THE STATE OF HARYANA THROUGH SECRETARY TO GOVERNMENT OF HARYANA versus JAI SINGH & ORS. on 7 April 2022

THE STATE OF HARYANA THROUGHSECRETARY 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) – Constitutionalvalidity of – Held: The Amending Act was enacted and publishedafter obtaining assent of the President of India, thus such Act ispart of the agrarian reform – Therefore, the Amending Act isprotected in terms of Art. 31A of the Constitution – The AmendingAct is valid and does not suffer from any vice of constitutionalinfirmity – 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 shamilatdeh recorded in ownership of Gram Panchayat prior to consolidationwhich vests unequivocally with the commencement of the Punjaband PEPSU Act – No dispute about land falling in the first categoryas held by the High Court in Hukam Singh and subsequently affirmedby Supreme Court in Malwinder Singh as being part of the agrarianreforms.

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 threecategories – Second category being land for common purposesreserved during the process of consolidation by applying pro-ratacut from the holdings of the proprietors, not necessarily falling withinthe permissible ceiling limits under the land ceiling laws – Held:

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ALand falling in the second category was held to be a part of theagrarian reforms protected by Art. 31A of the Constitution by theFull Bench of the Punjab and Haryana High Court in Kishan Singhand Jagat Singh, with the decision in Jagat Singh being subsequentlyaffirmed by the Supreme Court – The land falling in second categoryi.e., land reserved for common purposes, not falling within the ceilingBlimit of the proprietor would vest with Panchayat – The AmendingAct does not acquire land or deprive the proprietors of theirownership as such ownership stood already divested in view ofconsolidation scheme reserving land for common purposes – TheAmending Act is only a clarificatory or a declaratory amendmentCas the land stood vested in the panchayat on the strength of RanjitSingh – Hence, s.2(g)(6) r/w s.4 of the Act, 1961 vests the landreserved for common purposes by applying pro-rata cut in the villagePanchayat.

Land Laws – Punjab Village Common Lands (Regulation) Act,D1961, 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 threecategories – Third category being common purposes land reservedby pro-rata cut within the permissible limits as per the land ceilingElaws, the management and control of which vests with the panchayat– Held: In respect of the third category, the land within the ceilinglimit of the proprietor was pooled for common purposes and wasfound to be part of the agrarian reforms by Division Bench of thePunjab High Court in Ajit Singh – In appeal, a Constitution BenchFof Supreme Court in Ajit Singh held that the proprietor is not entitledto compensation as the title of the proprietor is not being divestedand that management and control alone vests with the panchayat,and thus it was not a case of acquisition of land – Thus, in respectof the land taken from the proprietors from their permissible ceiling

limits, it is the management and control alone which would vest withGthe panchayat – However such vesting of management and controlis irreversible and the land would not revert to the proprietors forredistribution as the common purposes for which land has beencarved out not only include the present requirements but the futurerequirements as well – The Panchayat will not have title over theH

land but as part of management and control, the panchayat is atliberty to put the land for the use for the common purposes – Suchcommon purposes as defined under s.2(bb) of the East PunjabHoldings (Consolidation and Prevention of Fragmentation) Act,1948 are interchangeable and also can be used for any othercommon purposes – Though the land vests with the Panchayat, butsuch land should be utilized only for common purposes for the benefitof village community – Even if any land reserved for commonpurposes is not actually being put to any common purpose, it cannotbe termed as unutilized land (i.e. Bachat land) open for purpose ofrepartition amongst the proprietors – Land reserved for commonpurposes cannot be re-partitioned amongst the proprietors onlybecause at a particular given time, the land so reserved has notbeen put to common use – Since ‘common purpose’ is a dynamicexpression, as it keeps changing due to the change in requirementof the society and the passing times, therefore once the land hasbeen reserved for common purposes, it cannot be reverted to theproprietors for redistribution – East Punjab Holdings (Consolidationand Prevention of Fragmentation) Act, 1948.

