Ajit Singh Vs. State of Punjab & ANR
[1966] INSC 257 (2 December 1966)
02/12/1966 SIKRI, S.M.
SIKRI, S.M.
RAO, K. SUBBA (CJ) HIDAYATULLAH, M.
BACHAWAT, R.S.
SHELAT, J.M.
CITATION: 1967 AIR 856 1967 SCR (2) 143
CITATOR INFO:
RF 1967 SC 927 (1,2) F 1967 SC1568 (6) RF
1972 SC 486 (17) R 1978 SC 803 (37) D 1980 SC1682 (67,68) RF 1989 SC1629 (23)
ACT:
Retrospectivity-Public Officer-Retrospective
appointment by Notification-Acts done before date of Notification, if valid.
Constitution of India, 1950, Art. 31A(1),
Second proviso"Acquisition by State", meaning of.
East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act (50 of 1948)-Scheme under-Small portion of
land taken from proprietor holding land within ceiling limit-Proprietor, if
entitled to compensation.
HEADNOTE:
Between May 1961, and May 1962, consolidation
proceedings were taken under the East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948, in an estate in which the appellant was
a small proprietor holding land within the ceiling limit. The scheme for
consolidation provided for taking of a fraction of each proprietor's land and
throwing into a common pool which was added to the land already in the
possession of the Gram Panchayat. But no portion of the common pool apart from
what was already owned by the Panchayat, was reserved for providing income to
the Panchayat. The ownership of the common pool was to vest in the proprietary
body consisting of the several proprietors, and the Gram Panchayat was to
manage and use it for the common needs and benefits of the estate, under r.
16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation)
Rules, 1949, so that, the proprietors and non-proprietors would share in the
benefits. The appellant filed a writ petition in 1965, contending that : (1)
The Consolidation Officer was not appointed till after the repartition was
concluded, that he could not be appointed retrospectively, that he had no legal
authority when he commenced the proceedings, and therefore, the scheme was
invalid; and-(2) the scheme amounted to "acquisition by the State"
within the meaning of the second proviso to Art.
31A(1) of the Constitution, with the result
that compensation to the proprietor at the market rate was payable. The High
Court dismissed the petition.
On appeal,
HELD: (Per Subba Rao, C. J., Sikri and
Bachawat JJ.) (1) The Consolidation Officer had no authority to act as such
before he was appointed and what he did, purporting to act as such officer, had
no binding effect on the owners.
Further, the State Government could not
appoint him and clothe him with authority retrospectively. But, as the
appellant was guilty of laches and no manifest injustice was done to him, the
High Court was right in rejecting the contention. [147 B-D] (Per Hidayatullah
and Shelat, JJ.) : As the petition was filed more than three years after the
completion of the repartition of holdings. the contention should not be
entertained in the face of the presumption under s. 114, Indian Evidence Act,
namely, that the Officer must have been appointed to act is such, as Without
Such appointment he would not have acted. [154 B] 144 (2) (Per Subba Rao, C. J.
Sikri and Bachawat, JJ.). The words acquisition by the State" in the
second proviso to Art. 31A(1) do not have any technical meaning. In the context
of Art. 31A the expression must have the same meaning as it has in Art. 3 1A(1)
(a). The essential difference between "acquisition by the State" on
the one hand and "Modification or extinguishment of rights" on the
other, is that in the first case the beneficiary is the State while in the
second the beneficiary is not the State.
Therefore, if the State has in substance
acquired all the rights in the land for its own purposes, even if the title
-remains with the owner, it cannot be said that it is not acquisition within
the proviso. [149 B-D; 150 G] State of West Bengal v. Subodh Gopal Bose [1954]
S.C.R. 587, Dwarkadas Shriniwas v. The Sholapur Spinning and Weaving Co. Ltd.,
11954] S.C.R. 674, Saghir Ahmad V. State of U.P.
[1955] 1 S.C.R. 707 and Bombay Dyeing and
Mfg. CO. Ltd. v. State of Bombay, [1958] S.C.R. 1122, followed.
But on the facts of this case, the
beneficiary of the modification of rights was neither the State nor the
Panchayat; and therefore, there was no acquisition by the State within the
second proviso. As a result of the scheme the title to the small fraction of
land which was taken away for forming the common pool remained in the
proprietary body of the holders in the estate and in the revenue records, the
land would be shown as belonging to all the owners in proportion to their
areas. The Gram Panchayat would manage it on behalf of the proprietary body and
use it for common purposes,and the proprietors would enjoy the benefits. Even
the satisfaction and advancement of the non-proprietors who derived benefits
from the common pool would enure to the advantage of the proprieters who would
from a more efficient agricultural community. [152 E-G] Altar Singh v. State of
U.P. [1959] Supp. 1 S.C.R. 928, followed.
Per Hidayatullah and Shelat, JJ. (dissenting)
: Article 31A deals with the special subject of "estates" and its
intention is to give protection to State action against Arts. 14, 19 and 31 so
long as the acquisition is by the State of any estate, or of any rights therein
or the extinguishment or modification of any -such rights. To this protection
there is an exception, namely, the second proviso, under which land under the
personal cultivation of any estate-holder of any kind, which is within the
ceiling limit applicable to him, shall not be acquired unless the market value
of the land is given as compensation. The word "acquisition" used in
the proviso must take its colour from the same word used earlier in the same Article,
and not from the word as used in an earlier article in juxtaposition with the
word "requisition". It denotes not only the acquisition of ownership,
that is, the entire bundle of rights, but also acquisition of some rights which
leaves the owner, an owner in name only [162 E-163 Al In the present case the
'result of the scheme would be that (i) the proprietor was deprived of his
property though only of a small portion; (ii) though the ownership was vested
in the proprietary body ill rights with 'regard to the management and income
therefrom were vested in the Gram Panchayat established under Punjab Gram
Panchayat Act, 1953; (iii) the ownership was therefore transferred to another
body, the Gram Panchayat, which is an entity different from the Proprietor. It
is a local authority included within the definition of "State" in
Art. 12, and (iv) the benefit of the income of such lands goes not to the
proprietor only, but to all proprietors and non-proprietors in the Panchayat
area. Therefore, although the property is not actually vested in the State
Government or the Panchayat, the Panchayat acquires almost the entire bundle
145 of rights. Hence, it is "acquisition" by the State within the
meaning of the second proviso and compensation at market value must be given.
