Case: THE STATE OF HARYANA THROUGH SECRETARY TO GOVERNMENT OF HARYANA Vs. JAI SINGH &amp; ORS

Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution. 79. In S. Shanmugavel Nadar, the Bench had the advantage of considering Kunhayammed and V.M. Salgaocar. A perusal of the aforesaid judgment would show that if leave is granted in a special leave petition, the appellate order becomes operative and executable order. But the nature of jurisdiction exercised by the superior forum and the content of subject matter of challenge laid or which could have been laid had to be kept in view. 80. In a recent judgment reported as Kaikhosrou (Chick) Kavasji Framji v. Union of India and another (2019) 20 SCC 705, this Court held as under: 53. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding(s) one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of the subordinate court would continue to hold the field (see S. Shanmugavel Nadar v. State of T.N.). 81. In another judgment reported as Commissioner of Income- Tax, Bombay v. M/s. Amritlal Bhogilal and Co. AIR 1958 SC 868 , an appeal was filed before the Appellate Assistant Commissioner against an order passed by the Income-Tax Officer. However, the Income-Tax Officer passed an order refusing to grant registration to the firm to the two assessment years 1947-48 and 1948-49. An argument was raised that since the order of the Assessing Officer has been affirmed in appeal, the non- registration of the firm could also be challenged before the Appellant Assistant Commissioner. This Court noticed the fact, that the department has not been conferred in the right of appeal against the order either refusing to register the firm or cancelling the registration of the firm. This Court considered such an argument and held as under: 13. …….. It is thus clear that wide powers have been conferred on the Appellate Assistant Commissioner under Section 31. It is also clear that, before the Appellate Authority exercises his powers, he is bound to hear the Income Tax Officer or his representative. It has been urged before us by Mr Ayyangar on behalf of the respondent that these provisions indicate that, in exercise of his wide powers the Appellate Assistant Commissioner can, in a proper case, after hearing the Income Tax Officer or his representative, set aside the order of registration passed by the Income Tax Officer. We are not prepared to accept this argument. The powers of the Appellate Assistant Commissioner, however wide, have, we think, to be exercised in respect of the matters which are specifically made appealable under Section 30(1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the Appellate Authority to entertain a plea about the correctness, propriety or validity of such an order. ……It is true that, in dealing with the assessees appeal against the order of assessment, the Appellate Assistant Commissioner may modify the assessment, reverse it or send it back for further enquiry; but any order that the Appellate Assistant Commissioner may make in respect of any of the matters brought before him in appeal will not and cannot affect the order of registration made by the Income Tax Officer. If that be the true position, the order of registration passed by the Income Tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority. Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law, what merges in the appellate order is the Income Tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income Tax Officer in the present case. 82. Thus, the principle of merger would be that the order of the higher court becomes the operative order and not the order which was appealed from and not interfered with. 83. In the appeal against the judgment of Gurjant Singh, only grievance raised before this Court was in respect of a direction of fixing a time limit to re-partition the land. It was the said direction which was deleted from the order. By such exercise of jurisdiction in appeal, the reasoning of the High Court is not deemed to be the reasoning of this Court. Such argument would in fact give rise to strange results as the reasoning of the High Court would have to be accepted as reasoning of the Supreme Court. There cannot be a more absurd argument. As held by this Court in S. Shanmugavel Nadar, there can be only one operative judgment/order. Once this Court has deleted the time limit to complete the re-partition, the operative order remains of the High Court that Bachat land can be partitioned i.e., operative part of the order. The reasoning recorded by the High Court is not however affirmed by this Court. It would be a judgment of the High Court alone which can be cited as a precedent in other cases but not as an order of this Court. Consequently, we do not find any merit in the argument so raised. In fact, by applying the doctrine of merger, the order of this Court becomes operative order but since the order is of deletion of a direction only, the effect would be that the order of the High Court has not been interfered with.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The scope of such expression came up for consideration before the Full Bench of Punjab and Haryana High Court in a judgment reported as Munsha Singh & Ors. v. The State of Punjab & Ors. AIR 1960 P&H 317 (FB). It was held that the individual proprietors of the land were not left with even a single right which may be included among the attributes of ownership and that it was a case of total expropriation of the right-holders. The Full Bench held that neither the language of the preamble, nor that of section 18(c) could be extended so as to include within its ambit wider programme, with a view to bring about social equality by taking away from individual proprietors their lands and giving them to non-proprietors, or handing them over to the Panchayat for purposes of management for any common purpose. The amendment carried out was thus set aside. It was thereafter, the expression common purpose was amended by Punjab Act No. 27 of 1960. Such amendment was upheld by the Full Bench of Punjab High Court in a judgment reported as Kishan Singh & Anr. v. The State of Punjab & Ors. AIR 1961 P&H 1.9. The correctness of the decision of Full Bench in Kishan Singh was doubted in view of the judgment reported as Kavalappara Kottarathil Kochuni v. States of Madras and Kerala AIR 1960 SC 1080 . The matter was considered by a larger Full Bench of five judges in a judgment reported as Jagat Singh & Ors. v. The State of Punjab & Ors. AIR 1962 P&H 221 (FB) The question examined therein was as to whether it was permissible to keep aside land owned by private individuals for providing income to the Gram Panchayat. It was held that the 1948 Act was a measure designed to promote agrarian reforms and therefore, not ultra vires the Constitution. The judgment in Jagat Singh came up for consideration in Ranjit Singh v. State of Punjab AIR 1965 SC 632  wherein the judgment of the High Court was not interfered with.11. At this stage, it may be noted that a Full Bench of Punjab in a judgment reported as Jit Singh v. The State of Punjab & Ors. AIR 1964 P&H 419 (FB), considered the Punjab Act No. 39 of 1963 amending the 1948 Act. It was held that reservation of land for income of the Gram Panchayat under the 1948 Act and for extension of the abadi of the non-proprietors including Harijans, for Panchayat Ghar and for manure pits was valid, as covered by Article 31A(1)(a) of the Constitution. In Bhagat Ram & Ors. v. State of Punjab & Ors. AIR 1967 SC 927 , the Constitution Bench of this Court held that reservation of land for the income of panchayat is not permissible, being hit by second proviso to Article 31A of the Constitution. The question considered in the context of said clause (ii) of Section 2 (bb) was as to whether the reservation of land for income of the Panchayat was an acquisition of land by the State within the second proviso to Article 31A of the Constitution. It was held by the majority judgment that the said provision was hit by the second proviso to Article 31A of the Constitution. The State was accordingly directed to modify the consolidation scheme and bring it into accord with the majority judgment. There is no dispute about the said proposition in the present appeals.12. In Atma Ram v. State of Punjab AIR 1959 SC 519 , the constitutionality of the Punjab Security of Land Tenure Act, 1953 as amended by Punjab Act No. 11 of 1955 was in question. The Constitution Bench examined Article 31A. It was held that in Punjab there are very few estates as defined in Section 3(1) of the Punjab Land Revenue Act, 1887 in the sense that one single landowner is seized and possessed of an entire estate which is equated with a whole village. In Punjab, an estate and a village are inter-changeable terms, and almost all villages are owned in parcels, as holdings