Land Laws – Municipalities – Haryana Panchayati Raj Act,1994 – Haryana Municipal Act, 1973 – Whether if whole or part ofthe Panchayat area comes within the municipal limits, and thePanchayat ceases to exist, land would vest with the municipalityand will not revert back to the proprietors – Held, No – s.7(4) of theHaryana Panchayati Raj Act, 1994 is to be read with the provisionsof the 1973 Municipal Act – However, both the statutes hadundergone extensive changes after the insertion of Part IX and IXA in the Constitution empowering the third tier of the democratic setup – The Panchayati Raj Act contemplates vesting of property ofGram Panchayat with the municipality, whereas the Municipal Acttakes into its ambit the properties which were vesting with Panchayat– The 1973 Municipal Act contemplates that even if part of theproperty of Gram Panchayat is included in the Municipal Limits, itwould vest with the municipality – Thus, the word ‘whole’ appearingin s.7(4) of Panchayati Raj Act does include part of the GramPanchayat area coming within the municipal limits – Thus, if thewhole or part of Gram Panchayat area is included in the municipallimits, the land reserved for common purposes as part of agrarian AB

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Areforms would stand vested with the municipality – Such vesting isnot a part of agrarian reforms but shall be on account of extensionof municipal limits – When the municipal limits are extended, theresidents of the Panchayat also became residents of the municipality– The common purposes of the village community prior to extensionof the municipal limits would be deemed to be common purposes forBwhich land can be utilized by the municipality – Therefore, suchvesting of land reserved for common purposes is not an acquisitionfor the first time but transition of the land reserved for commonpurposes in the changed scenario when the land vest with themunicipality – The argument of the proprietors that if whole of theCSabha area merges with the municipality, only then there can bevesting of land reserved for common purposes with the municipalityis untenable – Such an argument would lead to anomalous results –The title, right and interest of the property cannot be held inabeyance – There has to be continued control and managementover the land reserved for common purposes under the 1948 Act –DTherefore, even if a part of Sabha area is merged into themunicipality, the municipality will have control over the land soreserved for the erstwhile village community which will now formpart of the urban area – East Punjab Holdings (Consolidation andPrevention of Fragmentation) Act, 1948.ELand Laws – Haryana Common Purposes Land Eviction andRent Recovery Act, 1985 – Punjab Village Common Lands(Regulation) Act, 1961 – Held: The scope of the provisions underthe 1985 Act and the 1961 Act are different and distinct.

Disposing of the matters, the CourtF

HELD : 1. A reading of the previous judgments and thehistory of the shamilat deh (common land) in the State of Punjab,including State of Haryana, shows that the common land for thepurposes of the present appeals falling in Section 2(g)(1) and (6)of the Punjab Village Common Lands (Regulation) Act, 1961, asGamended by the Amending Act can be broadly classified into threecategories: (i) shamilat deh recorded in the ownership of the GramPanchayat prior to consolidation which vests unequivocally withthe commencement of the Punjab and PEPSU Act. (ii) land forcommon purposes reserved during the process of consolidationHby applying pro-rata cut from the holdings of the proprietors, not necessarily falling within the permissible ceiling limits under theland 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 firstcategory as held by the High Court in Hukam Singh andsubsequently affirmed by this Court in Malwinder Singh as beingpart of the agrarian reforms. [Para 44][941-G]

3.1. The land falling in the second category was held to bea part of the agrarian reforms protected by Article 31A of theConstitution by the Full Bench of the Punjab and Haryana HighCourt in Kishan Singh and Jagat Singh, with the decision in JagatSingh being subsequently affirmed by the Supreme Court. [Para46][942-B-C]

3.2. The land falling in second category i.e., land reservedfor common purposes, not falling within the ceiling limit of theproprietor would vest with Panchayat. The Amending Act doesnot acquire land or deprive the proprietors of their ownership assuch ownership stood already divested in view of consolidationscheme reserving land for common purposes. The Amending Actis only a clarificatory or a declaratory amendment as the landstood vested in the panchayat on the strength of Ranjit Singh.Hence, Section 2(g)(6) read with Section 4 of the Punjab VillageCommon Lands (Regulation) Act, 1961 vests the land reservedfor common purposes by applying pro-rata cut in the villagePanchayat. [Para 48][945-D-F]

4.1. In respect of the third category, the land within theceiling limit of the proprietor was pooled for common purposesand was found to be part of the agrarian reforms by Division Benchof the Punjab High Court in Ajit Singh. In appeal, a ConstitutionBench of this Court held that the proprietor is not entitled tocompensation as the title of the proprietor is not being divestedand that management and control alone vests with the panchayat.It was thus held that it was not a case of acquisition of land. [Paras59 and 61][950-B-C; 952-G-H]