[163 D-H; 164 A] Moreover, the fact that what was acquired was a small bit has
no significance. What is small is vague and uncertain, and the safer rule is,
that, if the land of the tenant cultivating it is below the ceiling fixed by
law, and if a portion of it is acquired, no matter for what purpose the
acquisition takes place, compensation at -a 'rate not lower than the market
value must be paid to him. When the Constitution speaks of market value, it is
not possible to find compensation in advantages which might accrue indirectly.
[164 B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1018 of 1966.
Appeal by special leave from the judgment and
order dated October 5, 1965 of the Punjab High Court in Civil Writ No. 663 of
1965.
B. R. L. Iyengar, S. K. Mehta and K. L.
Mehta, for the appellant.
K. L. Gossain, O. P. Malhotra and R. N.
Sachthey, for the respondents.
The Judgment Of SUBBA RAO C.J. and SIKRI and
BACHAWAT JJ.
was delivered by SIKRI, J. The dissenting
Opinion of HIDAYATULLAH and SHELAT, JJ. was delivered by HIDAYATULLAH, J.
Sikri, J. This appeal by special leave is
directed against the judgment of the Punjab High Court dismissing a petition
filed by the appellant under art. 226 of the Constitution, praying that the
scheme of consolidation of village Ropalon, Tahsil Samrola, District Ludhiana,
be quashed. The scheme which was sought to be quashed was made under the
provisions of the East Punjab Holdings (Consolidation and Prevention of
Fragmentation Act, 1948, hereinafter referred to as the Act.
On May 2, 1961, a notification ",as
issued under s. 14(1) of the Act, which provided for a declaration of the
intention of the State Government to make a scheme for the consolidation of
holdings in the estates. Section 14(2) of the Act provides for the appointment
of a Consolidation Officer and the preparation of a scheme by him. One
Gurkirpal Singh, purporting to act as the Consolidation Officer, prepared a
draft scheme and published it on November 8, 1961, under s. 19(1) of the Act.
On January 6, 1962, or January 16, 1962, the scheme was confirmed by the
Settlement Officer under S. 20(3) of the Act. After the confirmation, the
Consolidation Officer after obtaining the advice of the landowners of the
estate carried out repartition under s. 21(1) and the boundaries of the
holdings as demarcated were published in the prescribed manner in the estate on
February 21, 1962. It appears that the Punjab High Court granted a stay order
and no further proceedings under the Act could be taken. No possession has been
146 transferred pursuant to the re-partition. On May 11, 1962, a notification
was published in the Gazette, purporting to appoint Shri Gurkirpal Singh as
Consolidation Officer in respect of the estate Ropalon with effect from
November 4, 1961. On March 10, 1965, Ajit Singh, appellant before us, filed the
petition under art. 226 of the Constitution. In the High Court, as before us,
it was urged on behalf of the appellant that :
(1) there could be no retrospective
appointment of a Consolidation Officer; and (2) Compensation must be I-),,lid
to the appellant for the land reserved in the scheme for various purposes in
accordance with the second proviso to art. 3 1 A(1) inserted by the Seventeenth
Amendment.
We need not mention the other grounds raised
before the High Court as they have not been raised before us.
The High Court held that although there could
be no retrospective appointment of a Consolidation Officer, the objection could
not be sustained because of laches of the appellant. On the second point, the
High Court held that the second proviso to art. 3 1 A(1) was prospective and
not retrospective and did not affect the scheme in question as the rights under
the scheme became vested as soon as the scheme was sanctioned by the Settlement
Officer. The High Court also expressed a tentative view that the reservation of
lands for common purposes in accordance with the scheme and the Act did not
amount to "acquisition" within the contemplation of the second
proviso to art. 31A(1). The High Court accordingly dismissed the petition.
Mr. B.R.L. Iyengar, the learned counsel for
the appellant, has urged the following points before us;
(1) Gurkirpal Singh, when he commenced
consolidation proceedings and prepared and published the draft scheme of
consolidation did not have legal authority to do so. The scheme being invalid
could not be made valid by being enforced by the Settlement Officer.
(2) The notification appointing Gurkirpal
Singh Consolidation Officer retrospectively with effect from November 4, 1961,
was invalid,. as neither the Government nor its delegate, Harcharan Singh,
P.C.S., Officer on Special Duty, could appoint a Consolidation Officer
retrospectively.
(3) In the second proviso to art. 31 (A)(1),
the expression "acquisition" means substantial taking over the
benefits of property and conferring it on the State.
147 (4) Acquisition means the entire process
terminating with possession and extinction of the title of the individual.
There seems to be substance in the first two
points. It seems to us clear that before a person can start acting as a
Consolidation Officer lie must be appointed a,, such.
Before he is appointed he has no authority to
exercise any of the functions of a Consolidation Officer. What he does
purporting to act as a Consolidation Officer has no binding force on the owners
and other persons affected in the estate. The Government cannot by appointing
him retrospectively clothe him with authority retrospectively.
This can be done only by the Legislature
Subject to the provisions of the Constitution.
