Gram Panchayat of Village, Jamalpur Vs.
Malwinder Singh & Ors [1985] INSC 151 (9 July 1985)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) FAZALALI, SYED MURTAZA TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)
CITATION: 1985 AIR 1394 1985 SCR Supl. (2) 28
1985 SCC (3) 661 1985 SCALE (2)35
ACT:
Constitution of India 1950, Articles 31, 31A,
254 Seventh Schedule List II Entry No. 18 and List III Entry No.
41.
Assent of President to law sought for
specific purpose - Efficacy of assent - Limited to that purpose and cannot be
extended beyond it.
Law made by Parliament - Law made by State
Legislature Inconsistency - Which law to prevail.
State Legislature whether competent to make
law relating to agrarian reform in respect of property which by process of law
vested in Central Government or Custodian.
Administration of Evacuee Property Act 1950,
Section 8 (2) & Punjab Village Common Lands (Regulation) Act 1953.
Section 3 Central Act and State Act -
Conflict - Whether exists - Evacuee property - Vesting of - Shamlat-deh lands
nature of - Explained.
HEADNOTE:
Prior to the partition of India, the
Shamlat-deh lands in Punjab were owned by the proprietors of the other lands in
the village, "Hasab Rasad Khewat" in the same proportion in which
they owned the other lands. A person who did not own any other land in the
village could therefore have no proprietary right or interest in Shamlat-deh
lands. There were some villages in Punjab which were mostly inhabited by
Muslims, with the result that almost all the lands in those villages were owned
by Muslim proprietors who, as a result of their proprietary interest in those
Lands had a proportionate undivided' share in the Shamlat-deh lands.
They had only an 'undivided' share in the
Shamlat-deh lands because such lands were not liable to be partitioned they
could not be alienated and they were intended to be used and were in fact used,
without exception, as undivided' property of the proprietors of the other
lands. Some of the villages in Punjab and many in Haryana were inhabited partly
by Muslims and partly by non-Muslims.
29 After the partition as a result of the
unprecedented movement of population, most of the Muslims proprietors migrated
to Pakistan whereas the non-Muslims continued to live in their villages.
Multidimensional interlinked problems of administration of the properties of
those who had left the country and rehabilitation of those that had poured into
the country arose.
The question as to the management and the
preservation of the property left by Muslim evacuees led to the passing of the
East Punjab Evacuees (Administration of Property) Act, 14 of 1947. Section 4
thereof provided that all interests in the property whether movable or
immovable of the evacuees vested in the Custodian appointed by the State
Government. This Act of the State Legislature, was repealed and replaced by an
Act passed by the Parliament, the Administration of Evacuee Property Act, 1950.
That Act into force on April 17, 1950. As a result of this provision the
interest of all evacuees which had vested in the Custodian appointed under the
Punjab Act 14 of 1947, came to be vested in the Custodian appointed under the
Central Act of 1950. In the villages which were wholly inhabited by Muslims and
from which almost the entire population migrated to Pakistan, all the
Shamlat-deh lands together with the other proprietary lands were declared
evacuee property and came to be vested in the Custodian. In the villages which
were inhabited both by Muslims and non-Muslims, the proprietary holdings of the
Muslim evacuees vested in the Custodian and along with that the interest of the
proprietors in the Shamlat-deh lands, such as it was also vested in the
Custodian.
In the writ petitions filed in the High Court
the controversy was between the right of the Gram Panchayats to the Shamlat-deh
lands situated in those villages which fell within their jurisdiction and, on
the other hand, the right of Rehabilitation Department of the Central
Government to allot lands of that description, to the extent of the evacuee
interest therein, to persons who migrated from Pakistan to India after the
partition of the Country.
The contention of the Central Government and,
of persons to whom its Rehabilitation Department has allotted the Shamlat-deh
lands on their migration to India, is that the interest in such lands, of the
Muslims who migrated to Pakistan is evacuee property which the Central
Government has the right to allot under the provisions of the Displaced Persons
(Compensation and Rehabilitation) Act of 1954. The contention of the Government
of 30 Punjab and of the Gram Panchayats in Punjab and Haryana is that, by
reason of the provisions of the Punjab Village Common Lands (Regulation) Act of
1953, the interest of all persons whether Hindus, Sikhs or Muslims, in the
Shamlat-deh lands stood extinguished and those lands were placed by the said
Act under the control and power of the respective Gram Panchayats.
The High Court held that there was repugnancy
between the provisions of the Administration of Evacuee Property Act of 1950
and those of the Punjab Village Common Lands (Regulation) Act of 1953.
Allowing the appeal to this Court, ^
HELD:(By the Court) 1. There is a direct
conflict between section 8(2) of the Administration of Evacuee Property Act
1950, and Section 3 of the Punjab Village Common Lands (Regulation) Act, 1953
on the question of vesting of evacuee property. [38 A]
2. The Punjab Act was reserved for the assent
of the President though for the specific and limited purpose of Articles 31 and
31-A of the Constitution. That assent can not avail the State Government for
the purpose of according precedence to the law made by the Legislature namely
the Punjab Act of 1953 over the law made by the Parliament namely the Central
Act of 1950 even within the jurisdiction of the State. [41 F,42 F] Rahman v.
Sai ILR 9 Lahore 501 & Ranjit Singh v. State of Punjab [1965] 1 SCR 82
referred to.
Rattingan's Digest of Customary Law in the
Punjab - Chapter X referred to.
(Per Chandrachud C.J., S. Murtaza Fazal Ali,
V.D. Tulzapurkar and A. Varadarajan, JJ.)