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A4.2. In respect of the land taken from the proprietors fromtheir permissible ceiling limits, it is the management and controlalone which would vest with the panchayat. The management andcontrol include leasing of land and use of the land by non-proprietors, Scheduled Castes and Schedules Tribes etc. whichis for the benefit of the village community. Therefore, vestingBunder Section 4 would be limited to management and control.For the land taken from the proprietors by applying pro-rata cutfrom the permissible ceiling limits of the proprietors, managementand control alone vests with the Panchayat but such vesting ofmanagement and control is irreversible and the land would notCrevert to the proprietors for redistribution as the commonpurposes for which land has been carved out not only include thepresent requirements but the future requirements as well. Suchland would not be available for sale so as to confer title on thepurchaser in view of the fact that the Panchayat is not the fullowner of the land but while exercising control and management,Dit is duty bound to safeguard the land for the benefit of the villagecommunity. [Para 63][955-E-H; 956-A]

4.3. The Panchayat will not have title over the land but aspart of management and control, the panchayat is at liberty to putthe land for the use for the common purposes. Such commonEpurposes as defined under Section 2(bb) of the East PunjabHoldings (Consolidation and Prevention of Fragmentation) Act,1948 are interchangeable and also can be used for any othercommon purposes. Common purposes are ever evolving, theyare not fixed in time. With the change in time and expectations of Fthe village community, common purposes have to be given widermeaning in view of the object of such reservation of land.Therefore, though the panchayat has management and control inrespect of the land which was carved out from the land fallingwithin the ceiling limits, the panchayat would have completecontrol over the said part of the land. The word ‘vesting’ appearingGin Section 4 has to be read down to mean that management andcontrol of such land alone would vest in the panchayat. [Para64][956-B-D]

4.4. Though the land vests with the Panchayat, but suchland should be utilized only for common purposes for the benefitH

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OFHARYANA v. JAI SINGH & ORS.

of village community. Such benefits to the village community isnot limited to traditional benefits of the village community i.e.,land for grazing of cattle, dumping of dead animals, schools andhospitals but also the activities which would be required in future,keeping in view the modernization of the village economy whichwill ultimately for the benefit of the village community. [Para66][956-H; 957-A-B]

4.5. It cannot be said that the land which has been cultivatedby the proprietors on pro-rata cut and which have not beenearmarked for any common purpose, commonly called as Bachatland, shall not vest with the Gram Panchayat. The land reservedfor common purposes was reserved for the requirement of villagecommunity in praesenti and in future. If the land has not been putto use for any common purpose soon after the consolidation and/or thereafter, it cannot be said to be a Bachat land. The landmass is not going to increase but the requirement of the peopleand the expectations of the village community is ever expanding.Therefore, even if any land reserved for common purposes isnot actually being put to any common purpose, it cannot be termedas a Bachat land open for the purpose of repartition amongst theproprietors. [Para 68][957-C-F]

4.6. The land reserved for common purposes cannot be re-partitioned amongst the proprietors only because at a particulargiven time, the land so reserved has not been put to commonuse. Since ‘common purpose’ is a dynamic expression, as it keepschanging due to the change in requirement of the society and thepassing times, therefore once the land has been reserved forcommon purposes, it cannot be reverted to the proprietors forredistribution. [Para 84][967-H; 968-A-B]

5.1. Section 7(4) of the Panchayati Raj Act, 1994 is to beread with the provisions of the Haryana Municipal Act, 1973.However, both the statutes had undergone extensive changesafter the insertion of Part IX and IX A in the Constitutionempowering the third tier of the democratic set up. The PanchayatiRaj Act contemplates vesting of property of Gram Panchayat withthe municipality., whereas the Municipal Act takes into its ambitthe properties which were vesting with Panchayat. The 1973

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AMunicipal Act contemplates that even if part of the property ofGram Panchayat is included in the Municipal Limits, it would vestwith the municipality. Thus, the word ‘whole’ appearing in Section7(4) of Panchayati Raj Act does include part of the Gram Panchayatarea coming within the municipal limits. [Para 103][980-G; 981-A-B;]B

5.2. If the whole or part of Gram Panchayat area is included in the municipal limits, the land reserved for common purposesas part of agrarian reforms would stand vested with themunicipality. Such vesting is not a part of agrarian reforms butshall be on account of extension of municipal limits. When theCmunicipal limits are extended, the residents of the Panchayat alsobecame residents of the municipality. The common purposes ofthe village community prior to extension of the municipal limitswould be deemed to be common purposes for which land can beutilized by the municipality. Therefore, such vesting of landDreserved for common purposes is not an acquisition for the firsttime but transition of the land reserved for common purposes inthe 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 theESabha area merges with the municipality, only then there can bevesting of land reserved for common purposes with themunicipality is untenable. Such an argument would lead toanomalous results. The title, right and interest of the propertycannot be held in abeyance. There has to be continued controland management over the land reserved for common purposesFunder the East Punjab Holdings (Consolidation and Preventionof Fragmentation) Act, 1948. Therefore, even if a part of Sabhaarea is merged into the municipality, the municipality will havecontrol over the land so reserved for the erstwhile villagecommunity which will now form part of the urban area. [ParaG105][981-E-F]

