THE STATE OF HARYANA THROUGH SECRETARY TO GOVERNMENT OF HARYANA versus JAI SINGH & ORS.
[2022] 10 S.C.R. 903, Supreme Court of India, 2022
Outcome: Disposed off
Segment: Ratio
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   [2022] 10 S.C.R. 903
903
THE STATE OF HARYANA THROUGH
SECRETARY TO GOVERNMENT OF HARYANA
v.
JAI SINGH & ORS.
(Civil Appeal No. 6990 of 2014)
APRIL 07, 2022
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Land Laws – Punjab Village Common Lands (Regulation) Act,
1961, as amended by Haryana Act No. 9/1992 (the Amending Act)
– Haryana Act No. 9/1992 (the Amending Act) – Constitutional
validity of – Held: The Amending Act was enacted and published
after obtaining assent of the President of India, thus such Act is
part of the agrarian reform – Therefore, the Amending Act is
protected in terms of Art. 31A of the Constitution – The Amending
Act is valid and does not suffer from any vice of constitutional
infirmity – Constitution of India, 1950 – Art. 31A.
Land Laws – Punjab Village Common Lands (Regulation) Act,
1961, as amended by Haryana Act No. 9/1992 (the Amending Act)
–Shamilat deh (common land) – Common land falling in s.2(g)(1)
and (6) of the Act, 1961, as amended by the Amending Act –
Classification of, into three categories – First category being shamilat
deh recorded in ownership of Gram Panchayat prior to consolidation
which vests unequivocally with the commencement of the Punjab
and PEPSU Act – No dispute about land falling in the first category
as held by the High Court in Hukam Singh and subsequently affirmed
by Supreme Court in Malwinder Singh as being part of the agrarian
reforms.
Land Laws – Punjab Village Common Lands (Regulation) Act,
1961, as
amended by Haryana Act No. 9/1992 (the Amending Act)
–Shamilat deh (common land) – Common land falling in s.2(g)(1)
and (6) of the Punjab Village Common Lands (Regulation) Act, 1961,
as amended by the Amending Act – Classification of, into three
categories – Second category being 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 – Held:
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[2022] 10 S.C.R.
Land falling in the second category was held to be a part of the
agrarian reforms protected by Art. 31A of the Constitution by the
Full Bench of the Punjab and Haryana High Court in Kishan Singh
and Jagat Singh, with the decision in Jagat Singh being subsequently
affirmed by the Supreme Court – 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, s.2(g)(6) r/w s.4 of the Act, 1961 vests the land
reserved for common purposes by applying pro-rata cut in the village
Panchayat.
Land Laws – Punjab Village Common Lands (Regulation) Act,
1961, as amended by Haryana Act No. 9/1992 (the Amending Act)
–Shamilat deh (common land) – Common land falling in s.2(g)(1)
and (6) of the Punjab Village Common Lands (Regulation) Act, 1961,
as amended by the Amending Act – Classification of, into three
categories – Third category being 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
– Held: 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 – In appeal, a Constitution Bench
of Supreme Court in Ajit Singh 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,
and thus it was not a case of acquisition of land – 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 – However 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 – The Panchayat will not have title over the
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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 s.2(bb) of the East Punjab
Holdings (Consolidation and Prevention of Fragmentation) Act,
1948 are interchangeable and also can be used for any other
common purposes – Though the land vests with the Panchayat, but
such land should be utilized only for common purposes for the benefit
of village community – Even if any land reserved for common
purposes is not actually being put to any common purpose, it cannot
be termed as unutilized land (i.e. Bachat land) open for purpose of
repartition amongst the proprietors – Land reserved for common
purposes cannot be re-partitioned amongst the proprietors only
because at a particular given time, the land so reserved has not
been put to common use – Since ‘common purpose’ is a dynamic
expression, as it keeps changing due to the change in requirement
of the society and the passing times, therefore once the land has
been reserved for common purposes, it cannot be reverted to the
proprietors for redistribution – East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 1948.
Land Laws – Municipalities – Haryana Panchayati Raj Act,
1994 – Haryana Municipal Act, 1973 – Whether 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 – Held, No – s.7(4) of the
Haryana 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 s.7(4) of Panchayati Raj Act does include part of the Gram
Panchayat area coming within the municipal limits – 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
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
HARYANA v. JAI SINGH & ORS.
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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 – 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 – East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948.
Land Laws – Haryana Common
Purposes Land Eviction and
Rent Recovery Act, 1985 – Punjab Village Common Lands
(Regulation) Act, 1961 – Held: The scope of the provisions under
the 1985 Act and the 1961 Act are different and distinct.
Disposing of the matters, the Court
HELD : 1. A reading of the previous 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 Punjab Village Common Lands (Regulation) Act, 1961, as
amended by the Amending Act can be broadly classified into three
categories: (i) shamilat 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
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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.
[Para 43][941-D-F]
2. 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. [Para 44][941-G]
3.1. 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, with the decision in Jagat
Singh being subsequently affirmed by the Supreme Court. [Para
46][942-B-C]
3.2. 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 Punjab Village
Common Lands (Regulation) Act, 1961 vests the land reserved
for common purposes by
applying pro-rata cut in the village
Panchayat. [Para 48][945-D-F]
4.1. 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. In appeal, a Constitution
Bench of 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. [Paras
59 and 61][950-B-C; 952-G-H]
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4.2. 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.
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. [Para 63][955-E-H; 956-A]
4.3. 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 the East Punjab
Holdings
(Consolidation and Prevention of Fragmentation) Act,
1948 are interchangeable and also can be used for any other
common purposes. 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. [Para
64][956-B-D]
4.4. Though the land vests with the Panchayat, but such
land should be utilized only for common purposes for the benefit
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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. [Para
66][956-H; 957-A-B]
4.5. It cannot be said 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. 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 open for the purpose of repartition amongst the
proprietors. [Para 68][957-C-F]
4.6. The land reserved for common purposes cannot be re-
partitioned amongst the proprietors only because at a particular
given time, the land so reserved has not been put to common
use. Since ‘common purpose’
is a dynamic expression, as it keeps
changing due to the change in requirement of the society and the
passing times, therefore once the land has been reserved for
common purposes, it cannot be reverted to the proprietors for
redistribution. [Para 84][967-H; 968-A-B]
5.1. Section 7(4) of the Panchayati Raj Act, 1994 is to be
read with the provisions of the Haryana Municipal Act, 1973.
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
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
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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. [Para 103][980-G; 981-
A-B;]
5.2. 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.
[Para 104][981-B-D]
5.3. 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 East Punjab Holdings (Consolidation and Prevention
of Fragmentation) Act, 1948. 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. [Para
105][981-E-F]
5.4. 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 Punjab Village
Common Lands (Regulation) Act, 1961 nor the 1948 Act
contemplates redistribution of land to the proprietors. It is an
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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.
[Para 106][982-A-C]
6. The scope of the two provisions under the Haryana
Common Purposes Land Eviction and Rent Recovery Act, 1985
and the 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. [Para 107][982-C-F]
7. Haryana Act No. 9 of 1992, the Amending Act is valid
and does not suffer from any vice of constitutional infirmity. The
entire land reserved for common purposes by applying pro-rata
cut had to be utilized by the Gram Panchayat for the present and
future needs of the village community and no part of the land can
be re-partitioned amongst the proprietors. [Para 108][982-F-G]
Ranjit Singh v. State of Punjab AIR 1965 SC 632 :
[1965] 1 SCR 82; Ajit Singh v. State of Punjab & Anr.
AIR 1967 SC 856 : [1967] 2 SCR 143; Atma Ram v.
State of Punjab AIR 1959 SC 519 : [1959] 1 Suppl.
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SCR 748; Kavalappara Kottarathil Kochuni v. States
of Madras and Kerala AIR 1960 SC 1080 : [1960]
3 SCR 887; Bhagat Ram & Ors. v. State of Punjab &
Ors. AIR 1967 SC 927 : [1967] 2 SCR 165; State of
Haryana v. Karnal Co-op. Farmers’ Society Limited
(1993) 2 SCC 363 : [1993] 2 SCR 193; Gram
Panchayat of Village Jamalpur v. Malwinder Singh,
(1985) 3 SCC 661 : [1985] 2 Suppl. SCR 28; Sukhdev
Singh v. Gram Sabha Bari khad (1977) 2 SCC 518
: [1977] 2 SCR 862; Mahant Sankarshan Ramanuja
Das Goswami, etc. v. State of Orissa and another AIR
1967 SC 59 : [1962] 3 SCR 250; Shish Ram & Ors. v.
State of Haryana & Ors.(2000) 6 SCC 84 : [2000]
3 SCR 1122; Kunhayammed v. State of Kerala (2000)
6 SCC 359 : [2000] 1 Suppl. SCR 538; V. M. Salgaocar
& Bros. Pvt. Ltd. v. Commissioner of Income Tax (2000)
5 SCC 373 : [2000] 2 SCR 1169; S. Shanmugavel
Nadar v. State of T.N. (2002) 8 SCC 361 : [2002]
2 Suppl. SCR 498; Kaikhosrou (Chick) Kavasji Framji
v. Union of India and another (2019) 20 SCC 705
: [2019] 4 SCR 222; Commissioner of Income-Tax,
Bombay v. M/s. Amritlal Bhogilal and Co. AIR 1958
SC 868 : [1959] SCR 713 ; Notified Area Committee &
Anr. v. Des Raj & Ors. (1995) 5 SCC 317 : [1995]
2 Suppl. SCR 567 and Municipal Committee, Sirhind v.
Parshotam Dass & Ors. (1996) 8 SCC 324 : [1996]
2 SCR 678 – referred to.
Munsha Singh & Ors. v. The State of Punjab & Ors.
AIR 1960 P&H 317 (FB); Kishan Singh & Anr. v. The
State of Punjab & Ors.
AIR 1961 P&H 1; Jagat Singh
& Ors. v. The State of Punjab & Ors. AIR 1962 P&H
221 (FB); Jit Singh v. The State of Punjab & Ors. AIR
1964 P&H 419 (FB); Suraj Bhan & Ors. v. State of
Haryana & Anr ; (2017) 2 Punjab Law Reporter 605;
Hukam Singh v. State of Punjab AIR 1955 P&H 220;
Parkash Singh & Ors. v. Joint Development
Commissioner, Punjab & Ors. 2013 SCC OnLine P&H
26809; Parkash Singh & Ors. v. Joint Development
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Commissioner, Punjab & Ors. 2013 SCC OnLine P&H
26809; Gurdial Singh v. State of Haryana 1979 PLJ
350; Bagga Singh v. The Commissioner, Ferozepur
Division, Ferozepur (1984) SCC OnLine P&H 384;
Gram Panchayat, Gunia Majri v. Director,
Consolidation of Holdings & Ors (1990) SCC OnLine
P&H 823; Baj Singh v. State of Punjab (1992) 1 PLR
10; Gram Panchayat, Village Bhedpura v. Additional
Director, Consolidation, Punjab (1997) 1 PLR 391;
Gurjant Singh v. Commissioner, Ferozepore Division
(2000) SCC OnLine P&H 56; Balwant Singh v. State
of Punjab (1992) SCC OnLine P&H 570; Rajender
Parshad & Ors. v. State of Haryana & Ors. AIR 1980
P&H 37; State of Punjab v. S. Kehar Singh AIR 1959
P&H 8; 1958 SCC Online Punj 89; M/s. Hari Ram
Paras Ram v. State of Haryana ILR (1982) 1 Punjab
and Haryana 317 – referred to.
