JUDGMENT : Mansoor Ahmad Mir, J. Writ petitioners have invoked the jurisdiction of this Court by the medium of the instant writ petition for grant of the following reliefs on the grounds taken in the memo of the writ petition: “i) For quashing and setting aside impugned orders at annexure P-5 passed by respondent on 23.9.2014 and P-6 dated 20.6.2015 ordering eviction of the petitioners from khasra number 559 old number 356 min measuring 4-3 bighas in estate Shasherpur Chhawni Tehsil Nahan District Sirmour. ii) Respondents may kindly be directed to produce the record of the case before the Hon'ble Court. iii) Any other writ, order or direction as deemed fit in the facts and circumstances of the case may also be granted in favour of the petitioners.” 2. The respondent-Estate Officer issued a show cause notice on 16th April, 2014, while invoking the provisions of Section 4 of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short “Act of 1971”) and asked writ petitioner No. 1-Asif Beg to show cause on or before 28th April, 2014, as to why eviction orders in terms of the mandate of the Act of 1971 be not made and also to appear for personal hearing on the said date. Writ petitioner No. 1 filed reply on 26th May, 2014, wherein it has specifically been averred that khasra No. 559 was in fact khasra No. 356 min in terms of the revenue record right from the year 1945 till the time it was re-numbered and was in possession of his forefathers as non-occupancy tenant and is in his possession alongwith others as such. It has specifically been averred that late Shri Haider Beg was a non-occupancy tenant, who was in possession of the said khasra number alongwith other khasra numbers and his name is reflected in jamabandis and all revenue records, the copies/extracts of which are annexed as Annexure P-3 from pages No. 17 to 30 and 32 to 39 of the paper book. Photo copy of mutation No. 162 attested on 23rd April, 1976, finds place at page No. 31 of the paper book. 3. Photo copy of mutation No. 162 attested on 23rd April, 1976, finds place at page No. 31 of the paper book. 3. It is also pleaded in the reply to the notice that the said mutation contains the details of all the khasra numbers including khasra No. 356 min entered in column No. 6, but, inadvertently, khasra No. 356 min was not recorded in column No. 11 of the said mutation, constraining writ petitioner No. 2 to file an application on 19th May, 2008, for rectifying the error, but no order was made. It has specifically been pleaded by writ petitioner No. 1 before the Estate Officer that the khasra number in question is not only in his possession but also is in the possession of writ petitioner No. 2-Yakub Beg and his family members. Further averred that they are not unauthorized occupants, but are in lawful possession even prior to 1944 and are cultivating the same. The land in question is 'obar land' and they have constructed a cowshed and a motor repair shop over a portion of the land, which is being run under the name and style 'Baig Auto Workshop' (for short “workshop”). 4. The writ petitioners have also placed on record the interim orders (Annexure P-4) made by the officer concerned before passing the order of eviction, dated 23rd September, 2014 in order to demonstrate that the writ petitioners were not heard. Order, dated 16th April, 2014 relates to issuance of show cause notice and the file was placed on 28th April, 2014, when writ petitioner No. 1-Asif Beg appeared in person and filed an application seeking one month's time to file reply, which was granted. On 26th May, 2014, reply was filed alongwith the documentary evidence and the case was fixed for hearing the arguments on 11th June, 2016. Thereafter, writ petitioner No. 1 filed an application through his counsel for allowing him to examine revenue officials, who were maintaining the revenue record in order to show that he was not an unauthorized occupant. It appears that the said application was not granted and order, dated 23rd September, 2014, came to be made. 5. Thereafter, writ petitioner No. 1 filed an application through his counsel for allowing him to examine revenue officials, who were maintaining the revenue record in order to show that he was not an unauthorized occupant. It appears that the said application was not granted and order, dated 23rd September, 2014, came to be made. 5. In terms of impugned order, dated 23rd September, 2014 (Annexure P-5), direction was issued to the writ petitioners and all persons in occupation of the said premises or part thereof to evict the same within fifteen days from the date of publication of the order, i.e. by or before 9th October, 2014, in default, the said persons were to be evicted. 6. Feeling aggrieved, the writ petitioners filed Civil Appeal No. 0000019-N/14 of 2014, titled as Shri Asif Beg and another versus Station Commander/Estate Officer before the Additional District Judge, Sirmaur District at Nahan, H.P., which too met with the same fate and was dismissed vide impugned order, dated 20th June, 2015. This is how the writ petitioners are before this Court. 7. The writ petitioners have pleaded in the writ petition that their forefathers were non-occupancy tenant and enjoying the possession and usufructs of the land in question, which has been classified as 'obar doem', even before 1950s till the time the impugned orders came to be made. Further averred that all the persons, who were in possession of the said land, have not been arrayed as party, only writ petitioner No. 1-Asif Beg was made a party, the mention of which has been made in para 2 (b) (v) of the writ petition. In para 3 (e) of the writ petition, it has been recorded that the orders suffer from non-application of mind as in one breath, it is recorded that the writ petitioners are not in possession and in the second breath it is recorded that they are unauthorized possessors/occupants. 8. The respondent has filed the reply and resisted the writ petition. In preliminary objections, it is stated that the Will made by late Shri Haider Beg is not valid. On merits, it is stated that mutation made was legal, the writ petitioners are unauthorized occupants and the entries relating to non-occupancy tenant in favour of late Shri Haider Beg was not in accordance with law, was a wrong entry and no clerical error had crept-in while recording mutation No. 162. On merits, it is stated that mutation made was legal, the writ petitioners are unauthorized occupants and the entries relating to non-occupancy tenant in favour of late Shri Haider Beg was not in accordance with law, was a wrong entry and no clerical error had crept-in while recording mutation No. 162. In terms of the mandate of The Himachal Pradesh Tenancy and Land Reforms Act, 1972 (for short “HP Tenancy Act”), Will is not valid. 9. In reply to para 3 (e), it is stated that late Shri Haider Beg was not found in possession of the land in question at the time of the mutation and, thus, the writ petitioners are encroachers rather unauthorized occupants. The land in question is a 'public premises' as per the mandate of Act of 1971. 10. The writ petitioners have filed rejoinder and have specifically denied all these averments. 11. The lis in question has far reaching consequences. In one breath, it is pleaded by the respondents that no mutation can be effected viz-a-viz said land, Section 104 of HP Tenancy Act is not governing the land which is owned by or vested in Government under any law, in view of the amendment made in the year 1987 by adding proviso to sub-section (9) of Section 104 and in the second breath, it is stated that at the time of making the mutation, the concerned officer had come to the conclusion that late Shri Haider Beg was not in possession of khasra 356 min, presently khasra No. 559 and late Shri Haider Beg had not questioned the same, is suggestive of the fact that they are blowing hot and cold. 12. Mutation No. 162 was not the subject matter before the respondent and no lis was pending before any Court/Tribunal viz-a-viz Mutation No. 162. The writ petitioners have stated in their reply to the notice issued by the Estate Officer that their forefathers were in possession of big chunk of land including old khasra No. 356 min. Though, the said khasra number finds place in column No. 5 of the mutation relating to the possession and in column No. 6, besides other khasra numbers, khasra No. 356 min was duly recorded, but does not find place in column No. 11 of the mutation. Though, the said khasra number finds place in column No. 5 of the mutation relating to the possession and in column No. 6, besides other khasra numbers, khasra No. 356 min was duly recorded, but does not find place in column No. 11 of the mutation. But, at the same time, it is recorded in the marginal note that the entries in all columns i.e. columns No. 1 to 7 were verified and attested. Meaning thereby, it was verified/accepted that late Shri Haider Beg was also in possession of khasra No. 356 min as non-occupancy tenant. 13. It has been recorded by the Estate Officer and the Additional District Judge in their orders that late Shri Haider Beg was not found in possession of the said khasra number while passing mutation No. 162, is proof of the fact that they are relying upon the entries made in mutation No. 162, then, how can it lie in their mouth that mutation is not legally correct. If it is so, the attesting authority has attested the tenancy of late Shri Haider Beg as non-occupancy tenant and the rate of rent, which he was paying, in the relevant columns of mutation No. 162, has attained finality. 