But the appellant cannot succeed on these
grounds because the High Court, in its discretion, has held that the appellant
is not entitled to rely on these objections because of laches. We cannot say
that the discretion has been exercised wrongly. After the notification was
published on May 11, 1962, appointing Gurkirpal Singh retrospectively with
effect from November 4, 1961, it must have been clear to the appellant that
Gurkirpal Singh had not been appointed Consolidation Officer before lie started
preparing consolidation proceedings. No adequate explanation has been given for
the delay. Further it has not been shown that there has been any manifest
injustice.
Coming now to the third point raised by Mr.
Iyenger we may first mention that it was held by this Court in Ranjit Singh v.
State of Punjab(1) that the Act was protected from challenge by art. 3 IA. It
is necessary to set out the relevant constitutional provisions The relevant
portion of art. 3 1 A reads as under :
"31A. (1) Notwithstanding anything
contained in article 13, no law providing for(a) the acquisition by the State
of any estate or of any rights therein or the extinguishment or modification of
any such rights..........
shall be deemed to be void on the ground that
it is inconsistent with, or takes away or abridges any of the rights conferred
by article 14, article 19 or article 31 Provided that....................
Provided further that where any law makes any
provision for the acquisition by the State of any estate and where any land
comprised therein is held by a person under his personal cultivation, it shall
not be lawful for the State to acquire any portion of such land as is within
the ceiling limit applicable to him under any law for the time being in force
or any building or structure standing thereon 148 or appurtenant thereto,
unless the law relating to the acquisition of such land, building or structure,
provides for payment of compensation at a rate which shall not be less than the
market value thereof.
(2)(b) the expression 'rights' in relation to
an estate shall include any rights vesting in a proprietor, sub-proprietor,
under proprietor, tenure-holder, raiyat, underraiyat or other intermediary and
any rights or privileges in respect of land revenue." Relevant portions of
articles 19 and 31 may also be set out because the learned counsel have laid
stress on the language employed therein.
"19. (1) All citizens shall have the
right-(f) to acquire, hold and dispose of property.
31. (1) No person shall be deprived of his
property save by authority of law.
(2) No property shall be compulsorily
acquired or requisitioned save for a public purpose and save by authority of a
law which provides for compensation for the property so acquired or
requisitioned and either fixes the amount of the compensation or specifies the
principles on which, and the manner in which, the compensation is to be
determined and given; and no such law shall be called in question in any court
on the ground that the compensation provided by that law is not adequate.
(2A) Where a law does not provide for the
transfer of the ownership or right to possession of any property to the State
or to a corporation owned or controlled by the State, it shall not be deemed to
provide for the compulsory acquisition or requisitioning of property,
notwithstanding that it deprives any person of his property." It would be
noticed that art. 31 A(1)(a) mentions four categories; first acquisition by the
State of an estate;
second, acquisition by the State of rights in
an estate;
third, the extinguishment of rights in an
estate, and, fourthly, the modification of rights in an estate. These four
categories are mentioned separately and are different.
In the first two categories the State
"acquires" either an estate or rights in an estate. In other words,
there is a transference of an estate or the rights in an estate to the State.
When there is a transference of an estate to the State, it could be said that
all the rights of the holder of the estate have been extinguished. But if the
result in the case of the extinguishment is the transference of all the rights
in an estate ,to the State, it would properly fall within the expression
"acquisition 149 by the State of an estate". Similarly, in the case
of an acquisition by the State of a right in an estate it could also be said
that the rights of the owner have been modified since one of the rights of the
owner has been acquired.
It seems to us that there is this essential
difference between "acquisition by the State" on the one hand and
"modification or extinguishment of rights" on the other that in the
first case the beneficiary is the State while in the latter case the
beneficiary of the modification or the extinguishment is not the State. For
example, suppose the State is the landlord of an estate and there is a lease of
that property, and a law provides for the extinguishment of leases held in an
estate. In one sense it would be an extinguishment of the rights of a lessee,
but it would properly fall under the category of acquisition by the State
because the beneficiary of the extinguishment would be the State.
Coming now to the second proviso to art. 31A,
it would be noticed that only one category is mentioned in the proviso, the
category being "acquisition by the State of an estate." It means that
the law must make a provision for the acquisition by the State of an estate.
But what is the true meaning of the expression " acquisition by the State
of an estate". In the context of art. 31A, the expression
"acquisition by the State of an estate" in the second proviso to art.
31A(1) must have the same meaning as it has in cl. (1)(a) to art. 3 1 A. It is
urged on behalf of the respondents before us that the expression
"acquisition by the State of any estate" in art. 31A(1)(a) has the
same meaning as it has in art. 31(2A). In other words, it is urged that the
expression "acquisition by the State of any estate" means transfer of
the ownership or right to possession of an estate to the State Mr. Iyengar on
the other hand urges that the expression "acquisition by the State"
has a very wide meaning and it would bear the same meaning as was given by this
Court in The State of West Bengal v. Subodh Gopal Bose,(1) Dwarkadas Shrinivas
of Bombay v. The Sholapur Spinning & Weaving Co. Ltd.(2) Saghir Ahmad v.
State of U.P.(3) and Bombay Dyeing and Manufacturing Co. Ltd. v. The State of
Bombay(4). In these cases this Court had given a wide meaning to the word
"acquisition". In Dwarkadas Shrinivas of Bombay v. The Sholapur
Spinning & Weaving Co. Ltd.(2) Mahajan, J., observed at page 704 as follows
:
"The word 'acquisition' has quite a
-wide concept, meaning the procuring of property or the taking of it
permanently or temporarily.
It does not necessarily imply the acquisition
of legal title by the State in the property taken possession of." (1)
[1964]S.C.R. 587.
(3) [1955] 1 S.C.R. 7 7.
(2) [1954] S.C.R. 674.
(4) [1958] S.C.R. 1122..