by co-sharers, most likely, descendants of the holder of a whole village which came to be divided amongst the co-sharers, as a result of devolution of interest. This Court also noticed that holdings in Punjab are vertical divisions of an estate whereas in Eastern India, they represent a horizontal division. The writ petitions were dismissed holding that the provisions of Article 31A save the Act from any attack based on the provisions of Articles 14,19 and 31 of the Constitution.13. The Five Judges Full Bench in Suraj Bhan & Ors. v. State of Haryana & Anr. MANU/PH/3354/2016; (2017) 2 Punjab Law Reporter 605 has given the historical background of the shamilat deh lands in the State of Punjab, including the present-day State of Haryana. The history of shamilat law as delineated in the said judgment is quoted hereinunder for better understanding of the subject in the present appeals. The words commonly used in this judgment are not common in use, therefore, the Glossary of the words with their meaning is appended at the foot of this judgment.21. The constitutional validity of certain provisions of the Punjab Village Common Lands (Regulation) Act, 1953 (Punjab Act) came up for consideration before the Punjab and Haryana High Court in a judgment reported as Hukam Singh v. State of Punjab AIR 1955 P&H 220. The High Court examined Article 31(2) and Article 31A, keeping in view the fact that the Punjab Act was reserved for consideration of the President and had received his assent, it was held that the term extinguishment appearing in Article 31 of the Constitution does not mean total abolition of rights known to law. Further argument was that the Act does not provide for extinguishment or modification of any right in any estate, therefore, the shamilat deh in a village would not be an estate and the extinguishment or modification of any right in such part of an estate would not be covered by Article 31A of the Constitution. The Court held as under:…The argument is interesting but not in my opinion substantial. According to Mr. Tek Chand a law which provides for the total abolition of the rights of ownership of landed property, for instance, would be constitutional as it would, according to him, fall under Article 31-A, but if the right of ownership of a person or a group of persons is merely extinguished qua those persons and the same right is vested in some other person that would not fall within the Article. I find it impossible to agree that the expression extinguishment has been used in Article 31-A of the Constitution in the special sense suggested by the learned counsel. It is significant that Article 31-A speaks of acquisition by the State of any estate or of any rights in an estate and then speaks of the extinguishment or modification of any rights in an estate and I can find no ground for thinking that if a persons rights in an estate have been taken away from him and given to another person this would not be extinguishing those rights. In my opinion, therefore, the impugned Act does fall within the meaning of Article 31-A of the Constitution as it provides for the extinguishment of certain rights in certain property belonging to the village proprietors and also for the modification of those rights.…Once again, I am unable to agree. There are in an estate several kinds of rights owned by various persons and one of such rights is the right of proprietorship in the village shamilat and when, therefore, the impugned Act provides for the extinguishment of such ownership rights it clearly provides for the extinguishment or modification of certain rights in an estate. Mr. Tek Chands argument that a part of an estate is not an estate appears to have been raised before a Full Bench of this Court in connection with the validity of another statute and it was on that occasion repelled by the Full Bench. Khosla, J. who delivered the main judgment in that case, Bhagirath Ram Chand v. State of Punjab and others [ A.I.R. 1954 Punj. 167] , observed in connection with this argument—It is clear that the whole includes the part and where an Act provides for rights in an estate it provides for rights in part of an estate.We are, in my opinion, bound by the view of the Full Bench so clearly expressed in this respect.23. The nature of shamilat deh lands or village common lands was examined by a Constitution Bench in Gram Panchayat of Village Jamalpur v. Malwinder Singh, (1985) 3 SCC 661 . It was observed that prior to the partition of India, shamilat deh lands in Punjab were owned by proprietors of other lands in the village, Hasab Rasad Khewat, that is to say, in the same proportion in which they owned other lands. Therefore, a person who did not own any land in the village could have no proprietary rights or interest in the shamilat deh lands. But since the interest of the proprietors of other lands in shamilat deh lands was incidental to their proprietary interests in those other lands, such interest in the shamilat was not a mere appendage to their interest in the other lands. A reference was made to Chapter X (Village Common Land) of Rattigans Digest, which is to the effect that within the territorial limits of every village, some portion of the uncultivated wastelands was reserved for purposes of common pasture, assemblies of people, the tethering of the village cattle, and the possible extension of the village dwellings. The lands so reserved were zealously 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 were 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 of 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 Shamlat-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 shamilat deh. This Court held that Punjab Act was a measure of agrarian reforms protected by Article 31A of the Constitution, holding as under:12. 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 31A 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 President………….43. A reading of the aforementioned judgments and the history of the shamilat deh (common land) in the State of Punjab, including State of Haryana, shows that the common land for the purposes of the present appeals falling in Section 2(g)(1) and (6) of the 1961 Act as amended by the Amending Act can be broadly classified into three categories:(i) shamilet deh recorded in the ownership of the Gram Panchayat prior to consolidation which vests unequivocally with the commencement of the Punjab and PEPSU Act.(ii) land for common purposes reserved during the process of consolidation by applying pro-rata cut from the holdings of the proprietors, not necessarily falling within the permissible ceiling limits under the land ceiling laws.(iii) common purposes land reserved by pro-rata cut within the permissible limits as per the land ceiling laws, the management and control of which vests with the panchayat.44. There is no dispute about the land falling in the first category as held by the High Court in Hukam Singh and subsequently affirmed by this Court in Malwinder Singh as being part of the agrarian reforms.46. The land falling in the second category was held to be a part of the agrarian reforms protected by Article 31A of the Constitution by the Full Bench of the Punjab and Haryana High Court in Kishan Singh and Jagat Singh. A reading of the judgment of the High Court in Jagat Singh shows that the challenge therein was to 20 acres of land for the purpose of income of Gram Panchayat. The High Court upheld the land carved out for income of the Gram Panchayat since the 1948 Act was found to be part of agrarian reforms as per its object. Though the members of the Bench gave different opinions, the conclusion was that the 1948 Act is an Act having object of agrarian reforms, protected by Article 31A(1) of the Constitution. The Civil Appeal No. 743 of 1963 in Ranjit Singh against such judgment was dismissed by the Constitution Bench of this Court. The appeals before this Court were heard and closed for judgment on April 27, 1964 but before the judgment could be delivered, the Constitution (Seventeenth Amendment) Act, 1964, received the assent of the President on June 20, 1964. That amendment inter alia substituted retrospectively from January 26, 1950, a new sub-clause (a) in clause (2) of Article 31A and added a proviso to clause (1). The High Court had decided the issues raised before it considering the Article 31A as it was then existing. The short point examined by this Court was, without referring to the Seventeenth Amendment, whether the transfer of shamilat deh owned by the proprietors to the village Panchayat for the purposes of management in the manner described above and the conferral of proprietary rights on non-proprietors in respect of lands in abadi deh is illegal and if the several provisions of law allowing this to be done are ultra vires Article 31 inasmuch as no compensation