14. The Estate Officer and the Additional District Judge have recorded the findings to the effect that the Will executed by late Shri Haider Beg on 7th July, 1972, which was registered on 10th July, 1972, was not valid. We wonder how they have drawn said conclusion. The Will is in Hindi and its English translation has been placed on record. While going through, it is crystal clear that the Will is a registered document and it is not viz-a-viz any khasra number or any building, it relates to entire estate of late Shri Haider Beg. Late Shri Haider Beg had only one daughter-Reham Bibi, who died during the life-time of late Shri Haider Beg. Thereafter, Will came to be executed in favour of the sons of Reham Bibi, wife of Mustafa Beg, i.e. Yakub Beg, Pashwar Beg and Ayyub Beg. As per the 'shajra nasab', i.e. pedigree table, Mustafa Beg is nephew of late Shri Haider Beg and husband of Reham Bibi. 15. A Muslim, as per the mandate of Muslim Law, can execute a Will. As per the 'shajra nasab', i.e. pedigree table, Mustafa Beg is nephew of late Shri Haider Beg and husband of Reham Bibi. 15. A Muslim, as per the mandate of Muslim Law, can execute a Will. Otherwise, if a son dies during life-time of his father, his grand sons/daughters cannot inherit the same as per the Muslim Law. Perhaps that has necessitated for execution of Will, which is not specifically for any tenancy land. 16. The HP Tenancy Act was promulgated in the year 1974. Section 104 (3) of the HP Tenancy Act confers the ownership rights to a person, who is non-occupancy tenant, of the land. Section 104 (3) of the HP Tenancy Act reads as under: “104. Right of tenant other than occupancy tenant to acquire interests of landowners. - (1). ….......... (2) …........... (3). All rights, title and interest (including a contingent interest, if any) of a landowner other than a landowner entitled to resume land under sub-section (1), shall be extinguished and all such rights, title and interest shall with effect from the date to be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances: Provided that if a tenancy is created after the commencement of this Act, the provision of this sub-section shall apply immediately after the creation of such tenancy.” 17. Section 104 (3) (supra) mandates that the ownership rights are conferred upon a person who was in possession as a non-occupancy tenant and rights of all those owners, who were shown as landowners have extinguished. 18. The question is – whether conferment of proprietary rights under Section 104 (3) of the HP Tenancy Act has an automatic application or follow-up order is to be made? This question will be determined hereinafter. 19. In 1987, the HP Tenancy Act was amended and proviso to sub-section (9) of Section 104 came to be added in terms of Section 2 of the H.P. Tenancy and Land Reforms (Amendment) Act, 1987, which came into force on 25th March, 1988. The proviso to sub-section (9) of Section 104 of the HP Tenancy Act reads as under: “Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in Government under any law, whether before or after the commencement of this Act, and is leased out to any person.” 20. The proviso to sub-section (9) of Section 104 of the HP Tenancy Act reads as under: “Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in Government under any law, whether before or after the commencement of this Act, and is leased out to any person.” 20. It mandates that Section 104 of the HP Tenancy Act shall have no application to such land which is either owned by or is vested in Government under any law, whether before or after the commencement of the HP Tenancy Act and is leased out to any person. 21. The question is– what is the effect of this proviso? (i) Whether it has retrospective effect? (ii) Whether it will take away the rights of the parties, which have accrued to them and crystallized by effecting mutation after following the procedure provided by The Himachal Pradesh Tenancy and Land Reforms Rules, 1975 (for short “Tenancy Rules”)? These questions will also be dealt with hereinafter. 22. In the case in hand, mutation has already been effected, nobody has raised any finger so far and was not subject matter of the lis before the Estate Officer, Additional District Judge or before this Court. But, its implication has an effect on this lis also for the reasons to be recorded hereinafter. 23. The fact of the matter is that all the khasra numbers except old khasra No. 356 min have been recorded in the name of late Shri Haider Beg as owner in the relevant column of the said mutation. Thereafter, mutation/succession has been attested and the writ petitioners alongwith others have been recorded as owners in possession of the said khasra numbers. Late Shri Haider Beg was shown as non-occupancy tenant paying rent of the said khasra numbers. Thereafter, the writ petitioners and others have been shown as such. 24. Whether the person, in whose favour Will is made, can step into the shoes of a tenant, as per the HP Tenancy Act? 25. A question arose before this Court whether a daughter, who is governed by Hindu Law, is deprived of rights under HP Tenancy Act in terms of the mandate of Section 45 of the HP Tenancy Act. Whether the person, in whose favour Will is made, can step into the shoes of a tenant, as per the HP Tenancy Act? 25. A question arose before this Court whether a daughter, who is governed by Hindu Law, is deprived of rights under HP Tenancy Act in terms of the mandate of Section 45 of the HP Tenancy Act. While applying the rigour, it was held by the Courts below that a daughter is not entitled, constraining her to invoke the jurisdiction of this Court and this Court in the case titled as Smt. Charno Devi and others versus Dali Mal (deceased) through his L.Rs. Shamsher Singh and others, reported in 1994 (2) Sim. L.C. 279, held that a daughter under Hindu Law is entitled to inherit and she cannot be deprived of her rights in terms of rigours of Section 45 of the HP Tenancy Act. 26. Thus, how can it be said that Will is invalid. It is a registered Will, governs the entire estate of late Shri Haider Beg, which is not in dispute. The Estate Officer and the Additional District Judge have travelled beyond the pleadings and the relief sought and came to the conclusion that the Will is invalid, which was not subject matter of the lis. 27. Virtually, both the officers have deprived the persons in whose favour Will has been executed of their legitimate rights. It is for the Civil Court to determine as to whether the Will is valid or otherwise. 28. It is apt to record herein that the Estate Officer has passed an order, which is trash for the reason that he has directed to evict the writ petitioners and all those persons who may be found in possession of the land in question. Can it be done without hearing all the affected parties, is suggestive of the fact that he has not made a positive finding as to who was in possession and whether he is unauthorized occupant. It is apt to record operative portion of impugned order, dated 23rd September, 2014, herein: “Now, therefore, in exercise of the powers conferred on me under sub-section (1) of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, I hereby order the said Sh. It is apt to record operative portion of impugned order, dated 23rd September, 2014, herein: “Now, therefore, in exercise of the powers conferred on me under sub-section (1) of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, I hereby order the said Sh. Yaqub Beg and Asif Beg and all persons who may be in occupation of the said premises or any part thereof to vacate the said premises comprising No Khasra 559 measuring 0-58-26 Hect situated at Chhawani Shamsherpur, Nahan within 15 days of the date of publication of this order i.e., on or before 09 Oct 2014. In the event of refusal or failure to comply with this order within the period specified above, the said Sh. Yaqub Beg and Asif Beg and all other persons concerned are liable to be evicted from the said premises, if need be, by the use of such force as may be necessary.” (Emphasis added) 29. In the same fashion, the Additional District Judge has also fallen in the same error. 30. The question framed in para 18 (supra) is determined as under: 31. It appears that mandate of Section 104 (3) of the HP Tenancy Act is that the moment the Act has come into force, all rights of the landowners are extinguished and a person who is in possession of the land as non-occupancy tenant, steps into the shoes of an owner and becomes the owner. Thus, it is automatic and there is no question of following any mechanism. May be the Tenancy Rules provide for following any mechanism, but that is only for making entries in the revenue records. It does not mean that in case an entry is not made or mutation is not effected/recorded, the said person is not the owner. 