150 He further observed at p. 705 :
"I prefer to follow the view of the
majority of the Court, because it seems to me that it is more in consonance
with juridical principle that possession after all is nine-tenths of ownership,
and once possession is taken away, practically everything is taken away, and
that in construing the Constitution it is the substance and the practical
result of the act of the State that should be considered rather than its purely
legal aspect." Bose J., observed at p. 734 as follows:
"In my opinion, the possession and
acquisition referred to in clause (2) mean the sort of 'possession' and '
acquisition' that amounts to 'deprivation' within the meaning of clause (1). No
hard and fast rule can be laid down.
Each case must depend on its own facts. But
if there is substantial deprivation, then clause (2) is, in my judgment,
attracted. By substantial deprivation I mean the sort of deprivation that
substantially robs a man of those attributes of enjoyment which normally
accompany rights to, or an interest in, property. The form is unessential. It
is the substance that we must seek." Let us now see whether the other part
of the second proviso throws any light on this question. It would be noticed
that it refers to ceiling limits. It is well-known that under various laws
dealing with land reforms, no person apart from certain exceptions can hold
land beyond a ceiling fixed under the law. Secondly, the proviso says that not
only the land exempted from acquisition should be within the ceiling limit but
it also must be under personal cultivation. The underlying idea of this proviso
seems to be that a person who is cultivating land personally, which is his
source of livelihood, should not be deprived of that land under any law
protected by art. 31A unless at least compensation at the market rate is given.
In various States most of the persons have already been deprived of land beyond
the ceiling limit on compensation which was less than the market value. It
seems to us that in the light of all the considerations mentioned above the
words "acquisition by the State" in the second proviso do not have a
technical meaning, as contended by the learned counsel for the respondent. If
the State has in substance acquired all the rights in the land for its own
purposes, even if the title remains with the owner, it cannot be said that it
is not acquisition within the second proviso to art. 31A.
But the question still remains whether even
if a wider meaning is given to the word "acquisition" what has been
done by the scheme and the. Act is acquisition or not within the meaning of the
second proviso,. In other words, does the scheme only modify rights 151 or does
it amount to acquisition of land? The scheme is not part of the record, but it
appears that 89B18B11 B (Pukhta) of land was owned by the Gram Panchayat prior
to consolidation, which was used for common purposes. Some further area was
reserved for common purposes as khals, paths, khurrahs, Panchayat ghars and
schools, etc., after applying cut upon the rightholders on pro-rata basis. It
does not appear that any land, apart from what was already owned by the
Panchayat, was reserved for providing income to the Panchayat. Therefore, in
this case we are not concerned with the validity of acquisition for such a
purpose.
Rule 16(ii) of the Punjab Holdings
(Consolidation and Prevention of Fragmentation) Rules, 1949, provides :
"In an estate or estates where during
consolidation proceedings there is no shamlat Deh land or such land is
considered inadequate, land shall be reserved for the village Panchayat and for
other common purposes, under section 18(c) of the Act, out of the common pool
of the village at a scale prescribed by Government from time to time.
Proprietary rights in respect of land so
reserved (except the area reserved for the extension of abadi of proprietors
and nonproprietors) shall vest in the proprietary body of estate or estates
concerned and it shall be entered in the column of ownership of record of
rights as (Jumla Malkan wa Digar Haqdaran Arazi Hasab Rasad Raqba). The
management of such land shall be done by the Panchayat of the estate or estates
concerned on behalf of the village proprietary body and the panchayat shall
have the right to utilise the income derived from the land so reserved for the
common needs and benefits of the estate or estates concerned." It will be
noticed that the title still vest in the property body, the management of the
land is done on behalf of the proprietary body, and the land is used for the
common needs and benefits of the estate or estates concerned. In other words a
fraction of each proprietor's land is taken and formed into a common pool so
that the whole may be used for the common needs and benefits of the estate,
mentioned above. The proprietors naturally would also share in the benefits
along with others.
In Attar Singh v. The State of U.P.(1) Wanchoo
J., speaking for the Court, said this of the similar proviso in a similar Act,
-namely the U.P. Consolidation of Holdings Act (U.P.
Act V of 1954) as amended by the U.P. Act XVI
of 1957 :
"Thus the land which is taken over is a
small bit, which sold by itself would hardly fetch anything. These (1)
[1959]supp. S.C.R. 928 at p.938.
152 small bits of land are collected from
various tenure holders and consolidated in one place and added to the land
which might be lying vacant so that it may be used for the purposes of s.
14(1)(ee). A compact area is thus created and it is used for the purposes of
the tenure-holders themselves and other villagers.
Form CH-21 framed under r. 41(a) shows the
purposes to which this land would be applied, namely, (1) plantation of trees,
(2) pasture land, (3) manure pits, (4) threshing floor, (5) cremation ground,
(6) graveyards, (7) primary or other school, (8) playground, (9) Panchayatghar,
and (10) such other objects. These small bits of land thus acquired from
tenure-holders are consolidated and used for these purposes, which are directly
for the benefit of the tenure-holders. They are deprived of a small bit and in
place of it they are given advantages in a much larger area of land made up of
these small bits and also of vacant land." In other words, a proprietor
gets advantages which he could never have got apart from the scheme. For
example, if he wanted a threshing floor, a manure pit, land for pasture, khal,
etc., he would not have been able to have them on the fraction of his land
reserved for common purposes.
Does such taking away of property then amount
to acquisition by the State of any land ? Who is the real beneficiary ? Is it
the Panchayat ? It is clear that the title remains in the proprietary body and
in the revenue records the land would be shown as belonging to "all the
owners and other right holders in proportion to their areas." The
Panchayat will manage it on behalf of the proprietors and use it for common
purposes; it cannot use it for any other purpose. The proprietors enjoy the
benefits derived from the use of land for common purposes. It is true that the
non-proprietors also derive benefit but their satisfaction and advancement
inures in the end to the advantage of the proprietors in the form of a more
efficient agricultural community. The Panchayat as such does not enjoy any
benefit. On the facts of this case it seems to us that the beneficiary of the
modification of rights is not the State, and therefore there is no acquisition
by the State within the second proviso.