Case Law Reference
[1960] 3 SCR 887
referred to
Para 9
[1965] 1 SCR 82
referred to
Para 9
[1967] 2 SCR 143
referred to
Para 10
[1967] 2 SCR 165
referred to
Para 11
[1959] 1 Suppl. SCR 748
referred to
Para 12
[1993] 2 SCR 193
referred to
Para 22
[1985] 2 Suppl. SCR 28
referred to
Para 23
[1977] 2 SCR 862
referred to
Para 35
[1962] 3 SCR 250
referred to
Para 57
[2000] 3 SCR 1122
referred to
Para 65
[2000] 1 Suppl. SCR 538
referred to
Para 75
[2000] 2 SCR 1169
referred to
Para 75
[2002] 2 Suppl. SCR 498
referred to
Para 75
[2019] 4 SCR 222
referred to
Para 80
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[1959] SCR 713
referred to
Para 81
[1995] 2 Suppl. SCR 567
referred to
Para 89
[1996] 2 SCR 678
referred to
Para 89
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6990
of 2014.
From the Judgment and Order dated 13.03.2003 of the High Court
of Punjab and Haryana at Chandigarh in C.W.P. No.5877 of 1992.
With
Civil Appeal Nos.6610-6612 of 2016, Civil Appeal Nos.6992, 6991,
6997 And 7001 of 2014, Civil Appeal No.4435 of 2015, Civil Appeal
Nos.1679, 1678, 1675, 1677 And 1680 of 2022.
Anil Grover, B. K. Satija, Ajay Bansal, AAGs, Pradeep Kant,
Manoj Swarup, Neeraj Kumar Jain, Devadatt Kamat, Sr. Advs., Rajesh
Kumar Singh, Gautam Sharma, Gagan Gupta, Satish Kumar, Sanjay
Kumar Visen, Ms. Adira A. Nair, Ms. Babita Mishra, Dr. Monika Gusain,
Noopur Singhal, Simranjeet Singh Rekhi, Ankit Swarup, Neelmani P.,
Ms. Vidisha Swarup, Raghav Bhatia, Sanjay Singh, Siddharth Jain, Ms.
Aniket Jain, Umang Shankar, Javedur Rahman, Gurinder Singh Gill P. P.
Nayak, Kuldeep Singh Kuchaliya, Ms. Aashna Gill, Pratap Singh, Ms.
Bhupinder, Suman Lohchab, Ajay Pal, Shish Pal Laler, S. D. Sharma,
Hitesh Kumar, Atul, Vedant Pradhan, Ravi Panwar, Anil Kumar Tripathi,
Umang Tripathi, Kamal Mohan Gupta, Rakesh Dahiya, Aditya Dahiya,
Vijay Dalal, Himanshu Sharma, Ms. Aditi Sharma, Seeta Ram Sharma,
Vinay Kumar, Sandeep Singh, Vikrant Y. S. Narula, Dhruv Shukla, Sahil
Garg Narwana, Sanjeev Chauhan, Pritesh Bhardwaj, Arpit Yadav, Robin
Khokhar, Bijender
Singh Chudhery, Hitesh Kumar Sharma, Akhileswar
Jha, Ms. Madhu Koshla, Ms. Manju Jetley, Gaurav Yadava, Ms. Veena
Bansal, D. K. Sharma, Daya Krishan Sharma, Ms. Jasleen Kaur, Ravi
Ketan Bhardwaj, Anubha Agrawal, Rajiv Mangla, Pradeep K. Kaushik,
Aman Preet Singh, A. Venayagam Balan, V. S. Lakshmi, P. N. Puri, K.
K. Mohan, R. C. Kaushik, Ravindra Bana, Rajesh Kumar, G. Balaji,
Chander Shekhar Ashri, Ashok Kumar Singh, Ankur Mittal, Mrs.
Subhasish Bhowmick, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
HEMANT GUPTA, J.
CIVIL APPEAL NO. 6990 OF 2014; CIVIL APPEAL NOS.
6610-6612 OF 2016; CIVIL APPEAL NO. 6992 OF 2014; CIVIL
APPEAL NO. 6991 OF 2014; CIVIL APPEAL NO. 6997 OF 2014;
CIVIL APPEAL NO. 7001 OF 2014; CIVIL APPEAL NO. 4435
OF 2015; CIVIL APPEAL NO. 1675 OF 2022 AND CIVIL
APPEAL NO. 1677 OF 2022
1. The subject matter of challenge in the present appeals is the
amendments in the Punjab Village Common Lands (Regulation) Act,
19611, as inserted by Haryana Act No. 9/19922, published on 11.2.1992
after the assent of the President of India.
2. The amendments carried out by the Amending Act came up
for consideration before the Full Bench of Punjab and Haryana High
Court in a judgment reported as Jai Singh & Ors. v. State of Haryana3.
The High Court struck down the amendments introduced and held as
under:
“In view of the observations cited above, Sections 2(g)(4) and
2(g)(6) of the Act of 1961 describes the land reserved for common
purposes under Consolidation of Holdings Act, 1948 by application
or pro rata cut to the holdings of the land owners within their
ceiling limits as Shamlat Deh under the Act of 1961 and since
these lands have been vested in the Panchayat the action is in
violation of Article 31-A. Since definitions by Section 2(g)(4) and
2(g)(6) are so intermingled that no part can be segregated and
held ultravires and these sections having categorically
transgressed the powers of the State for
acquisition of land without
compensation, these provisions can not stand the test of
constitutionality. It is immaterial that the transgression is open,
direct or overt, disguised covert and indirect. It is a piece of
colourable legislation. Violation of Article 31-A is so manifest that
it leaves no manner of doubt. I am of the considered view that
Sections 2(g)(4) and 2(g)(6) are void being violative of Article 31-
A of the Constitution of India. Writ of mandamus is, therefore,
1 For short, the ‘1961 Act’
2 Amending Act
3 AIR 1995 P&H 243 (Jai Singh I)
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issued restraining the State of Haryana from enforcing the
provisions of Sections 2(g)(4) and 2(g)(6) of the Act of 1992.”
3. Civil Appeal No. 5480 of 1995 titled as State of Haryana v.
Jai Singh before this Court against the said judgment was accepted on
6.8.1998 and the following order was passed:
“We have made a through search in the judgment under appeal in
order to discover whether any finding was recorded by the High
Court that the land sought to be affected by the legislative measure
under challenge was within the celling limit of each of the
respective proprietors and was in each’s personal cultivation, be
it factually or legally. That there is no such finding is conceded to
by the learned counsel for the parties. Unless such finding was
recorded, in clear terms, the legislative measure could not have
been struck down on the anvil of Article 31A of the Constitution.
In this view of the matter, we would rather have a complete
decision from the High Court on the subject and, therefore,
necessarily, have to effect a remand to it; other questions not
being adverted to and leaving those questions to the High Court to
be re-affirmed or otherwise”.
As a result, we allow this appeal, set aside the impugned judgment
of the High Court and remit the matter back to it for re-decision
of the question focussed as also others as indicated above”.
4. It is thereafter, the Full Bench of Punjab and Haryana High
Court in Jai
Singh and Ors. v. State of Haryana4 examined the legality
of sub-section 6 of Section 2(g) of the 1961 Act. The above-mentioned
appeals are directed against such order and the order dated 08.11.2013
passed by the Full Bench dismissing the review application against the
said order in the case of State of Haryana v. Vir Singh & Ors.5.
5. The impugned provisions of the Amending Act read thus:
“2. In this Act, unless the context otherwise requires-
xxx
xxx
xxx
(g) shamilat deh” includes
xxx
xxx
xxx
4 2003 SCC Online P&H 409 (For short, ‘Jai Singh II’)
5 RA -CW No. 350 of 1999 decided on 8.11.2013
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(6) lands reserved for the common purposes of a village under
Section 18 of the East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of
1948), the management and control whereof vest in the Gram
Panchayat under Section 23-A of the aforesaid Act.
Explanation- Lands entered in the column of ownership of record
of rights as ‘Jumla Malkan Wa Digar Haqdaran Arazi Hassab
Rasad, ‘Jumla Malkan’ or ‘Mushtarka Malkan’ shall be Shamilat
Deh within the meaning of this Section.”
6. The Statement of Objects and Reasons for the Bill introduced
on 5.3.1991 containing the above impugned provisions is as follows:
“To make the provisions of the Punjab Village Common Lands
(Regulation) Act, 1961 more effective, practical, deterrent and
beneficial to the interests of the Gram Panchayats it is necessary
to amend the Punjab Village Common Lands (Regulation) Act,
1961.”
7. Customary Law by Sir W.H. Rattigan (Sixteenth Edition revised
by Dr. Hari Dev Kohli) was first published in the year 1880. It is a
celebrated reference book, which explained the origin of Shamilat law in
Punjab in Chapter X of the book that the land is the true basis of unity in
villages, supplying the ultimate real bond of union between the members
who constitute the aggregate proprietary body generally called the “village
community”. It was elaborated as under:-
“That land is the true basis of unity in village groupings, supplying
the ultimate real bond of union
between the members who
constitute the aggregate proprietary body generally called the
“village community”, is a fact which may be verified by the most
superficial observer of the organization which underlies those
communities in the Punjab. Thus, whatever may be the type to
which a particular village may belong, and to whatever extent
individualistic notions of property may have superseded the earlier
ideas of jointness and common holdings, there will be found still
surviving very distinct evidence of the fact that in its origin the
village association was bound together by the acquisition of a
definite space of land, which, as Sir Henry Maine has so abundantly
demonstrated, began at once to become the basis of its capacity
instead of kinship, ever more and more vaguely conceived. This
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evidence is to be found in the reservation within the territorial
limits of every village of some portions of the uncultivated waste
for purposes of common pasture, for assemblies of the people,
for the tethering of the village cattle, and for the possible extension
of the village dwellings. Lands so reserved are jealously guarded
as the common property of the original body of settlers who
founded the village or of their descendants, and occasionally also
those who assisted the settlers in clearing the waste and bringing
it under cultivation are recognised as having a share in these
reserved plots. xxxx  xxxx and Finally, a modified and consolidated
Punjab Village Common Land Regulation Act, 1961 came in the
statute book which vests the village common land in the Gram
Panchayats without putting any constraints on the rights of the
village folks to use the village common land. It is only the ownership
which is vested in the Gram Panchayats along with its management
and power of alienation and thus superseding the village proprietary
body….”
8. The East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 19486 was enacted to provide for compulsory
consolidation of agricultural holdings and for preventing their
fragmentation. The expression “common purpose” defined under Section
2(bb) to mean “any purpose in relation to any common need, convenience
or benefit of village” was inserted by Punjab Act No.
22 of 1954 with
retrospective effect. 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.7. 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
6 For short, the ‘1948 Act’7
AIR 1960 P&H 317 (FB)
8 AIR 1961 P&H 1
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upheld by the Full Bench of Punjab High Court in a judgment reported
as Kishan Singh & Anr. v. The State of Punjab & Ors.8.
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 Kerala9. 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.10 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 Punjab11 wherein the judgment of the High Court was not
interfered with.