is payable or whether the law and the action taken are protected by Article 31A? The appeals were dismissed with an observation that the question examined was the correctness of the decisions under appeal, particularly the Full Bench decision in Jagat Singh, without expressing any opinion on the Seventeenth Amendment.47. As per the facts noticed by this Court, 270 kanals, 13 marlas of land in village Virk Kalan was given to village panchayat for management and realization of income, apart from some land reserved for abadi, manure pits, although the ownership was shown in the revenue record as Shamilet Deh in the name of the proprietors. In village Sewana, 400 kanals and 4 marlas were set apart for the village panchayat for extension of the abadi and to grant 8 marlas of land to each family of non- proprietors and 6 kanals being reserved for a primary school and some more land for a phirni (Village Pathway around village). In village Mehnd, the land was reserved for a school, tanning ground, hospital, cremation ground and for non- proprietors. The proprietors were not paid compensation for the lands. This Court noticed that Punjab Act was upheld by the High Court in Hukam Singh but observed that Article 31(2) of the Constitution would have rendered the Act as void but for the enactment of Article 31A. This Court also made reference to Punjab Security of Land Tenures Act, 1953 providing for fixing the areas for self-cultivation and conferring rights on the tenants to purchase land under their cultivation from the landholders. Before this Court, the challenge was to the correctness of a decision in Jagat Singh as also validity of Punjab Act No. 27 of 1960 which was said to be in breach of Article 19(1)(f) and Article 31 of the Constitution. Before the judgment could be delivered, 17th Amendment to the Constitution came into force and the judgment was delivered without considering the insertion of second proviso in Article 31A(1). This Court held that village panchayat is an authority for the purpose of Part III of the Constitution and it has the protection of Article 31A. Because of this character, even if the taking over of shamilat deh amounts to acquisition, the High Court was right in deciding as it did in this case. A reading of the judgment of Ranjit Singh would show that the land reserved for income of the panchayat in village Virk Kalan was not found to be unconstitutional, and further, the carving of shamilat deh and giving it to Gram Panchayat was found to be an act of agrarian reform, protected by Article 31A of the Constitution, even if it amounts to acquisition. This Court held as under:12. From a review of these authorities it follows that when the Punjab High Court decided these cases on the authority of Jagat Singhs case, the view taken in this Court was in favour of giving a large and liberal meaning to the terms estate rights in an estate and extinguishment and modification of such rights in Article 31-A. No doubt Kochunis case, considered a bare transfer of the rights of the sthanee to the tarwad without alteration of the tenure and without any pretence of agrarian reform, as not one contemplated by Article 31-A however liberally construed. But that was a special case and we cannot apply it to cases where the general scheme of legislation is definitely agrarian reform and under its provisions something ancillary thereto in the interests of rural economy, has to be undertaken to give full effect to the reforms. In our judgment the High Court was right in not applying the strict rule in Kochunis case, to the facts here.13. The High Court was also right in its view that the proposed changes in the shamlat deh and abadi deh were included in the general scheme of planning of 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 grounds etc. enure for the benefit of rural population and must be considered to be essential part of the redistribution of holdings and open lands to which no objection is 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 shamlat deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case.14. With respect to abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc. 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 selfsufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, 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 has the protection of Article 31-A. The High Court was thus right in its conclusion on this part of the case also.48. Thus, the property was held to be acquired as a part of the agrarian reform under Article 31A and no compensation was payable as provided under Article 31. Therefore, the acquisition was complete in respect of the land reserved for common purposes by applying pro-rata cut on the land holdings of the proprietors. Further, it is pertinent to mention that the question of payment of compensation was specifically negated in Ranjit Singh. Therefore, the land stood vested with the Panchayat under the scheme in view of the said judgment of this Court. In the present appeals, there is no dispute that the land by applying pro-rata cut has not been reserved for the income of the panchayat. Thus, we find that the land falling in second category i.e., land reserved for common purposes, not falling within the ceiling limit of the proprietor would vest with Panchayat. The Amending Act does not acquire land or deprive the proprietors of their ownership as such ownership stood already divested in view of consolidation scheme reserving land for common purposes. The Amending Act is only a clarificatory or a declaratory amendment as the land stood vested in the panchayat on the strength of Ranjit Singh. Hence, Section 2(g)(6) read with Section 4 of the 1961 Act vests the land reserved for common purposes by applying pro-rata cut in the village Panchayat.49. The Amending Act was enacted and published after obtaining assent of the President of India, thus such Act is part of the agrarian reform. In the year 1992, when the Amending Act was enacted, Article 31 stood omitted by virtue of 44th Constitutional Amendment Act, 1978 with effect from 30.04.1979. Therefore, the provision of payment of compensation contemplated under Article 31(2) was not available on the day when the Amending Act was published. Article 300A was inserted by the same amendment i.e., 44th Amendment with effect from 30.04.1979. Such Article contemplated that no person shall be deprived of his property save by the authority of law. Since the land was already vested with Gram Panchayat, therefore, there was no question of payment of compensation in the year 1992.50. As observed above, the land stood acquired and vested with the Panchayat by virtue of Ranjit Singh. This Court held that no compensation was payable in view of the four Acts, namely, the 1948 Act, the Punjab Act and the Pepsu Act, the 1961 Act and also the Punjab Security of Land Tenures Act, 1953 as such Acts were a part of a general scheme of reforms and any modification of rights such as the present had the protection of Article 31A. Such land would vest with the Panchayat.51. The Full Bench of the Punjab and Haryana High Court in a judgment reported as Parkash Singh & Ors. v. Joint Development Commissioner, Punjab & Ors. 2013 SCC OnLine P&H 26809 has found that Jumla Mushtarka Malkan land is not included in the shamilat deh in the State of Punjab, therefore, the 1961 Act will not confer jurisdiction on the Collector to decide the dispute regarding title. The Full Bench held that the only forum available to a person who raises a dispute regarding title in Jumla Mushtarka Malkan is the principal Court of civil jurisdiction. The Court held as under:61. The question that now remains is to identify the forum, a person who raises a plea that the land is not Jumla Mushtarka Malkan or that it was created by applying an illegal pro rata cut or that the land was not reserved for common purposes during consolidation, would be required to approach. After due consideration of the entire matter, we find no provision in the 1961 Act, the 1976 Act or the Consolidation Act that provides a forum to a person who raises such a plea and, therefore, in the absence of any fora for deciding such a dispute a person may have to approach a Civil Court but Section 44 of the Consolidation Act prohibits a Civil Court from entertaining any matter which the State Government or any officers are empowered by the Consolidation Act to determine or dispose of Section 44, however, cannot be read to prohibit Civil Courts from deciding a question of title relating to Jumla Mushtarka Malkan as what is prohibited by Section 44 is matters that fall to the jurisdiction of State Government or to any officer duly empowered by the Consolidation Act to decide. The Consolidation Act does not confer power whether on the State Government or the officers empowered thereunder to