In the context of the 2nd proviso, which is
trying to preserve the rights of A person holding land under his personal
cultivation, it is impossible to conceive that such adjustment of the rights of
persons holding land under their personal cultivation in the interest of
village economy was regarded as something to be compensated for in cash.
In this view of the matter it is not
necessary to deal with the fourth point raised by the learned counsel for the
appellant because 153 it does not matter whether the acquisition is complete or
not, as even if we hold that the acquisition is not complete and it has yet to
be completed, the second proviso to art.
31A(1) would not prevent the State from
proceeding with the acquisition.
in the result the appeal fails and is
dismissed, but there would be no order as to costs.
Hidayatullah, J. This is an appeal against
the judgment and order of the High Court of Punjab, October 5, 1965, dismissing
a petition under Arts. 226 and 227 or the Constitution filed by the appellant
to quash the consolidation of village Ropalon, Tehsil Sarmrala, District
Ludhiana. He challenged the consolidation mainly on two grounds which alone
were pressed before us in this appeal.
The first was that the Consolidation Officer
(Gurkirpal Singh) was not appointed under the Fast Punjab Holdings (
Consolidation and Prevention of Fragmentation) Act, 1948, till after the
repartition was concluded. The consolidation work done by him was, accordingly
said to be without jurisdiction and a nullity. The second ground was that there
were 89 bighas, 18 biswas and 18 biswanis of pukhta lands with the Gram
Panchayat prior to the consolidation proceedings but under the consolidation an
additional 123 kanals and 14 marlas were taken from the common pool and were
given to the Panchayat and a pro rat a cut was applied to the land of all the
landholders. The appellant contended that, as he was a small landholder and his
land had also been taken without the payment of compensation, as required under
Art. 31-A(l), 2nd proviso, the acquisition was illegal and confiscato1ry. The
opposite party joined issue on both the points and also submitted that on fresh
measurements 123 kanals and 14 marlas land was found to be in excess.
The High Court rejected the first contention
on the ground of laches on the part of the appellant and also on merits.
We see no reason to differ. The State
Government acting under s. 41 delegated its powers under ss. 14(1) and (2) of
the Consolidation Act to one Harcharan Singh. Section 14(2) gives powers to
appoint a Consolidation Officer. Harcharan Singh was, there it is fairly fore,
competent to appoint a Consolidation Officer. obvious that Gurkirpal Singh
would not act as Consolidation Officer unless appointed to act as such by
Harcharan Singh. The affidavit of the State does not state that an order was
passed and relies on the notification. No doubt a notification was issued by
Harcharan Singh as late as May 3, 1962, appointing Gurkirpal Singh as
Consolidation Officer with effect from November 4, 1961, but s. 14(2) only
speaks of appointment of a Consolidation Officer and does not lay down that it
shall be by notification. In this respect it differs from some other sections
such as s. 20 of the Act M19 Sup.CI/66-10 154 under which Settlement Officers
(Consolidation) are to be appointed by notification. It is true that the
original order appointing Gurkirpal Singh was not produced but there is a
presumption that he must have been so appointed because he would not act
without a proper appointment. The notification which is produced would itself
be redundant if an order appointing Gurkirpal Singh before he began to act as
Consolidation Officer had, in fact, been passed. The only defect is that the
original order is not available but as the petition was filed more than three
years after the completion of the consolidation the objection can hardly be
entertained in the face of the presumption under s. 114 of the Indian Evidence
Act. We would, therefore, not entertain the objection. It is a moot point,
however, whether Harcharan Singh could make up his lapse (if any) by a
subsequent and a retrospective notification. As we do not entertain the
objection we do not consider that question.
As regards the second point it may be pointed
out that on an earlier occasion the Consolidation Act was challenged as ultra
vires the Constitution inasmuch as it sought to deprive the landholders of
their property and Art. 31 was invoked. Before the judgment of this Court could
be delivered the Seventeenth Amendment of the Constitution came into force.
Counsel in that case were invited to reopen the argument if they desired but
declined. The Court, therefore, considered the validity of the Consolidation
Act and upheld it on the ground that it was a measure of agrarian reform and
was protected even before Art. 31-A was amended by the Seventeenth Amendment
Act. The judgment of this Court is reported in Ranjit Singh and others v. State
of Punjab and others() and it expressly refrained from making any allusion to
the Seventeenth Amendment. At the hearing of this appeal no attempt was made to
question the Consolidation Act and it must, therefore, be assumed to be validly
enacted and to be constitutional.
The question that remains is whether the
appellant, who is a small landholder holding land within the ceiling and has
lost some of it, is entitled to compensation at market rate as required by the
second proviso to Art. 31-A as now incorporated in the Constitution. To
understand this we shall refer first to what is being done under the
Consolidation Act and then consider whether the Act is unsupportable in view of
the second proviso to Article 31A(1) as contended. The Consolidation Act is
passed to provide for the compulsory consolidation of agricultural holdings and
to prevent their fragmentation. Section 18 of the Act provides that
notwithstanding anything contained in any law for the time being in force it
shall be lawful for any Consolidation Officer to direct inter alia:
(1) [1965] 1 S.C.R. 82.
155 (a) that any land specifically assigned
for any common purpose shall cease to be so assigned and to assign any other
land in its place;
(b) (c) that if in any area under
consolidation no land is reserved for any common purpose including extension of
the village abadi, or if the land so reserved is inadequate, to assign other
land for such purpose.