5.4. In respect of the land forming part of permissible limitsof the proprietor under the land ceiling laws, the managementand control vest with the Panchayat. Neither the Punjab VillageCommon Lands (Regulation) Act, 1961 nor the 1948 ActHcontemplates redistribution of land to the proprietors. It is an irrevocable act which cannot be undone. Therefore, once landvest with the Panchayat, it can be used for common purposes ofthe community and will never revert back to the proprietors.[Para 106][982-A-C]

6. The scope of the two provisions under the HaryanaCommon Purposes Land Eviction and Rent Recovery Act, 1985and the 1961 Act are different and distinct. Under the 1985 Act,the Gram Panchayat could seek eviction from unauthorizedoccupants, the management and control as of the land reservedfor common purposes whereof vested in the Gram Panchayat in asummary way where the possession of the occupant wasunauthorized. But if there is dispute in respect of the nature ofoccupation by the occupant or by the panchayat, procedure underthe 1961 Act alone can be resorted to as Section 13A of the 1961Act confers power upon the Collector to decide the question ofright, title or interest in any land or immoveable property vestedor deemed to have been vested in the panchayat. Therefore, incase of a dispute about the right, title or interest in any land foror on behalf of any person, the remedy under the 1961 Act alonecan be exercised. This will include right, title or interest in allthe three categories of land i.e., shamilat deh owned by panchayat,shamilat land vested in terms of 1948 Act falling in second categoryand the land, the management and control whereof is vested withthe panchayat, land being within the permissible limits of theproprietor, the management and control of which vest with thepanchayat. [Para 107][982-C-F]

7. Haryana Act No. 9 of 1992, the Amending Act is validand does not suffer from any vice of constitutional infirmity. Theentire land reserved for common purposes by applying pro-ratacut had to be utilized by the Gram Panchayat for the present andfuture needs of the village community and no part of the land canbe 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. Statesof 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 ofHaryana v. Karnal Co-op. Farmers’ Society Limited(1993) 2 SCC 363 : [1993] 2 SCR 193; GramPanchayat of Village Jamalpur v. Malwinder Singh,(1985) 3 SCC 661 : [1985] 2 Suppl. SCR 28; SukhdevSingh v. Gram Sabha Bari khad (1977) 2 SCC 518: [1977] 2 SCR 862; Mahant Sankarshan RamanujaDas Goswami, etc. v. State of Orissa and another AIR1967 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. ShanmugavelNadar v. State of T.N. (2002) 8 SCC 361 : [2002]2 Suppl. SCR 498; Kaikhosrou (Chick) Kavasji Framjiv. 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 1958SC 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. TheState of Punjab & Ors. AIR 1961 P&H 1; Jagat Singh& Ors. v. The State of Punjab & Ors. AIR 1962 P&H221 (FB); Jit Singh v. The State of Punjab & Ors. AIR1964 P&H 419 (FB); Suraj Bhan & Ors. v. State ofHaryana & Anr ; (2017) 2 Punjab Law Reporter 605;Hukam Singh v. State of Punjab AIR 1955 P&H 220;Parkash Singh & Ors. v. Joint DevelopmentCommissioner, Punjab & Ors. 2013 SCC OnLine P&H26809; Parkash Singh & Ors. v. Joint Development THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OFHARYANA v. JAI SINGH & ORS.

Commissioner, Punjab & Ors. 2013 SCC OnLine P&H26809; Gurdial Singh v. State of Haryana 1979 PLJ350; Bagga Singh v. The Commissioner, FerozepurDivision, Ferozepur (1984) SCC OnLine P&H 384;Gram Panchayat, Gunia Majri v. Director,Consolidation of Holdings & Ors (1990) SCC OnLineP&H 823; Baj Singh v. State of Punjab (1992) 1 PLR10; Gram Panchayat, Village Bhedpura v. AdditionalDirector, Consolidation, Punjab (1997) 1 PLR 391;Gurjant Singh v. Commissioner, Ferozepore Division(2000) SCC OnLine P&H 56; Balwant Singh v. Stateof Punjab (1992) SCC OnLine P&H 570; RajenderParshad & Ors. v. State of Haryana & Ors. AIR 1980P&H 37; State of Punjab v. S. Kehar Singh AIR 1959P&H 8; 1958 SCC Online Punj 89; M/s. Hari RamParas Ram v. State of Haryana ILR (1982) 1 Punjaband Haryana 317 – referred to.