32. This Court in a case titled as Daulat Ram and ors. Versus State of Himachal Pradesh and ors., reported in 1979 Shim. L.C. 215, held that a person recorded as a non-occupancy tenant has to reap the fruits. Further held that the State cannot take a plea that the writ petitioners were not tenants and the revenue record is wrong because once the tenants are so recorded, by operation of law, they become the owner of the land. It is apt to reproduce relevant portions of paras 15 and 23 of the judgment herein: “15. Further held that the State cannot take a plea that the writ petitioners were not tenants and the revenue record is wrong because once the tenants are so recorded, by operation of law, they become the owner of the land. It is apt to reproduce relevant portions of paras 15 and 23 of the judgment herein: “15. …..........Therefore, from that date the ownership rights vested free from all encumbrances on the persons who were so recorded as tenants under the landowners or for the matter of that the State Government in that land. Therefore, the plea taken up by the Respondents that they were not the tenants is wholly incorrect because they cannot set up this case when they are so recorded, and once they are so recorded they become the owner of the land by virtue of the operation of law and they actually became owners with effect from the date of the publication of the rules. xxx xxx xxx 23. I have already quoted Sub-section (3) of Section 104 of the Act. Under the provision of this Sub-section, the rights of the landowner in the land held by a tenant shall stand extinguished and his such rights, title and interest shall vest in the tenant free from all encumbrances created by the landowner with effect from 1-10-1973 on payment of compensation. Therefore, the provision of law does not leave any room for doubt that a person who is entered as a tenant he is to become the owner of the land with effect from 1-10-1973 on payment of compensation or from the date of the publication of the rules, as already stated above. So, there is no question of laying any condition or imposing a letter on the rights of ownership. The lights which are to vest they are without any fetters and law enjoins to confer absolute ownership in the land. Therefore, if any fetter is laid that would be in contravention of this statutory provision, and any such condition which is against the statutory provision would be void. ….” 33. The lights which are to vest they are without any fetters and law enjoins to confer absolute ownership in the land. Therefore, if any fetter is laid that would be in contravention of this statutory provision, and any such condition which is against the statutory provision would be void. ….” 33. In the cases titled as Shri Bishambhar Nath versus Shri Hari Chand and others, reported in 1993 (3) S.L.J. 2906; Sant Ram versus Jash Ram, reported in 1995 (3) S.L.J. 2510; and Jethu through K. Guddi and others versus Gobind Singh, reported in 1995 (4) S.L.J. 3031, it has been held that the proprietary rights stand conferred upon the tenants by operation of law. It is apt to reproduce para 27 of the judgment in Jethu's case (supra) herein: “27. Thus, on the basis of the aforesaid circumstances examined during the trial both the Courts below acted illegally in ignoring the legally competent evidence supporting the defendants' plea of tenancy as claimed by them. The defendants having been held to be in occupation of the suit land as tenants since 1954-55, till date, accordingly, under Section 104 of the H.P. Tenancy and Land Reforms Act the proprietary rights in respect of the suit land stood conferred upon them and they have become owners of the same by operation of law.” 34. In the case titled as Mohar Singh versus Manju Devi & others, reported in 1997 (1) S.L.J. 304, this Court has held that the conferment of proprietary rights under HP Tenancy Act is automatic and by operation of law. It is apt to reproduce relevant portion of para 11 of the judgment herein: “11. …..........Needless to point out here that after coming into force of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, the conferment of proprietory right is automatic and by operation of law. Rest of the matter is procedural as required under the Act and the rules framed thereunder.” 35. This issue stands clinched by the Apex Court in Civil Appeal No. 5424 of 1998, titled as State of Himachal Pradesh versus Chander Dev, wherein it has been held that conferment of the proprietary rights is automatic. Rest of the matter is procedural as required under the Act and the rules framed thereunder.” 35. This issue stands clinched by the Apex Court in Civil Appeal No. 5424 of 1998, titled as State of Himachal Pradesh versus Chander Dev, wherein it has been held that conferment of the proprietary rights is automatic. It is apt to reproduce relevant portion of the judgment herein: “.......From the above provisions, it is clear that all rights, title and interest of a landowner shall be extinguished and all such rights, title and interest shall, with effect from the date to be notified by the State Government in the Official Gazette, vest in the tenant free from all encumbrances.” 36. The Apex Court in the case titled as Tarsem Lal and others versus Ram Sarup and others, reported in 2014 AIR SCW 2886, held that a tenant becomes owner on enforcement of Act. It is apt to reproduce para 13 of the judgment herein: “13. As per the aforesaid provision, all right, title and interest including a contingent interest of a land owner other than the land owner entitled to resume land under sub-section (1) shall be extinguished and all such rights, title and interest in respect of the land in question vest in the tenant, i.e. original plaintiff, free from all encumbrances from the date the Act came into force. The Act was published in the Official Gazette on 21st February, 1974 vide Act No.8 of 1974. What is not in dispute is that the original plaintiff became owner of the suit land by operation of law and continued to enjoy all the rights including right of irrigation from the common source which was in possession of the original landlord.” 37. Thus, it is accordingly held that the conferment of the proprietary rights is automatic, by operation of law. 38. The constitutional validity of Section 104 of the HP Tenancy Act, as it was in 1978, i.e. on the date of the judgment, as at that time, proviso to sub-section (9) of Section 104 of the HP Tenancy Act was not added, was questioned before this Court in the case titled as Smt. Sudarshna Devi versus Union of India and another, reported in 1978 Shim. L.C. 330, wherein it has been held that the provisions of Section 104 of the HP Tenancy Act do not violate Articles 15, 19 or 26 of the Constitution of India and its validity was upheld. 39. The question, as to whether the proviso to sub-section (9) of Section 104 of the HP Tenancy Act is retrospective or otherwise, was subject matter of various cases before this Court and conflicting judgments have been made. 40. In the case titled as Dinesh Kumar versus State of H.P. and others, reported in 1994 (Suppl.) Shim. L.C. 385, it was held by a learned Single Judge of this Court that the proviso is not retrospective and will not take away the rights of those tenants who have been conferred proprietary rights. It is apt to reproduce para 10 of the judgment herein: “10. The proviso in question applied to the leases in existence on the date it stood promulgated and so far retrospectivity is concerned, it is given to the extent that these leases might be created before the coming into force of the Act or thereafter. The tenants over the land belonging to the Government cannot claim proprietary rights under Section 104 of the Act on the ground that since their tenancy/lease was created before the proviso in question was added, they had already acquired proprietary rights which were not affected by the proviso in question. In view of this interpretation, this Court does not find any substance in the argument of Sh. Kuldip Singh, learned Counsel for the Appellants, that the proviso in question applies only to leases created after the coming into force of the Act. Therefore, in the absence of any specific provision incorporated in the proviso in question for taking away the substantial rights which vested during the period from 21.2.1974 to 14.4.1988 on the tenants/lessees and on others by virtue of legal transfers made by them, the only interpretation possible of the proviso in question is that, by its retrospectivity, it does not take away the rights of those tenants who have been conferred proprietary rights and mutations have been attested in their favour and those persons who have got the said land by way of transfer.” 41. While determining the issue in Dinesh Kumar's case (supra), the learned Single Judge has drawn support from the aim and object of the HP Tenancy Act. While determining the issue in Dinesh Kumar's case (supra), the learned Single Judge has drawn support from the aim and object of the HP Tenancy Act. But in the case titled as Devi Chand versus State, reported in 1994 (4) S.L.J. 2926, it has been held by another Single Judge of this Court that the proviso is retrospective. Thus, two conflicting judgments were holding the field. 42. A learned Single Judge of this Court in the case titled as Durma Devi versus State of H.P. & others, reported in 2007 (2) S.L.J. (H.P.) 1133, while making reference to the judgments rendered by this Court in Dinesh Kumar's and Devi Chand's cases (supra), provided that he is persuaded to follow the law laid down in Dinesh Kumar's case (supra). 