Section 46 of the Consolidation Act empowers
the State Government to make rules for carrying out the purposes of the Act and
in particular to provide for "(e) the manner in which the area is to be
reserved under section 18 and the manner in which it is to be dealt with and
also the manner in which the village abadi is to be given to proprietors and
non-proprietors (including scheduled castes, Sikh backward classes, artisans
and labourers) on payment of compensation or otherwise;" In furtherance of
this power two rules have been framed which are numbered 16(i) and 16(ii).
These rules provide for the reservation of the abadi for the proprietors as
well as the non-proprietors and for reservation of land for the Gram Panchayat.
On the present occasion we are concerned with sub-rule (ii), which was added on
April 9, 1957 by the Punjab Government to the rules framed under the Act. It
reads :
"16(ii) In an estate or estates where
during consolidation proceedings there is no shamlat deh land or such land is
considered inadequate, land shall be reserved for the village Panchayat, under
section18(c) of the out of the common pool of the village at a scale prescribed
by Government from time to time. Proprietary rights in respect of land, so
reserved (except the area reserved for the extension of abadi of proprietors
and nonproprietors) shall vest in the proprietary body of the estate or estates
concerned, and it shall be entered in the column of ownership of record of
rights as (jumla malikan wa digar haqdaran arazi basab rasad raqba). The
management of such land shall be done by the Panchayat of the estate or estates
concerned on behalf of the village proprietary body and the Panchayat shall
have the right to utilize the income derived from the land so, reserved for the
common needs and benefits of the estate or estates concerned." 156 The
rule was declared ultra vires by the Punjab High Court in Munsha Singh v. State
of Punjab.(1) The sub-rule was, however, saved by the second amending Act (27
of 1960) which gave legal cover to the sub-rule by including a definition of
"common purpose" to the following effect "2(bb) 'Common purpose'
means any purpose in relation to any common need, convenience or benefit of the
village and includes the following purposes (i) extension of the village abadi;
(ii) provide income for the Panchayat of the
village concerned for the benefit of the village community;
(iii) village roads and paths; village drains;
village wells, ponds or tanks; village watercourses
or water channels; village bus stands and waiting places; manure pits; hada
rori;
public latrines; cremation and burial
grounds;
Panchayat Ghar; Janj Ghar; grazing grounds;
tanning places; mela grounds; public places,
of religious or charitable nature; and (iv) schools and playgrounds,
dispensaries, hospitals and institutions of like nature, water works or
tube-wells, whether such schools, play grounds, dispensaries, hospitals,
institutions, waterworks or tubewells may be managed and controlled by the
State Government or not." Simultaneously a new section (s. 23-A) was
inserted in the Consolidation Act to the following effect :"23-A. As soon
as a scheme comes into force the management and control of all lands assigned
or reserved for common purposes of the village under section 18 (a) in the case
of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in
respect of which the management and control are to be exercised by the State
Government , shall vest in the State Government; and (b) in the case of any
other common purpose, shall vest in the panchayat of that village;
and the State Government or the Panchayat, as
the case may be, shall be entitled to appro(1) I.L.R. [1960] 1 Punjab 589.
157 priate the income accruing therefrom for
the benefit of the village community, and the rights and interests of the
owners of such lands shall stand modified and extinguished accordingly :
Provided that in the case of land assigned or
reserved for the extension of village abadi or manure pits for the proprietors
and non-proprietors of the village, such land shall vest in the proprietors and
non-proprietors to whom it is given under the scheme of consolidation."
The preamble of the Consolidation Act was also amended suitably All these
amendments were with retrospective effect.
The Punjab Gram Panchayat Act, 1953 (4 of
1953) has been passed to provide for better administration in the rural areas
of the Punjab by Panchayats. By s. 19 of the Panchayat Act various
administrative duties are assigned to the panchayat which is to look after
matters like sanitation, drainage, supply of water, burial and cremation
grounds, public health, schools and hospitals etc. and in particular it provides
:
"(f) pounds for animals;
(n) the development of agriculture and
village industries, and the destruction of weeds and pests;
(o) starting and maintaining a grain fund for
the cultivators and lending them seed for sowing purposes on such conditions as
the Gram Panchayat may approve;
(q) allotment of places for preparation and
conservation of manure;
(t) framing and carrying out schemes for the
improved methods of cultivation and management of land to increase
production." The Punjab Legislature also passed the Punjab Village Common
Lands (Regulation) Act (I of 1954) with the object of regulating the rights in
shamlat deh and abadi deh. The Regulation Act vests all rights of management
in. the shamlat deh in the village Panchayat and in the land in the abadi deh
under a house owned by a non-proprietor. Section 4 lays down how the Panchayat
is to deal with the matters and provides as follows 158 "All lands vested
in a panchayat by virtue of the provisions of this Act shall be utilised or
disposed of by the panchayat for the benefit of the inhabitants of the village
concerned, in the manner prescribed." Section 6 provides:
"Any income accruing from the use and
occupation of the lands vested in a panchayat shall be credited to the
panchayat fund and shall be utilised in the manner prescribed." Section 7
finally provides as follows "No person shall be entitled to any
compensation for any loss suffered or alleged to have been suffered as a result
of coming into force of this Act." There is, however, on the statute book
in the Punjab yet another Act which is instituled Punjab Security of Land
Tenures Act, (10 of 1953) as amended by Act 57 of 1953 and Act I I of 1955. By
that Act security of land tenures, fixing of areas for 'self-cultivation' is
provided and there is conferment of rights on tenants to purchase lands under
their cultivation from landholders.