1. (i) A mere reading of the two sections,
Section 3 of the Punjab Act of 1953 and section 8(2) of the Central Act of 1950
would show that there is a direct conflict between the two provisions. Under
s.4 of the East Punjab Evacuees (Administration of Property) Act 14 of 1947
which came into force on December 13, 1947 all interest in the property, movable
or immovable, of the evacuees vested in the Custodian appointed by the State
Government. The Central Act of 1950 repealed by the East Punjab Act 14 of 1947.
Under s. 8(2) of the Central Act of 1950 the evacuee 31 property which was
vested in the Custodian appointed by the State Government under the repealed
Act, was to be deemed to be evacuee property declared as such under the Central
Act and became vested in the Custodian appointed under the Central Act. [38
A-B] (ii) As a result of s. 3 of the Punjab Act of 1953 the Custodian appointed
under the Central Act of 1950 was divested of the Shamlat-deh lands, to the
extent of the interest therein of the Muslim proprietors who had migrated to
Pakistan. [38 D] (iii) If the Punjab Legislature had not passed the Act of
1953, the Custodian appointed or deemed to be appointed under the Central Act
of 1950 could have dealt with the interest of the Muslim evacuees in the
Shamlat-deh lands as evacuee property, though consistently with the limitations
which operated upon that interest. He forfeited that power because, the Punjab
Act of 1953 extinguished the interest of all persons, whether Hindus, Sikhs or
Muslims, in the Shamlat-deh lands and vested all rights, title and interest in
such lands in the respective panchayats having jurisdiction over the village.
[38 F]
2. Article 254 of the Constitution deals with
situations where there is inconsistency between the laws made by the Parliament
and the laws made by the Legislature of a State.
Since the law made by the Legislature of the
State of Punjab namely, s. 3 of the Punjab Act of 1953 is repugnant to the law
made by the Parliament which the Parliament was competent to enact namely s.
8(2) of the Central Act of 1950, the law made by the Parliament must prevail
and the law made by the Punjab Legislature has to be held to be void to the
extent of the repugnancy. The repugnancy is to the extent that whereas under
the Central Act the interest of the evacuees in all properties including the
Shamlat-deh lands vests in the Custodian appointed or deemed to be appointed
under that Act, the Shamlat-deh lands vest in the Panchayats under the
provisions of the State Act. [39 B-F]
3. The Punjab Act of 1953 was reserved for
consideration of the President and received his assent on December 26, 1953.
Prima facie by reason of the assent of the President, the Punjab Act would
prevail in the State of Punjab over the Act of the Parliament and the
Panchayats would be at liberty to deal with the Shamlat-deh lands according to
the relevant Rules or Bye-laws governing the matter, including the evacuee
interest therein. The Punjab Act was reserved for assent of the President
though for the specific and limited purpose of Articles 31 and 32 31-A of the
Constitution. Since the Punjab Act of 1953 extinguished all private interest in
Shamlat-deh lands and vested those lands in the Village Panchayats and since
the Act was a measure of agrarian reforms it was reserved for the consideration
of the President. [41 E-F, H-42 A] In the instant case, the assent of the
President is sought to the law for a specific purpose, the efficacy of the
assent would be limited to that purpose and cannot be extended beyond it. Not
only was the President not appraised in the instant case that his assent was
sought because of the repugnancy between the State Act and the pre-existing
Central Act on the vesting of evacuee properties but his assent was sought for
a different specific purpose all together. [42 D-E]
4. Though the law made by the Parliament
prevails over the law made by the State Legislature the interest of the
evacuees in the Shamlat-deh lands cannot be dealt with effectively by the
Custodian under the Central Act because of the peculiar incidents
characteristics of such lands. The unfortunate result is that the vesting in
the Custodian of the evacuee interest in the Shamlat-deh lands is more or less
an empty formality. It does not help the Custodian to implement the provisions
of the Central law but it excludes the benign operation of the State Law. [42
H-43 A] 5. Parliament has passed a law which falls under entry No.
41 of the Concurrent List, while the State
Legislature has passed a law which falls under Entry No. 18 of the State List.
The law passed by the State Legislature being a measure of agrarian reform is
conductive to the welfare of the community and there is no reason why that law
should not have effect in its full amplitude. By this process, the village
panchayats will be able to meet the needs of the village community and secure
its welfare. [43 F]
6. The Punjab Act of 1953 would prevail in
the State of Punjab over the Central Act of 1950 even in so far as Shamlat-deh
lands are concerned. [43 G]
7. Under the Central Act of 1950, the
Custodian is entitled to preserve and manage the interest of the evacuees in
all evacuee properties, which would include the Shamlat- deh lands. Under the
Punjab Act of 1953, the Shamlat-deh lands vest in the Panchayat which carries
the right of preservation and management of such lands. By reason of the State
Act, the Custodian appointed under the Central Act of 1950 is divested of his
Control over the 33 evacuee interest in the Shamlat-deh lands. The impact of
this divestment, is that the Rehabilitation Department of the Central
Government loses its power to allot such lands, to the extent of the evacuee
interest therein, to displaced Persons in order to satisfy their claims under
the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Such
properties therefore, cannot from part of the Compensation pool. Nor can these
properties, to the extent of the surplus remaining after allotment to displaced
persons, be transferred by the Central Government to the State Government,
under the 'Package Deal' of 1961. What vests in the Custodian is the interest
of the evacuee as such together with all the interests to which it is subject.
That interest cannot be freed from its incidents merely because it comes to be
vested in the Custodian as evacuee property.
The Custodian gets what the evacuee had,
quantitatively and qualitatively. If the evacuee interest in Shamlat was
incapable of alienation and if Shamlat-deh lands were regarded as reserved for
the common use, the Custodian would have no right to allot them for the
separate or exclusive use of displaced persons who migrated to India after the
partition of the Country. If no allotment could be made under the Displaced
Persons (Compensation and Rehabilitation) Act, 1954 there would be no question
of any surplus and, consequently, no occasion to transfer 'surplus' land to the
State Government. The peculiar incidents of co- share's interest in the
Shamlat-deh lands, and the severe limitations operating upon that interest
renders the provisions of the Central Act of 1950, virtually innocuous and inoperative.