decide a question of title. The jurisdiction of a Civil Court to entertain a dispute regarding Jumla Mushtarka Malkan is, therefore, not barred by Section 44 of the Consolidation Act. The only forum available to a person, who raises a dispute regarding title in Jumla Mushtarka Malkan is the principal Court of civil jurisdiction having jurisdiction in the matter, as provided by Section 9 of the Code of Civil Procedure, i.e., a Civil Court.52. In Suraj Bhan, the Full Bench of the High Court held that only the management and control as distinguished from the title and ownership in respect of lands carved out during consolidation operations by imposing a pro rata cut on the land of the proprietors and recorded in the revenue records as Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba, Jumlan Malkan or Mushtarka Malkan etc., vest in the Panchayat. It was held as under:146. However, for the removal of doubts, it is clarified and held that any observations in Jai Singhs case (supra), and in Veer Singhs case (supra) (in which the application for review of the judgment in Jai Singhs case (supra) had been dismissed by making clarifications), if it is to be taken that the ownership or title in respect of lands kept for common purposes of the village by imposing a pro rata cut on the land of the proprietors and recorded in the revenue records as Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba, Jumlan Malkan or Mushtarka Malkan etc. vest with the State or the Gram Panchayat, as the case may be, without payment of compensation is not the correct legal position notwithstanding the provisions of Section 4 of the VCL Act 1961 and that in fact, only the management and control of such lands vests in the State or the Gram Panchayat, as the case may be. Therefore, only the management and control as distinguished from the title and ownership in respect of lands carved out during consolidation operations by imposing a pro rata cut on the land of the proprietors and recorded in the revenue records as Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba, Jumlan Malkan or Mushtarka Malkan etc., vest in the Panchayat. Besides, as already noticed, the provision relating to appropriation of income of the land kept for common purposes in a consolidation scheme has been invalidated by a Five Judge Bench of the Supreme Court in Bhagat Singhs case (supra).53. We find that such conclusion in Parkash Singh or Suraj Bhan that Jumlan Malkan or Mushtarka Malkan land so described in the revenue record would not vest with the Panchayat is not based on the correct reading of judgment of this Court in Ranjit Singh. Once land had been reserved for common purposes, irrespective of description in the revenue record, such land would vest with Panchayat or the State. The only condition is that it should not be within permissible limits of the proprietors.54. Still further, in Parkash Singh, it has been held that the forum available to a person, who raises a dispute regarding title in Jumla Mushtarka Malkan is the principal Court of civil jurisdiction having jurisdiction in the matter, as provided by Section 9 of the Code of Civil Procedure, i.e., a Civil Court. Though the said judgment is in the context of the State of Punjab, but the said finding is not sustainable for the reason that Jumla Mushtarka Malkan is a land reserved for common purposes during consolidation. Though Rule 16(ii) of the 1949 Rules prescribes that the common purposes land after applying pro-rata cut would be described in the revenue record but the expression Jumla Mushtarka Malkan or Mushtarka Malkan is a land of the proprietors for the benefit of the village community for common purposes. Therefore, if the revenue records as Jumla Mushtarka Malkan or Mushtarka Malkan in the ownership column, it is the authority under the 1961 Act and the machinery provided thereunder which would exercise jurisdiction to determine the dispute as to whether it is reserved for common purposes or not.55. We do not find any merit in the arguments raised by learned counsel for the proprietors that the explanation enlarges the scope of the common purposes for which land was reserved under the scheme in terms of 1948 Act. Rule 16(ii) of 1949 Rules specifically mentions that the entry in the column of ownership of records would be Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad. The other expression used in the explanation is Jumla Mustarka Malkan or Mustarka Malkan, which means the ownership of all the proprietors. They are commonly used in the revenue record but they are not larger in scope than the entry contemplated in the revenue record as Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad. Therefore, neither sub-section 6 nor the explanation is contrary to Article 300-A as the land stood acquired without payment of compensation being part of the agrarian reforms, when pro- rata cut was applied on the land of the proprietors.56. We do not find any merit in the arguments raised that on the basis of insertion of Sections 13C and 13D by virtue of amendment in the year 1981 and insertion of Sections 5A and 5B by virtue of amendments carried out in 2007 or on the strength of Section 11 of the 1961 Act as originally enacted, the legality and validity of the Amending Act is any way affected. The Panchayat was conferred ownership rights over the land when pro-rata cut was applied on the land of the proprietors to reserve land for the common purposes under the 1948 Act. The Panchayat is therefore the absolute owner of such property which came to be vested in the Panchayat with the commencement of shamilat law. The entire right, title or interest in the said land forming part of second category mentioned above vests with the Panchayat in view of the judgment of this Court in Ranjit Singh.57. In a judgment reported as Mahant Sankarshan Ramanuja Das Goswami, etc. v. State of Orissa and another AIR 1967 SC 59 , it has been held that the benefit of Article 31-A is available also to the Amending Act provided the assent of the President is obtained to such Amending Act. It was held as under:12. The first argument is clearly untenable. It assumes that the benefit of Article 31-A is only available to those laws which by themselves provide for compulsory acquisition of property for public purposes and not to laws amending such laws, the assent of the President notwithstanding. This means that the whole of the law, original and amending, must be passed again, and be reserved for the consideration of the President, and must be freshly assented to by him. This is against the legislative practice in this country. It is to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties. In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect, assented to a law for the compulsory acquisition for public purposes of these new categories of property. The assent of the President to the amending Act thus brought in the protection of Article 31-A as a necessary consequence. The amending Act must be considered in relation to the old law which it sought to extend and the President assented to such an extension or, in other words, to a law for the compulsory acquisition of property for public purposes.59. In respect of the third category, the land within the ceiling limit of the proprietor was pooled for common purposes and was found to be part of the agrarian reforms by Division Bench of the Punjab High Court in Ajit Singh. The argument raised was that the proprietor (land owner) was a small landholder within the meaning of the Punjab Security of Land Tenures Act, 1953, therefore, no part of his holding could be acquired without payment of compensation at the market value. The writ petitioner had pleaded that in pursuance of the Cooperative Societies Act, 100 bighas of land was given to the local panchayat for common purposes, whereas in this scheme prepared under 1948 Act, another 100 bighas of land was being provided for the same purpose. The argument raised was that most of the proprietors including the writ petitioner own land within the first ceiling, therefore, the land falling within the ceiling limit could not be acquired without payment of compensation on account of insertion of second proviso to Article 31A(1) by 17th Amendment. The 17th Amendment reads thus: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.60. The Division Bench of the High Court inter alia examined the 17th Amendment and held that it was not retrospective in operation. The petition was dismissed after examining Article 31(2-A) of the Constitution as well as 17th Amendment which deals with acquisition by the State, leaving requisitioning untouched. The High Court found that where land is assigned to a village Panchayat or the State for a common purpose, it does not seem to provide, technically speaking, for the transfer of ownership and the