C.W.P. No. 15509 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : May 20, 2011 C.W.P. No. 15509 of 2007 Mahatam Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 13157 of 2008 Harbans Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 5826 of 2008 Mehar Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 8117 of 2008 Hazura Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 2073 of 2008 Mandeep Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 2 C.W.P. No. 19265 of 2007 Kulwant Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 4538 of 2008 Gurdev Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 4402 of 2008 Azad Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 3928 of 2008 Karam Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 7410 of 2008 Swaran Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 19201 of 2008 Joginder Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 3 C.W.P. No. 8051 of 2008 Col. Avtar Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 5947 of 2008 Jasbir Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 868 of 2008 Sat Narain and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 10190 of 2008 Randhir Singh and others ..... PETITIONER Vs. G.P. Village Tole Majra and others ..... RESPONDENTS C.W.P. No. 18510 of 2007 Suresh Jaswal and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 8116 of 2008 Janamjit Kaur ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 4 C.W.P. No. 2176 of 2008 Arjan Dev Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 16542 of 2007 Gurnam Singh ..... PETITIONER Vs. Gram Panchayat Nagla ..... RESPONDENTS C.W.P. No. 16874 of 2007 Gram Panchayat Mehmadpur ..... PETITIONER Vs. State of Punjab etc. ..... RESPONDENTS C.W.P. No. 840 of 2008 Sadhu Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15689 of 2008 Gurmail Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 4300 of 2008 Parminder Singh and others ..... PETITIONERS Vs. State of Punjab ..... RESPONDENT C.W.P. No. 15509 of 2007 5 C.W.P. No. 5517 of 2008 Harbans Singh and another ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 878 of 2008 Gurpal Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 3492 of 2009 Gurdeep Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 21101 of 2008 Mann Singh ..... PETITIONER Vs. State of Punjab ..... RESPONDENT C.W.P. No. 11163 of 2009 Piara Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 7110 of 2009 Nirmal Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 6 C.W.P. No. 15196 of 2008 Sukhdev Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 5166 of 2009 Ajaib Chand ..... PETITIONER Vs. Joint Development Commissioner (IRD) and another ..... RESPONDENTS C.W.P. No.12307 of 2009 Surinder Kaur ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 11960 of 2009 Surinder Paul Singh and another ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No.19544 of 2007 Karamjit Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 4212 of 2009 Virsa Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 7 C.W.P. No. 19255 of 2007 Satpal and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 14961 of 2010 Harnam Singh and another ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 14342 of 2010 Natha Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 9161 of 2010 Kulwant Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 13998 of 2010 Nishan Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 10826 of 2010 Mushtarka Malkan Committee, Sarhala ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 8 C.W.P. No. 4537 of 2010 Jaspal Singh and others ..... PETITIONERS Vs. Nagar Panchayat Village Gulabgarh alias Nai Wale Tehsil and District Bhatinda and another ..... RESPONDENTS C.W.P. No. 14567 of 2010 Paramjit Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 12322 of 2010 Jagtar Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15926 of 2010 Balwant Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 14481 of 2010 Tejinderpal Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 4547 of 2010 Satjit Singh Jeji and others ..... PETITIONERS Vs. Director Land Records, Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 9 C.W.P. No. 18494 of 2010 Bhagwant Singh ..... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15858 of 2010 Bhupinder Singh and others ..... PETITIONERSS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 5413 of 2008 Harbhajan Singh and another ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 4659 of 2010 Ram Pal Singh and others ..... PETITIONERS Vs. Nagar Panchayat, Bakhtara and others ..... RESPONDENTS C.W.P. No. 14483 of 2010 Sukhdev Singh and others ..... PETITIONERS Vs. State of Punjab and others ..... RESPONDENTS C.W.P. No. 15509 of 2007 10 C.W.P. No. 4574 of 2010 Paramjit Singh and others ..... PETITIONERS Vs. Nagar Panchayat, Alaladpur and others ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. M.L.Sharma, Advocate, Mr. Ashok Aneja, Advocate, Mr. P.S.Goraya, Advocate, Mr. R.K.Garg, Advocate, Mr. Jatinder Singla, Advocate, Mr. R.K.Sharma, Advocate, Mr. R.S.Chauhan, Advocate, Mr. Sarjit Singh, Sr. Advocate, with Mr. Vikas Singh, Advocate, Mr. M.L.Saggar, Sr. Advocate, with Mr. G.P.Vashisht, Advocate, Mr. Sanjay Vij, Advocate, Mr. J.S.Thind, Advocate, Mr. G.S.Brar, Advocate, Mr. Sanjeev K. Patial, Advocate, Mr. H.N.S. Gill, Advocate, Mr. J.S.Toor, Advocate, Mr. S.S.Salar, Advocate, Mr. Onkar Singh, Advocate, Ms. Geeta Sharma, Advocate, Mr. Atul Lakhanpal, Sr. Advocate, with Mr. Arjun