The Custodian under that Act would have the husk of the title to the evacuees'
interest in the Shamlat- deh lands as a result of the vesting of that
interesting him, but beyond such vesting he would be powerless, in practice, to
distribute those lands to the displaced persons. [39 G-40 F]
8. The hall-mark of the Shamlat-deh lands is
their indivisibility and inalienability. [40 G] (Per Chinnappa Reddy, J.
concurring)
1. The question in the present case is not
whether there was any conflict between the Central and State Legislations but
whether the legislature of the State could make a law relating to agrarian
reform in respect of property which included property which by a process of law
has become vested in the Central Government or the Custodian. [49 H-50 B] 34
2. When the Parliament and the State
Legislature, each of them legislate in their own field with respect to
different subjects-in this case Evacuee Property and the Shamlat-deh, no reason
is found to conclude that there was necessarily a conflict between the two
legislations. [49 H]
3. There is no reason to why the State
Legislature should be considered incompetent to make a law relating to agrarian
reform. The Punjab Act of 1953 is indeed a law relating to agrarian reforms
even though it affects lands vested in the Central Government or the Custodian.
[50 B]
4. The effect of the Administration of
Evacuee Property Act was not to take away the Character of Shamlat-deh as
Shamilat-deh but only to vest in the Custodian such interest as the evacuee
possessed in the Shamilat-deh. The interest which the erstwhile evacuees
possessed was neither enlarged nor abridged. The land continued to be
Shamilat-deh and it could be the subject of competent State Legislation as
Shamilat-deh. If for the purpose of agrarian reform the legislature of the
State enacted a law as it was competent to do and consent was accorded by the
President under Article 31-A of the Constitution, there is no justification for
the argument that there was any conflict between the Punjab Act and the Central
Act. [49 D-E]
5. It would be wholly wrong to suggest that
the zamindari becoming vested in the Custodian on account of the Muslim
zamindari (intermediary) migrating to Pakistan, raiyati land in the village
changed its character and the occupancy rights of the raiyats ceased in the
lands, merely because the Zamindar migrated to Pakistan and the Zamindar became
vested in the Custodian. Similarly lands in an erstwhile Zamindari set apart
for pasture, as grazing grounds etc. did not lose their character as such on
the migration of the Zamindar to Pakistan. [49 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1401(N) of 1973.
From the Judgment and Order dated 15.5.1973
of the Punjab and Haryana High Court in Civil Writ No. 2657 of 1970.
S.L. Aneja and K.L.Taneja for Appellant No.
1. Hardev Singh and R.S.Sodhi for Appellant No. 2.
35 N.C.Talukdar, C.V. Subba Rao, R.N. Poddar
and Miss A. Subhashini for the Respondent No. 2.
S.Ram Singh Bindra and Harbans Singh for the
Respondent No. 1.
The following Judgments were delivered
CHANDRACHUD, C.J. Eight writ petitions were filed in the High Court of Punjab
and Haryana, involving a common question of law as to the alleged repugnancy
between the Administration of Evacuee Property Act of 1950 and, the Punjab
Village Common Lands (Regulation) Act of 1953 (referred to herein as 'the
Punjab Act of 1953'). Four, out of the eight writ petitions, relate to lands
situated in the State of Haryana, while the remaining four relate to lands
situated in the State of Punjab.
The controversy in the writ petitions is
between the right of the Gram Panchayats to the Shamlat-deh lands situated in
those villages which fall within their jurisdiction and, on the other hand, the
right of the Rehabilitation Department of the Central Government to allot lands
of that description, to the extent of the evacuee interest therein, to persons
who migrated from Pakistan to India after the partition of the country. The
contention of the Central Government and, of persons to whom its Rehabilitation
Department has allotted the Shamlat-deh lands on their migration to India, is
that the interest, in such lands, of the Muslims who migrated to Pakistan is
evacuee property which the Central Government has the right to allot under the
provisions of the Displaced Persons (Compensation and Rehabilitation) Act of
1954. On the other hand, the contention of the Government of Punjab and of the
Gram Panchayats in Punjab and Haryana is that, by reason of the provisions of
the Punjab Act of 1953, the interest of all persons, whether Hindus, Sikhs or
Muslims, in the Shamlat- deh lands stood extinguished and those lands were
placed by the said Act under the control and power of the respective Gram
Panchayat.
Prior to the partition of India on August 15,
1947 the Shamlat-deh lands in Punjab were owned by the proprietors of the other
lands in the Village, "Hasab Rasad Khewat", that is to say, in the
same proportion in which they owned the other lands. Therefore, a person who
did not own any other land in the village could have no proprietary right or
interest in the Shamlat-deh lands, But, though the interest of the proprietors
of the other lands, in Shamlat-deh lands, was incidental to their proprietary
36 interest in those other lands, such interest in the Shamilat was not a mere
appendage to their interest in the other lands. Our learned Brother Chinnappa
Reddy, has referred in his judgment to a leading decision of the Lahore High
Court, Rehman v. Sai ILR 9 Lahore 501 in which it was held that, if a
proprietor alienated his land, the alienee would not acquire any interest in
the Shamilat by mere virtue of the alienation. That was but consequential to
the well- established legal position in Punjab that the Shamlat-deh lands were
intended for the common use of all sharers.