State Government and Panchayat are merely empowered to manage and appropriate the income accruing from the property for the benefit of village community, including the original holder, and for no other purpose. It was held that Article 31(2-A) of the Constitution lays down that where a law does not provide for the transfer of ownership, only the management and control would vest in the village Panchayat. The Court held (page 857-858) as under:This brings me to the question whether the assignment of land for common purposes is acquisition. The controversy on this point seems to centre round Article 31(2-A) of the Constitution which lays down that 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. The learned Advocate-General has submitted that providing for right to possession of any property means requisitioning of such property, and compulsory acquisition, according to this sub-article, is confined only to the transfer of ownership. In the case in hand, ownership has not been transferred in law and it is only the management and control which vests in the village Panchayat concerned or the State, as the case may be. This may amount to compulsory requisitioning, but the further proviso introduced by the 17th Amendment, with which we are concerned, hits only acquisitions by the State leaving requisitioning untouched. The petitioners learned counsel has, on the other hand, placed his reliance on the observations of Tek Chand, J. in Munsha Singhs case and on the Supreme Court decision in Ranjit Singhs case, the relevant passage from which has been reproduced above. In this connection, it may be remembered that the further proviso introduced in Article 31- A(1) speaks of payment of compensation only in case of acquisition by the State of land within the ceiling limit applicable to the persons mentioned therein. Where such land is assigned to a village Panchayat or the State for the common purpose, it does not seem to me to provide technically speaking for the transfer of ownership, and indeed it is not the petitioners case that title has actually passed to the Panchayat or the State. What is argued is that all the ingredients of ownership are taken away and what is left with the owner is merely the husk or the shadow. As at present advised, I find some difficulty in readily agreeing with this submission because the property, though vesting in the Panchayat, or the State Government, as the case may be, has been reserved for common purposes in which the entire village community including the original holder is interested as equal sharer, and is entitled to secure the benefit thereof in common with all the co-beneficiaries. The State Government or the Panchayat are merely empowered to manage and appropriate the income accruing from the property for the benefit of the village community, including the original holder, and for no other purpose. It is only the right to transfer, or, to the exclusive use or appropriation, of which the original holder has been deprived.The benefits of the use of the land reserved for common purposes are assured to the original holder in common with all the other members of the community. Whether this can be considered to be acquisition as distinguished from requisitioning is a question which does not seem to be capable of an easy answer. However, keeping in view the general scheme and purpose of the Act, the scales do seem to me prima facie to be somewhat inclined in favour of the view that the statutory vesting of the property in the State Government or the Panchayat, as the case may be, under the Act, when it is reserved for common purposes, is perhaps not intended to amount to acquisition within the contemplation of the second proviso added to Article 31-A by the 17th Amendment. But I should not like to express any considered opinion on this somewhat difficult and vexed point on the present occasion, leaving it to be settled if necessary in a more appropriate case.61. In appeal, a Constitution Bench of this Court in Ajit Singh noted that the scheme under the 1948 Act was not part of the record but 89 bighas, 18 biswas and 18 biswanis of pukhta land was owned by Gram Panchayat prior to consolidation which was used for common purposes. Some more area was reserved for common purposes such as for canals, pathways, community center, school etc. after applying cut upon right holders on pro-rata basis and not for income of Panchayat. This Court held that the proprietor is not entitled to compensation as the title of the proprietor is not being divested and that management and control alone vests with the panchayat. It was thus held that it was not a case of acquisition of land.62. This Court considered the questions as to whether in the second proviso to Article 31A(1), the expression acquisition means substantial taking over the benefits of property and conferring it on the State? and that whether the acquisition means the entire process terminating with possession and extinction of the title of the individual?. This Court held that the title vests in the proprietary body, the management of the land is done on behalf of the proprietary body, the land is used for the common needs and the benefits of the estate or estates concerned. The Panchayat would manage such land on behalf of the proprietors and use for common purposes, therefore, the beneficiary of the modification of the rights is not the State. Therefore, there is no acquisition by the State within the meaning of second proviso. This Court examined the Constitution (Seventeenth Amendment) Act, 1964 and negated the argument raised by the proprietor. It was held as under:9. Coming now to the second proviso to Article 31-A, 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 Article 31-A, the expression acquisition by the State of an estate in the second proviso to Article 31-A(1) must have the same meaning as it has in clause (1)(a) to Article 31-A. It is urged on behalf of the respondents before us that the expression acquisition by the State of any estate in Article 31-A(1)(a) has the same meaning as it has in Article 31(2-A). 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 State of West Bengal v. Subodh Gopal Bose [(1964) SCR 587] , Dwarkadas Shrinivas of Bombay v. Sholapur Spinning & Weaving Co. Ltd. [(1954) SCR 674]  Saghir Ahmad v. State of U.P. [(1955) 1 SCR 707]  and Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay [(1958) SCR 1122]  . In these cases this Court had given a wide meaning to the word acquisition. In Dwarkadas Shrinivas of Bombay v. Sholapur Spinning & Weaving Co. Ltd. [(1954) SCR 674]  Mahajan, J., observed at p. 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.10. 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 Article 31-A 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 Article 31-A.12. … It will be noticed that the title still vests 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 proprietors 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.13. …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.14. 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 enures 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.15. 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.63. Thus, in respect of the land taken from the proprietors from their permissible ceiling limits, it is the management and control alone which would vest with the panchayat. The management and control include leasing of land and use of the land by non-proprietors, Scheduled Castes and Schedules Tribes etc. which is for the benefit of the village community. Therefore, vesting under Section 4 would be limited to management and control. It is pertinent to note here that for the land taken from the proprietors by applying pro-rata cut from the permissible ceiling limits of the proprietors, management and control alone vests with the Panchayat but such vesting of management and control is irreversible and the land would not revert to the proprietors for redistribution as the common purposes for which land has been carved out not only include the present requirements but the future requirements as well. Such land would not be available for sale so as to confer title on the purchaser in view of the fact that the Panchayat is not the full owner of the land but while exercising control and management, it is duty bound to safeguard the land for the benefit of the village community.64. The Panchayat will not have title over the land but as part of management and control, the panchayat is at liberty to put the land for the use for the common purposes. Such common purposes as defined under Section 2(bb) of 1948 Act are interchangeable and also can be used for any other common purposes. It is to be noted that common purposes are ever evolving, they are not fixed in time. With the change in time and expectations of the