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Case Law Reference

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[2022] 10 S.C.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.6990Bof 2014.From the Judgment and Order dated 13.03.2003 of the High Courtof Punjab and Haryana at Chandigarh in C.W.P. No.5877 of 1992.

WithC

Civil Appeal Nos.6610-6612 of 2016, Civil Appeal Nos.6992, 6991,6997 And 7001 of 2014, Civil Appeal No.4435 of 2015, Civil AppealNos.1679, 1678, 1675, 1677 And 1680 of 2022.

Anil Grover, B. K. Satija, Ajay Bansal, AAGs, Pradeep Kant,DManoj Swarup, Neeraj Kumar Jain, Devadatt Kamat, Sr. Advs., RajeshKumar Singh, Gautam Sharma, Gagan Gupta, Satish Kumar, SanjayKumar 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.ENayak, 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,FVinay Kumar, Sandeep Singh, Vikrant Y. S. Narula, Dhruv Shukla, SahilGarg Narwana, Sanjeev Chauhan, Pritesh Bhardwaj, Arpit Yadav, RobinKhokhar, Bijender Singh Chudhery, Hitesh Kumar Sharma, AkhileswarJha, Ms. Madhu Koshla, Ms. Manju Jetley, Gaurav Yadava, Ms. VeenaBansal, D. K. Sharma, Daya Krishan Sharma, Ms. Jasleen Kaur, RaviKetan Bhardwaj, Anubha Agrawal, Rajiv Mangla, Pradeep K. Kaushik,GAman 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; CIVILAPPEAL NO. 6991 OF 2014; CIVIL APPEAL NO. 6997 OF 2014;CIVIL APPEAL NO. 7001 OF 2014; CIVIL APPEAL NO. 4435OF 2015; CIVIL APPEAL NO. 1675 OF 2022 AND CIVILAPPEAL NO. 1677 OF 2022

1. The subject matter of challenge in the present appeals is theamendments in the Punjab Village Common Lands (Regulation) Act,1961[1], as inserted by Haryana Act No. 9/1992[2], published on 11.2.1992after the assent of the President of India.

2. The amendments carried out by the Amending Act came upfor consideration before the Full Bench of Punjab and Haryana HighCourt in a judgment reported as Jai Singh & Ors. v. State of Haryana[3].The High Court struck down the amendments introduced and held asunder:

“In view of the observations cited above, Sections 2(g)(4) and2(g)(6) of the Act of 1961 describes the land reserved for commonpurposes under Consolidation of Holdings Act, 1948 by applicationor pro rata cut to the holdings of the land owners within theirceiling limits as Shamlat Deh under the Act of 1961 and sincethese lands have been vested in the Panchayat the action is inviolation of Article 31-A. Since definitions by Section 2(g)(4) and2(g)(6) are so intermingled that no part can be segregated andheld ultravires and these sections having categoricallytransgressed the powers of the State for acquisition of land withoutcompensation, these provisions can not stand the test ofconstitutionality. It is immaterial that the transgression is open,direct or overt, disguised covert and indirect. It is a piece ofcolourable legislation. Violation of Article 31-A is so manifest thatit leaves no manner of doubt. I am of the considered view thatSections 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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Aissued restraining the State of Haryana from enforcing theprovisions 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 on6.8.1998 and the following order was passed:

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“We have made a through search in the judgment under appeal inorder to discover whether any finding was recorded by the HighCourt that the land sought to be affected by the legislative measureunder challenge was within the celling limit of each of therespective proprietors and was in each’s personal cultivation, beCit factually or legally. That there is no such finding is conceded toby the learned counsel for the parties. Unless such finding wasrecorded, in clear terms, the legislative measure could not havebeen struck down on the anvil of Article 31A of the Constitution.In this view of the matter, we would rather have a completedecision from the High Court on the subject and, therefore,Dnecessarily, have to effect a remand to it; other questions notbeing adverted to and leaving those questions to the High Court tobe re-affirmed or otherwise”.

