- (1.) These petition Nos. 3622, 3623, 3737, 4002 and 5057 of 1976, were admitted to hearing by a Full Bench of five Judges of this Court on March 17, 1977, on a limited question as to whether the decision in the earlier writ petitions filed by the petitioners which were allowed in a bunch vide judgment in Civil Writ Petition No. 4187 of 1973 (Shrimati Saroj Kumari and others V. The State of Haryana and another) on September 9, 1974 (now reported as 1974 PLJ 483) would operate as res judicata in the proceedings against the petitioners under the Haryana Act No. 26 of 1972, and the Rules as these stand today.
(2.) The facts necessary to reveal the background of these cases are that these petitioners had filed petitions earlier challenging the constitutional validity of the various provisions of the Haryana Ceiling on Land Holdings Act (26 of 1972) and the same were decided in a bunch of 172 such petitions on September 9, 1974, vide the main judgment in Saroj Kumari's case . The Division Bench held that provisions of Sections 3(m), 4(1), (2) and (3), explanation to Section 7 and explanations I and II to Section 9(1) of the Act were ultra vires the Constitution of India, for the reasons stated in Sucha Singh Bajwa V. The State of Punjab, 1974 PunLJ 168(Full Bench), and in addition on the grounds of the vice of vagueness, uncertainty, being incomplete and unworkable. Rule 5 of the Haryana Ceiling on Land Holdings Rules, 1973 (hereinafter referred to as the Rules) was also held to be void being ultra vires Section 4 of the Act. It needs to be mentioned here that the fact that the Act had been included in the Ninth Schedule of the Constitution of India on September 7, 1974, that is, two days prior to the decision of Saroj Kumari's case was not brought to the notice of the Bench. Had this fact been noticed by the learned Judges, the provisions of the Act would not have been struck down on the ground that those provisions in any way, offended the rights guaranteed by Part III of the Constitution of India.
(3.) The primary contention of the learned counsel for the petitioners, now is that any proceedings against them under the above said Act and the Rules are barred by the principles of res judicata for the reason that the judgment given in their cases had achieved finality and there has been no amendment or re-enactment of the law subsequent to the decision in Saroj Kumari's case. The amendment brought about in Rule 5 by the Haryana Government Notification dated August 4, 1976, is also assailed on the ground that the Rule had been declared to be void or unconstitutional and it being a dead rule, could not be revitalised by a subsequent amendment and should have been re-enacted. In fact this contention, to our mind, is fully answered by the decision of the admitting Full Bench given in Smt. Jaswant Kaur and another V. State of Haryana and another, 1977 PunLJ 230. It has been laid therein that as the Division Bench in Saroj Kumari's case did not notice the inclusion of the Haryana Act in the Ninth Schedule, the said decision cannot be considered to be a good law. Further the attack of unconstitutionality of any provision of the statute being violative of Part III of the Constitution is not available to the petitioners. So far as Rule 5 is concerned, it was observed as under after a detailed examination of the matter :- "Rule 5(2) as originally made did not prescribe any formula for taking into account the 'intensity of irrigation' for the purpose of valuation. It did not take into account the nature of the soil of the land. It also suffered from certain other defects. It was declared ultra vires Section 4 in Saroj Kumari's case. Thereafter, it was deleted and new Rule 5(2) was substituted in its place. Meanwhile Section 4(4) was also amended as mentioned earlier. The new Rule 5(2) makes detailed provision for taking into account the 'intensity of irrigation' ... ... ... Rule 5(2) as it stood at the time of the decision of the Division Bench has been deleted and the present Rule 5(2) has been introduced. This does not suffer from any of the infirmities pointed out by the Division Bench in Saroj Kumari's case. Rule 5 as it now stands is intra vires Section 4 and valid." In the face of this legal position enunciated by the Full Bench, the petitioners cannot now possibly argue that no action can be taken against them under the Act and Rules, more particularly Rule 5 of the Rules. In fact the learned counsel for the petitioners concedes that in case it is held that the present Rule 5 has been re-enacted, then obviously no principle of res judicata is involved in these cases. He accepts that where law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties. This proposition of law is otherwise also well established in view of the decisions of the Supreme Court in Mathura Prasad Sarjoo Jaiswal and others V. Dossibai N.B. Jeejeebhoy, 1971 AIR(SC) 2355and The State of Maharashtra and others V. Mansingh Surajsingh Padvi and others, 1978 AIR(SC) 916As pointed out above, vires and validity of Rule 5 have squarely been upheld by the Full Bench in Jaswant Kaur's case and we sitting in a Division Bench, are bound by the said judgment. In the light of the discussion above we do not find any merit in the above-noted contentions raised on behalf of the petitioners.;