village community, common purposes have to be given wider meaning in view of the object of such reservation of land. Therefore, though the panchayat has management and control in respect of the land which was carved out from the land falling within the ceiling limits, the panchayat would have complete control over the said part of the land. The word vesting appearing in Section 4 has to be read down to mean that management and control of such land alone would vest in the panchayat.66. Having said so, though the land vests with the Panchayat, but such land should be utilized only for common purposes for the benefit of village community. Such benefits to the village community is not limited to traditional benefits of the village community i.e., land for grazing of cattle, dumping of dead animals, schools and hospitals but also the activities which would be required in future, keeping in view the modernization of the village economy which will ultimately for the benefit of the village community.67. Therefore, we affirm the conclusions No (i) and (ii) arrived at by the Full Bench in Jai Singh II, though for different reasons. The finding in para 218 (k) in Suraj Bhan is set aside for the reasons recorded above. There is no challenge to Conclusion No. (iv) in the order of Jai Singh II, therefore, the same stands affirmed as well.68. With respect to the conclusion no. (iii) by the Full Bench in Jai Singh-II, it was observed that the land which has been cultivated by the proprietors on pro-rata cut and which have not been earmarked for any common purpose, commonly called as Bachat land, shall not vest with the Gram Panchayat. We are unable to agree with such conclusion. The land reserved for common purposes was reserved for the requirement of village community in praesenti and in future. If the land has not been put to use for any common purpose soon after the consolidation and/or thereafter, it cannot be said to be a Bachat land. The land mass is not going to increase but the requirement of the people and the expectations of the village community is ever expanding. Therefore, even if any land reserved for common purposes is not actually being put to any common purpose, it cannot be termed as a Bachat land and thus open for the purpose of repartition amongst the proprietors sought.70. In a judgment reported as Bagga Singh v. The Commissioner, Ferozepur Division, Ferozepur (1984) SCC OnLine P&H 384, Panchayat filed an application for eviction for the ejectment of the writ petitioner. It was asserted that he is in possession as proprietor. 2 kanals out of 50 kanals reserved for common purposes was utilized for passages and remaining 48 kanals was said to be left as Bachat land by the writ petitioner. It was held by the learned Single Bench that though the land in dispute is entered in the name of proprietary body of the village in the revenue record, but this would not be sufficient to draw an inference that it was reserved for common purposes of village. The High Court held that though initially the land was reserved for common purposes but since it was never utilized for any such purpose, therefore it is Bachat land which means the area left unutilized. The Court held as under:4. For any land to be common purposes land under the 1976 Act, two conditions have to be satisfied that it was reserved for common purposes under Section 18 and its management and control vests in the Gram Panchayat under Section 23-A of the Consolidation Act. No doubt, the land in dispute is entered in the name of proprietary body of the village in the revenue record but his fact alone would not be sufficient to draw an inference that it was reserved for common purposes of the village. As discussed above, the list of the land reserved for common purposes of the village as well as the entires in the Jamabandi clearly show that the land in dispute though initially reserved for common purposes of the village but was never utilised for any such purpose and was entered in the name of the proprietary body of the village being Bachat land which means the area left over unutilized. The Panchayat, therefore, was not entitled to manage and control the land in dispute and as such the authorities below had no jurisdiction to order ejectment of the petitioner under the Eviction Act.71. In another judgment reported as Gram Panchayat, Gunia Majri v. Director, Consolidation of Holdings & Ors (1990) SCC OnLine P&H 823., the learned Single Bench held that if the land reserved for common purposes stands satisfied by the utilization of the land required for each such purpose, the remaining land should be redistributed back to the proprietors. The Court held as under:Precisely, this very view has been taken by the Director/Additional Direction, Consolidation of Holdings, in the present writ petitions and the cases have been remitted by issuing the directions to the Consolidation Officers for re-distribution of land to the original proprietors from whom it was taken during consolidation pro rata by defining the shares of the right-holders. These orders are sought to be challenged on the ground that entries like Hasab Rasad Khewat, Jumla Mushtarka Malkan or Jumla Malkar Wa Digar Haqdaran Arazi Hasab Rasad Raqba, do not entitle the right-holders to claim this land once the same was earmarked and reserved for common purposes. The plea taken by the Gram Panchayats and lessees of the Panchayat is wholly without any basis in view of the aforesaid judgments.72. Similar view has been taken by the learned Singh Bench in Baj Singh v. State of Punjab (1992) 1 PLR 10 . In a judgment reported as Gram Panchayat, Village Bhedpura v. Additional Director, Consolidation, Punjab (1997) 1 PLR 391,  an argument was again raised before the Division Bench that the land still left which is known as Bachat land should be redistributed after utilizing the land reserved for common purposes.76. We find that the judgment of Kunhayammed referred to by Mr. Swaroop is not helpful to the argument raised. In fact, it was held as under:12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way — whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.77. In V.M. Salgaocar, the question of law framed was answered in favour of the assessee and against the revenue by the High Court. The Civil Appeal at the instance of revenue was dismissed without any speaking order. It was held that the previous proceedings would operate as binding precedent that once this Court has dismissed the appeal, the High Court in a subsequent assessment year cannot take a different view. It may be noticed that the aforesaid judgment was delivered on 10.04.2000 whereas Kunhayammed was delivered in 19.07.2000 by a larger bench.78. In S. Shanmugavel Nadar, this Court has referred to the judgment of this Court in V.M. Salgaocar while examining the legality of the Madras City Tenants Protection (Amendment) Act, 1994. The constitutional validity was upheld by the High Court in first round. The Special Leave Petition was dismissed on the ground that the State of Tamil Nadu was not made a party. This Court had not examined the constitutional validity of the Amending Act. In a subsequent round before the Full Bench considering the challenge to the Amending Act, the Division Bench of the High Court was cited as a binding precedent affirmed by this Court. This Court held that when an order of the superior forum results in confirmation, reversal or modification the order, what emerges is the operative part alone is binding i.e., the mandate or decree issued by the court which have been expressed in a positive or negative form. This Court also examined that dismissal of Special Leave Petition can either result into res-judicata or a binding precedent under Article 141 of the Constitution. It was held as under:10. Firstly, the doctrine of merger. Though loosely an expression merger of judgment, order or decision of a court or forum into the judgment, order or decision of a superior forum is often employed, as a general rule the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part i.e. the mandate or decree issued by the court which may have been expressed in a positive or negative form. For example, take a case where the subordinate forum passes an order and the same, having been dealt with by a superior forum, is confirmed for reasons different from the one assigned by the subordinate forum, what would merge in the order of the superior forum is the operative part of the order and not the reasoning of the subordinate forum; otherwise there would be an apparent contradiction. However, in certain cases, the reasons for decision can also be said to have merged in the order of the superior court if the superior court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, or recorded an express approval of the reasoning, incorporated in the judgment or