43. It is apt to record herein that the record was perused and after perusal, the photocopies of the relevant orders have been made part of this file. Perusal of the record does disclose that RSA No. 34 of 1995, titled as State of H.P. versus Chander Dev and others was pending before this Court. The sole plaintiff/respondent, namely Padam Dev, died during the pendency of the appeal and his legal representatives, namely Shri Chander Dev and others, were brought on record. The RSA filed by the State was dismissed on 22nd September, 1997, and it was held that the proviso to sub-section (9) of Section 104 of the HP Tenancy Act is prospective in nature. The State filed Civil Appeal No. 5424 of 1998 before the Apex Court and after discussing the proviso to sub-section (9) of Section 104 of the HP Tenancy Act, the case was remanded for fresh determination with a direction to frame substantial questions of law relating to sub-sections (3), (9) and proviso added to Section 104 of the HP Tenancy Act, vide order, dated 12th February, 2004. The Apex Court has only remitted the case to this Court for framing substantial questions of law and to decide the Regular Second Appeal on merits. It is apt to reproduce relevant portion of order, dated 12th February, 2004, made by the Apex Court in Civil Appeal No. 5424 of 1998 herein: “.............Having regard to these provisions, certain substantial questions of law do arise for consideration between the parties, looking to the facts of the case and the contentions raised. It is apt to reproduce relevant portion of order, dated 12th February, 2004, made by the Apex Court in Civil Appeal No. 5424 of 1998 herein: “.............Having regard to these provisions, certain substantial questions of law do arise for consideration between the parties, looking to the facts of the case and the contentions raised. What is the effect of the amended provision deemed to have come into force from the date of commencement of the Act? Whether any substantive rights accrued to the plaintiff on the date of the commencement of the Act if read with the amended provision which is also deemed to have come into force from the date of commencement of the Act itself? It may also to be considered whether sub-section (3) of Section 104 of the Act and the proviso added by way of amendment at the end of sub-section (9) of Section 104 of the Act should be read independently and their effect is to be considered on the rights of the plaintiff in relation to the conferment of the proprietary rights on the plaintiff.” 44. The substantial question of law was framed by the learned Single Judge and the matter was placed before the then Chief Justice for placing the matter before the larger Bench vide order, dated 20th May, 2004, in view of the conflicting judgments referred hereinabove. The Division Bench of this Court, vide order, dated 16th May, 2007, held that proviso to sub-section (9) of Section 104 of the HP Tenancy Act has retrospective effect and the case was sent back to the learned Single Judge for deciding RSA No. 34 of 1995. 45. Chander Dev and others filed SLP No. 449 of 2008 against order, dated 16th May, 2007, made by the Division Bench, was allowed on 25th November, 2008 and Civil Appeal No. 6887 of 2008 came to be registered, which is still pending. 46. It is apt to record herein that RSA No. 34 of 1995 is still pending, as on today and the judgment questioned in the Regular Second Appeal is in favour of the plaintiff/non-occupancy tenants. 47. During pendency of Civil Appeal No. 6887 of 2008, another Single Judge of this Court decided RSA No. 278 of 1998, titled as State of H.P. versus Dhani Ram & others, on 27th December, 2007, and held that the judgment in Chander Dev's case (supra) is applicable. 47. During pendency of Civil Appeal No. 6887 of 2008, another Single Judge of this Court decided RSA No. 278 of 1998, titled as State of H.P. versus Dhani Ram & others, on 27th December, 2007, and held that the judgment in Chander Dev's case (supra) is applicable. The respondents in RSA No. 278 of 1998 filed SLP No. 8101 of 2009 before the Apex Court, was granted on 17th April, 2009, Civil Appeal No. 2665 of 2009 came to be registered, the parties were directed to maintain status quo with regard to the possession and was tagged with Civil Appeal No. 6887 of 2008. 48. The question, whether the operation of the proviso is retrospective or prospective and whether it can take away the accrued rights, is still sub judice before the Apex Court. The Apex Court has directed the parties to maintain status quo, is suggestive of the fact that the possession of the non-occupancy tenants stand protected. 49. While going through the mandate of land laws, it appears that the aim and object of the land laws is to promote the tillers/farmers/cultivators, who are cultivating the lands and to put an end to absentee landowners. 50. The Apex Court in the case titled as Kh. Fida Ali and others versus State of Jammu and Kashmir, reported in (1974) 2 Supreme Court Cases 253, has discussed the aim, object and purpose of the land laws. It is apt to reproduce paras 12 and 14 of the judgment herein: “12. The golden web, throughout the warp and woof of the Act, is the feature of personal cultivation of the land. The expression 'personal cultivation' which runs through Sections 3, 4, 5, 7 and 8 is defined with care under Section 2 (7) in a detailed manner with a proviso and six explanations. 13. …......... 14. The main focus of the Act is to see that the tillers, who form the back-bone of the agricultural economy, are provided with land for the purpose of personal cultivation subject to the ceiling provision even in their case. The Act makes effective provisions for creating a granary of land at the disposal of the State for equitable distribution, subject to the limit, amongst the tillers of the soil and even the owners who would make 'personal cultivation' of the same within the meaning of the Act. The Act makes effective provisions for creating a granary of land at the disposal of the State for equitable distribution, subject to the limit, amongst the tillers of the soil and even the owners who would make 'personal cultivation' of the same within the meaning of the Act. In the nature of things it is imperative that a ceiling area has to be fixed and those who have so far enjoyed land in large tracks mostly without personally cultivating the same, are required to share with others who have no land of their own but are genuine tillers of the soil. Even so, no one is allowed to own more than the ceiling area.” 51. The Apex Court, again, while examining the validity of J & K Agrarian Reforms Act (17 of 1976), in the case titled as Prem Nath Raina and others versus State of Jammu and Kashmir and others, reported in (1983) 4 Supreme Court Cases 616, discussed the purpose of the said Act, upheld the constitutionality of the same and held that any reform made under the land laws, particularly agricultural reforms, has to be examined by considering the dominant purpose of the Act. It is apt to reproduce para 5 of the judgment herein: “5. It is urged by learned counsel led by Shri Tarkunde and by Shri Sanjay Kaul who appeared in person, that certain provisions of the impugned Act have no bearing upon agrarian reform and those provisions cannot have the protection of Article 31A. Section 7 of the Act is said to be one such provision. It provides by subsection (1) for the resumption of lands for bona fide personal cultivation by the exlandlords but by sub-section (2) it imposes certain conditions on the right of resumption. One of those conditions is that the applicant for resumption, other than a member of the Defence Forces, must, within six months of the commencement of the Act, take up normal residence in the village in which the land sought to be resumed is situated or in an adjoining village, for the purpose of cultivating the land personally. The other provision of the Act on which special stress was laid by counsel for the petitioners is the one contained in clause (f) of Section 7 (2) which lays down certain criteria for determining the extent of land which may be resumed. The other provision of the Act on which special stress was laid by counsel for the petitioners is the one contained in clause (f) of Section 7 (2) which lays down certain criteria for determining the extent of land which may be resumed. Stated briefly, where a person was entitled to rent in kind from the tiller during Kharif 1971, the extent of land resumable by such person has to bear the same proportion to the total land comprised in the tenancy as the rent in kind bears to the total produce; and where a person was entitled to rent in cash during Kharif 1971, the extent of land resumable by him has to be regulated by the extent of rent in kind to which such rent in cash can be commuted in accordance with the provisions of sub-sections (3) and (8) of Section 9. We are unable to hold that these and connected provisions of the impugned Act show that the Act is not a measure of agrarian reform. The question as to whether any particular Act is a measure of agrarian reform has to be decided by looking at the dominant purpose of that Act. In Ranjit Singh v. State of Punjab, (1965) 1 SCR 82 : ( AIR 1965 SC 632 ), it was held on a review of authorities that a large and liberal meaning must be given to the several expressions like 'estate', 'rights in an estate' and 'extinguishment and modification' of such rights which occur in Article 31A. The decision in Kochuni (1960) 3 SCR 887 : ( AIR 1960 SC 1080 ) to which our attention was drawn by Shri Tarkunde, was treated in Ranjit Singh as a special case which cannot apply to cases where the general scheme of legislation is definitely agrarian reform and under its provisions, something ancillary thereto in the interests of rural economy has to be undertaken to give full effect to those reforms. In our case the dominant purpose of the statute is to