As a result, we allow this appeal, set aside the impugned judgmentof the High Court and remit the matter back to it for re-decisionEof the question focussed as also others as indicated above”.

4. It is thereafter, the Full Bench of Punjab and Haryana HighCourt in Jai Singh and Ors. v. State of Haryana[4] examined the legalityof sub-section 6 of Section 2(g) of the 1961 Act. The above-mentionedappeals are directed against such order and the order dated 08.11.2013Fpassed by the Full Bench dismissing the review application against thesaid 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-Gxxxxxxxxx (g) shamilat deh” includes xxxxxxxxx 4 2003 SCC Online P&H 409 (For short, ‘Jai Singh II’)

H5 RA -CW No. 350 of 1999 decided on 8.11.2013

(6) lands reserved for the common purposes of a village underSection 18 of the East Punjab Holdings (Consolidation andPrevention of Fragmentation) Act, 1948 (East Punjab Act 50 of1948), the management and control whereof vest in the GramPanchayat under Section 23-A of the aforesaid Act.

Explanation- Lands entered in the column of ownership of recordof rights as ‘Jumla Malkan Wa Digar Haqdaran Arazi HassabRasad, ‘Jumla Malkan’ or ‘Mushtarka Malkan’ shall be ShamilatDeh within the meaning of this Section.”

6. The Statement of Objects and Reasons for the Bill introducedon 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 andbeneficial to the interests of the Gram Panchayats it is necessaryto amend the Punjab Village Common Lands (Regulation) Act,1961.”

7. Customary Law by Sir W.H. Rattigan (Sixteenth Edition revisedby Dr. Hari Dev Kohli) was first published in the year 1880. It is acelebrated reference book, which explained the origin of Shamilat law inPunjab in Chapter X of the book that the land is the true basis of unity invillages, supplying the ultimate real bond of union between the memberswho constitute the aggregate proprietary body generally called the “villagecommunity”. It was elaborated as under:-

“That land is the true basis of unity in village groupings, supplyingthe ultimate real bond of union between the members whoconstitute the aggregate proprietary body generally called the“village community”, is a fact which may be verified by the mostsuperficial observer of the organization which underlies thosecommunities in the Punjab. Thus, whatever may be the type towhich a particular village may belong, and to whatever extentindividualistic notions of property may have superseded the earlierideas of jointness and common holdings, there will be found stillsurviving very distinct evidence of the fact that in its origin thevillage association was bound together by the acquisition of adefinite space of land, which, as Sir Henry Maine has so abundantlydemonstrated, began at once to become the basis of its capacityinstead of kinship, ever more and more vaguely conceived. This A

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Aevidence is to be found in the reservation within the territoriallimits of every village of some portions of the uncultivated wastefor purposes of common pasture, for assemblies of the people,for the tethering of the village cattle, and for the possible extensionof the village dwellings. Lands so reserved are jealously guardedas the common property of the original body of settlers whoBfounded the village or of their descendants, and occasionally alsothose who assisted the settlers in clearing the waste and bringingit under cultivation are recognised as having a share in thesereserved plots. xxxx xxxx and Finally, a modified and consolidatedPunjab Village Common Land Regulation Act, 1961 came in theCstatute book which vests the village common land in the GramPanchayats without putting any constraints on the rights of thevillage folks to use the village common land. It is only the ownershipwhich is vested in the Gram Panchayats along with its managementand power of alienation and thus superseding the village proprietarybody….”D

8. The East Punjab Holdings (Consolidation and Prevention ofFragmentation) Act, 1948[6] was enacted to provide for compulsoryconsolidation of agricultural holdings and for preventing theirfragmentation. The expression “common purpose” defined under Section2(bb) to mean “any purpose in relation to any common need, convenienceEor benefit of village” was inserted by Punjab Act No. 22 of 1954 withretrospective effect. The scope of such expression came up forconsideration before the Full Bench of Punjab and Haryana High Courtin 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 notFleft with even a single right which may be included among the attributesof 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 itsambit wider programme, with a view to bring about social equality by taking away from individual proprietors their lands and giving them toGnon-proprietors, or handing them over to the Panchayat for purposes ofmanagement for any ‘common purpose’. The amendment carried outwas 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’7AIR 1960 P&H 317 (FB)H8 AIR 1961 P&H 1

upheld by the Full Bench of Punjab High Court in a judgment reportedas Kishan Singh & Anr. v. The State of Punjab & Ors.[8].