These Acts between them, therefore, provide
for the establishment of Gram Panchayat which is to deal with the shamlat deh
and to look after the social needs of a village, yet giving security to the
tenants and allowing for consolidation of holdings, with a view to preventing
fragmentation. The operation of these Acts is visible in the facts of this
case, because the shamlat deh is altered and more land is granted in the
consolidation to the village Panchayat ostensibly for the purpose of
construction of Panchayat Ghar and a school and for various other common
purposes. No compensation is paid for the lands which have been taken away from
the landholders even though they claim that their case is taken out of Arts. 31
and 31A and is covered by the second proviso to Art. 31-A(1) of the
Constitution as framed by the Seventeenth Amendment.
These articles were amended by the First, the
Fourth and the Seventeenth Amendments, but reference is made here to the
articles (omitting portions not relevant to our purpose) as they stand after
the Seventeenth Amendment :
"31. (1) No person shall be deprived of
his property save by authority of law.
(2) No property shall be compulsorily
acquired or requisitioned save for a public purpose and save by authority of
law which provides for compensation for the property so acquired or
requisitioned and either fixed the amount 159 of the compensation or specifies
the principles on which, and the manner in which, the compensation is to be
determined and given; and no such law shall be called in question in any court
on the ground that the compensation provided by that law is not adequate.
(2A) Where a law does not provide for the transfer
of the ownership or right to possession of any property to the State or to a
corporation owned or controlled by the State, it shall not be deemed to provide
for the compulsory acquisition or requisitioning of property, notwithstanding
that it deprives any person of his property.
31A. Saving of laws providing for acquisition
of estates, etc.
(1) Notwithstanding anything contained in
article 13, no law providing for--(a) the acquisition by the State of any
estate or of any rights therein or the extinguishment or modification of any
such rights, or shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights conferred by
article 14, article 19 or article 31 Provided further that where any law makes
any provision for the acquisition by the State of any estate and where any land
comprised therein is held by a person under his personal cultivation, it shall
not be lawful for the State to acquire any portion of such land as is within
the ceiling limit applicable to him under any law for the time being in force
or any building or structure standing thereon or appurtenant thereto, unless
the law relating to the acquisition of such land, building or structure,
provides for payment of compensation at a rate which shall not be less than the
market value thereof.
160 (2) In this article,(a) the expression
"estate" shall, in relation to any local area, have the same meaning
as that expression or its local equivalent has in the existing law relating to
land tenures in force in that area and shall also include(i) any jagir, inam or
muafi or other similar grant and in the States of Madras and Kerala, any janmam
right;
(ii) any land held under ryotwari settlement;
(iii) any ].and held or let for purposes of agriculture
or for purposes ancillary thereto, including waste land, forest land, land for
pasture or sites of buildings and other structures occupied by cultivators of
land, agricultural labourers and village artisans;
(b) the expression 'rights', in relation to
any estate, shall include any rights vesting in a proprietor, tenure-holder,
raiyat, underraiyat or other intermediary and any rights or privileges in
respect of land revenue." The case of the appellant is that under the 2nd
proviso to Art. 31-A(1), he is entitled to compensation because land under his
personal cultivation is an estate, and land within the ceiling limit cannot be
acquired without payment of compensation which is less than the market value of
his land, notwithstanding any law enabling acquisition of land for the
Panchayat. The State contends that no land has been acquired because all lands
continue to be recorded in the names of the owners in proportion to the area
originally held by them as provided by rule 16(ii) and the lands are to be used
for the benefit of the proprietors. The appellant contends that this is
acquisition all the same. A question thus arises : what is meant by
'acquisition' and 'to acquire' in the second proviso? To determine the correct
meaning it is necessary to view Articles 31 and 31-A together. The State seeks
to establish a contrast between acquisition and requisition and contends that
"acquisition" means a total deprivation of the property for all time
and "requisition" means either a partial deprivation or deprivation
for a time. It submits that by the former there is a change of ownership and by
the latter a change in possession or enjoyment without a change in ownership.
This contrast the State seeks to establish 161 from the way in which the words "acquisition"
and "requisition" and "acquired" and
"requisitioned" are used in juxtaposition in the two Articles. We
have, therefore, to examine the scheme of the two Articles to see if they throw
any light upon the matter.
Before this is done it may be admitted that
the distinction between "acquisition" and "requisition" is
a real one and legislative practice in the past has clearly provided separately
for acquisition and requisition in Acts which were even named acquisition and
requisition Acts. The distinction was also made by the Government of India Act,
1935. Legislative practice, however, uniform is not always conclusive. We must
discover from the Constitution itself, how the words are to be understood. What
then are the indications in the Constitution? The first indication is in the
legislative entry No. 42 in List 3 (Seventh Schedule) which was added by the
Constitution Seventh Amendment. Before the Amendment the entry read :
"42. Principles on which compensation
for property acquired or requisitioned for the purposes of the Union or of a
State or for any other public purpose is to be determined, and the form and the
manner in which such compensation is to be given." The entry now reads
"Acquisition and requisitioning of property". These entries give an indication
that the Constitution continues to make a distinction between the two terms.
Next Art. 31 begins by laying down in clause (1) that no person shall be
deprived of his property save by authority of law and goes on to say in cl. (2)
that no property shall be compulsorily acquired or requisitioned save for
public purpose and save by authority of law which provides for compensation for
the property so acquired or requisitioned and either fixes the amount of
compensation or specifies the principles on which and the manner in which, the
compensation is to be determined and given. The words of the article refer to
acquisition and requisition of property. Clause 2(A), which was added by the
Fourth Amendment, uses different phraseology. This clause says that where a law
does not provide for the transfer of ownership or right to possession of any
property to the State or to a corporation owned or controlled by the State, it
shall not be deemed to provide for the compulsory acquisition or requisitioning
of property, notwithstanding that it deprives any person of his property. This
means that property shall not be considered to be compulsorily acquired or
requisitioned unless the law provides for the transfer of the ownership or
right to possession to the State or to a corporation owned or controlled by the
State.