There were some villages in Punjab which were
mostly inhabited by Muslims, with the result that almost all the lands in those
villages were owned by Muslim proprietors who, as a result of their proprietary
interest in those lands, had a proportionate undivided share in the Shamlat-
deh lands. They had only an 'undivided' share in the Shamlat-deh lands because
such lands were not liable to be partitioned, they could not be alienated and,
they were intended to be used and were in fact used, without exception, as
undivided property of the proprietors of the other lands. Indeed, our learned
Brother has cited a passage from Rattigan's 'Digest of the Customary Law in the
Punjab', which shows that Shamlat-deh lands were treated as reserved for common
village purposes. Some of the villages in Punjab and many in Haryana, were
inhabited partly by Muslims and partly by non-Muslims. Most of the Muslim
proprietors migrated to Pakistan whereas, the non-Muslims continued to live in
their villages.
The question as to the management and
preservation of the property left by Muslim evacuees led to the passing of the
East Punjab Evacuees (Administration of Property) Act, 14 of 1947. That was an
Act of the Punjab Legislature, section 4 of which provided that all interests
in the property whether movable or immovable, of the evacuees vested in the
Custodian appointed by the State Government.
That Act, like similar Acts passed by the
other State Legislatures, was repealed and replaced by an Act passed by the
Parliament, viz; the Administration of Evacuee Property Act, 1950, to which we
will refer as the 'Central Act of 1950'. That Act came into force on April 17,
1950. Section 8(2) thereof provided that, if any property in the State had
vested immediately before the commencement of the Act as evacuee property in
any Custodian under any law repealed by the Act, that property shall, on the
commencement of the Act, be deemed to be evacuee property and shall vest in the
Custodian appointed for 37 the State under the Act. As a result of this
provision, the interest of all evacuees which had vested in the Custodian under
the Punjab Act 14 of 1947, came to be vested in the Custodian appointed under
the Central Act of 1950. In the villages which were wholly inhabited by Muslims
and from which almost the entire population migrated to Pakistan, all the
Shamlat-deh lands together with the other proprietary lands were declared
evacuee property and came to be vested in the Custodian. In the villages which
were inhabited both by Muslims and non-Muslims the proprietary holdings of the
Muslim evacuees vested in the Custodian and, along with that, the interest of
the proprietors in the Shamlat-deh lands, such as it was, also vested in the
Custodian.
The point which arises for our consideration
and which has been answered in the affirmative by the High Court of Punjab and
Haryana is whether, there is any repugnancy between the provisions of the
Central Act of 1950 and those of the Punjab Act of 1953. (The latter Act has
been referred to by the High Court as the Act of 1954 because, though passed in
1953, it was numbered as Act 1 of 1954). Section 3 of the Punjab Act, which is
said to be the focal point of the repugnancy, reads thus, in so far as relevant
"3. Vesting of rights in Panchayats end in non-proprietors:
Notwithstanding anything to the contrary
contained in any other law for the time being in force.........all rights,
title and interest whatsoever in the land- (a) which is included in Shamlat-deh
of any village, shall, on the appointed date, vest in a Panchayat having
jurisdiction over the village".
Section 8(2) of the Central Act of 1950 reads
thus:
"Where, immediately before the
commencement of this Act, any property in a State had vested as evacuee
property in any person exercising the powers of Custodian under any law
repealed hereby, the property shall, on the commencement of this Act, be deemed
to be evacuee property declared as such within the meaning of this Act, and
shall be deemed to have vested in the Custodian appointed or deemed to have
been appointed for the State under this Act and shall continue to so
vest." 38 A mere reading of the two sections, namely, section 3 of the
Punjab Act of 1953 and section 8(2) of the Central Act of 1950, would show that
there is a direct conflict between the two provisions. Under section 4 of the
East Punjab Evacuees (Administration of Property) Act 14 of 1947, which came
into force on December 13, 1947 all interest in the property, movable or
immovable, of the evacuees vested in the Custodian appointed by the State
Government. The Central Act of 1950 repealed the East Punjab Act 14 of 1947.
Under section 8 (2) of the Central Act of
1950, the evacuee property which was vested in the Custodian appointed by the
State Government under the repealed Act, was to be deemed to be evacuee
property declared as such under the Central Act and became vested in the
Custodian appointed under the Central Act. Thereafter came the Punjab Act of
1953 under which, "Notwithstanding anything to the contrary contained in
any other law for the time being in force", all rights, title and interest
whatsoever in the Shamlat-deh lands of any village, came to be vested in the
Panchayat having jurisdiction over the particular village. It is quite clear that
as a result of this provision, the Custodian appointed under the Central Act of
1950 was divested of the Shamlat- deh lands, to the extent of the interest
therein of the Muslim proprietors who had migrated to Pakistan. If the Punjab
Legislature had not passed the Act of 1953, the Custodian appointed or deemed
to be appointed under the Central Act of 1950 could have dealt with the
interest of the Muslim evacuees in the Shamlat-deh lands as evacuee property,
though consistently with the limitations which operated upon that interest. He
forfeited that power because, the Punjab Act of 1953 extinguished the interests
of all persons, whether Hindus, Sikhs or Muslims, in the Shamlat-deh lands and
vested all rights, title and interest in such lands in the respective Panchayats
having jurisdiction over the village. It may be mentioned that the Punjab Act
of 1953 was repealed and replaced by an Act of 1961, bearing a similar title.
That Act defines the Shamlat- deh lands in a slightly different manner but,
that difference is inconsequential for resolving the controversy which arise
before us.
Having seen that there is a direct conflict
between section 8(2) of the Central Act of 1950 and section 3 of the Punjab Act
of 1953 on the question of vesting of evacuee property, the question which
arises is as to which of these two Acts would prevail. That question has to be
answered in the light of the provisions of the Constitution. Entry No. 41 in
List III (Concurrent List) of the Seventh Schedule to the Constitution, reads
thus :
39 "Custody, management and disposal of
property (including agricultural land) declared by law to be evacuee
property".