bring about a just and equitable redistribution of lands, which is achieved by making the tiller of the soil the owner of the land which he cultivates and by imposing a ceiling on the extent of the land which any person, whether landlord or tenant, can hold. In our case the dominant purpose of the statute is to bring about a just and equitable redistribution of lands, which is achieved by making the tiller of the soil the owner of the land which he cultivates and by imposing a ceiling on the extent of the land which any person, whether landlord or tenant, can hold. Considering the scheme and purpose of the Act, we cannot but hold that the Act is a measure of agrarian reform and is saved by Article 31A from the challenge under Articles 14, 19 or 31 of the Constitution. Article 31 has been repealed by the 44th Amendment with effect from June 20, 1979 and for future purposes it ceases to have relevance. Reduced to a constitutional premise, the argument of the petitioners is that the particular provisions of the Act are discriminatory and are therefore violative of Article 14; that those provisions impose unreasonable restrictions on their fundamental rights and are therefore violative of Article 19. This argument is not open to them by reason of Article 31A." 52. In another case titled as Dy. Collector and another versus S. Venkata Ramanaiah and another, reported in (1995) 6 Supreme Court Cases 545, the Apex Court, while examining the Andhra Pradesh (Scheduled Area) Land Transfer Regulation, 1959, held that retrospective operation of the Act cannot take away of the vested rights. 53. The Apex Court in the case titled as Utkal Contractor and Joinery Pvt. Ltd. and others versus State of Orissa and others, reported in (1987) 3 Supreme Court Cases 279, has held that while examining or interpreting the statute, the language used in the same should be construed constructively and the wide or general words should be given a restrictive meaning. It has further been held that in order to come to the conclusion that what is the effect of an Act, its aim and objects are to be kept in mind. 54. The writ petitioners are in possession as per the revenue record as non-occupancy tenants and if, at all, they were to be evicted, the action was to be drawn as per the mandate of the HP Tenancy Act. 55. As discussed hereinabove, whether the writ petitioners can be declared as unauthorized occupants because their possession is lawful? 56. 54. The writ petitioners are in possession as per the revenue record as non-occupancy tenants and if, at all, they were to be evicted, the action was to be drawn as per the mandate of the HP Tenancy Act. 55. As discussed hereinabove, whether the writ petitioners can be declared as unauthorized occupants because their possession is lawful? 56. Another important question arises in this writ petition is – whether a person, who is in possession of any land prior to 1944 till today, is a non-occupancy tenant and paying rent at the rate recorded in the revenue records, i.e. record-of-rights, Misal Haqiat, khasra Girdawari, jamabandies etc., can be termed as an unauthorized occupant? In other words, whether a tenant, whose possession is lawful since its very inception, can be termed as trespasser or unauthorized occupant? 57. In order to determine these questions, it is necessary to reproduce the definition of 'unauthorised occupation' given in Section 2 (g) of the Act of 1971, as under: “2. …......... (g) “unauthorised occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.” 58. The Act of 1971 was, in fact, substitute to The Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (for short “Act of 1958”). The Act of 1958 was questioned and was declared unconstitutional. The said Act was substituted by the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968 (for short “Act of 1968”), which, too, was challenged and declared as void. Thereafter, after examining all laws applicable, Act of 1971 came to be enacted and came into force with effect from 23rd August, 1971. Sub-section (3) of Section 1 of the Act of 1971 provides that this Act shall be deemed to have come into force on 16th September, 1958, except Sections 11, 19 and 20 and their applicability was from 23rd August, 1971. 59. Meaning thereby, the Act of 1971 has come into force and is applicable right from 16th September, 1958. Sub-section (3) of Section 1 of the Act of 1971 provides that this Act shall be deemed to have come into force on 16th September, 1958, except Sections 11, 19 and 20 and their applicability was from 23rd August, 1971. 59. Meaning thereby, the Act of 1971 has come into force and is applicable right from 16th September, 1958. At that time, as per the revenue record appended with the writ petition and mention of which has also been made in the impugned orders, late Shri Haider Beg was in possession as non-occupancy tenant, paying rent at the prescribed/recorded rates. The writ petitioners have placed on record the documents, the perusal of which does disclose that they were paying the rent even before 1950s. This question has to be gone through and is to be answered after hearing the parties by the competent Court/authority having the jurisdiction. 60. The Allahabad High Court, while dealing with a case of similar facts and circumstances, titled as M.S. Hussain versus VII Addl. District and Sessions Judge, Kanpur and others, reported in 1989 (2) R.C.J. 287, has laid down the same principle. 61. In this case, the writ petitioners have raised so many disputed questions, including the question of title, which can be determined by the authorities under the Act. 62. The Apex Court in the case titled as Govt. of Andhra Pradesh versus Thummala Krishna Rao and another, reported in AIR 1982 Supreme Court 1081, held that the summary proceedings cannot be resorted to in cases where complicated questions of title arise for decision. It is apt to reproduce paras 7 to 9 of the judgment herein: “7. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is "the property of Government". In regard to property described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. In regard to property described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in Unauthorised occupation of property which is declared by Sec. 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under Section 3." Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government". If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that, the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents. 8. The view of the Division Bench that the summary remedy provided for by S. 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far. That was also the view taken by the learned single Judge himself in another case which is reported in Mehrunnissa Begum v. State of A. P., (1970) 1 Andh LT 88 which was affirmed by a Division Bench (1971) 1 Andh LT 292: (AIR 1971 Andh Pra 382). It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can he taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law. 9. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by Ss. 6 and 7 of the Act. 9. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by Ss. 6 and 7 of the Act. The long possession of the respondents and their predecessor-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.” 63. It is also to be seen as to whether the writ petitioners are unauthorized occupants, who were in possession on the date of the enforcement of the HP Tenancy Act, in view of the law laid down by the Apex Court in the case titled as Suhas H. Pophale versus Oriental Insurance Company Limited and its Estate Officer, reported in (2014) 4 Supreme Court Cases 657. It is apt to reproduce para 64 of the judgment herein: “64. As far as the eviction of unauthorised occupants from public premises is concerned, undoubtedly it is covered under the Public Premises Act, but it is so covered from 16.9.1958, or from the later date when the concerned premises become public premises by virtue of the concerned premises vesting into a Government company or a corporation like LIC or the Nationalised Banks or the General Insurance Companies like the respondent no.1. Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are in occupation since prior to 16.9.1958, i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are in occupation since prior to 16.9.1958, i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Secondly, those who come in occupation, thereafter, but prior to the date of the concerned premises belonging to a Government Corporation or a Company, and are covered under a protective provision of the State Rent Act, like the appellant herein, also get excluded. Until such date, the Bombay Rent Act and its successor Maharashtra Rent Control Act will continue to govern the relationship between the occupants of such premises on the one hand, and such government companies and corporations on the other. Hence, with respect to such occupants it will not be open to such companies or corporations to issue notices, and to proceed against such occupants under the Public Premises Act, and such proceedings will be void and illegal. Similarly, it will be open for such occupants of these premises to seek declaration of their status, and other rights such as transmission of the tenancy to the legal heirs etc. under the Bombay Rent Act or its successor Maharashtra Rent Control Act, and also to seek protective reliefs in the nature of injunctions against unjustified actions or orders of eviction if so passed, by approaching the forum provided under the State Act which alone will have the jurisdiction to entertain such proceedings.” 