The Gram Panchayat is a local authority and
by virtue of the definition of "State" in Art. 12 stands included in
that term. Therefore, a law providing for the transfer of ownership or right to
possession to 162 the Gram Panchayat is for the purposes of Art. 31-A(1) and
(2), a law providing for the compulsory acquisition or requisitioning of the
property.
The contention of the State is that in Art.
31(2A) we get the :clue to the meanings of the words "acquisition"
and "requisition" and that the former indicates the transfer of
ownership and the latter the transfer of the right to possession. It is,
therefore, submitted that the transfer of the use of the land to Gram Panchayat
with the ownership still in the cultivators (as is shown by the entry of their
names as owners of shamlat deh) and use of the land for their benefit indicate
a requisitioning of the lands, that is to 'Say, a transfer of the right to
possession merely and not acquisition, that is to say, transfer of ownership.
The conclusion is thus drawn that inasmuch as the second proviso speaks of
acquisition and not requisition, it cannot apply to the case of the appellant
and persons like him who are still regarded as owners of the lands although they
may be deprived of the immediate right to possession by the handing ,over of
land to the Panchayat for management. It is urged that such persons are not
entitled to the advantage of the second proviso since their land is not
acquired as contemplated therein. We ,cannot accept this argument.
Article 31-A deals with a special subject,
namely, the saving of laws providing for acquisition of 'estates'. This article
saves any law from an attack under Arts. 14, 19 and 31 provided it is for the
acquisition by the State of an estate or of any rights therein or the
extinguishment or modification of any such rights. It will be noticed that here
the article does not refer to property as such, but speaks of an estate as
defined in the Article and also of rights in the estate. Estate is defined to
include, among other things, " any land held or let for purposes of
agriculture or for purposes ancillary thereto, including waste land, forest
land, land for pasture or sites of buildings and other structures occupied by cultivators
of land, agricultural labourers and village artisans".
Applying the definition, the lands under
cultivation must be regarded as 'estates'. Now the intention underlying Art.
31-A is to give protection to State action
against Arts. 14, 19 and 31 so long as the acquisition is by the State of any
estate or of any rights therein or the extinguishment or modification of any
such rights. To this protection there is only one exception and that is to be
found in the second proviso. It is that land under the personal cultivation of
any estate holder of any kind which is within the ceiling limit applicable to
such person, shall not be acquired, unless at least market value of the land is
given as compensation. Such land can be acquired but only on compensation which
is not less than the market value. The word "acquisition" used in the
proviso must take its colour from the same word used earlier and not from the
word as used in the earlier article in juxtaposition with the 1 6 3 word
requisition. The word must denote not only the acquisition of ownership, that
is to say, the entire bundle of rights, but also acquisition of some rights
particularly an acquisition which leaves the person an owner in name only.
Article 31-A, it is submitted by the State,
introduces two further concepts, viz., extinguishment of rights and
modification of rights. In the case of extinguishment, if all the rights in the
property are extinguished, the result would be nothing else than acquisition.
For, no property can remain in suspense without the rights therein being vested
in someone or the other. In this case the property goes to the Panchayat which
is included in 'State'. In the case of modification of rights all the rights of
ownership remain in the owner except that they would be modified by some
statutory provisions. In such a case the conception either of acquisition
orrequisition may not apply. In the present case bits of properties are being
taken from the lands belonging to the appellants and others and are thrown in a
common lot. The ownership is supposed to be vested in a proprietary body
consisting of several proprietors. The statute provides that though ownership
is vested in the said proprietary body the management of the land would be with
the Panchayat. The only obligation thrown on the Panchayat is that the income
arising from such land should be utilized for the common benefit not only of
the proprietors but also of non proprietors in the Panchayat area. The result
of these provisions is (1) that a proprietor is undoubtedly deprived of his
property howsoever small a proportion it may be thereof; (2) the ownership in
such a property is transferred to another body which under the statute is an
entity different from the proprietor himself; (3) though the ownership is vested
in such a proprietary body all rights with regard to the management and income
thereof are vested in a Panchayat; and (4) the benefit of the income from such
lands goes not to the proprietor but to all the proprietors as well as
non-proprietors in the Panchayat area. Although the property is not actually
vested either in the State Government or the Panchayat a device is being made
in the Act to escape the concept or ,acquisition' to avoid the payment of
compensation required under the second proviso to Art. 31A. In substance and in
effect this is nothing but a colourable use of the provisions of Art.
31-A bymaking out a case of modification of
rights when there is in realityan acquisition, mainly for the sake of avoiding
compensation.
Therefore, when the State acquires almost the
entire bundle of rights, it is acquisition within the second proviso and
compensation at market rates must be given. It is not at all difficult to
determine this compensation. The total land of the holder must be assessed at market
value and the value of the dimunition of the area determined proportionately.
The appellant is thus entitled to compensation and he cannot be deprived of
land within 164 his ceiling without payment of compensation calculated in the
manner indicated. It is admitted that his land has been reduced to something
less than the ceiling applicable to him.
It is contended that what is acquired is a
small bit from each landholder and that is not of much significance. We do not
know what rule is in contemplation. If it is the de minimis rule, we can only
say that it would be a most unsatisfactory mode of avoidance of the
constitutional provision. What is a small bit is a very vague and uncertain
expression. The safe rule is that the Constitution means what it says, that is,
land within the ceiling is not to be touched unless compensation at market rate
is given. We would, therefore, reject the plea that we should ignore these
small bits of land especially as they will be used for the general good and
will confer some benefit also upon those who will lose them.
We would accordingly allow the appeal with
costs.
ORDER In accordance with the Opinion of the
majority Civil Appeal No. 1018 of 1966 is dismissed without costs.
V. P. S.
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