9. The correctness of the decision of Full Bench in Kishan Singhwas doubted in view of the judgment reported as KavalapparaKottarathil Kochuni v. States of Madras and Kerala[9]. The matterwas considered by a larger Full Bench of five judges in a judgmentreported as Jagat Singh & Ors. v. The State of Punjab & Ors.[10 ]Thequestion examined therein was as to whether it was permissible to keepaside land owned by private individuals for providing income to the GramPanchayat. It was held that the 1948 Act was a measure designed topromote agrarian reforms and therefore, not ultra vires the Constitution.The judgment in Jagat Singh came up for consideration in Ranjit Singhv. State of Punjab[11] wherein the judgment of the High Court was notinterfered with.

10. In Ajit Singh v. State of Punjab[12], an argument was raisedbefore the Division Bench that the proprietor (land owner) was a smalllandholder within the meaning of the Punjab Security of Land TenuresAct, 1953, and that, therefore, no part of his holding could be acquiredwithout payment of compensation at the market value. The High Courtdismissed the petition. Such judgment came up for consideration beforea Constitution Bench of this Court in a judgment reported as Ajit Singhv. State of Punjab & Anr.[13]. The Court considered Rule 16(ii) of thePunjab Holdings (Consolidation and Prevention of Fragmentation) Rules,1949[14] to hold that the title vests in the proprietary body, the managementof the land is done on behalf of the proprietary body by the Panchayatfor common needs and purposes and for the benefit of estate or estatesconcerned. Hence, the beneficiary of the modification of rights was notthe State.

11. At this stage, it may be noted that a Full Bench of Punjab in ajudgment reported as Jit Singh v. The State of Punjab & Ors.[15],considered the Punjab Act No. 39 of 1963 amending the 1948 Act. Itwas held that reservation of land for income of the Gram Panchayat9 AIR 1960 SC 108010 AIR 1962 P&H 221 (FB)11 AIR 1965 SC 63212 ILR (1966) 1 Punjab 82813 AIR 1967 SC 85614 1949 Rules15 AIR 1964 P&H 419 (FB)

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Aunder the 1948 Act and for extension of the abadi of the non-proprietorsincluding 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 Courtheld that reservation of land for the income of panchayat is notpermissible, being hit by second proviso to Article 31A of the Constitution.BThe question considered in the context of said clause (ii) of Section 2(bb) was as to whether the reservation of land for income of thePanchayat was an acquisition of land by the State within the secondproviso to Article 31A of the Constitution. It was held by the majorityjudgment that the said provision was hit by the second proviso to ArticleC31A of the Constitution. The State was accordingly directed to modifythe consolidation scheme and bring it into accord with the majorityjudgment. There is no dispute about the said proposition in the presentappeals.

12. In Atma Ram v. State of Punjab[17], the constitutionality of theDPunjab Security of Land Tenure Act, 1953 as amended by Punjab ActNo. 11 of 1955 was in question. The Constitution Bench examined Article31A. It was held that in Punjab there are very few estates as defined inSection 3(1) of the Punjab Land Revenue Act, 1887 in the sense thatone single landowner is seized and possessed of an entire estate whichis equated with a whole village. In Punjab, an estate and a village areEinter-changeable terms, and almost all villages are owned in parcels, asholdings by co-sharers, most likely, descendants of the holder of a wholevillage which came to be divided amongst the co-sharers, as a result ofdevolution of interest. This Court also noticed that holdings in Punjab arevertical divisions of an estate whereas in Eastern India, they represent aFhorizontal division. The writ petitions were dismissed holding that theprovisions of Article 31A save the Act from any attack based on theprovisions of Articles 14,19 and 31 of the Constitution.

13. The Five Judges Full Bench in Suraj Bhan & Ors. v. State ofHaryana & Anr.[18 ]has given the historical background of the shamilatGdeh lands in the State of Punjab, including the present-day State ofHaryana. The history of shamilat law as delineated in the said judgmentis quoted hereinunder for better understanding of the subject in the present 16 AIR 1967 SC 92717 AIR 1959 SC 51918 MANU/PH/3354/2016; (2017) 2 Punjab Law Reporter 605H

appeals. The words commonly used in this judgment are not common inuse, therefore, the Glossary of the words with their meaning is appendedat the foot of this judgment.