Lakhanpal, Advocate, Mr. B.S.Sewak, Advocate, Mr. K.S.Chahal, Advocate, Mr. Sanjay Gupta, Advocate, Mr. Amarjit Markan, Advocate, Mr. M.S.Kang, Advocate, Mr. S.D.Sharma, Sr. Advocate, with Ms. Bindu Goel, Advocate, Mr.Harsh Bunger, Advocate, Mr. Vikram Singh, Advocate, Mr. S.P.Sharma, Advocate, for the petitioner(s). C.W.P. No. 15509 of 2007 11 Ms. Reeta Kohli, Addl. A.G. , Punjab. Mr. S.S.Bhinder, Advocate, Mr. S.S.HIra, Advocate, Mr. Amrik Singh, Advocate, Mr. Navjeet Sodhi, Advocate. Mr. H.K.Aurora, Advocate, Mr. Munish Gupta, Advocate, for the respondent (s). * * * AUGUSTINE GEORGE MASIH, J. By this one order we propose to dispose of a bunch of 53 writ petitions challenging the vires of The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Act, 2007 (Punjab Act No. 6 of 2007) and the consequential instructions, orders and letters issued by the Authorities under The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. CWP Nos. 15509 of 2007, 9161 of 2010, 18510 of 2007, 14342 of 2010, 13998 of 2010, 10826 of 2010, 19255 of 2007, 16542 of 2007, 3928 of 2008, 2073 of 2008, 4300 of 2008, 10190 of 2008, 868 of 2008, 4538 of 2008, 8116 of 2008, 21101 of 2008, 878 of 2008, 4402 of 2008, 15196 of 2008, 8117 of 2008, 4212 of 2009, 19544 of 2007, 14567, 4537, 14483 and 14961 of 2010, 2176 and 5826 of 2008 are cases where only the vires of The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Act, 2007 (hereinafter referred to as 'the Consolidation Act, 2007) (Punjab Act No. 6 of 2007) vide which Section 42-A stands inserted after Section 42 and before Section 43 in the C.W.P. No. 15509 of 2007 12 East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as 'the Consolidation Act, 1948') have been challenged being illegal, arbitrary, unconstitutional and in colourable exercise of the powers by the State. In CWP Nos. 14481 of 2010, 15858 of 2010, 12307 of 2009, 15926 of 2010, 12322 of 2010, 19201 of 2008, 7110 of 2009, 11163 of 2009 and 11960 of 2009 apart from challenging the vires, challenge has been posed to instructions dated 14.11.2007 and letter dated 14.07.2009. In CWP Nos. 15689 of 2008, 840 of 2008, 5517 of 2008, 3492 of 2009, 18494 of 2010, 4547 of 2010, 13157 of 2008, 19265 of 2007, 7410 of 2008, 5947 of 2008, 4574 of 2010, 5166 of 2009, 8051 of 2008, 4659 of 2010, 5413 of 2008 and 16874 of 2007 not only the vires but challenge has also been made to the orders passed by the Director, Consolidation rejecting the claim of the petitioners in the light of the amendment under challenge in these writ petitions. It is the contention of the petitioners that the above impugned Act, which came into force on 23.07.2007, is ultra vires to the Constitution being not protected under Article 31-A (i) (a) of the Constitution of India as the same is not agrarian and non-beneficial to the villagers as also the proprietors of the village. By this amendment, proprietary rights of the land owners in the village stand extinguished and it amounts to acquisition of land without paying any compensation. This is in violation of Article 31-A of the Constitution of India and contrary to the judgment of the Supreme Court in the case of Bhagat Ram vs. State of Punjab and others, AIR 1967 SC 927. It takes away the fundamental rights enshrined under Articles 14, 19 and 21 and 31-A of the Constitution of India. Section 42-A as introduced by the amendment is in direct conflict with Section 42 of the Consolidation Act, C.W.P. No. 15509 of 2007 13 1948. The amendment, which has been brought about by the Consolidation Act, 2007,is an act of colourable exercise of power by the Executive through the Legislature so as to perpetuate the illegality committed during the consolidation operations as contemplated under Section 21 of the Consolidation Act, 1948 read with Rule 7 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as 'Consolidation Rules, 1949) was not given effect to and by this amendment, Section 21 has been virtually obliterated. The purpose as enumerated for bringing about the amendment in the Consolidation Act, 1948 is totally alien to the concept of the Parent Act as the scope of definition 'common purpose' as provided under Section 2 (bb) has been enlarged thereby making it unlimited, unbridled, absolute and non-agrarian. Although the definition has not been amended but the intent is apparent from the objects and reasons spelt out for bringing about the amendment which amounts to colourable exercise of powers. The amendment has also been challenged on the ground that it nullifies the directions given by this Court in its judgment in the case of Gurjant Singh vs. Commissioner, Ferozepur Division, 2000 (2) PLR 347 wherein the Court directed that the authorities under the Consolidation Act, 1948 should redistribute the Bachat land amongst the proprietors according to their shares throughout the States of Punjab, Haryana and villages forming part of Union Territory, Chandigarh, who had contributed their land for common purposes. This judgment was challenged before the Hon'ble Supreme Court by the State of Punjab wherein the objections only with regard to certain observations, where time was specified for completing this exercise was fixed, were raised. The same were deleted from the passage of the impugned judgment by the Supreme Court, rest of the directions C.W.P. No. 15509 of 2007 14 issued by this Court were accepted by the State of Punjab and, therefore, by this impugned amendment, the effect of the directions has not only been nullified rather the same have been violated, which is not permissible