essential legislative function. Legislate it must, by laying down policy and principle and delegate it may to fill in detail and carry out policy. The legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute such as the preamble, the scheme or even the very subject-matter of the statute. If guidance there is, wherever it may be found, the delegation is valid. A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same principle generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designed to further the Directive Principles of State Policy." The above observations are also in the nature of restatement of the law relating to delegated legislation. The same do not throw any light in so far as the impugned amendments in the present case are concerned, in order to test the validity thereof. 40. In State of Tamil Nadu and others v. M/s. Sanjeetha Trading Company and others, (1993) 1 SCC 236, the Apex Court was interpreting the provisions of the T.N. Timber (Movement Control) Order, 1982. In that context it was held that the framers of the Constitution thought free trade, commerce and inter-course throughout the territory of India necessary, so that there should be an economic unity of India and there should not be regional or territorial barriers. At the same time, being conscious of the fact that such freedom of trade, commerce and inter-course throughout the territory of India may required to be curbed or curtailed under certain situations taking into consideration the public interest, liberty was given to the Parliament as well as to the Legislatures of the States under Articles 302, 303 and 304 of the Constitution to impose restrictions on such freedom of trade. Here also, it is manifest that the observations made therein have no bearing about the test of validity of the impugned amendments which relate to revenue settlement in respect of agricultural land in Rohru Sub-Division. 41. Here also, it is manifest that the observations made therein have no bearing about the test of validity of the impugned amendments which relate to revenue settlement in respect of agricultural land in Rohru Sub-Division. 41. The next authority relied on behalf of the State is S.S. Grewal v. State of Punjab and others, (1993) Supp (3) SCC 234. It has been laid down therein that in so far as the retrospective operation of statute law is concerned, explanatory or clarificatory statute or statutory rules or orders are to be read as part of the main statute/rules/orders and, as such, would operate retrospectively. 42. In Indian Aluminium Company and others v. State of Kerala and others, (1996) 7 SCC 637, while summing up the principles emerging from a large numbers of decisions of the Apex Court it was laid down as follows: "In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly over-rule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof." Here again, the Apex Court has reiterated that in exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision, which is what has happened in the present case, thus, affecting the validity of the impugned amendments. 43. 43. In S.S. Bola and others v. BD, Sardana and others, (1997) 8 SCC 522, reliance has been particularly placed on behalf of the State on paras 158 and 159 of the said report. Para 158 clearly spells out that it is within the exclusive power of the judiciary to hold that a statute passed by the legislature is ultra vires and the legislature cannot directly override the judicial decision. In so far as para 159 is concerned, it only reiterates that the power to make law includes the power to give it retrospective effect, 44. Lastly, reliance has been placed by the learned Additional Advocate General on Rai Ramkrishna and others etc. v. State of Bihar, AIR 1963 SC 1667. It has been laid down therein that the power conferred on the legislature can be exercised both prospectively and retrospectively and that the legislative power includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. Here again, there cannot be any two opinions about the power of the legislature. But in the present case the impugned amendments have resulted in nullifying and overruling the earlier decision of this Court, referred to above, thus laying them open to challenge as regards their validity. 45. For the reasons recorded above, both these writ petitions, namely, C.W.P. Nos. 851/96 and 1192/96 are allowed. The Himachal Pradesh Land Revenue (Amendment and Validation) Act, i.e. the Act of 1996 is declared ultra vires to the extent it has the effect of nullifying and over-ruling the earlier decision of this Court in C.W.P. No. 206 of 1988 dated 13-1-1994, reported as Gian Singh and others v. State of H.P. and others, AIR 1996 HP 38, with retrospective effect, and thereby rendering the operation of the said decision nugatory and of no effect. 46. 46. In consequence of the above, a writ of mandamus is hereby issued directing the respondents i.e. the State of Himachal Pradesh (the only respondent in C.W.P. No. 815/96 and respondent No. 1 in C.W.P. No. 1192/96), the Secretary (Forest), Government of Himachal Pradesh, Shimla, the Financial Commissioner, Government of Himachal Pradesh, Shimla, and the Settlement Officer, Shimla and Kinnaur Districts (respondents No. 2 to 4 respectively in CW.P. No. 1192/96) to carry out the directions issued by this Court in CW.P. No. 206/88 decided on 13-1-1994 by strictly complying with the same, preferably within a period of six months from today. In view of the facts and circumstances of the case, which also involve interpretation of legal provisions, there will be no order as to costs. Petition allowed.