10. In Ajit Singh v. State of Punjab12, an argument was raised
before the Division Bench that the proprietor (land owner) was a small
landholder within the meaning of the Punjab Security of Land Tenures
Act, 1953, and that, therefore, no part of his holding could be acquired
without payment of compensation at the market value. The High Court
dismissed the petition. Such judgment came up for consideration before
a Constitution Bench of this Court in a judgment reported as Ajit Singh
v. State of Punjab & Anr.13. The Court considered Rule 16(ii) of the
Punjab Holdings (Consolidation and
Prevention of Fragmentation) Rules,
194914 to hold that the title vests in the proprietary body, the management
of the land is done on behalf of the proprietary body by the Panchayat
for common needs and purposes and for the benefit of estate or estates
concerned. Hence, the beneficiary of the modification of rights was not
the State.
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.15,
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
9 AIR 1960 SC 1080
10 AIR 1962 P&H 221 (FB)
11 AIR 1965 SC 632
12 ILR (1966) 1 Punjab 828
13 AIR 1967 SC 856
14 1949 Rules
15 AIR 1964 P&H 419 (FB)
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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.16, 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 Punjab17, 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.18 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
16 AIR 1967 SC 927
17 AIR 1959 SC 519
18 MANU/PH/3354/2016; (2017) 2 Punjab Law Reporter 605
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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.
14. The shamilat deh lands in Punjab and Haryana are the common
lands in the villages reserved and utilized for common purposes by
inhabitants of the villages. These were kept as such at the time when
the villages were formed or consolidated and the land was colonized. In
many cases, land was contributed by the landowners or the village
proprietary body from their own landholdings for common purposes.
Villages were formed by cultivating the barren, uncultivated, waste, or
fallow land, which are known as ‘banjar qadim’ or ‘banjar jadid’
(barren land since long or recent). The agricultural tribes which cultivated
such land and made it cultivable were the original landowners. Agricultural
land owned by a proprietor in his own right was a ‘holding’ of the land
and was recorded as such in the revenue records as ‘khewat’ and the
owners were known and recorded as ‘khewatdars’. A khewatdar or
landowner may hold the entire khewat or have a share in it. The
khewatdars were collectively treated as owners of the land in a village
(‘malkan deh’). The shamilat lands were enjoyed collectively by the
khewatdars and also by the other inhabitants of the village. These rights
find mention in the Village Land Administration Papers known as ‘Sharat
Wajib-ul Arz’.
15. The proprietors of land in an estate had
a right of ownership in
the shamilat deh lands, mostly to the extent of the share of their holdings
in the revenue estate. Various revenue terms were used for describing
and indicating the extent of ownership rights and share of the proprietors.
The non-proprietors including labourers, artisans, etc., as also those
responsible for collecting the land revenue (‘mal guzars’) were entitled
to the use of the common lands of the village i.e., shamilat deh lands.
16. The shamilat lands are recorded in the revenue records by
various nomenclatures such as shamilat deh, as also shamilat tikkas,
besides shamilat tarrafs, pattis, pannas and tholas. The said lands are
recorded as such in the revenue records for the common use of the
inhabitants of the village or for the common use of a particular subdivided
class of the village like ‘tikkas’, ‘tarrafs’, ‘pattis’, ‘pannas’ and ‘tholas’
etc. These types of lands, however, were not without ownership or
proprietary rights of the owner or ‘khewatdar’. Such ownership was
and had been collective in nature and not exclusive. The lands recorded
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and described with different aforementioned nomenclatures would vest
accordingly in the ‘tarraf’, ‘patti’, ‘panna’ or ‘thola’ etc. which is in
the form of a unit or a class in the village. The proprietary body of the
village managed the day-to-day affairs of the inhabitants of the village
and also generated income for common use and kept lands for common
use for its inhabitants.
17. The British Government in India had undertaken the task of
land settlements. The most important aspect of land settlement was to
formulate a ‘record of rights’ commonly known as ‘fard’, which is a
detailed register of land in the form in which they were believed to have
been in existence at the time of annexation of Punjab by the British in
1849. These settlements were carried out by Settlement Officers whose
duty was to prepare the ‘record of rights’. The records were prepared
primarily for fiscal purposes; however, these assume a judicial character,
specifically with reference to the proprietorship or ownership. The
records prepared in the past during settlements play an important role in
determining the rights of owners and cultivators even as on date.
18. The Punjab Settlement Manual by Sir James M. Douie, KCSI,
ICS, 4th Edition, (3rd Reprint 2013)19 delineated the Development of
Settlement Policy in Punjab, which then included the State of Haryana
as well. In these settlements, various areas and regions of the States
were demarcated.
The Punjab Land Revenue Act, 1887 was enacted
and is now applicable in the States of Punjab and Haryana with
modifications by the respective States. The Settlement Manual by Sir
Douie makes a mention of the ‘village community’ as a body of proprietors
who then or formerly owned part of the village lands in common, and
who were jointly responsible for the payment of revenue.20 As time
passed by, it has been mentioned that the tendency was for the area held
in severalty to increase, but it was rare indeed to find a village which
was one of the communal types in which there was no common property
remaining. Joint responsibility had been made a permanent feature of
village tenure by the British Government. Under the native rule, it did
not exist when the State realized its dues by division of crops or by
appraisement. Even when a cash assessment was made, only a few
leading members of the community became responsible and they
generally occupied the position of revenue farmers in their dealings with
19 For short, ‘Settlement Manual’ printed by the Controller of Printing & Stationery
Department, Haryana, 2013.
20 Para 126 of the Settlement Manual
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the rest of the brotherhood. But joint responsibility occupied a far more
prominent position in the codes than in practice. There was reluctance
of the village proprietary body to admit strangers. The admission of
strangers into the brotherhood was always in theory at least, a thing to
be guarded against, and village customs in the matter of inheritance and
preemption were founded on this feeling.21 But under the native rule, the
repugnance to admit strangers often yielded to the pressure of the
Government demand, and outsiders were allowed to share in rights that
had become burdens. The almost complete freedom of transfer for long
enjoyed in practice under the British Rule had a still more disintegrating
effect on village communities.
19. The Settlement Manual also makes a mention to the sub-
divisions of villages into ‘Pattis’ etc.22 It has been stated that villages
often consisted of several divisions known by various names such as
‘tarraf’, ‘patti’ (where the term ‘tarraf’ is used for main divisions, the
sub-divisions are sometimes called ‘pattis’) or ‘panna’ and these again
sometimes divided into smaller sections like ‘thoks’, ‘thulas’ etc. The
lands of two ‘pattis’ may be separated (‘chakbat’ i.e., applicable to a
‘patti’ or sub-division of an estate which has all its land in one block) or
intermixed (‘khetbat’ i.e., applicable to a ‘patti’ or subdivision of an
estate, the land of which do not lie in a single block) and the proprietors
of a ‘patti’
may have common lands of their own and also a share in the
general village common land.
20. The Settlement Manual deals with the residents in the village
community who were not proprietors.23 The village community of the
communal type was to a considerable extent self-sufficing. The
landowners included “a nearly complete establishment of occupations
and trades for enabling them to continue to their collective life without
assistance from any person or body external to them.”24
21. The constitutional validity of certain provisions of the Punjab
Village Common Lands (Regulation) Act, 195325came up for
consideration before the Punjab and Haryana High Court in a judgment
reported as Hukam Singh v. State of Punjab26. The High Court
21 Para 127 of the Settlement Manual
22 Para 128 of the Settlement Manual
23 Para 129 of the Settlement Manual
24 Maine’s Village Communities in the East and West, 5th Edition, Page 125.
25 Punjab Act
26 AIR 1955 P&H 220
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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 person’s 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 Chand’s
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
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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.”
22. In State of Haryana v. Karnal Co-op. Farmers’ Society
Limited27, it was held that the Punjab Act and the Pepsu Village Common
Lands (Regulation) Act, 195428 are two legislative measures enacted by
the respective States of Punjab and Pepsu to vest the common lands of
villages in their Panchayats for the common benefit and advantage of
the whole community of the village. It was held as under:
“3. Villages in pre-independent rural India having village common
or communal lands meant for use by the whole village community
was their common redeeming feature, in that, the inhabitants of
the villages whose occupation was predominantly agriculture
dependent on their live-stock needed to give manure to their lands,
to cart manure to their lands, to plough their lands to carry on
several other incidental agricultural operations, required common
lands for using as pasturages, pools, ponds, thrashing-floors,
cowdung pits, hay stack areas, tethering areas and the like. Villages
in the States of Punjab and Pepsu were of no exception. With
the
dawn of independence and rise in land value even in villages,
powerful and greedy inhabitants in villages became grabbers of
Village common lands depriving their use to the village community.
Some of the States which were enabled by the Constitution of
India to organise village Panchayats as units of Self Government
and encourage growth of agriculture and animal husbandry in
villages by suitable legislative measures took prompt steps to
legislate on common lands of the village, so as to restore such
lands for communal use and common benefit of all the inhabitants
of the villages by vesting them in their respective Panchayats.
27 (1993) 2 SCC 363.
28 Pepsu Act (Patiala and East Punjab States Union).
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Punjab Village Common Lands (Regulation) Act, 1953 and Pepsu
Village Common Lands (Regulation) Act, 1954 are two legislative
measures enacted by the respective States of Punjab and Pepsu
to vest the common lands of villages in their Panchayats for
common benefit and advantage of the whole community of the
village concerned. When under the States Reorganisation Act,
1956 Pepsu State merged in Punjab State, the said Pepsu Act
continued to operate in the area of erstwhile Pepsu. When the
operation of two legislative measures in the new Punjab State,
which were in some respects not common, was found to be
undesirable, the State of Punjab enacted the Village Common
Lands (Regulation) Act, 1961 referred to by us already as ‘principal
Act’ and made it operative in the whole territory of Punjab State,
with effect from 4th day of May, 1961. By the principal Act the
two earlier Acts which had covered the field till then were repealed,
as well. The principal Act, as stated in its preamble, sought by its
provisions to consolidate and amend the law regulating the rights
in village common lands popularly and colloquially known as
‘shamilat deh’ and ‘abadi-deh’. As ‘shamilat deh’ was not defined
in the repealed Acts adverted to and there prevailed uncertainty
as to its nature, the principal Act defined ‘shamilat deh’ in Section
2(g) thereof in an endeavour to achieve certainty, …..”
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,29. 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 Rattigan’s 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
29 (1985) 3 SCC 661
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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
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
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Panchayats and since, the Act was a measure of agrarian reform,
it was reserved for the consideration of the President………….”
24. The shamilat land in terms of Section 4 of the 1961 Act
vested in the Gram Panchayat of the village. The vesting of shamilat
land in a village panchayat brought about a paradigm shift in the ownership
of rights in ‘shamilat deh’. The proprietary rights of the proprietary
body of the village in shamilat land were extinguished by a statutory
declaration. The proprietary and possessory rights of proprietors and
non-proprietors in shamilat deh were to henceforth vest in a Gram
Panchayat and used for common purposes of the entire village community,
under the aegis of the Gram Panchayat. The shamilat deh lands as
defined under Section 2 (g) of the 1961 Act now vest completely, that is,
with ownership and title, in the Panchayat of the village concerned. The
vesting of the shamilat deh lands or the village common lands in the
Panchayat has been for agrarian reforms and such vesting is protected
by Article 31A of the Constitution.
25. The other form of common land in the village is the land
described as ‘jumla mustarka malkan wa digar haqdaran arzi hasab
rasad raqba’,referring to joint holding of the proprietary body and other
right holders as per the share in the land according to their holdings.