order of the subordinate forum.12. Thirdly, as we have already indicated, in the present round of litigation, the decision in M. Varadaraja Pillai case [85 LW 760] was cited only as a precedent and not as res judicata. The issue ought to have been examined by the Full Bench in the light of Article 141 of the Constitution and not by applying the doctrine of merger. Article 141 speaks of declaration of law by the Supreme Court. For a declaration of law there should be a speech i.e. a speaking order. In Krishena Kumar v. Union of India [(1990) 4 SCC 207  : 1991 SCC (L&S) 112 : (1990) 14 ATC 846] this Court has held that the doctrine of precedents, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. In State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139]  R.M. Sahai, J. (vide para 41) dealt with the issue in the light of the rule of sub silentio. The question posed was: can the decision of an appellate court be treated as a binding decision of the appellate court on a conclusion of law which was neither raised nor preceded by any consideration or in other words can such conclusions be considered as declaration of law? His Lordship held that the rule of sub silentio is an exception to the rule of precedents. A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. A court is not bound by an earlier decision if it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. A decision which is not express and is not founded on reasons, nor which proceeds on consideration of the issues, cannot be deemed to be a law declared, to have a binding effect as is contemplated by Article 141. His Lordship quoted the observation from B. Shama Rao v. Union Territory of Pondicherry [AIR 1967 SC 1480  : (1967) 2 SCR 650 ] it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein. His Lordship tendered an advice of wisdom — Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. (SCC p. 163, para 41)14. It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution.79. In S. Shanmugavel Nadar, the Bench had the advantage of considering Kunhayammed and V.M. Salgaocar. A perusal of the aforesaid judgment would show that if leave is granted in a special leave petition, the appellate order becomes operative and executable order. But the nature of jurisdiction exercised by the superior forum and the content of subject matter of challenge laid or which could have been laid had to be kept in view.80. In a recent judgment reported as Kaikhosrou (Chick) Kavasji Framji v. Union of India and another (2019) 20 SCC 705,  this Court held as under:53. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding(s) one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of the subordinate court would continue to hold the field (see S. Shanmugavel Nadar v. State of T.N.).81. In another judgment reported as Commissioner of Income- Tax, Bombay v. M/s. Amritlal Bhogilal and Co. AIR 1958 SC 868 , an appeal was filed before the Appellate Assistant Commissioner against an order passed by the Income-Tax Officer. However, the Income-Tax Officer passed an order refusing to grant registration to the firm to the two assessment years 1947-48 and 1948-49. An argument was raised that since the order of the Assessing Officer has been affirmed in appeal, the non- registration of the firm could also be challenged before the Appellant Assistant Commissioner. This Court noticed the fact, that the department has not been conferred in the right of appeal against the order either refusing to register the firm or cancelling the registration of the firm. This Court considered such an argument and held as under:13. …….. It is thus clear that wide powers have been conferred on the Appellate Assistant Commissioner under Section 31. It is also clear that, before the Appellate Authority exercises his powers, he is bound to hear the Income Tax Officer or his representative. It has been urged before us by Mr Ayyangar on behalf of the respondent that these provisions indicate that, in exercise of his wide powers the Appellate Assistant Commissioner can, in a proper case, after hearing the Income Tax Officer or his representative, set aside the order of registration passed by the Income Tax Officer. We are not prepared to accept this argument. The powers of the Appellate Assistant Commissioner, however wide, have, we think, to be exercised in respect of the matters which are specifically made appealable under Section 30(1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the Appellate Authority to entertain a plea about the correctness, propriety or validity of such an order. ……It is true that, in dealing with the assessees appeal against the order of assessment, the Appellate Assistant Commissioner may modify the assessment, reverse it or send it back for further enquiry; but any order that the Appellate Assistant Commissioner may make in respect of any of the matters brought before him in appeal will not and cannot affect the order of registration made by the Income Tax Officer. If that be the true position, the order of registration passed by the Income Tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority. Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law, what merges in the appellate order is the Income Tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income Tax Officer in the present case.82. Thus, the principle of merger would be that the order of the higher court becomes the operative order and not the order which was appealed from and not interfered with.83. In the appeal against the judgment of Gurjant Singh, only grievance raised before this Court was in respect of a direction of fixing a time limit to re-partition the land. It was the said direction which was deleted from the order. By such exercise of jurisdiction in appeal, the reasoning of the High Court is not deemed to be the reasoning of this Court. Such argument would in fact give rise to strange results as the reasoning of the High Court would have to be accepted as reasoning of the Supreme Court. There cannot be a more absurd argument. As held by this Court in S. Shanmugavel Nadar, there can be only one operative judgment/order. Once this Court has deleted the time limit to complete the re-partition, the operative order remains of the High Court that Bachat land can be partitioned i.e., operative part of the order. The reasoning recorded by the High Court is not however affirmed by this Court. It would be a judgment of the High Court alone which can be cited as a precedent in other cases but not as an order of this Court. Consequently, we do not find any merit in the argument so raised. In fact, by applying the doctrine of merger, the order of this Court becomes operative order but since the order is of deletion of a direction only, the effect would be that the order of the High Court has not been interfered with.94. We do not find any merit in the argument that since the State has not challenged the orders in the writ petition filed by the appellant, therefore, the State cannot challenge the judgment of Full Bench in Suraj Bhan. The State is in appeal against the entire judgment rendered by the Full Bench in Suraj Bhan. The provisions amending the 1994 Corporation Act are pari materia with the provisions amending the 1973 Municipal Act. Therefore, the argument that the State has not filed an appeal against the order passed in the writ petition does not merit any consideration since the entire judgment is in appeal.95. The fact is that the Full Bench of the Punjab and Haryana High Court in Rajender Parshad has struck down the Haryana Municipal Common Lands (Regulation) Act, 1974 as unconstitutional inter alia on the ground that such Act is not a measure of agrarian reform. The infirmities pointed out by the High Court in Rajender Parshad are very well applicable to the amending Statutes amending the 1973 Municipal Act and the 1994 Corporation Act. Therefore, we have no hesitation to affirm the findings recorded by the High Court that the amending statutes amending the 1973 Municipal Act and the 1994 Corporation Act are also unconstitutional as they are not part of the agrarian reforms.96. However, we find merit in the argument raised by Mr. Pradeep Kant that if whole or part of the Panchayat area comes within the municipal limits, and the Panchayat ceases to exist, land would vest with the municipality and will not revert back to the proprietors.100. The sub-section (4) of Section 7 of the 1994 Act contemplates that if the whole of the Sabha area is included in a municipality, the Gram Panchayat shall cease to exist, whereas on the other hand, the 1973 Municipal Act contemplates inclusion of part of local area into a municipality. In fact, Section 7(4) is pari materia with Section 4(3) of the Punjab Gram Panchayat Act, 1952, since repleaded by 1973 Municipal Act.101. The Panchayati Raj Act contemplates