Since the interest of the evacuees in the
Shamlat-deh lands was deemed to be declared as evacuee property, both the State
Legislature and the Central Legislature had the power to deal with that
interest by virtue of Entry No. 41.
Article 254 of the Constitution deals with
situations where there is inconsistency between the laws made by the Parliament
and the laws made by the Legislature of a State.
Clause (1) of that Article, to the extent
that it is relevant, reads thus:
"(1) If any provision of a law made by
the legislature of a State is repugnant to any provision of a law made by
Parliament which parliament is competent to enact, ......., then, subject to
the provisions of clause (2), the law made by Parliament, whether passed before
or after the law made by the Legislature of such State, .... shall prevail and
the Law made by the Legislature of the State shall, to the extent of the
repugnancy, be void.' Since the law made by the Legislature of the State of
Punjab, namely, section 3 of the Punjab Act of 1953, is repugnant to the law
made by the Parliament which the Parliament was competent to enact, namely,
section 8(2) of the Central Act of 1950, the law made by the Parliament must
prevail and the law made by the Punjab Legislature has to be held to be void to
the extent of the repugnancy. The repugnancy is to the extent that whereas,
under the Central Act, the interest of the evacuees in all properties,
including the Shamlat-deh lands, vest in the Custodian appointed or deemed to
be appointed under that Act, the Shamlat-deh lands vest in the Panchayats under
the provisions of the State Act.
The consequences of this repugnancy are
self-evident.
Under the Central Act of 1950, the Custodian
is entitled to preserve and manage the interests of evacuees in all evacuee
properties, which would include the Shamlat-deh lands. Under the Punjab Act of
1953, the Shamlat-deh lands vest in the Panchayats, which carries with it the
right of preservation and management of such Lands. In brief, by reason of the
State Act, the Custodian appointed under the Central Act of 1950 is divested of
his control over the evacuee interest in the Shamlat-deh lands. The 40 most
significant impact of this divestment, though somewhat of an academic nature,
is that the Rehabilitation Department of the Central Government loses its power
to allot such lands, to the extent of the evacuee interest therein, to displaced
persons in order to satisfy their claims under the Displaced Persons
(Compensation and Rehabilitation) Act, 1954. Such properties, therefore, cannot
form part of the Compensation pool. Nor can these properties, to the extent of
the surplus remaining after allotment to displaced persons, be transferred by
the Central Government to the State Government under the 'Package Deal' of
1961. We said that the impact of repugnancy is somewhat of an academic nature
because, what vests in the Custodian is the interest of the evacuee such as it
is, that is to say, together with all the incidents to which the evacuee
interest was subject.
That interest cannot be freed from its
incidents merely because it comes to be vested in the Custodian as evacuee
property. The Custodian gets what the evacuee had, quantitatively and
qualitatively. If the evacuee's interest in Shamlat was incapable of alienation
and if Shamlat- deh lands were regarded as reserved for the common use of the
villagers, the Custodian would have no right to allot them for the separate or
exclusive use of displaced persons who migrated to India after the partition of
the country. If no allotment could be made by the Custodian under the Displaced
Persons (Compensation and Rehabilitation) Act of 1954, there would be no
question of any surplus land, consequently, no occasion to transfer 'surplus'
land to the State Government under the Package Deal of 1961. The peculiar
incidents of the co-sharers' interest in the Shamlat-deh lands and the severe
limitations operating upon that interest render the provisions of the Central
Act of 1950 virtually innocuous and inoperative. The Custodian, under that Act,
would have the husk of the title to the evacuees' interest in the Shamlat-deh
lands as a result of the vesting of that interest in him but, beyond such
vesting, he would be powerless, in practice, to distribute those lands to the
displaced persons. The hall-mark of the Shamlat-deh lands is their
indivisibility and inalienability, [See Rattigan's Digest', to which our
learned Brother, Chinnappa Reddy, has made a copious reference].
If Article 254(1) stood by itself, there
would have been no difficulty in holding that, for whatever it is worth, the
Central Act of 1950 prevails over the Punjab Act of 1953 since, the two Acts
which are relatable to Entry No. 41 of the Concurrent List, are repugnant to
each other in the matter of vesting of the evacuee interest in Shamlat-deh
lands. But, there is another 41 facet of this question without considering
which, the question of competing priorities between the two Acts cannot be
determined. It shall have been noticed that the provision contained in clause
(1) of Article 254 is "subject to the provisions of clause(2)" of
that Article. Clause (2) reads thus :
"(2) Where a law made by the Legislature
of a State with respect to one of the matters enumerated in the Concurrent List
contains any provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in that
State :
Provided that nothing in this clause shall
prevent Parliament from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State." The Punjab Act of 1953 was reserved
for consideration of the President and received his assent on December 26,
1953. Prima facie, by reason of the assent of the President, the Punjab Act
would prevail in the State of Punjab over the Act of the Parliament and the
Panchayats would be at liberty to deal with the Shamlat-deh lands according to
the relevant Rules or Bye-laws governing the matter, including the evacuee
interest therein. But, there is a complication of some nicety arising out of
the fact that the Punjab Act was reserved for the assent of the President,
though for the specific and limited purpose of Articles 31 and 31-A of the
Constitution. Article 31, which was deleted by the Constitution (Forty-fourth
Amendment) Act, 1978 provided for compulsory acquisition of property. Clause
(3) of that Article provided that, no law referred to in clause (2), made by
the Legislature of a State shall have effect unless such law, having been
reserved for the consideration of the President, has received his assent.
Article 31-A confers protection upon laws falling within clauses (a) to (e) of
that Article, provided that such laws, if made by a State Legislature, have
received the assent of the President.