These had come into effect with the enactment of the 1948 Act, which
was an act to provide for
compulsory consolidation of agricultural holdings,
preventing fragmentation of agricultural holdings and for assignment or
reservation of land for common purposes in the villages.
26. The ‘common purpose’ is defined in Section 2 (bb), Section
18 and Section 23A of the 1948 Act as follows:
“(bb) “Common purpose” means any purpose in relation to any
common need, convenience or benefit of the village]; and includes
the following purposes: -
(i)
extension of the village Abadi; 30[-].
[(ii)
providing income for the Panchayat of the village concerned
for the benefit of the village community].
31[(iii) village roads and paths; village drains, village wells; ponds
or tanks; village watercourses or water channels; village
30 The word “and” omitted by Punjab Act 39 of 1963 and shall be deemed always to
have been omitted.
31 Inserted by Punjab Act 39 of 1963.
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bus stands and waiting places; manure pits; hada rori; public
latrines; cremation and burial grounds, Panchayat Ghar;
Janj Ghar; grazing grounds; tanning places; mela grounds;
public places of religious or charitable nature; and
(iv)
schools and playgrounds, dispensaries, hospitals and
institutions of like nature, water-works or tube-wells whether
such schools, playgrounds, dispensaries, hospitals institutions,
water-works or tube-wells may be managed and controlled
by the State Government or not.]
18. Land reserved for common purposes. - Notwithstanding
anything contained in any law for the time being in force, it shall
be lawful for the Consolidation Officer to direct -
(a)
that any land specifically assigned for any common
purpose shall cease to be so assigned and to assign any
other land in its place;
(b)
that any land under the bed of a stream or torrent flowing
through or from the Shiwalik mountain range within the
[State] shall be assigned for any common purpose;
(c)
that if in any area under consolidation no land is reserved
for any common purpose including extension of the
village abadi, or if the land so reserved is inadequate, to
assign other land for such purpose.
32[23A Management and control of lands for common purposes
to vest in Panchayats or State Government. –
As soon as a scheme comes into force the management and
control of all lands assigned or reserved for common purposes of
the villages under Section 18, -
(a) in the case of common
purposes specified in sub-clause
(iv) of clause (bb) of section 2 in respect of which the
management and control are to be exercised by the State
Government, shall vest in the State Government; and
(b) in the case of any other common purpose, shall vest in the
Panchayat of that village;
and the State Government or the Panchayat, as the case may be,
shall be entitled to appropriate the income accruing therefrom for
the benefit of the village community, and the rights and interests
32 Substituted by Punjab Act 39 of 1963.
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
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of the owners of such lands shall stand modified and extinguished
accordingly:
Provided that in the case of land assigned or reserved for the
extension of village abadi or manure pits for the proprietors and
non-proprietors of the village, such land shall vest in the proprietors
and non-proprietors to whom it is given under the scheme of
Consolidation.]”
27. The consolidation operations are carried out in terms of the
1949 Rules. A consolidation scheme is prepared under Rule 4 and area
for the common purpose is to be provided for under Rule 16(ii) of the
1949 Rules, which reads as under: -
“Rule 16(i) XX XX XX
16(ii) In an estate or estates where during Consolidation
proceedings there is no Shamlat Deh land or such land is considered
inadequate, “land shall be reserved for the village Panchayat and
for other common purposes”, under section 18(c) of the Act, out
of the common pool of the village 3 [at the scale given in the
schedule to these rules]. Proprietary rights in respect of land so
reserved (except the area reserved for the extension of abadi of
the proprietors and non-proprietors) shall vest in the proprietary
body of estate or estates concerned and it shall be entered in the
column of ownership of records rights as (Jumla Malkan wa Digar
Haqdarana Arazi Hasab Rasad Raqba). The management of such
land shall be done by the Panchayat of the estate or estates
concerned on behalf of the village proprietary body
and the
Panchayat shall have the right to utilize the income derived from
the land so reserved for the common needs and benefit of the
estate or estates concerned.]”
28. The two enactments – Punjab Act and the Pepsu Act referred
to above were enacted with the assent of the President of India to meet
the immediate requirement during the consolidation operations as the
holding of proprietors to the extent of their share was being added to the
share of the proprietors. Thereafter, the 1961 Act was enacted with the
assent of the President of India to grant inclusive definition to shamilat
deh. The Act as wasoriginally enacted reads as under:
“2. In this Act, unless the context otherwise requires-
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(g) ‘shamilat deh’ includes-
(1) lands described in the revenue records as shamilat deh
excluding abadi deh;
(2) shamilat tikkas;
(3) lands described in the revenue records as shamilat, tarafs,
patties, pannas and tholas and used accordingly to revenue records
for the benefit of the village community or a part thereof or for
common purposes of the village;
(4) lands used or reserved for the benefit of village community
including streets, lanes, playgrounds, schools, drinking wells or
ponds within abadi deh or gorah deh; and
(5) lands in any village described as banjar Qadim and used for
common purposes of the village according to revenue records;
Provided that shamilat deh at least to the extent of twenty-five
per centum of the total area of the village does not exist in the
village;
but does not include land which-
(i) xxx
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3. (1) This Act shall apply, and before the commencement of this
Act, the shamilat law shall be deemed always to have applied, to
all lands which are shamilat deh as defined in clause (g) of section
2.
(2) Notwithstanding anything contained in sub-section (1) or section
4, where any land has vested in a panchayat under the shamilat
law but such land has been excluded from shamilat deh as defined
in clause (g) of section 2, all rights, title and interest of the
Panchayat in such land shall, as from the commencement of this
Act, cease and such rights, title and interest shall be revested in
the person or persons in
whom they vested immediately before
the commencement of the shamilat law and the panchayat shall
deliver possession of such land to such person or persons:
Provided that where a panchayat is unable to deliver
possession of any such land on account of its having been sold or
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]
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utilised for any of its purposes, the rights, title and interest of the
panchayat in such land shall not so cease but the panchayat shall,
notwithstanding anything contained in section 10, pay to the person
or persons entitled to such land compensation to be determined in
accordance with such principles and in such manner as may be
prescribed.
4. (1) Notwithstanding anything to the contrary contained in any
other law for the time being in force or in any agreement,
instrument, custom or usage or any decree or order of any court
or other authority, all rights, title and interests whatever in the
land,-
(a) which is included in the shamilat deh of any village and
which has not vested in a panchayat under the shamilat
law shall, at the commencement of this Act, vest in a
panchayat constituted for such village, and, where no such
panchayat has been constituted for such village, vest the
panchayat on such date as a panchayat having jurisdiction
over that village is constituted;
(b) which is situated within or outside the abadi deh of a
village and which is under the house owned by a non-
proprietor, shall on the commencement of the shamilat law,
be deemed to have been vested in such non-proprietor.
(2) Any land which is vested in a panchayat under the shamilat
law shall be deemed to have been vested in the panchayat under
this Act.
(3) Nothing contained in clause (a) of sub-section (1) and in sub-
section (2) shall affect
or shall be deemed ever to have affected
the-
(i) existing rights, title or interest of persons who though not
entered as occupancy tenants in the revenue records are
accorded a similar status by custom or otherwise, such as
Dholidars, Bhondedars, Butimars, Basikhuopahus,
Saunjidars, Muqararidars;
(ii) rights of persons in cultivating possession of shamilat
deh for more than twelve years without payment of rent or
by payment of charges not exceeding the land revenue and
cesses payable thereon;
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(iii) rights of a mortgagee to whom such land is mortgaged
with possession before the 26th January, 1950.
5. (1) All lands vested or deemed to have been vested in a
Panchayat under this Act shall be utilized or disposed of by the
Panchayat for the benefit of the inhabitants of the village concerned
in the manner prescribed;
Provided that where two or more villages have a common
Panchayat in the shamilat deh or each village shall be utilised and
disposed of by the Panchayat for the benefit of the inhabitants of
that village:
Provided further that where there are two or more shamilat tikkas
in a village the shamilat tikka shall be utilised and disposed of by
the panchayat for the benefit of the inhabitants of that tikka:
Provided further that where the area of land in shamilat deh of
any village so vested or deemed to have been vested in a Panchayat
is in excess of twenty-five per cent of the total area of that village
(excluding abadi deh), then twenty-five per cent of such total area
shall be left to the Panchayat and out of the remaining area of
shamilat deh an area up to the extent of twenty-five per cent of
such total area shall be utilized for the settlement of landless tenants
and other tenants ejected or to be ejected of that village and the
remaining area of shamilat deh, if any, shall be utilised for
distribution to the small landowners of that village subject to the
provisions relating to permissible area and permissible limit of the
Punjab
Security of Land Tenures Act, 1953, and the Pepsu Tenancy
and Agricultural Lands Act, 1955, as the case may be by the
Collector in consultation with the Panchayat in such manner as
may be prescribed.
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11. Notwithstanding anything contained in the Punjab Pre-emption
Act, 1913, no sale of land in shamilat deh made by a Panchayat
shall be pre-emptible and no decree of pre-emption in respect of
any such sale shall be executed after the commencement of this
Act.”
29. The 1961 Act has undergone many changes in both States of
Punjab and Haryana. In the present appeals, the 1961 Act as is applicable
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]
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in the State of Haryana after reorganization of States w.e.f. 1.11.1966 is
under consideration. The noticeable amendments carried out in the 1961
Act are by Haryana Act No. 18 of 1971, and Haryana Act No. 2 of
1981 enacted after the assent of the President of India on 31.1.1981.
Sections 13C and 13D were inserted by such amendment which read
thus:
“5 xxx
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33[(5) Notwithstanding anything contained in this section, if in the
opinion of the State Government, it is necessary to take over, to
secure proper management for better utilization for the benefit of
the inhabitants of the village concerned any shamilat deh the
Government may by notification take over the management of
such shamilat deh, for a period not exceeding twenty years.]
34[13C. Finality of orders. – Save as otherwise expressly provided
in this Act, every order made by the Assistant Collector of the
first grade, the collector or the Commissioner shall be final and
shall not be called in question in any manner in any court.
13D. Provisions of this Act to be over-riding. – The provisions of
this Act shall have effect notwithstanding anything to the contrary
contained in any law, agreement, instrument, custom, usage,
decree or order of any court or other authority”.]
30. Some other amendments have been carried out during the
pendency of these proceedings. Certain arguments have been addressed
on the basis of such amendments as well. The said amendments
read as
thus:
“35[5A(1)(1) A panchayat may, gift, sell, exchange or lease the
land in shamilat deh vested in it under this Act to such persons
including members of Scheduled Castes and Backward Classes
on such terms and conditions, as may be prescribed.
5B(1) Any transfer of land, gifted sold, exchanged or leased before
or after the commencement of this Act, made in contravention of
the prescribed terms and conditions, shall be void and the gifted,
sold, exchanged or leased land so transferred shall revert to, and
revert in, the panchayat free from all encumbrances.