in law. The amendment is so worded so as to make it retrospective in operation which has the effect of taking away the vested rights of the land owners. Even the rights created and settled by any judgment, decree, order or decision of any Court, authority or officer has been taken away, which is illegal and violates the principle of separation of powers as provided under the Constitution. This challenge to the vires has been responded to by the State by asserting that the consolidation of the holdings was carried out as per the Consolidation Act, 1948 which stood completed around 1980. Under Section 23-A of the Consolidation Act, 1948, control and management of such lands which were reserved under Section 18 for common purposes as defined under Section 2 (bb) by making proportionate cuts out of the village landowners' holdings. As per Rule 16 (ii) of the Consolidation Rules, 1949, such lands vest in the proprietary body of the village and has been entered in the column of ownership of record of rights as 'Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqua'. Neither the Consolidation Act, 1948 nor the Consolidation Rules, 1949 provide for partition or distribution of this land amongst the proprietors of the village. The amendment stipulates that Jumla/Mushtarka lands shall be utilized and continue to be utilized for common purposes. The proprietary rights of the petitioners or any other land holder have not been taken away as alleged. The doubt expressed by the petitioners with regard to the land meant for common purpose to be used for commercial ventures has been dispelled and it has been reiterated that the said land would be used only for common C.W.P. No. 15509 of 2007 15 purposes as provided in Section 2 (bb) of the Consolidation Act, 1948. The control and management of these lands is with the Gram Panchayat or the State Government under Section 23-A and would continue as such, therefore, there was no question of transfer of the title or control and management of this land to any private individual or company or agency, as alleged. It is denied that the land is being acquired or the ownership rights of the proprietors of the land holders of the village stand extinguished by the said amendment. It has been denied that the ownership of the land would change in the name of the Government by virtue of the impugned amendment. The term 'Common Purposes' has been defined under Section 2 (bb) of the Consolidation Act, 1948 and no amendment has been brought about in the said definition. This definition is an inclusive definition which is not exhaustive but is open and wide, therefore, keeping in view the intent of the said definition, the present amendment has been brought about especially in the light of the future requirements which are likely to arise in view of the Constitution (Seventy-third Amendment) Act, 1992 by which more powers to the Panchayats stand devolved giving it larger role to play. Section 42-A of the impugned Act does not, in any manner, obliterate or render redundant Section 42 of the Consolidation Act, 1948. Section 42 can be invoked by the Government to examine and scrutinize any case for the purpose of propriety and an order can be made under this Section only if such impropriety or irregularity comes to its notice. No right of appeal/revision is available to an individual under Section 42 of the Act, however right of appeal as available with the individual land holders under Section 21 of the Act, is still intact. The allegation with regard to nullifying the directions issued by this Court in Gurjant Singh's case (supra) by the amendment and that the amendment C.W.P. No. 15509 of 2007 16 is a colourable exercise of powers are denied. During the course of hearing, an affidavit dated 04.08.2010 in CWP No. 13157 of 2008 was filed by the State of Punjab wherein it has been stated that wherever the order of partition of Jumla Malkan Lands has been implemented/given effect to before the date of notification of 'The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Ordinance 2007 i.e. 22.05.2007, the present amendment would not be applicable. Counsel for the parties in these writ petitions have referred to various earlier judgments of this Court as well as the Supreme Court in support of their respective contentions, which have been noted above, but reference to all these judgments may not be necessary at this stage and the same would be referred to, as and when required considering their relevance and applicability. An Amendment Bill was introduced in the Punjab Vidhan Sabha purporting to amend the Consolidation Act, 1948. The Bill was passed by the State Legislature on 22.05.2007, on which day an Ordinance was promulgated called 'The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Ordinance 2007 (Punjab Ordinance No. 3 of 2007) incorporating Section 42-A and was notified on 22.05.2007. Clause 1 (2) of the Ordinance said that it shall come into force at once. The Bill passed by the Legislature received the assent of the Governor of Punjab on 19.07.2007 and became The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Act, 2007 (Punjab Act No. 6 of 2007) which was published on 23.07.2007. As per Section 1 (2) of this Act, it shall come into force at once. As per Section 2, in the Consolidation Act, 1948, after Section 42, Section 42-A stood inserted. Section 3 (1) repealed The East Punjab Holdings (Consolidation C.W.P. No. 15509 of 2007 17 and Prevention of Fragmentation) Amendment Ordinance, 2007 and Section 3 (2) saved