cessation of Gram Panchayat if whole of the Sabha area is included in the municipality, whereas the 1973 Municipal Act contemplates the local area which may be part of Gram Panchayat area can be included in the municipality. Even an area from the municipal limits can be excluded from the municipal limits as well. In Atma Ram this Court also examined the maxim that Omne Majus continet in se minus (the greater contains the less). This Court held as under:-12. Another branch of the same argument was that if the makers of the Constitution intended to include within the purview of Article 31A, not only entire estates but also portions thereof, nothing would have been easier than to say so in terms, and that in the absence of any specific mention of portions of an estate, we should not read that article as covering portions of an estate also. In our opinion, there is no substance in this contention, because they must be attributed full knowledge of the legal maxim that the greater contains the less – Omne Majus continet in se minus. ........Thus the Full Bench specifically held that Article 31A of the Constitution applied equally to portions of estates also. This decision of the Full Bench AIR 1954 Punjab 167 was followed by a Division Bench of the same High Court, consisting of Bhandari C. J. and Dulat J., in the case of Hukam Singh v. State of Punjab, 57 PLR 359 : ( AIR 1955 Punjab 220). That Bench was concerned with the provisions of another Act -Punjab Village Common Lands (Regulation) Act, 1954. In that case, the Division Bench, naturally, followed the decision of the Full Bench in so far as it had ruled that the whole includes the part, and that where an Act provides for rights in an estate, it provides for rights in a part of an estate also. .............. In our opinion, the view taken by the earlier Full Bench is the correct one. The learned Chief Justice who was a party to both the conflicting views on the same question has not indicated his own reasons for changing his view. The Full Bench has accepted the force of the legal maxim that the greater contains the less, referred to above but has not, it must be said with all respect, given any good reasons for departing from that well-established maxim.102. The reference was made to later Full Bench judgment of Punjab High Court reported as State of Punjab v. S. Kehar Singh AIR 1959 P&H 8; 1958 SCC Online Punj 89 and earlier Full Bench reported as Bhagirath. Even in a later Full Bench of the High Court in a judgment reported as M/s. Hari Ram Paras Ram v. State of Haryana ILR (1982) 1  Punjab and Haryana 317, the expression whole will include part has been accepted. It was held as under:-19. Mr. Mittal was pretty vehement in submitting that under Section 3(2)(c) of the Act the price of the entire essential commodity in contradistinction with a part thereof alone can be fixed. According to him, there is no such thing as a partial control of the price. I see no merit in this submission. If the non-availability of essential commodities, which grows with the passage of time, has to be checked, then the evil must be nipped in the bud. In other words, if the supply position can be improved by taking less drastic action, the State Government should be allowed to take that action instead of allowing the problem to go out of hands. If the interpretation suggested by Mr. Mittal is accepted, then the authorities under the Act, would have to wait till the essential commodities become so costly and scarce as to make absolute control of prices the only imperative. Besides, there is a legal maxim omne majus continet in se minus - the greater contains the less. This maxim has been referred to with approval in Atma Ram v. State of Punjab, AIR 1959 Supreme Court 519 - If the State Government has the volition and the right to travel the whole distance, I see no reason why it should be commanded to go further if it exercises an option of stopping midway..............103. The Section 7(4) of the Panchayati Raj Act, 1994 is to be read with the provisions of the 1973 Municipal Act. However, both the statutes had undergone extensive changes after the insertion of Part IX and IX A in the Constitution empowering the third tier of the democratic set up. The Panchayati Raj Act contemplates vesting of property of Gram Panchayat with the municipality., whereas the Municipal Act takes into its ambit the properties which were vesting with Panchayat. The 1973 Municipal Act contemplates that even if part of the property of Gram Panchayat is included in the Municipal Limits, it would vest with the municipality. Thus, the word whole appearing in Section 7(4) of Panchayati Raj Act does include part of the Gram Panchayat area coming within the municipal limits. It is the same view which was taken by this Court in a Notified Area Committee, Sirhind.104. Thus, if the whole or part of Gram Panchayat area is included in the municipal limits, the land reserved for common purposes as part of agrarian reforms would stand vested with the municipality. Such vesting is not a part of agrarian reforms but shall be on account of extension of municipal limits. When the municipal limits are extended, the residents of the Panchayat also became residents of the municipality. The common purposes of the village community prior to extension of the municipal limits would be deemed to be common purposes for which land can be utilized by the municipality. Therefore, such vesting of land reserved for common purposes is not an acquisition for the first time but transition of the land reserved for common purposes in the changed scenario when the land vest with the municipality.105. The argument of the proprietors that if whole of the Sabha area merges with the municipality, only then there can be vesting of land reserved for common purposes with the municipality is untenable. Such an argument would lead to anomalous results. The title, right and interest of the property cannot be held in abeyance. There has to be continued control and management over the land reserved for common purposes under the 1948 Act. Therefore, even if a part of Sabha area is merged into the municipality, the municipality will have control over the land so reserved for the erstwhile village community which will now form part of the urban area. In view thereof, we do not find any merit in the argument raised on behalf of the proprietors and dismiss the writ petitions filed by them while allowing the appeals of the State.106. The argument of the proprietors that the land which is not capable of being used for common purposes of the inhabitants of a particular village shall be reverted to the proprietors is untenable and unsustainable. The land has been put to common pool by applying pro-rata cut. Once pro-rata cut has been applied, the management and control of such land vest with the Panchayat. There is no question of reverting the land to the proprietors. As discussed above, the land which is not part of the permissible limits under the land ceiling laws stand acquired and vested with the Panchayat in terms of judgment of this Court in Ranjit Singh. However, in respect of the land forming part of permissible limits of the proprietor under the land ceiling laws, the management and control vest with the Panchayat. Neither the 1961 Act nor the 1948 Act contemplates redistribution of land to the proprietors. It is an irrevocable act which cannot be undone. Therefore, once land vest with the Panchayat, it can be used for common purposes of the community and will never revert back to the proprietors.107. We find that the scope of the two provisions under the 1985 Act and 1961 Act are different and distinct. Under the 1985 Act, the Gram Panchayat could seek eviction from unauthorized occupants, the management and control as of the land reserved for common purposes whereof vested in the Gram Panchayat in a summary way where the possession of the occupant was unauthorized. But if there is dispute in respect of the nature of occupation by the occupant or by the panchayat, procedure under the 1961 Act alone can be resorted to as Section 13A of the 1961 Act confers power upon the Collector to decide the question of right, title or interest in any land or immoveable property vested or deemed to have been vested in the panchayat. Therefore, in case of a dispute about the right, title or interest in any land for or on behalf of any person, the remedy under the 1961 Act alone can be exercised. This will include right, title or interest in all the three categories of land i.e., shamilat deh owned by panchayat, shamilat land vested in terms of 1948 Act falling in second category and the land, the management and control whereof is vested with the panchayat, land being within the permissible limits of the proprietor, the management and control of which vest with the panchayat.