33 Added by Haryana Act 18 of 1971, Section 2
34 Added by Haryana Act No. 2 of 1981
35 Substitution of Section 5A and 5B by Act 8 of 2007 and thereafter by Act 23 of 2013
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(2) The Government or any officer authorized by it may, either
suo motu or on application made to him by a panchayat or an
inhabitant of the village or the Block Development and Panchayat
Officer, examine the record for the purpose of satisfying himself
as to the legality or propriety of any sale, lease, gift, exchange,
contract or agreement executed before or after commencement
of this Act, if such sale, lease, gift, exchange, contract or agreement
is found detrimental to the interest of the villagers and is no longer
required in the interest of the panchayat, the Government may,
after making such enquiry as it may deem fit, cancel the same
and no separate proceedings under any law shall be required to
cancel the sale, lease, gift or exchange. The panchayat shall be
competent to take over the possession of such premises including
the construction thereon. If any, for which no compensation shall
be payable.]”
31. It was thereafter, considering the respective arguments of the
learned counsel for the parties, the Full Bench in Jai Singh II held as
under:
“22. The petitioners, in view of the stand now taken by the State
join issues only with regard to unutilised lands, as according to
them, the said lands shall also not fall within the ambit of shamlat
deh as defined under Section 2(g)(1) of the Act of 1961 nor the
management and control whereof can vest with the Gram
Panchayat under the provisions of Sections 18, 23-A and Rule
16(2) of the Act of 1948. They
further clearly and candidly plead
and so urge in the Court that the petitioners are not claiming the
lands which have been reserved under Section 2(bb) read with
Sections 18, 23-A and Rule 16(2) of the Act of 1948 and the rules
framed thereunder. In view of the limited controversy between
the parties, as now exists, it appears, there shall be no need
whatsoever, to test the constitutionality of clause (6) of Section
2(g) of the Act of 1961 and the explanation appended thereto on
the anvil of either Article 31-A or Article 300-A of the Constitution
of India. We may, however, briefly state the pleadings of the parties
on the issue limited to land, subject matter of legislative measure,
being within or otherwise the ceiling limit of petitioner-proprietors.
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THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]
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46. The land reserved for common purposes under Section 18(c),
which might become part and parcel of a scheme framed under
Section 14, for the areas reserved for common purposes, vests
with the Government or Gram Panchayat, as the case may be,
and the proprietors are left with no right or interest in such lands
meant for common purposes under the scheme. There is nothing
at all mentioned either in the Act or the rules or the scheme, that
came to be framed, that the proprietors will lose right only with
regard to land which was actually put to any use and not the land
which may be put to common use later in point of time. In none of
the sections or rules, which have been referred to by us in the
earlier part of the judgment, there is even slightest inkling that the
scheme envisages only such lands which have been utilised. That
apart, in all the relevant sections and the rules, words mentioned
are reserved or ‘assigned’. Reference in this connection may be
made to sub-section (3) of Section 18 and Section 23-A. The
provisions of the statute, as referred to above, would, thus, further
fortify that reference is to land reserved or assigned for common
use, whether utilised or not.
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49. The lands which, however, might have been contributed by
the proprietors on pro-rata basis, but have not been reserved or
earmarked for common purposes in a scheme, known as Bachat
land, it is equally true, would not vest either
with the State or the
Gram Panchayat and instead continue to be owned by the
proprietors of the village in the same proportion in which they
contributed the land owned by them. The Bachat land, which is
not used for common purposes under the scheme, in view of
provisions contained in Section 22 of the Act of 1948, is recorded
as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad
Arazi Khewat but the significant difference is that in the column
of ownership proprietors are shown in possession in contrast to
the land which vests with the Gram Panchayat which is shown as
being used for some or the other common pupose as per the
scheme.
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62. In view of the discussion made above, we hold that:-
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(i) sub-section (6) of Section 2(g) of the Punjab Village Common
Lands (Regulation) Act, 1961 and the explanation appended thereto,
is only an elucidation of the existing provisions of the said Act
read with provisions contained in the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948;
(ii) the un-amended provisions of the Act of 1961 and, in particular,
Section 2(g)(1) read with Sections 18 and 23-A of the Act of
1948 and Rule 16(ii) of the Rules of 1949 cover all such lands
which have been specifically earmarked in a consolidation scheme
prepared under Section 14 read with Rules 5 and 7 and confirmed
under Section 20, which has been implemented under the provisions
of Section 24 and no other lands;
(iii) the lands which have been contributed by the proprietors on
the basis of pro-rata cut on their holdings imposed during the
consolidation proceedings and which have not been earmarked
for any common purpose in the consolidation scheme prepared
under Section 14 read with Rules 5 and 7 and entered in the column
of ownership as Jumla Mustarka Malkan Wa Digar Haqdaran
Hasab Rasad Arazi Khewat and in the column of possession with
the proprietors, shall not vest with the Gram Panchayat or the
State Government, as the case may be, on the dint of sub-section
(6) of Section 2(g) and the explanation appended thereto or any
other provisions of the Act of 1961 or the Act of 1948;
(iv) all such lands, which have been, as per the
consolidations
scheme, reserved for common purposes, whether utilised or not,
shall vest with the State Government or the Gram Panchayat, as
the case may be, even though in the column of ownership the
entries may be Jumla Mustarka Malkans Wa Digar Haqdaran
Hasab Rasad Arazi Khewat etc.”
32. The Five Judge Bench in Suraj Bhan held that the observations
in Jai Singh II and Vir Singh conferring right, title and ownership in
respect of Jumla Mustarka Malkan lands on the Gram Panchayat would
be improper and invalid. The Court held as under:
“218. In view of the above discussion, the legal position that
emerges is as follows:-
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THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]
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(k) Any observation in Jai Singh’s case (supra) and Veer Singh’s
case (supra) to the extent it is taken as conferring a right, title and
ownership in respect of ‘Jumla Mushtarka Malkan’ lands on the
Gram Panchayat would be improper and invalid notwithstanding
Section 4 of the VCL Act 1961 in view of Section 2 (bb) and
Section 23A of the Consolidation Act 1948; besides, Rule 16(ii) of
the Consolidation Rules 1949 and the judgment of the Five Judge
Bench of Hon’ble the Supreme Court in Ajit Singh’s case (supra).”
33. The above findings are subject matter of challenge by the
State as well as by the proprietors. The State is aggrieved against finding
no. (iii) of Jai Singh II and conclusion in para 218 (k) of Suraj Bhan,
whereas the proprietors are aggrieved against finding nos. (i) and (ii) of
Jai Singh II.
34. Mr. Pradeep Kant, learned Senior Advocate appearing for
the State contended that the land reserved for common purposes in a
Scheme under Section 18(c) read with section 23-A and Rule 16 (ii) of
the 1949 Rules is for the present and future needs. If a particular piece
of land so reserved for common purposes is not put to use as conceived
in the Scheme, it does not mean the land would revest with the proprietors.
There is no time limit within which the land reserved for common purposes
is to be used. Therefore, once the land has been reserved for common
purposes, the Panchayat can put it to use for common purposes
at any
point of time. It was contended that if the land is not put to common use,
the Panchayat can lease out such land, such leasing out would not be for
the income of the Panchayat but for optimum utilization of land reserved
for common purposes. It was also contended that if the land is reserved
for a particular common purpose, it can be used for any other common
purpose as well for the benefit of village community, including proprietors
and non-proprietors.
35. It was further contended that Section 2(g)(6) in 1961 Act is
not a new provision but is only a clarificatory and declaratory amendment
of the existing law. Shamilat Deh is the land owned by Gram Panchayat
to be used for common purposes under Section 2(g)(1) of 1961 Act
before consolidation. This Court in a judgment reported as Sukhdev
Singh v. Gram Sabha Bari khad36 held that land recorded in the revenue
record as shamilat deh in the year 1914-15 could not detract from the
nature of the land as it was merely recorded to be in possession of the
36 (1977) 2 SCC 518
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owners as per respective shares in khewat in a pre-consolidation shamilat
land. The Court held as under:
“2……………. Firstly, the entry in ‘jamabandi’ of 1914-15 which
recorded that the land was in possession of the owners was quite
innocuous, because it was made for the reason that it was in
nobody else’s possession. The fact that even then it was recorded
in the ‘Jamabandhi’ as “shamlat deh” shows that the particular
character of the land was recognised even as far back as 1914-
15, and it could not detract from that nature of the land merely
because it was further stated in the ‘jamabandi’ that it was in the
possession of the owners “as per respective shares in khewat.”
………”
36. On the other hand, the Jumla Mustarka Malkan land is
reserved for common purposes during consolidation. The reservation of
land for common purposes after consolidation is not different from the
shamilat deh land existing prior to the consolidation as both are reserved
for common purposes. The two nomenclatures are on account of
difference of time as shamilat lands were carved out prior to
commencement of shamilat law whereas JumlaMustarka Malkan
lands were carved out after the commencement of shamilat law.
Therefore, once land is reserved for common purposes, what was implicit
in the definition of shamilat deh as defined in Section 2(g)(6) of 1961
Act has been made explicit by virtue of the Amending Act. It was further
contended that explanation of Section 2(g)(6) again uses the
expressions
used in Rule 16(ii) of the 1949 Rules. Hence, the amendment is not
vesting of land reserved for common purposes during consolidation for
the benefit of village community for the first time but is merely a
clarificatory amendment.
37. Alternatively, it was argued that even if it was a new provision
leading to acquisition of land, it was not a case of acquisition without
compensation but acquisition with “Nil” compensation as the proprietors
have been conferred right to use larger tract of common land in lieu of
small portions deducted by applying pro-rata cut from their shares of
holding. Such ultimate use of land by the Panchayat confers benefit to
the entire village community including proprietors and non-proprietors.
Therefore, while introducing Section 2(g)(6), no compensation was
required to be paid in cash as the benefit in lieu of compensation was
already conferred to the proprietors in the consolidation scheme.
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38. Mr. Manoj Swarup, learned Senior Counsel appearing for the
proprietors argued that the effect of the Amending Act is that the land
stands vested with the Panchayat and, therefore, there is no embargo on
the Panchayat to sell or alienate the land so vested. He draws support
from Section 11 of the 1961 Act which curtails the right of pre-emption
in respect of sale of land of the Panchayat. It was argued that the vesting
of land with the Panchayat leads to conferment of all the rights and
interests in the land so vested, therefore, the Panchayat is competent to
sell the land which is not in tune with the judgment of this Court in Ajit
Singh.
39. Ms. Anubha Agarwal, counsel for the proprietors, submitted
that the amendments carried out in the 1961 Act when Sections 13C and
13D were inserted not only grant finality to the order passed by the
Authority under the Act but also give over-riding effect to any law,
agreement, instrument, custom, usage, decree or order of any court or
other authority. Therefore, the land, though at one point of time was
earmarked for common purposes and the management and control vested
with the Panchayat, but such provision will have preference over any
other provisions of any other law including the 1948 Act. The provision
read with Sections 5A and 5B of the 1961 Act inserted in the year 2007
shows that the Panchayat is exercising right, title and interest over the
land vesting with the
Panchayat in terms of the 1948 Act, though only
vesting of control and Management to the Panchayat was upheld by this
court in Ajit Singh. Such statutory intervention is illegal and in the teeth
of the judgment of this Court in mentioned judgment.
40. It was also argued on behalf of the proprietors that the 1948
Act does not contemplate divesting their ownership rights, but the vesting
of land by the Amending Act read with Section 4 of 1961 Act divests the
owners of their title over the land without compensation. Such action
violates the mandate of Article 300A of the Constitution as the landowners
are being deprived of land without authority of law i.e., adequate
compensation in lieu of the land so acquired.