anything done or any action taken under the principal Act, as amended by the Ordinance referred to in sub-section (1), and shall be deemed to have been done or taken under the principal Act, as amended by this Act. The basic ground of challenge to the constitutional validity of the amendment is that it violates Articles 14, 19, 21 and 31-A of the Constitution of India. The primary plank of attack of the counsel for the writ petitioners is that by this amendment, the land stood acquired by the State without paying any compensation to the land holders as the ownership stands transferred and their proprietary rights stood extinguished which is not permissible in law as held by the Supreme Court in various judgments but reference to the judgment of the Hon'ble Supreme Court in the case of Bhagat Singh (supra) would be enough. There is no dispute with regard to the principle that the proprietary rights cannot be taken away or the land cannot be acquired without paying adequate compensation for the same. But in the case in hand, this contention of the petitioners is totally misplaced as Section 42-A which has been inserted after Section 42 of the Consolidation Act, 1948 does not indicate the same. For ready reference, Section 42-A of the Consolidation Act, 1948 is reproduced, which reads as follows:- “42-A. Notwithstanding anything contained in this Act or in any other law for the time being in force, or in any judgment, decree, order or decision of any Court, or any authority, or any officer, the land reserved for common purposes whether specified in the consolidation Scheme or not, shall not be partitioned amongst the proprietors of the village, and it shall C.W.P. No. 15509 of 2007 18 be utilized and continue to be utilized for common purposes.” The language of the Section primarily prohibits partition of the land which has been reserved for common purposes, whether specified or not under the consolidation scheme, amongst the proprietors of the village. It does not touch the ownership of the land at all. However, under Section 23-A only the management and control of this land vests with the Panchayat or the State Government depending upon the purpose for which the land was assigned or utilized. Rule 16 (ii) of the 1949 Rules states that such lands vest in the proprietary body of the village and the entry in the revenue record would reflects the same. That apart, it is the specific stand of the State before this Court that the proprietary rights of the land holders shall not be affected and the land shall continue to be the ownership of the proprietary body of the village as provided in Rule 16 (ii) of the Consolidation Rules, 1949. It has further been stated that only management vests with the Gram Panchayat or the State Government for the common benefits of the village community as provided under Section 23-A of the Consolidation Act, 1948, which would allay the doubts of the petitioners with regard to the acquisition of land by the State thereby extinguishing their rights of ownership over the land. This, thus, results in failure of challenge to the vires of this amendment on the ground of violation of Articles 14, 19, 21 and 31-A of the Constitution. Section 42 of the Consolidation Act, 1948 operates in its sphere which confers powers on the State Government to call for proceedings at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or C.W.P. No. 15509 of 2007 19 repartition made by any officer under the Consolidation Act, 1948. Section 42 does not confer any right of appeal or revision on an individual but is a discretionary power with the Government. This power, under no circumstances, can be said to have been curtailed by the insertion of new Section 42-A by the impugned Consolidation Act, 2007, rather it has addressed and redressed a difficulty which had cropped up during the working of the Act with regard to lands which were reserved for common purposes but were not specified in the consolidation scheme. Such lands, as per Section 42-A, shall be utilized and continue to be utilized for common purposes and will not be partitioned amongst proprietors of the village. These two Sections operate in totally different spheres. Their scope, applicability and field of operation are distinct as stated above and, therefore, the contention of the petitioners that with the amendment, Section 42 of the Consolidation Act, 1948 stands obliterated, is without any basis. At the cost of repetition it is again reiterated that Section 42 does not confer any right of appeal or revision on an individual and in case a person is aggrieved by re-partition, which is done under Section 21, the remedy is available in this very Section itself, wherein firstly an aggrieved person by the re-partition may file written objection within 15 days of publication which have to be considered and decided under sub-section (2). If any person is aggrieved by the order of the Consolidation Officer passed under sub-section (2), appeal has been provided under sub-section (4). There is, thus, ample remedies available to the aggrieved persons under the Act itself. The assertion of the petitioners that Section 42 stands obliterated by introduction of Section 42-A is under misplaced noion and belief which cannot be accepted. Another ground pressed into service by the petitioners is that it C.W.P. No. 15509 of 2007 20 is a colourable exercise of powers by the Executive through the Legislature but that also does not cut much ice. The Hon'ble Supreme Court in S.S.Bhola and others vs. B.D.Sardana