Clause (a) of Article 31-A comprehends laws
of agrarian reform. Since the Punjab Act of 1953 extinguished all private
interests in Shamlat-deh lands and vested those lands in the Village Panchayats
and since, the Act was a measure of agrarian reform it was reserved for the
consideration of the 42 President. The judgment of the High Court shows that
the hearing of the writ petitions was adjourned to enable the State Government
to place material before the Court showing the purpose for which the Punjab Act
of 1953 was forwarded to the President for his assent. The record shows, and it
was not disputed either before us or in the High Court, that the Act was not
reserved for the assent of the President on the ground that it was repugnant to
an earlier Act passed by the Parliament, namely, the Central Act of 1950. In
these circumstances we agree with the High Court that the Punjab Act of 1953
cannot be said to have been reserved for the assent of the President within the
meaning of clause (2) of Article 254 of the Constitution insofar as its
repugnancy with the Central Act of 1950 is concerned. The assent of the
President under Article 254(2) of the Constitution is not a matter of idle
formality. The President has, at least, to be apprised of the reason why his
assent is sought if, there is any special reason for doing so. If the assent is
sought and given in general terms so as to be effective for all purposes,
different considerations may legitimately arise.
But if, as in the instant case, the assent of
the President is sought to the Law for a specific purpose, the efficacy of the
assent would be limited to that purpose and cannot be extended beyond it. Not only
was the President not apprised in the instant case that his assent was sought
because of the repugnancy between the State Act and the pre-existing Central
Act on the vesting of evacuee properties but, his assent was sought for a
different, specific purpose altogether. Therefore, that assent cannot avail the
State Government for the purpose of according precedence to the law made by the
State Legislature, namely, the Punjab Act of 1953, over the law made by the
Parliament, even within the jurisdiction of the State.
This situation creates a conundrum. The
Central Act of 1950 prevails over the Punjab Act of 1953 by virtue of Article
254 (1) of the Constitution read with Entry No. 41 of the Concurrent List; and,
Article 254(2) cannot afford assistance to reverse that position since the
President's assent, which was obtained for a specific purpose, cannot be
utilised for according priority to the Punjab Act. Though the law made by the
Parliament prevails over the law made by the State Legislature, the interest of
the evacuees in the Shamlat-deh lands cannot be dealt with effectively by the
Custodian under the Central Act, because of the peculiar incidents and
characteristics of such lands. The unfortunate result is that the vesting in
the Custodian of the 43 evacuee interest in the Shamlat-deh lands is, more or
less, an empty formality. It does not help the Custodian to implement the
provisions of the Central law but, it excludes the benign operation of the
State law.
The line of reasoning of our learned Brother,
Chinnappa Reddy, affords a satisfactory solution to this constitutional
impasse, which we adopt without reservation of any kind. The pith and substance
of the Punjab Act of 1953 is 'Land' which falls under Entry No. 18 of List II
(State List) of the Seventh Schedule to the Constitution.
That Entry reads thus :
"Entry No. 18 - Land, that is to say,
rights in or over land, land tenures including the relation of landlord and
tenant, and the collection of rents ;
transfer and alienation of agricultural land;
land improvement and agricultural loans; colonization." Our learned
Brother has extracted a passage from a decision of a Constitution Bench of this
Court in Ranjit Singh v. State of Punjab [1965] 1 S.C.R. 1982, which took the
view that since, the Punjab Act of 1953 is a measure of agrarian reform it
would receive the protection of Article 31-A. It may be recalled that the Act
had received the assent of the President as required by the first proviso to
that Article.
The power of the State Legislature to pass
law on matters enumerated in the State List is exclusive by reason of the
provision contained in Article 246(3). In a nutshell, the position is that the
Parliament has passed a law on a matter which falls under Entry No. 41 of the
Concurrent List, while the State Legislature has passed a law which falls under
Entry No. 18 of the State List. The law passed by the State Legislature being a
measure of agrarian reform, is conducive to the welfare of the community and
there is no reason why that law should not have effect in its full amplitude.
By this process, the village panchayats will be able to meet the needs of the
village community and secure its welfare.
Accordingly, the Punjab Act of 1953 would
prevail in the State of Punjab over the Central Act of 1950, even in so far as
Shamlat-deh lands are concerned.
In the result, the judgment of the High Court
is set aside and this appeal is allowed. There will be no order as to costs.
Civil Appeal Nos. 2044 of 1974 and 1963-65 of
1975 which were heard along with this appeal and which involve the same points
are also allowed, with no order as to costs.
44 Special Leave is granted in Special Leave
Petition No. 7984 of 1981. The appeal is allowed, with no order as to costs.
Civil Appeal Nos. 2125 of 1978, 470 of 1969,
1832 of 1969, 1088 of 1969, 1726 of 1974 and 1728 of 1974 were delinked from
the above group of matters as they involve questions relating to the 'package
deal' of 1961. Those matters may be listed for hearing at an early date.
CHINNAPPA REDDY, J. I agree with the
conclusion of my lord the Chief Justice and I reiterate the proposition that
the assent accorded by the President for the express purpose of Article 31-A is
not capable of automatic transformation into assent for the purpose of Article
254(2) of the Constitution.
In my view the question that really requires
determination is not one of repugnancy between the Punjab Act and the Central
Act but what is the product of the two Acts, each operating in its own assigned
field? What is the effect of the Punjab Act of 1953 on the Central Act of 1950?