41. Learned Counsel for some of the proprietors further argued
that the land reserved for common purposes was in fact never used for
such common purpose and that it has always been in possession of the
proprietors of the village. Thus, the proprietors are the owners in
possession of the land in question. The proprietors could thus not be
deprived of their title, possession or propriety rights in any manner without
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following the due process of law i.e., after payment of market value of
such land.
42. It was argued that the land reserved for common purposes
during the consolidation which was more than the land specifically
assigned for common purposes in the consolidation scheme was in fact
a surplus land or a Bachat land. It was thus contended that the unutilized
land i.e., Bachat land has to be revested with the proprietors as such
land does not fall within the ambit of shamilat deh, nor the management
and control of the same could vest with Gram Panchayat under the
provisions of Sections 18, 23A and Rule 16(ii) of 1948 Act. It was hence
argued that though the land has been reserved for common purposes in
the consolidation scheme under the 1948 Act, but such land which is
neither utilized nor reserved for any specific common purpose would
revest with the proprietors.
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 Singhas being part of the agrarian reforms.
45. The 1948 Act is a pre-constitution law which has received the
assent of Governor General of India on 07.12.1948 and published in
East Punjab Government Gazette (Extraordinary) dated 14.12.1948. The
two subsequent amendments in the 1948 Act by Punjab Act No. 27 of
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1960 and Punjab Act No. 39 of 1963 were enacted and published after
the assent of the President of India. Both the amendments were upheld
by the High Court in Kishan Singh and Jagat Singh relating to Punjab
Act No. 27 of 1960 and Jit Singh relating to Punjab Act No. 39 of 1963.
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
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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
Singh’s 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 Kochuni’s 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
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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 Kochuni’s 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
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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.
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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.37 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
37 2013 SCC OnLine P&H 26809
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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 Singh’s case (supra), and in Veer
Singh’s case (supra) (in which the application for review of the
judgment in Jai Singh’s 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 Singh’s case (supra).”
53. We find that such conclusion in Parkash Singh or Suraj
Bhan that ‘Jumlan Malkan’ or ‘Mushtarka Malkan’ land so described in
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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 theforum
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
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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 another38, 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 AmendingAct.
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
38 AIR 1967 SC 59
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or, in other words, to a law for the compulsory acquisition of
property for public purposes.”
58. Therefore, the Amending Act having been enacted after the
assent of the President, is protected in terms of Article 31A of the
Constitution.
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
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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 petitioner’s learned counsel has, on the other hand,
placed his reliance on the observations of Tek Chand, J. in Munsha
Singh’s case and on the Supreme Court decision in Ranjit Singh’s
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
petitioner’s case that title has actually passed to the Panchayat or
the State. What is argued is that all the ingredients of ownership
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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
thePanchayat 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.
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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:
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“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.
xx
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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 proprietor’s land is taken and formed into a
common pool so that the whole may be used for the common
needs and benefits of the estate, mentioned above. The proprietors
naturally would also share in the benefits along with others.
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
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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
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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.
65. In Shish Ram & Ors. v. State of Haryana & Ors.39, an
argument was raised that the land reserved for a particular common
purpose can be used only for the said purpose. This Court held that a
land vesting in the Gram Panchayat can be used for any one or more of
the purposes. It was held as
under:
“6. We do not agree with the submission of the learned counsel of
the appellants that in Bishamber Dayal case [1986 Punj LJ 208
: AIR 1986 P&H 203 (FB)] the Full Bench of the High Court had
taken a different view than the one which was taken in Khushi
Puri case [1978 Punj LJ 78 : 1978 Rev LR 443] . The High Court
appears to have consistently held that the land vesting in the Gram
Panchayat can be used for any one or more of the purposes
specified in sub-rule (2) of Rule 3, leasing out for cultivation being
one of the purposes. We find no reason to disagree with the High
Court and in fact approve the position of law settled by it in Khushi
Puri case [1978 Punj LJ 78 : 1978 Rev LR 443] which was upheld
by the Full Bench in Bishamber Dayal case [1986 Punj LJ 208 :
AIR 1986 P&H 203 (FB)].”
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
39 (2000) 6 SCC 84
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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.
69. The expression Bachat land was first used by the High Court
in Gurdial Singh v. State of Haryana40 wherein, the Panchayat was
the owner of 850 standards kanals and 15 marlas. After considering the
land owned by Panchayat prior to consolidation and the land, management
and control of which came with Gram Panchayat, it was found that 48
standard kanals and 14 marlas were actually utilised for various common
purposes and the remaining 112 standard kanals and 7 marlas were
ordered to be redistributed pro-rata amongst the right-holders under
Section 42 of the 1948 Act by the Assistant Director, Consolidation of
Holdings. The order of the Assistant Director Consolidation to redistribute
the land was not interfered with.
40 1979 PLJ 350
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70. In a judgment reported as Bagga Singh v. The Commissioner,
Ferozepur Division, Ferozepur41, 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 & Ors42., 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:
41 (1984) SCC OnLine P&H 384
42 (1990) SCC OnLine P&H 823
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“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 Punjab43. In a judgment reported as Gram
Panchayat, Village Bhedpura v. Additional Director, Consolidation,
Punjab44, 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.
73. Mr. Manoj Swarup, learned Senior Counsel for the proprietors,
referred to a judgment of the High Court in Gurjant Singh v.
Commissioner, Ferozepore Division45wherein many appeals were
taken up for hearing together, the lead judgment being LPA No. 868 of
1992. The said LPA arose out
of Writ Petition No. 18016 of 1991 wherein
a writ petition was filed against common order of eviction affirmed by
Commissioner, Ferozepur Division on 06.08.1991. The Panchayat had
sought eviction of the appellants before the High Court as an unauthorized
occupant. The learned District Development and Panchayat Officer
exercising the powers of the Collector passed an order for the eviction.
Such order of eviction was affirmed by the Commissioner, Ferozepur
Division. In a writ petition before the High Court, it was pleaded that the
land in dispute along with other land was reserved for common purposes
during consolidation and after utilizing the land for common purposes,
the land in dispute remained as Bachat land and is not being used for any
common purpose. The learned Single Bench in the order reported as
Balwant Singh v. State of Punjab46 dismissed the writ petitions as the
43 (1992) 1 PLR 10
44 (1997) 1 PLR 391
45 (2000) SCC OnLine P&H 56
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argument was raised that the Bachat land could not be held to vest in the
panchayat. In Gurjant Singh case, the argument raised was as under:
“4. Mr. Chopra, learned counsel representing the appellants
vehemently contends that the land found Bachat (surplus) after
utilizing it for common purposes, cannot possibly vest with the
gram panchayat and this precise question is not res integra having
been so held by a string of judicial precedents of Supreme Court
and this Court.
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16. In view of the consistent view taken by the Hon’ble Supreme
Court and this Court from time to time, it is not possible to hold in
tune with the findings recorded by the learned Single Judge and,
therefore, it has to be held that the Bachat land i.e. land which
remains unutilised after utilising the land for the common purposes
so provided under the consolidation scheme vests with the
proprietors and not with the gram panchayat. Inasmuch, as there
is no material brought on records of the case showing how a
mutation came to be entered in favour of gram panchayat with
regard to land which was consistently shown in the records of
rights as belonging to proprietors, the mutation entry in favour of
gram panchayat has to be completely ignored. It may be mentioned
that this view was also taken by the same Hon’ble Judge in a
D.B. who decided the writ petitions giving rise to the present
Letters Patent Appeals. It is quite apparent that the
provisions of
East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948 and the judgments that have been cited
before us were not brought to the notice of the learned single
Judge. The judgment in appeal recorded by the learned single
Judge in Civil Writ Petitions No. 18016, 18018 and 18049 of 1991
cannot, thus, sustain.
17. Before we may part with this order, we would like to mention
that several cases of this nature are being filed almost every day
as is also informed to us by the learned Counsel representing the
parties. It appears to us that gram panchayat even though
conscious of the fact that such lands cannot possibly belong to it
rakes up the issue primarily for the reason that some individuals
have occupied the Bachat land. The present case also provides
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such an example. It has been repeatedly held by this Court and
reference whereof has already been made above that the unutilised
land after utilising the land ear-marked for the common purposes,
has to be redistributed amongst the proprietors according to the
share in which they had contributed the land belonging to them
for common purposes. This exercise, it appears, has not been
done throughout the States of Punjab and Haryana and villages
forming part of Union Territory, Chandigarh even though there is
a specific provision for doing that. We have already reproduced
the relevant sections of the Act which in turn do contain the
provision of re-partition. This non-exercise of statutory provision
has led to widespread litigation both in States of Punjab and
Haryana and villages forming part of Union Territory, Chandigarh.
With a view to curb this unnecessary and avoidable litigation as
also keeping in view the common good and benefit of proprietors
who had contributed land belonging to them for common purposes,
we not only direct in this case that the concerned authorities under
the Act should redistribute the Bachat land amongst the proprietors
according to their shares but this exercise must be done throughout
the States of Punjab and Haryana and villages forming part of
Union Territory Chandigarh. A copy of this order, thus, be sent to
the Chief Secretaries of Punjab and Haryana, Civil Secretariat,
Chandigarh and Adviser to the Administrator, Union
Territory,
Chandigarh with a direction that proper instructions be passed on
to the concerned authorities under the Statute to redistribute/re-
partition Bachat land amongst the proprietors according to their
shares. This exercise be done as expeditiousiy as possible and
preferably within six months for re-partition must commence.
Liberty to apply in the event of non-compliance of directions,
referred to above.”
74. The argument was thus that such land carved out by pro-rata
cut from the land holding of the proprietors therefore, the proprietors
have a right over such land in proportions to the shares of the proprietors
in the khewa, in case, the same is not put to use for common purposes.
The Civil Appeal Nos. 5709-5714 of 2001 against the order of the High
Court in Gurjant Singh were decided on 27.8.2001. It was thus argued
that the reasoning recorded by the High Court is the reasoning not only
approved by this Court but shall also be deemed to be reasoning recorded
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by this Court. The order passed by this Court in State of Punjab v.
Gurjant Singh, reads thus:
“Leave granted.
Mr. Harish N. Salve, learned Solicitor General submitted that the
State of Punjab takes objection only in regard to the following
observations made in the impugned judgment:
“This exercise, it appears, has not been done throughout
the State of Punjab and Haryana and villages forming part of
Union Territory, Chandigarh even though there is a specific
provision for doing that.
This exercise be done as expeditiously as possible and
preferable within six months proceedings for re-partition must
commence. Liberty to apply in the event of non-compliance of
directions, referred to above.”
Learned counsel for the respondent submits that he has no
objection in deleting the aforesaid portions from the impugned
judgment. We allow these appeals to the extent of deleting of the
abovesaid passage from the impugned judgment.
These appeals are disposed of accordingly.”
75. The argument advanced was that since the appeal was decided
by this Court, the findings recorded by the High Court stands affirmed
by this Court and that we are bound by the judgment of the High Court.
He relied upon the judgment in Kunhayammed v. State of Kerala47
and also the judgment in V.M. Salgaocar & Bros. Pvt. Ltd. v.
Commissioner of Income Tax48. On the other hand, Mr. Kant relied
upon judgment of this Court in S. Shanmugavel Nadar v. State of
T.N.49.
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
47 (2000) 6 SCC 359
48 (2000) 5 SCC 373
49 (2002) 8 SCC 361
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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:
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“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.