64. In the impugned orders, the Estate Officer and the Additional District Judge, as discussed hereinabove and at the cost of repetition, have held that late Shri Haider Beg and the writ petitioners were not in possession of the land in question. The entries in the revenue records do disclose that late Shri Haider Beg was in possession and the writ petitioners were still in possession. In the impugned orders, it is also recorded that the writ petitioners are in possession, but that is unauthorized/illegal. 65. The Apex Court in various judgments has held that the lawful possession of a person cannot be said to be illegal and revenue record determines who was in possession at the relevant date. The HP Tenancy Act also provides that a person, who is non-occupancy tenant recorded at the time of the enforcement of the HP Tenancy Act, becomes an owner by operation of law. The HP Tenancy Act also provides that a person, who is non-occupancy tenant recorded at the time of the enforcement of the HP Tenancy Act, becomes an owner by operation of law. Thus, the revenue record assumes importance. 66. The same principle has been laid down by the Apex Court in the case titled as Narasamma & Ors. versus State of Karnataka & Ors., reported in 2009 AIR SCW 2653. 67. The next question is–whether the provisions of the Act of 1971 governs the case in hand without determining the tenancy as per the mandate of HP Tenancy Act, as discussed hereinabove? In other words, whether despite the proviso added to sub-section (9) of the HP Tenancy Act, the tenancy is required to be determined in consonance with the provisions contained in Chapter IV of the HP Tenancy Act? 68. Late Shri Haider Beg was holding the land as non-occupancy tenant and thereafter the writ petitoners and other persons, in whose favour the Will was made, were in possession as such. The said possession is lawful and without determining the tenancy as per the mandate of HP Tenancy Act, the provisions of Act of 1971 are not applicable. 69. Our this view is fortified by the judgment rendered by the Apex Court in the case titled as Anamallai Club versus Government of T.N. and others, reported in (1997) 3 Supreme Court Cases 169. It is apt to reproduce paras 7 to 9 of the judgment herein: “7. The reason is obvious that law attempts to preserve order in the society relegating that the jurisprudential perception stood under Section 6 of the Act irrespective of the possession of the person "dispossessed irrespective of the fact whether he has any title to possession or not." In paragraph 29, this Court approved the dictum of the Privy Council in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, AIR 1924 PC 144 , and held that persons are not permitted to take forcible possession. They must obtain such possession as they are entitled to by proper course. In our jurisprudence governed by the rule of law even an unauthorised occupant can be ejected only in the manner provided by law. Ltd. v. Kumar Naresh Narayan Roy, AIR 1924 PC 144 , and held that persons are not permitted to take forcible possession. They must obtain such possession as they are entitled to by proper course. In our jurisprudence governed by the rule of law even an unauthorised occupant can be ejected only in the manner provided by law. The remedy under Section 6 is of summary trial and its object is to prevent self-help and to discourage people to adopt any means fair or foul to dispossess a person unless dispossession was in due course of law or with consent. 8. Law makes a distinction between persons in juridical possession and rank trespassers. Law respects possession even if there is no valid title to support it. Law does not permit any person to take law into his hands and to dispossess a person in actual possession without having recourse to a Court. The object thereby is to encourage compliance of the rule of law and to deprive the person who wanted, a person in lawful possession removed from possession according to proper form and to prevent him from going with a high hand and eject such person. Undoubtedly, the true owner is entitled to retain possession even though he had obtained it by force or by other unlawful means but that would not be a ground to permit the owner to take law into his own hands and eject the person in juridical possession or settled possession without recourse to law. 9. Thus, it could be seen that even after determination of the licence under the Government Grants Act, the Government is entitled to resume possession but resumption of possession does not mean unilaterally taking the possession without recourse to law. The Eviction Act contemplated such a procedure, "Premises" defined under Section 3 (d) of the Act means any land or any building or a part of a building or hut or any enclosure appurtenant thereto. Section 4 prescribes procedure of issuance of a notice of show cause before eviction giving an opportunity and thereafter taking action under Section 5 of the Act. Unfortunately, on the facts of the case on hand, the respondent has not adopted the procedure prescribed under Section 4 and 5 of the Eviction Act after determination of the licence granted under the Government Grants Act. Unfortunately, on the facts of the case on hand, the respondent has not adopted the procedure prescribed under Section 4 and 5 of the Eviction Act after determination of the licence granted under the Government Grants Act. The High Court, therefore, was not right in its conclusion that the procedure prescribed under PPE Act is not applicable to the grants made under the Government Grants Act since the appellants remained in settled possession since a long time pursuant to the grant. After determination of the grant, though they have no right to remain in possession, the State cannot take unilateral possession without taking recourse to the procedure provided under the Act. It is, therefore, clear that it would have been open to the respondent to have a notice issued to the appellant and give time to vacate the premises within 10 days or 15 days and, therefore, could leave resumed possession with minimal use of police force. We cannot give any direction in this case since possession was already resumed. We have directed not to create third party right in the property. We are not inclined to interfere with the order.” 70. Now, the question is – whether sub-section (3) of Section 104 is to be read independently or is it controlled by the proviso to sub-section (9) of Section 104 of the HP Tenancy Act, particularly, under the circumstances when the conferment of proprietary rights is automatic, by operation of law read with the fact that mutations have been effected or otherwise? 71. This question has not been answered by either of the learned Single Judges or by the Division Bench in State of H.P. versus Chander Dev and others, reported in 2007 (2) Shim. LC 7. 72. 71. This question has not been answered by either of the learned Single Judges or by the Division Bench in State of H.P. versus Chander Dev and others, reported in 2007 (2) Shim. LC 7. 72. It is worthwhile to record herein that the Apex Court has commanded this Court to determine the said question also and when matter came up before the learned Single Judge, who framed the substantial question of law on 20th May, 2004, which is as under: “What is the effect of proviso added towards the end of sub-section (9) of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 by the Amendment Act No. 6 of 1988 – whether it takes away the vested rights of persons which had vested in them automatically under the provisions of the Principal Act which was in force till the Amendment Act came to be legislated?” 73. The learned Single Judge has not framed the said question and the Division Bench has also not determined the same. 74. In Devi Chand's case (supra), the learned Single Judge of this Court, without discussing the aim and object of the HP Tenancy Act, held that proprietary rights cannot be conferred upon the tenant of the government land, whereas, in Dinesh Kumar's case (supra), another learned Single Judge of this Court has recorded the aim and object of the HP Tenancy Act and held that the vested rights cannot be taken away by the amendment. 75. It appears that the judgment rendered by the Apex Court judgment in Utkal Contractor's case (supra) was not brought to the notice of the Division Bench of this Court. 76. It is also to be seen as to whether the proviso to sub-section (9) of Section 104 of the HP Tenancy Act violates the mandate of Articles 31B and 300A of the Constitution of India and whether it is liable to be struck down. 77. It appears that so far, the validity and constitutionality of the said proviso was not assailed on the said grounds, but stands interpreted by the Hon'ble Judges, which has resulted in conflicting judgments, as discussed hereinabove. 78. 77. It appears that so far, the validity and constitutionality of the said proviso was not assailed on the said grounds, but stands interpreted by the Hon'ble Judges, which has resulted in conflicting judgments, as discussed hereinabove. 