Is it a case of Peter robbing Paul? In Rattigan's 'Digest of Customary Law in
the Punjab', in the introduction to Chapter X (Village Common Land) it is noted
that within the territorial limits of every village some portion of the
uncultivated waste lands are reserved 'for purposes of common pasture, for
assemblies of people, for the tethering of the village cattle, and the possible
extension of the village dwellings' and that 'Lands so reserved are jealously
guarded as the Common property of the original body of settlers who founded the
village or their descendants, and occasionally also those who assisted the
settlers in clearing the waste and bringing it under cultivation are recognized
as having a share in these reserved plots'. It was further noticed "Even
in villages which have adopted separate ownership as to the cultivated area,
some such plots are usually reserved as village common, and in pattidar
villages, it is not unusual to find certain portions of the waste reserved for
the common use of the proprietors of each patti, and other portions for common
village purposes. The former is designated as Shamilat-patti and the latter
Shamlat-deh". It was said "As a general rule, only proprietors of the
village (malikan-deh) as distinguished from proprietors of their own holdings
(malikan makbuza khud) are entitled to share in the Shamlat- deh".
45 While it appears to have been laid down
that the right to share in the Village Common Land is an incident attaching to
the ownership of agricultural land in the village, and that ordinarily those
persons who hold land on which revenue is assessed and who are cosharers in the
Khewat are entitled to a share in proportion to the revenue paid by them. See
Malik Mohammad Sher Khan v. Ghulam Mohammad I.L.R. (XIII) Lahore 92 it also
appears to be settled law in Punjab that the rights of a proprietor in the
Shamilat' are not a mere accessory to the land held by him and therefore 'an
alienation of the latter does not ipso facto confer any rights in the former to
the alienee' (Vide Rahman v. Sai, I.L.R. (9) Lahore 501, and the cases noted
therein). Further according to Rattigan's Digest "In the absence of custom
none of the proprietors can do anything which alters the condition of the joint
property without the consent of all the co-sharers". (Article 225).
"Nor can any individual proprietor plant or cut trees on the common land,
nor sink a well, nor appropriate houses built for common purposes except with such
consent" (Article 226). "Nor in the absence of custom can the will of
the majority of a village community prevail against that of the minority when
the question is one as to the disposal of the common property in such a way as
to preclude all use of it by the owners." (Article 227). Thus it is seen
that Shamilat Deh or Village Common Land has certain distinctive and
characteristic features of its own and even a majority of the co-sharers cannot
destroy its character.
In 1947, at the time of the partition of
India under the British into Independent India and Independent Pakistan, there
was a terrible holocaust and an unprecedented movement of population, millions
of Hindus and Sikhs moving from West Punjab to East Punjab and millions of
Muslims moving from East Punjab and present Haryana to West Punjab.
Multidimensional, interlinked problems of
administration of the properties of those who had left the country and
rehabilitation of those that had poured into the country soon arose.
It was noticed by this Court in Indira
Sohanlal v. Custodian of Evacuee Property, [1955] 2 S.C.R. 1117, it was in
order "to meet the unprecedented situation of sudden migration of vast
sections of population on a large scale from West Punjab to East Punjab and
vice versa, leaving most of the properties which they had, movable and
immovable, agricultrual and nonagricultural, the concerned Governments had to
take wide legislative powers to deal with the situation, to set up the
necessary 46 administrative machinery, and to evolve and give effect to their
policies in regard thereto from time to time . It was further noticed, The
earliest of these legislative measures so far as we are concerned, was the East
Punjab Evacuees (Administration of Property) Act, 1947 (East Punjab Act XIV of
1947), which came into force on the 12th December, 1947.
This Act was amended by the East Punjab
Evacuees, (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab
ordinance No. 11 of 1948) and later by East Punjab Evacuees' (Administration of
Property) (Amendment) Act, 1948,(East Punjab Act XXVI of 1948). The various
steps and administrative measures taken to settle the displaced agricultural
population who came over from West Punjab, on the hurriedly abandoned lands of
the Evacuees from East Punjab are to be found described in the Land
Resettlement Manual by Shri Tarlok Singh who was then the Director General of
Relief and Rehabilitation. It was later realised that the various Provincial
Acts enacted by the several provincial legislatures should be replaced by a
Central law and a Central Administration, So there was first a Central
Ordinance (27 of 1949) and then the Administration of Evacuee Property Act,
1950 which came into force on 17th April, 1950. The Act provided for a
Centralised Law and Centralised Administration and the creation of an office of
Custodian General.
Under Section 8(2) of the Administration of
Evacuee Property Act, 1950, all property which had vested in the Custodians
appointed by the State Governments under the repealed State Acts were to be
deemed to be evacuee property declared as such under Central Act and became
vested in the Custodian appointed under the Central Act. Section 8 (2) which
may be usefully extracted is as follows :
Where, immediately before the commencement of
this Act, any property in a State had vested as evacuee property in any person
exercising the powers of Custodian under any law repealed hereby, the property
shall, on the commencement of this Act, be deemed to be evacuee property
declared as such within the mean in of this Act, and shall be deemed to have
vested in the Custodian appointed or deemed to have been appointed for the
State under this Act and shall continue to so vest." The effect of the
operation of the Provincial and Central Acts relating to Evacuee Property was
that Evacuee Property became 47 vested in the Custodian but it must be noted
that what became vested in the Custodian was that property left behind by the
evacuee, no more and no less. If the evacuee had left behind him Khewat land it
became vested in the Custodian. If the evacuee had left behind him the right to
a share in Shamlat-deh lands, that too became vested in the Custodian.
The vesting, however, did not divest
Shamilat-deh lands of their character as Shamlat- deh lands and convert them
into Khewat land. Shamilat-deh lands could only continue and did continue to be
Shamilat-deh even after they became vested in the Custodian and the Custodian
could only deal with them as a Shamilat-deh lands in the same manner in which
the Muslim proprietors could have dealt with them had they not migrated to
Pakistan. That was the position after the Parliament enacted the Administration
of Evacuees Property Act, 1950.