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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
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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)
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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 another50, 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)
50 (2019) 20 SCC 705
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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.51, 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 assessee’s 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
51 AIR 1958 SC 868
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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 Officer’s 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.
84. Keeping in view of the above discussions, we find that the
land reserved for common purposes cannot be re-partitioned amongst
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the proprietors only because at a particular given time, the land so reserved
has not been put to common use. The learned counsel for the parties
could not point out any particular time-line during which the common
purposes have to be accomplished. Since ‘common purpose’ is a dynamic
expression, as it keeps changing due to the change in requirement of the
society and the passing times, therefore once the land has been reserved
for common purposes, it cannot be reverted to the proprietors for
redistribution. Therefore, the conclusion no. (iii) arrived at by the High
Court is set-aside as unutilized land is not available for redistribution
amongst the proprietors. The finding recorded by the different Benches
of the High Court are clearly erroneous and not sustainable. Thus, the
conclusion no (iii) arrived at by the High Court in Jai Singh II is set
aside.
CIVIL APPEAL NO. 1679 OF 2022; CIVIL APPEAL NO.
1678 OF 2022 AND CIVIL APPEAL NO. 1680 OF 2022
85. In the abovementioned appeals, the challenge on behalf of the
proprietors is to the provisions of the Haryana Municipal (Amendment)
Act, 1999 (Act No. 17 of 1999) and to Section 2(52A) and Section
161(1)(g) of the Haryana Municipal Corporation Act, 1994 inter alia on
the ground that the said Act infringes upon the fundamental rights of the
proprietors as the same is not directed towards agrarian reforms. The
land owners have sought a direction that the land reverts back
to them.
By virtue of the amendments, the shamilat deh was to vest with the
Municipalities. The amendments were said to be violative of Articles 13,
14, 31-A and also Article 300A of the Constitution.
86. In Civil Appeal No. 1679 of 2022, the appellant has purchased
land admeasuring 6.4625 acres (51 Kanals 14 Marlas) said to be from
the erstwhile owners through registered sale deeds. The appellant cannot
be said to be proprietor as it is a company whereas the vendors of the
appellant may be proprietors but the facts are not clearly established on
record. Mr. Kamat, learned Senior Advocate appearing for the appellant
argued that the appellant has challenged the provisions of the Haryana
Municipal Corporation (Amendment) Act, 1999 amending the Haryana
Municipal Corporation Act, 199452 but the State has not filed any appeal
against the judgment arising out of the writ petition filed by the appellant.
It was argued that the provisions of the Amending Acts, amending the
52 1994 Corporation Act
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Haryana Municipal Act, 197353 or the 1994 Corporation Act introducing
‘shamilat land’ as vesting in municipality are not part of agrarian reforms
and do not have the protection under Article 31A of the Constitution.
Therefore, it is an acquisition by urban local body and the property of the
proprietors can be acquired only by way of compensation. Since no
compensation is contemplated under the amending statutes, therefore,
such amendments are absolutely unconstitutional. The said issue has
already been decided by the Full Bench of Punjab and Haryana High
Court in Rajender Parshad & Ors. v. State of Haryana & Ors.54.
87. The Full Bench of the High Court in Rajender Parshad had
struck down the Haryana Municipal Common Lands (Regulation) Act,
197455 as suffering from the vice of unconstitutionality. It was found
that the said Act was not a measure of agrarian reforms, therefore,
could not enjoy the protection envisaged by Article 31A(1)(a) of the
Constitution.
88. The High Court in Suraj Bhan struck down the provisions of
the amending statutes amending the 1973 Municipal Act and the 1994
Corporation Act relying upon the Full Bench decision in Rajender
Parshad. The appellant in Civil Appeal No. 1679 of 2022 is aggrieved
against the direction to pay compensation treating the action of the State
as an acquisition and holding that the owners are entitled to compensation
under Article 300-A of the Constitution.
89. The High Court in Suraj Bhan held that the
proprietors cannot
be divested of their proprietary rights in ‘Jumla Mushtarka Malkan’ or
‘Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba’
lands without payment of compensation by a mere declaration of such
inclusion or vesting by Section 2(g)(6) of the 1961 Act. The High Court
further held that the provisions of the Amending Acts amending the 1973
Municipal Act and the 1994 Corporation Act would amount to compulsory
acquisition without payment of compensation which is impermissible in
law. The Court held that the judgments in Notified Area Committee &
Anr. v. Des Raj & Ors.56 and Municipal Committee, Sirhind v.
Parshotam Dass & Ors.57 are not applicable as the issue was confined
53 1973 Municipal Act
54 AIR 1980 P&H 37
55 For short, the ‘1974 Act’
56 (1995) 5 SCC 317
57 (1996) 8 SCC 324
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to the effect of reversion of land to the land owners in the context of
Rule 3 of the Punjab Gram Panchayat Rules, 1965. The High Court held
as under:
“207. In Municipal Committee, Sirhind v. Parshotam Dass (supra)
and in the Notified Area Committee v. Des Raj (supra), the issue
was confined to the effect of reversion of land to the land owners
in the context of Rule 3 of the Punjab Gram Panchayat Rules,
1965 and the original owners were held not entitled to claim the
property in question in the context of said Rule. Besides, in Notified
Area Committee v. Des Raj (supra), the proviso to Rule 3 of the
Punjab Gram Panchayat Rules, 1965 was held to be inapplicable
as the land came to be vested in the concerned Panchayat by
operation of the VCL Act 1953 under which the Gram Panchayat
had acquired its right and the repeal of the said VCL Act 1953 by
the VCL Act 1961, it was said, did not in any way affect the right
which the Gram Panchayat had acquired over the land.
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211. In the present case, when the land being taken over by a
municipality and would, thus, have the characteristics of an urban
area, it cannot be said that the same is for giving effect to the
directive principles of the State policy or for agrarian reforms.
Rather the common purposes for which the land was being utilized
by the ‘inhabitants of the village’ would cease. Besides, there is
no dispute to the proposition that the areas of the Gram
Panchayat
which are merged into the municipalities would not be entitled to
a hearing in compliance with the principles of natural justice before
their merger.”
90. Mr. Pradeep Kant, learned senior counsel appearing for the
State argued that the land vested in the Panchayat in terms of Section 4
of the 1961 Act, hence the land of Panchayat now merely stands
transferred from one statutory body to the other by extending the municipal
limits and thus that the proprietors would not be entitled to any
compensation. Mr. Kant also argued that the Haryana Panchayati Raj
Act, 199458 contemplates the satisfaction where the whole of the sabha
area included in the municipality or cantonment, the Gram Panchayat
shall cease to exist and the assets and liabilities shall vest with the
municipality.
58 For short, the‘1994 Act’
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91. Mr. Kamat has raised an argument that the stand of the State
that the amendment was necessitated to remove the encroachments on
the land reserved for common purpose is not tenable. It was pointed out
that for such purpose, the Haryana Common Purposes Land Eviction
and Rent Recovery Act, 198559 has been enacted to treat the land
reserved for common purposes under 1948 Act as public premises. The
said aspect has been considered by the Five Judges Bench in Suraj
Bhan to hold that both proceedings under the 1961 Act and under the
1985 Act are parallel proceedings and that it is open to choose any. The
Court held as under:
“83. It may appropriately be noticed that the Haryana State has
also framed the Haryana Common Purposes Land Eviction and
Rent Recovery Act, 1985. The said Act is to provide for eviction
of unauthorized occupants from land reserved for common
purposes under the Consolidation Act 1948. In terms of Section 2
of the said Act ‘Common Purposes Land’ has been defined to
mean land reserved for common purposes of a village under Section
18 of the Consolidation Act 1948, the management and control
whereof vests in the State Government or the Panchayat under
Section 23-A of the said 16-02-2022 (Page 31 of 89)
www.manupatra.com Supreme Court Judges Library
Consolidation Act 1948. Section 3 of the Haryana Common
Purposes Land Eviction and Rent Recovery Act, 1985 provides
for application of the Haryana Public Premises and Land (Eviction
and Rent
Recovery) Act, 1972 to common purposes. It is provided
that notwithstanding anything contained in any law for the time
being in force, the provisions of the Haryana Public Premises and
Land (Eviction and Rent Recovery) Act, 1972, shall apply to
common purposes land which shall be deemed to be public
premises for the purpose of the said Act. The provisions of the
VCL Act 1961 are, however, more comprehensive and deal with
disputes inter se parties as well as other disputes in terms of its
various provisions, as have been noticed above. The provisions of
the VCL Act 1961 would be in addition to the procedure provided
for eviction of unauthorized occupants from land reserved for
common purposes under the Consolidation Act 1948. The provisions
of the VCL Act 1961 shall have, however, have overriding effect
in view of Section 13-D thereof. Besides, the provisions of the
59 Hereinafter referred to as the ‘1985 Act’
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VCL Act 1961 are invoked and administered by the officials of
the Rural Development and Panchayats Department, Haryana.
The officials of the said Department have been invested with the
powers of the Collector, the Commissioner and the Financial
Commissioner under the VCL Act 1961. The Sarpanches and
Panches of the Gram Panchayats are more familiar in their day-
to-day dealings with the officials of the Panchayat Department at
the Block Level, District Level and the State Level. Therefore,
having an additional forum for resolution of disputes of lands which
are vested in the Panchayats or the management and control of
the same is with the Panchayats. Besides, in case two procedures
are provided for eviction of unauthorized occupants of lands which
vest in the Panchayat or the Panchayat has management and
control would not be illegal or improper.”
92. Ms. Agarwal has referred to Section 5 of the 1961 Act to
contend that the shamilat land is for the benefit of the inhabitants of a
same village but in case, there is common benefit for more than one
village, the land has to be used for the benefit of the inhabitants of that
village and not of the other village. It was further contended that shamilat
deh land is a concept of rural areas and its import into urban municipal
laws is wholly erroneous construction by the State Legislature. The
transfer of such land to the municipal bodies would be to the detriment
of villagers
and, therefore, bad in law. The vesting of land in municipal
bodies is not an agrarian reform and, thus, not protected by Article 31-
A.
93. It was further argued that shamilat land is not an asset of
Gram Panchayat and cannot be transferred. The Gram Panchayat only
has the management and control of land carved out during consolidation
under the 1948 Act for a limited purpose for benefits of villagers of that
village. Such vesting is a trust created with the Panchayat and cannot be
transferred or vested with any other person. Still further, the Gram
Panchayat can transfer only that much right which it had, therefore, the
transfer of the shamilat land to the municipality lead to divesting of the
interest of the proprietors and, therefore, the proprietors in any case
would have continue to use the land so reserved for the benefit of the
community.
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,
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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. The relevant
extract from the Haryana Panchayati Raj
Act, 1994 reads as under:
“7. Demarcation of sabha area – (1) The Government may, by
notification, declare any village or a part of a village or group of
contiguous villages with a population of not less than five hundred
to constitute one or more sabha areas:
Provided that Government may in exceptional cases, by
reasons to be recorded in writing, relax the limit of population of
500:
Provided further that neither the whole nor any part of a-
(a) municipality constituted under the Haryana Municipal
Act, 1973;
(b) cantonment;
shall be included in a sabha area unless the majority of voters
in any municipality desire the establishment of a Gram Panchayat
in which case the assets and liabilities, if any, of the municipality
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shall vest in the Gram Panchayat and the municipality shall cease
to exist.
(2) The population shall be ascertained on basis of last
preceding decennial census of which the relevant figures have
been published.
