Case: Johrimal Vs. Director Of Consolidation Of Holdings, Punjab

2. For the consolidation of land holdings in village Kheowara, a scheme was prepared by the Consolidation Officer under S. 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 (Act L of 1948) hereinafter called the Act and the scheme was confirmed by the Settlement Officer acting under S. 20 of the Act. The scheme, among other things, provided that the owners of permanent ghers or enclosures will be permitted to retain them in their possession. One of the proprietors, Johrimal had made a gher in khasra No. 3942 and, under the scheme, this was to remain with him. Para 7 of the Scheme which was finalised under S. 20 of the Act provided as followsexisting houses and permanent enclosures shall be kept in the ownership and possession of those proprietors who were owners in possession prior to the consolidation and in addition if these persons so desire they shall he entitled to be given additional area upto one bigha for extension of the abadi. In the case of such persons of right-holders who have constructed houses or enclosures etc., within the Shamlat area they would keep them, in their possession but adjustment would be made out of their Khewaton the Director of Consolidation, to whom the powers of the State Government under S. 42 of the Act had been delegated reconsidered this matter and ordered that this particular piece of land i.e., khasra No.3942 should be reserved for the extension of abadi for non-proprietors. The Director of Consolidation accordingly ordered that instead of being reserved for Johrimal, the plot should be kept for the non-proprietors and the Consolidation records should be changed to that extent. The order of the Director of Consolidation was dated March 8 1957. Aggrieved with this order, Johrimal applied to the High Court for grant of a writ under Art.226 of the Constitution. The petition was heard by Grover. J. who allowed the petition holding that the Director of Consolidation had no authority to make any order contrary to the scheme without amending the scheme itself, and all amendment of the scheme could be made only under S.36 of the Act and not under S. 42 of the Act. It was accordingly held that the order of the Director of Consolidation was ultra vires and must be quashed by grant of a writ the nature of certiorari. Against this order the Director of Consolidiation of Holdings appealed under Cl. 10 of the Letters Patent. The appeal was heard by a Full Bench which by its judgment dated November 8, 1960, allowed the appeal and reversed the order of the learned Single Judge and ordered that the writ petition should be dismissed. The view taken by the majority of the Judges of the Full Bench was that the impugned order amounted to an alteration of the Consolidation scheme and the State Government had power under S. 42 of the Act as amended by the East Punjab Holdings (Consolidation and Prevention of Fragmentation) (Second Amendment and Validation) Act (Punjab Act 27 of 1960), to make any change in the Consolidation scheme subject to the requirements of that section. The present appeal is brought by Johrimal against the judgment of the Full Bench of the Punjab High Court.

Court's reasoning:
In our opinion, there is no justification for this argument. Section 42 of the Act as amended by Act 27 of 1960 authorised the State Government to interfere with the scheme of Consolidation or repartition made under the Act. What the amending Act has done is to substitute for the words any order passed by any officer under this Act, the words any order passed, scheme prepared or confirmed or repartition made by any officer under this Act. Section 36 of the Act, on the other hand, authorises the authority confirming a scheme to alter or revoke it and in that case the new scheme must be published, objections heard and decided and the scheme has to be confirmed once again in accordance with the procedure under Ss. 19 and 20 of the Act. In our opinion, the power conferred on the State Government under S. 42 is a separate power independent of S. 36 of the Act which deals with the power of the authority confirming the scheme. There is hence no force in the contention that the scheme of consolidation cannot be varied by the State Government under S. 42 of the Act except in accordance with S. 36 of the Act. The reason for the two different provisions in Ss. 36 and 42 of the Act is also clear for if a scheme is varied or revoked by the authority confirming it, then the new scheme has to be published so that interested parties may object and their objection decided by competent authorities set up under the Act, those decisions being finally appealable to the State Government. But when a scheme is to he varied by the State Government itself under S. 42 of the Act, there is no requirement of the statute that the varied scheme should be published, for the State Government is required to give notice and to give an opportunity to the interested parties to be heard before the variation is made. We are, therefore, of the opinion that the power conferred on the State Government by S. 42 is not controlled by S. 36 and the procedure of publication and hearing objections contemplated by Ss. 19 and 20 of the Act is not necessary. Sections 36 and 42 envisage two different situations and the intention of the Act is to give powers respectively to the Confirming Authority and to the State Government to act under these sections in their discretion in any particular case. We accordingly hold that Mr. Bishen Narain is unable to make good his argument on this aspect of the case.In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It is true that S. 18 (c) confers a power on the Cosolidation Officer to reserve the land of the proprietors for any common purpose including the extension of the village abadi and there is no express limitation in the language of the section to the effect that the land to be taken from the proprietors and other right-holders should be according to the rateable share. But the language of Section 18 (c) should be interpreted in a reasonable manner. The legislature could not have intended that land should be taken from one proprietor only for common purposes. The intention must be that all proprietors should contribute rateably for such purposes. This intention must be that all proprietors should contribute rateably for such purposes. This intention is brought out by R. 16(ii) and this is what S. 18 (c) must be held toa situation of this kind the principle to he applied is clear. The principle is that if two constructions of a statute are possible, one of which would make it intra vires and the other ultra vires, the Court must lean to that construction which would make the operation of the section intra vires. The reason is that no intention can he imputed to the Legislature that it would exceed its own jurisdiction. It is a well established rule that a statute has to be so read so as to make it valid; it has to be construed ut res magis valeat quam pareat. Applying the principle to the present case, it is manifest that S. 18 (c) must be read in a restricted sense and the authority of the Consolidation Officer to reserve land for the common purpose under S. 18 (c) of the Act must be restricted in the manner indicated above, and it must be held that the Consodiation Officer has power under the section to take the land out of the common pool of the village only according to the rateable share from the proprietors and other right-holders for any common purpose including the extension of the village abadi. It is also clear that the power of the State Government to make reservation of land for common purposes under S. 42 is coterminus with the power of the Consolidation Officer under S. 18 (c) and it follows, therefore, that the order of the Director, dated March 8, 1957 is illegal and ultra vires and must be quashed by grant of a writ in the nature of certiorari under Art. 226 of the Constitution.