78. It is apt to reproduce what were the objects and reasons given and recorded before the HP Tenancy Act was brought before the Legislative Assembly vide The Himachal Pradesh Tenancy and Land Reforms Bill, 1972 (32 of 1972) herein: “As a result of the re-organisation of the erstwhile State of Punjab in November, 1966, some areas ere integrated in Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966. There are different enactments regarding tenancy and agrarian reforms in force in new and old areas of the Pradesh. In the areas as comprised in Himachal Pradesh immediately before 1st November, 1966, the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, is in force which is a progressive legislation about the security of tenures of tenants and their other rights. In the areas added to Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966, however, occupancy tenants have been vested with proprietary rights under two Acts on the subject namely, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 and the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act, 1954. In the old areas the occupancy tenants have to apply for ownership under section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. It has, therefore, been considered necessary to unify the various laws relating to tenancies as in force in the Pradesh and to provide for a measure of land reforms to remove disparities. Restrictions have been imposed to purchase land by the non-agriculturists to avoid concentration of wealth in the hands of non-agriculturists moneyed class. The Bill is to achieve the above objects.” 79. The said Bill was passed by the Legislative Assembly of Himachal Pradesh on 22nd December, 1972. 80. The statement of object and reasons of the Himachal Pradesh Tenancy and Land Reforms Bill, 1972, is in favour of the tenants. It is a social legislation for the benefit of the tenants. Its aim and object is to confer ownership rights to the non-occupancy tenants. By operation of law and efflux of the time, the ownership rights have accrued to them. 81. It is a social legislation for the benefit of the tenants. Its aim and object is to confer ownership rights to the non-occupancy tenants. By operation of law and efflux of the time, the ownership rights have accrued to them. 81. The aim and object of the HP Tenancy Act have been discussed by this Court in Smt. Sudarshna Devi's case (supra). It is apt to reproduce para 39 of the judgment in Smt. Sudarshna Devi's case (supra) herein: “39. As we shall discuss/subsequently, we are of the opinion that the impugned Act is nothing but an agrarian reform. Its principal object is to regulate the relationship between tenant and his landlord with regard to agricultural lands, and to abolish absentee landlordism. The Act wants to establish direct contact between the person who actually, cultivates the land and the ultimate owner of the land, namely the State. By abolition of absentee landlordism the Act obviously wants to give incentive to those who sweat for the improvement of land and thus another object which it seeks to achieve is to increase agricultural production.” 82. It would also be profitable to reproduce the objects and reasons recorded for the amendment of the HP Tenancy Act, which culminated into the Amendment Act of 1987, herein: “Under the existing provisions contained in H.P. Tenancy and Land Reforms Act, 1972, the right, title and interest of the Government in the lands owned by it and leased out to a person vests in tenants. It is imperative that the proprietary rights in Government lands by and large regenerated through public funds, should not pass to private persons. It has, therefore, become necessary to make suitable amendments in section 104 of the said Act.” 83. It appears that the object of the said amendment is that a non-occupancy tenant of a Government land cannot become owner for the reason that it is a Government property and every individual has interest. Is this object reasonable or against the public policy/interest? Can a legislation be made to dislodge a person from accrued/vested rights? 84. The learned Single Judge in Dinesh Kumar's case (supra) has taken note of the said fact and has held that the proviso in question may be challenged, but was not challenged in that lis and was also not struck down. It is apt to reproduce paras 10 and 12 of the judgment herein: “10. 84. The learned Single Judge in Dinesh Kumar's case (supra) has taken note of the said fact and has held that the proviso in question may be challenged, but was not challenged in that lis and was also not struck down. It is apt to reproduce paras 10 and 12 of the judgment herein: “10. The proviso in question applied to the leases in existence on the date it stood promulgated and so far retrospectivity is concerned, it is given to the extent that these leases might be created before the coming into force of the Act or thereafter. The tenants over the land belonging to the Government cannot claim proprietary rights under Section 104 of the Act on the ground that since their tenancy/lease was created before the proviso in question was added, they had already acquired proprietary rights which were not affected by the proviso in question. In view of this interpretation, this Court does not find any substance in the argument of Sh. Kuldip Singh, learned Counsel for the Appellants, that the proviso in question applies only to leases created after the coming into force of the Act. Therefore, in the absence of any specific provision incorporated in the proviso in question for taking away the substantial rights which vested during the period from 21.2.1974 to 14.4.1988 on the tenants/lessees and on others by virtue of legal transfers made by them, the only interpretation possible of the proviso in question is that, by its retrospectivity, it does not take away the rights of those tenants who have been conferred proprietary rights and mutations have been attested in their favour and those persons who have got the said land by way of transfer. 11. …............ 12. In the present case, the proviso in question may be challenged on the ground that it is violative of Article 300A of the Constitution of India that no person shall be deprived of his property save by authority of law. The absence of any such provisions to take away the proprietary rights already conferred and rights accrued by transfer thereof further fortifies the interpretation given by this Court to the proviso in question that the vested substantial rights were not taken away. In other words, the proprietary rights already conferred on the tenants of the Government land were not affected.” 85. In other words, the proprietary rights already conferred on the tenants of the Government land were not affected.” 85. The Division Bench in Chander Dev's case (supra) has categorically recorded that they were only interpreting the Section and not the validity of the said provision. It is apt to reproduce the relevant para of the judgment herein: “We must note that here we are only interpreting the Section. No challenge is made to the validity of the Section. In fact no such challenge can be made in an appeal under Section 100 CPC. We want to make it absolutely clear that we are not expressing any opinion on the question whether the amendment is constitutionally valid or not since that question does not arise for decision. We, therefore, hold that the observations made by Justice Kamlesh Sharma in Dinesh Kumar's case in para 12 wherein it was held that the proviso in question may be challenged on the ground that it is violative of Article 300-A of the Constitution of India was totally in the nature of obiter. This question did not arise before her and in an appeal under Section 100 CPC, she could not have decided this question.” 86. Thus, even the Division Bench has not impliedly or expressly held whether it is constitutionally bad or otherwise. However, the Division Bench, in the said judgment has recorded that the learned Single Judge in Dinesh Kumar's case (supra) has decided the validity of the said proviso, which she could not have decided. With respects, while going through the judgment in Dinesh Kumar's case (supra) from paras 1 to 14, it is nowhere held that the proviso is violative and has been quashed. 87. It is apt to record herein that the aim and object of the principal Act and that of the amended Act, 1987 are conflicting. The question is – can that stand test of constitutionality and whether it can be struck down? 88. 