At that stage came the Punjab Village Common Land
Regulation Act of 1953 which has been held by this Court to be legislation
aimed at agrarian reform. It had nothing to do and it did not purport to have
anything to do with the Administration of evacuee property. All Shamilat-deh
lands whether they belonged to the proprietary body of villagers consisting
only of non-evacuees or whether they belonged to the proprietary body of
villagers the interests of some of whom had become vested in the Custodian
under the various Evacuee Property laws, were dealt with by the Punjab Act
without distinction. All Shamilat-deh lands, notwithstanding anything to the
contrary contained in any other law for the time being in force, became vested
in the village Panchayat.
As we said earlier the Punjab Act was a law
providing for agrarian reform and it neither purported to be nor was it a law
regulating the administration of Evacuees Property.
In Kanjit Singh v. State of Punjab [1965] I
S.C.R. 82, the very question arose whether a law providing for the taking away
of Shamilat-deh lands from the proprietors and given over to the village
Panchayat for allotment to non- proprietors was a law relating to agrarian
reforms and whether such a law was protected by Article 31(A). It is worthwhile
to recalling what the Constitution Bench said in answer to the question posed
before them? They explained the amplitude of rural development and agrarian
reforms in the following words :
The High Court was also right in its view
that the proposed changes in the Shamilat-deh and abadi-deh were included in
the general scheme of planning of 48 rural areas and the productive utilisation
of vacant and waste lands. The scheme of rural development today envisages not
only equitable distribution of land so that there is no undue imbalance in
society resulting in a landless class on the one hand and a concentration of
land in the hands of a few on the other, but envisages also the raising of
economic standards and bettering rural health and social conditions. Provisions
for the assignment of lands to village panchayat for the use of the general
community, or for hospitals, schools, manure pits, tanning groups etc. inure
for the benefit of rural population must be considered to be an essential part
of the redistribution of holdings and open lands to which no objections
apparently taken. If agrarian reforms are to succeed, mere distribution of land
to the landless is not enough. There must be a proper planning of rural economy
and conditions and a body like the village Panchayat is best designed to promote
rural welfare than individual owners of small portions of lands. Further, the
village Panchayat is an authority for purposes of Part III as was conceded
before us and it has the protection of Article 31-A because of this character
even if the taking over of Shamilat-deh amounts to acquisition. In our opinion,
the High Court was right in deciding as it did on this part of the case."
"With respect to abadi-deh the same reasoning must apply. The setting of a
body of agricultural artisans (such as the village carpenter the village
blacksmith, the village tanner, farrier wheelwright, barber, washer man etc.)
is a part of rural planning and can be comprehended in a scheme of agrarian
reforms. It is a trite saying that India lives in villages and a scheme to make
villages self-sufficient cannot but be regard ed as part of the larger reforms
which consolidation of holding , fixing of ceilings on lands, distribution of
surplus lands and utilising of vacant and waste lands contemplate. The four
Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common
Lands Regulation Act and the Security of Tenure Act, are a part of a general
scheme of reforms and any modification of rights such as the present had the 49
protection of Article 31-A. The High Court was thus right in its conclusion on
this part of the case also." We have quoted this passage in extenso in
order to emphasise the meaning to be attached to expressions like 'agrarian
reforms', 'marketing', etc. for which various legislations have been made Occasionally
we notice that some courts have a tendency to contine these expressions to
strait-jacket meanings, instead of giving a meaning of wide implications.
So we have the authoritative pronouncement of
a Constitution Bench of this Court that the Punjab Act which had been reserved
for the assent of the President and which did have the assent of the President
is a law relating to agrarian reform and therefore immune from challenge, under
Article 31-A, on the ground that the law infringed any of the Fundamental
Rights enumerated in that Article. We have already noticed that the effect of
the Administration of the Evacuees Property Act was not to take away the
character of Shamilat-deh as Shamilat-deh but only to vest in the Custodian
such interest as the Evacuee possessed in the Shamilat-deh. The interest which
the erstwhile evacuees possessed in the Shamilat-deh was neither enlarged nor
abridged. The land continued to be Shamilat-deh and it could be the subject of
competent State Legislation as Shamilat- deh. If for the purposes of agrarian
reform the legislature of the State enacted a law as it was competent to do,
and consent to which was accorded by the President under Article 31-A of the
Constitution, we do not see any justification for the argument that there was
any conflict between the Punjab Act and the Central Act. To illustrate, it
would be wholly wrong to suggest that on a Zamindari becoming vested in the
Custodian on account of the Muslim Zamindar (intermediary) migrating to
Pakistan raiyati land in the village changed its character and the occupancy
rights of the raiyats ceased in the lands, merely because the Zamindar migrated
to Pakistan and the Zamindari became vested in the Custodian. Similarly lands
in an erstwhile Zamindar set apart for pasture, as grazing grounds etc. did not
lose their character as such on the migration of the Zamindar to Pakistan. When
the Parliament and the State Legislature, each of them legislate in their own
field with respect to different subjects in this case Evacuee Property and
Shamilat-deh we do not find any reason to conclude that there was necessarily a
conflict between the two legislations. The question in the present case is not
whether 50 there was any conflict between the Central and the State
Legislations but whether the legislature of the State could make a law relating
to agrarian reform in respect of property which included property which by a
process of law had become vested in the Central Government or the Custodian. We
do not see any reason why the State Legislature should be considered
incompetent to make a law relating to agrarian reform, if indeed it is a law
relating to agrarian reforms as it has been found to be so, in the present
case, even it affects land vested in the Central Government or the Custodian.
In this view of the matter, I agree with the order proposed by my lord the
Chief Justice.
N.V.K. Appeal allowed.
Back