(3) Government may, by notification, include any area in or
exclude any area from the sabha area.
(4) If the whole of the sabha area is included in a municipality
or a cantonment, the Gram Panchayat shall cease to exist and the
assets and liabilities of it shall vest in the municipality or
cantonment, as the case may be.
(5) If the whole of the sabha area is included in the Faridabad
Complex under the Faridabad Complex (Regulation and
Development) Act, 1971, the Gram Panchayat shall cease to exist
and its assets and liabilities shall vest in the Faridabad Complex.”
97. Section 2-A of the 1973 Municipal Act deals with classification
and constitution of municipalities such as Municipal Committee for a
transitional area with population of not more than fifty thousand, Municipal
Council for a smaller urban area with population of more than fifty
thousand but less than three lacs and the Municipal Corporation for a
larger urban area with population of three lacs or more60. Section 3
empowers the State Government to propose any local area to be a
municipality under the 1973 Municipal Act. Section 4 empowers the
State Government to alter the limits of municipality whereas Section 5
empowers the State Government to
exclude any area from the
municipality. Relevant provisions from the 1973 Municipal Act read thus:
“3. Procedure for declaring municipality.—(1) The State
Government may, by notification, propose any local area to be a
municipality under this Act.
(2) Every such notification shall define the limits of the local area
to which it relates.
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(10) A Committee shall come into existence at such time as the
State Government may, by notification, appoint in this behalf.
60 As amended by Haryana Act No. 11 of 2002
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4. Notification of intention to after limits of municipality.—(1) The
State Government may, by notification, and in such other manner
as it may determine, declare its intention to include within a
municipality any local area in the vicinity of the same and defined
in the notification.
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(4) When any local area has been included in a municipality under
sub-section (3), this Act, and, except as the State Government
may, by notification, direct otherwise, all notifications, rules; bye-
laws, order, directions and powers issued made, or conferred under
this Act and in force throughout whole of the municipality at the
time, shall apply to such area.
5. Notification of intention to exclude local area from municipally.—
The State Government may, by notification, and in such other
manner as it may deem fit, declare its intention to exclude from a
municipality any local area comprised therein and defined in the
notification.”
98. In the Notified Area Committee, an argument was raised
that the land once vested with the Panchayat under the Punjab Act in
terms of Section 3(a) of the said Act would be mutated in favor of the
appellant after the enactment of the 1974 Act. As the said Act was
declared void, it stands revested with the proprietors. Such argument
was negated by this Court, though the High Court had accepted such
argument. This Court held as under:
“3. There being no dispute as to the vesting of the land pursuant
to 1953 Act in the Gram
Panchayat concerned, all that we are
required to decide is whether the stand of the plaintiffs-respondents
that the same got reverted to them pursuant to what has been
mentioned in the aforesaid proviso is correct or not.
4. To decide the aforesaid question, let Rule 3 of the Punjab Gram
Panchayat Rules, 1965 be noted, which reads as under:
3. “If the whole of Sabha area is included in Municipality,
cantonment or notified area all rights, obligations, property,
assets and liabilities if any, whether arising out of any contract
or otherwise shall vest in the Municipal Committee, Cantonment
Board or Notified Area Committee as the case may be:
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Provided that the land, which vests in the panchayat under
the Punjab Village Common Lands (Regulation) Act, 1961 or
the land, management and control of which vests in the
panchayat under the East Punjab Consolidation and Prevention
of Fragmentation Act, 1948, shall revert to the co-sharers and
owners thereof.
5. The respondents first contention is that for the appellant to
claim vesting of the land in it, the first requirement is that the
whole of the sabha area must have been included in it. It is then
urged that even if this part of the requirement be held to be satisfied,
because of what has been stated in the aforesaid proviso, the land
did revert to them. The further leaf of this argument is that the
omission of the proviso by notification dated 22nd December, 1976
cannot alter the position inasmuch as the area of village Gudha, in
which the land is admittedly situate, had been declared to be part
of notified area on 6-10-75; and so, the proviso operated by its
own force on that date, because of which its omission later on
could not alter the legal position.
6. Insofar as the first contention is concerned, Shri Ashri, learned
counsel appearing for the appellants, brings to our notice what
has been stated in sub-section (2) of Section 8 of the Panchayat
Act, which is in the following language :-
xxx
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This shows that the only effect of non- inclusion of the whole of
the area of a Gram panchayat is that the
jurisdiction of the concerned
Notified Area Committee shall get reduced and would be confined
to the part included. As in the present case there is nothing to
show that the part of the Gram Panchayat in which the suit land is
situate had not been included in the territorial area of the appellant-
committee, the first contention advanced on behalf of the
respondent, which had found acceptance with the Courts below,
cannot be regarded as legally sound.”
99. In Municipal Committee, Sirhind, the plaintiff filed a suit
against the Municipal Committee for a declaration that the subject matter
of the suit land is the property of the plaintiff as proprietors. The municipal
limit of Sirhind Municipality was extended, covering a part of Gram Sabha
area of Nagar Panchayat and the disputed area came under the Municipal
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Limits. The argument which found favor with the High Court was that
unless the whole land of the Sabha area is included in an urban estate
under the provisions of the Punjab Municipal Act, there can be no vesting
of the Sabha area with the municipality. Such argument was not accepted
by this Court as the ‘whole’ was said to be including a ‘part’. Still further,
the argument of the proprietors that the shamilat property would stand
reverted to the proprietors was not accepted. It was held as under:
“7. But a contention has been advanced which found favour with
the courts below that unless the whole land of the Sabha area is
included in an urban estate under the provisions of the Punjab
Municipal Act, then there can be no vesting of the Sabha area
with the municipality. We are unable to accept this contention
since the expression ‘whole’ in sub-section (3) of Section 4 of the
Punjab Gram Panchayat Act must be held to be including a ‘part’
and therefore if a part of the Sabha area is included within the
municipal limits then that part of the Sabha area becomes a part
of the municipality and it ceases to be a part of the Gram Panchayat.
Section 8 of the Gram Panchayat Act stood deleted from the
Gram Panchayat Act in the year 1962. Section 4(3) extracted
above was added to the Punjab Gram Panchayat Act with effect
from 14-7-1978. The Punjab Gram Panchayat Rules, 1965 had
been framed in exercise of power under Section 101 of the Punjab
Gram Panchayat Act by the
State Government. Rule 3 is the rule
for disposal of assets and liabilities of Gram Sabha. The said rule
provides that if the whole of the Sabha area is included in a
municipality, cantonment city, urban estate or notified area, rights,
obligations, property, assets and liabilities, if any, whether arising
out of any contract or otherwise shall vest in the Municipal
Committee, Cantonment Board, (Municipal Corporation, Chief
Administrator or Notified Area Committee, as the case may be).
xx
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xx
10. A combined reading of the aforesaid provisions of the Gram
Panchayat Act, the rules made thereunder and the Punjab
Municipal Act unequivocally indicate that on and from the date of
issuance of a notification extending the municipal limits over a
part of the Sabha area that part of the Sabha area forms a part of
the municipality and it is the municipality in whom right, title and
interest over the area vests. It is difficult to accept the reasoning
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
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advanced by the courts below that only when the entire Sabha
area comes within the municipal limits then the property vests
and not otherwise. In our considered opinion the expression ‘whole’
in Section 4(3) of the Gram Panchayat Act brings within its sweep
also a part of the Sabha area and therefore the disputed properties
in the case in hand which originally formed a part of Sabha area
of Village Brahman Majra having been included in municipal limits
of Sirhind Municipality by notification dated 18-9-1968, it is the
municipality on whom the right, title and interest of the property
vested and it never revested at (sic in) the khewatdars as found
by the courts below. The courts below including the High Court
not only committed error in interpreting Section 4(3) of the Gram
Panchayat Act but also committed error in relying upon the proviso
to Rule 3 of the Gram Panchayat Rules since on the date when
the notification was issued extending the municipal limits of Sirhind
Municipality on 18-9-1968 Section 4(3) of the Gram Panchayat
Act was not in force and therefore Rule 3 could not have operated
upon. As has been stated earlier Section 56 of the Municipal Act
and Section 4 of the Gram Panchayat Act make the legislative
intention clear that when a part of the Sabha area gets included
within the municipal limits of any municipality the property
comprised therein vests with the Municipal Committee. In this
view of the
matter the plaintiffs who were the original khewatdars
cannot claim the property in question and it is the municipality
which continues to be the owner of the disputed property.
xx
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12. Sub-section (2) of Section 3 would be attracted only when
land vested in Municipal Committee, Sirhind has been excluded
from “Shamlat deh” as defined in clause (g) of Section 2 of the
said Act. Section 2(g) has 9 exclusion clauses but there is not an
iota of material on record and in fact the case in hand has not
been examined from that angle to establish that the disputed
property stood excluded from “Shamlat deh” by operation of any
of the sub-clauses which excludes from the definition of “Shamlat
deh” in Section 2(g). In that view of the matter the contention of
Mr Madhava Reddy cannot be sustained.”
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
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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 Bench61 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
61 AIR 1954 Punjab 167
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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 Singh62and
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 Haryana63, 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
62 AIR 1959 P&H 8; 1958 SCC Online Punj 89
63 ILR (1982) 1 Punjab and Haryana 317
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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
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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.
108. Consequently, we hold that Act No. 9 of 1992, the Amending
Act is valid and does not suffer from any vice of constitutional infirmity.
The entire land reserved for common purposes by applying pro-rata cut
had to be utilized by the Gram Panchayat for the present and future
needs of the village community and that no part of the land can be re-
partitioned amongst the proprietors.
109. With the aforesaid discussion and findings, the appeals filed
by the State and panchayats are allowed and those filed by the proprietors
are dismissed. Consequently, the writ petitions filed before the High Court
shall also stand dismissed.

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GLOSSARY OF THE WORDS USED IN THE JUDGMENT
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
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23.
Marla 
30.25 sq. yards 
24.
kanal 
20 marlas = 605 sq. yards 
25.
Acre 
160 marlas = 4840 sq. yards 
Pukhta
Kachcha
26.
Biswani 
7.5625 sq. yards 
2.521 sq. yards 
27.
Biswa 
151.25 sq. yards 
50.42 sq. yards 
28.
Bigha 
3025 sq. yards 
1008.33 sq. yards 
Acre 
5 Bighas 12 Biswa 
4
Bigha 75 Biswa 
30.
Hadbast 
Boundary of a village or revenue estate. Each 
village or revenue estate is assigned a separate 
Hadbast number. 
31. 
Rectangle/Mushtatil 
The 
land 
is 
divided 
into 
different 
rectangles/Mushtatils. 
The 
rectangle 
is 
represented by (//) in the revenue record. 
Each Mushtatil contains 25 Khasra Numbers with 
Khasra No. 13 being in the center. 
The holding of the land owner is represented by 
the rectangle/ Mushtatil number, followed by the 
Khasra number and the area of each khasra 
number  
32. 
Khasra number 
Khasra number is given to a specific piece of land 
in the village. One or more Khasra form a 
khatauni, one or more Khatauni form a Khewat. 
The Khasra numbers in a khatauni may or may 
not be mentioned sequentially. 
Bibhuti Bhushan Bose
Matters disposed of.
(Assisted by : Deepak Panwar, LCRA)
THE STATE OF HARYANA THROUGH  SECRETARY TO GOVT. OF
HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]