87. It is apt to record herein that the aim and object of the principal Act and that of the amended Act, 1987 are conflicting. The question is – can that stand test of constitutionality and whether it can be struck down? 88. The Constitutional Bench of the Apex Court in the case titled as State of Gujarat and another versus Raman Lal Keshav Lal Soni and others, reported in (1983) 2 Supreme Court Cases 33, has held that if twenty years ago, the aim, object and reasons have been recorded for making any Act or Legislation, which have conferred rights or created vested rights, that cannot be taken away by other set of reasons and objects, which came to the mind of the Legislature after twenty years. It is apt to reproduce paras 35, 48, 49, 51 and 52 of the judgment herein: “35. By Section 2 of the Amending Act, original Section 11 (1) which declared that the Gram panchayats, Taluqa panchayats, District panchayats, Gram sabbas, Nagar Panchayats and Conciliation Panchas shall constitute the Panchayat organisation of the State of Gujarat was omitted and original Section 11 (2) which provided for the control of the State Government over panchayats directly or through their officers was made Section 11. It is extremely difficult to understand the omission of old Section 11 (1). The whole object of the Gujarat Panchayats Act is "democratic decentralisation of power and the consequent reorganisation of the administration of Local Government". The object is to decentralise and reorganise. So it was thought that Gram Panchayats, Nagar Panchayats, Taluqa Panchayats, District Panchayats, etc. should constitute the panchayat organisation of the State of Gujarat. The object of the Act is still the same, yet Section 11 (1) has been omitted. Does it mean that there is a disbandment of organisation? According to the Statement of objects and Reasons, the amendments were necessitated to get over the judgment of the Gujarat High Court that the Panchayat Service is a State Service. But surely that can't be a reason to go against the object of the Principal Act and to abandon the constitution of a State Panchayat organisation. No wonder it was described as an act of cutting the nose to spite the face. But surely that can't be a reason to go against the object of the Principal Act and to abandon the constitution of a State Panchayat organisation. No wonder it was described as an act of cutting the nose to spite the face. We may mention here that Section 2 is deemed to have come into force on February 24, 1962, the date on which the original Section 11 came into force. xxx xxx xxx 48. From the summary of the provisions of the Amending Act that has been set out above it requires no perception to recognise the principal target of the amending legislation as the category of ex-municipal employees', who are, so to say, pushed out of the Panchayat Service and are to be denied the status of Government servants and the consequential benefits. The ex-municipal employees are virtually the "poor relations", the castle, the Panchayat Service, is not for them nor the attendant advantages, privileges and perquisites, which are all for the "pedigree descendants" only. For them, only the out-houses. As a result of the amendments they cease to be Government servants with retrospective effect. Their earlier allocation to the Panchayat Service is cancelled with retrospective effect. They become servants of Gram and Nagar Panchayats with retrospective effect. They are treated differently from those working in taluqa and district panchayats as well as from the talatis and Kotwals working in Gram and Nagar Panchayats. Their conditions of service are to be prescribed by panchayats, by resolution, whereas the conditions of service of others are to be prescribed by the Government. Their promotional prospects are completely wiped out and all advantages which they would derive as a result of the judgments of the courts are taken away. 49. Several grounds were urged before us to attack the constitutional validity of the Amending Act. It was said that the provisions of the Act were violative of Article 311. It was said that the Act was discriminatory. It was urged that the retrospectivity given to the provisions of the Amending Act could not cure the discrimination introduced by the Act and sought to be perpetuated by it. In any case it was said that the benefits acquired could not be taken away with retrospective effect. It was said that the Act was discriminatory. It was urged that the retrospectivity given to the provisions of the Amending Act could not cure the discrimination introduced by the Act and sought to be perpetuated by it. In any case it was said that the benefits acquired could not be taken away with retrospective effect. On the other band, it was argued that there was good reason for the classification and that in the circumstances of the case, the classification was legitimately made with retrospective effect. 50. …......... 51. Now, in 1978 before the Amending Act was passed, thanks to the provisions of the Principal Act of 1961, the ex-municipal employees who had been allocated to the Panchayat Service as Secretaries, officers and servants of Gram and Nagar Panchayats, had achieved the status of government servants. Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Article 311 of the Constitution. Nor was it permissible to single them out for differential treatment. That would offend Article 14 of the Constitution. An attempt was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwals who became Secretaries, officers and servants, of Gram and Nagar Panchayats were Government servants, even to start with, while municipal employees who became such secretaries, officers and servants of Gram and Nagar Panchayats were not. Each carried the mark or the 'brand' of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible. We are clear that it is not. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a clarification would be unreasonable and entirely irrelevant to the object sought to be achieved. It is to navigate around these two obstacles of Article 311 and Article 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. It is to navigate around these two obstacles of Article 311 and Article 14 that the Amending Act is sought to be made retrospective, to bring about an artificial situation as if the erstwhile municipal employees never became members of a service under the State. Can a law be made to be destroy today's accrued constitutional rights by artificially reverting to a situation which existed seventeen years ago? No. 52. The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking onto account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in BS. Yadav and others etc. v. State of Haryana. Chandrachud CJ., speaking for the Court, held: (SCC head-note) "Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate, must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case". Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation 3 cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats third Amendment) Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is arbitrary and unreasonable. We have considered the question whether any provision of the Gujarat Panchayats (Third Amendment) Act, 1978 might be salvaged. We are afraid that the provisions are so intertwined with one another that it is well-nigh impossible to consider any life saving surgery. The whole of the Third Amendment Act must go. In the result the Writ Petition Nos 4266-70 are allowed with costs quantified at Rs. 15,000. The directions given by the High Court, which we have confirmed, should be complied with before June 30, 1983. In the meanwhile, the employees of the Panchayats covered by the appeal and the Writ Petitions will receive a sum of Rs. 200 per month over and above the emoluments they were receiving before February 1, 1978. This order will be effective from February 1, 1983 The interim order made on February 20, 1978 will be effective upto January 31, 1983. The amounts paid are to be adjusted later.” 89. The same principle has been laid down by the Apex Court in the cases titled as Ex-Capt. K.C. Arora and another versus State of Haryana and others, reported in (1984) 3 Supreme Court Cases 281; T.R. Kapur and others versus State of Haryana and others, reported in 1986 (Supp) Supreme Court Cases 584; and Union of India and others versus Tushar Ranjan Mohanty and others, reported in (1994) 5 Supreme Court Cases 450. 90. The validity of the proviso is not questioned by the writ petitioners in the writ petition, but somehow its applicability, rationale and effect is subject matter of the lis. 91. It is worthwhile to mention herein that the State of Himachal Pradesh is not a party to the lis. 90. The validity of the proviso is not questioned by the writ petitioners in the writ petition, but somehow its applicability, rationale and effect is subject matter of the lis. 91. It is worthwhile to mention herein that the State of Himachal Pradesh is not a party to the lis. Accordingly, we deem it proper to array the Principal Secretary (Revenue) to the Government of Himachal Pradesh as party-respondent, shall figure as respondent No. 2 in the array of respondents. Registry to carry out necessary entries in the cause title. 92. Issue notice to newly added respondent No. 2. Mr. J.K. Verma, learned Deputy Advocate General, waives notice on behalf of the said respondent. 93. Having glance of the above discussions, we deem it proper to refer the matter to the larger Bench. But, at the same time, the question is – what interim direction is to be passed at this stage? 94. Admittedly, the writ petitioners are in possession of the said land alongwith the workshop and the cowshed. In terms of the impugned orders, the workshop and the cowshed were put under lock by the respondent, thereafter, this Court, vide order, dated 30th June, 2015, passed in CMP No. 7095 of 2015, directed the writ petitioners to take their belongings and other articles including the vehicles from the said workshop and the cowshed. 95. The writ petitioners have carved out a prima facie case, balance of convenience also leans in their favour and they will suffer irreparable loss in case operation of the impugned orders is not stayed for the reason that the said workshop is the only source of the livelihood to the writ petitioners alongwith other workers and mechanics. 96. Accordingly, the operation of the impugned orders is stayed till further orders and the respondent is directed to unlock the workshop and the cowshed. 97. Registry to furnish full paper book to the learned Advocate General and also to reflect the name of learned Advocate General in the cause list henceforth. 98. List this case before the appropriate Bench after two weeks.