14. The shamilat deh lands in Punjab and Haryana are the commonlands in the villages reserved and utilized for common purposes byinhabitants of the villages. These were kept as such at the time whenthe villages were formed or consolidated and the land was colonized. Inmany cases, land was contributed by the landowners or the villageproprietary body from their own landholdings for common purposes.Villages were formed by cultivating the barren, uncultivated, waste, orfallow land, which are known as ‘banjar qadim’ or ‘banjar jadid’(barren land since long or recent). The agricultural tribes which cultivatedsuch land and made it cultivable were the original landowners. Agriculturalland owned by a proprietor in his own right was a ‘holding’ of the landand was recorded as such in the revenue records as ‘khewat’ and theowners were known and recorded as ‘khewatdars’. A khewatdar orlandowner may hold the entire khewat or have a share in it. Thekhewatdars were collectively treated as owners of the land in a village(‘malkan deh’). The shamilat lands were enjoyed collectively by thekhewatdars and also by the other inhabitants of the village. These rightsfind mention in the Village Land Administration Papers known as ‘SharatWajib-ul Arz’.

15. The proprietors of land in an estate had a right of ownership inthe shamilat deh lands, mostly to the extent of the share of their holdingsin the revenue estate. Various revenue terms were used for describingand indicating the extent of ownership rights and share of the proprietors.The non-proprietors including labourers, artisans, etc., as also thoseresponsible for collecting the land revenue (‘mal guzars’) were entitledto the use of the common lands of the village i.e., shamilat deh lands.

16. The shamilat lands are recorded in the revenue records byvarious nomenclatures such as shamilat deh, as also shamilat tikkas,besides shamilat tarrafs, pattis, pannas and tholas. The said lands arerecorded as such in the revenue records for the common use of theinhabitants of the village or for the common use of a particular subdividedclass of the village like ‘tikkas’, ‘tarrafs’, ‘pattis’, ‘pannas’ and ‘tholas’etc. These types of lands, however, were not without ownership orproprietary rights of the owner or ‘khewatdar’. Such ownership wasand had been collective in nature and not exclusive. The lands recorded AB

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Aand described with different aforementioned nomenclatures would vestaccordingly in the ‘tarraf’, ‘patti’, ‘panna’ or ‘thola’ etc. which is inthe form of a unit or a class in the village. The proprietary body of thevillage managed the day-to-day affairs of the inhabitants of the villageand also generated income for common use and kept lands for commonuse for its inhabitants.B

17. The British Government in India had undertaken the task ofland settlements. The most important aspect of land settlement was toformulate a ‘record of rights’ commonly known as ‘fard’, which is adetailed register of land in the form in which they were believed to havebeen in existence at the time of annexation of Punjab by the British inC1849. These settlements were carried out by Settlement Officers whoseduty was to prepare the ‘record of rights’. The records were preparedprimarily for fiscal purposes; however, these assume a judicial character,specifically with reference to the proprietorship or ownership. Therecords prepared in the past during settlements play an important role inDdetermining 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 ofSettlement Policy in Punjab, which then included the State of Haryanaas well. In these settlements, various areas and regions of the StatesEwere demarcated. The Punjab Land Revenue Act, 1887 was enactedand is now applicable in the States of Punjab and Haryana withmodifications by the respective States. The Settlement Manual by SirDouie makes a mention of the ‘village community’ as a body of proprietorswho then or formerly owned part of the village lands in common, andwho were jointly responsible for the payment of revenue.[20] As timeFpassed by, it has been mentioned that the tendency was for the area heldin severalty to increase, but it was rare indeed to find a village whichwas one of the communal types in which there was no common propertyremaining. Joint responsibility had been made a permanent feature ofvillage tenure by the British Government. Under the native rule, it didGnot exist when the State realized its dues by division of crops or byappraisement. Even when a cash assessment was made, only a fewleading members of the community became responsible and theygenerally occupied the position of revenue farmers in their dealings with 19 For short, ‘Settlement Manual’ printed by the Controller of Printing & StationeryDepartment, Haryana, 2013.H20 Para 126 of the Settlement Manual the rest of the brotherhood. But joint responsibility occupied a far moreprominent position in the codes than in practice. There was reluctanceof the village proprietary body to admit strangers. The admission ofstrangers into the brotherhood was always in theory at least, a thing tobe guarded against, and village customs in the matter of inheritance andpreemption were founded on this feeling.[21] But under the native rule, therepugnance to admit strangers often yielded to the pressure of theGovernment demand, and outsiders were allowed to share in rights thathad become burdens. The almost complete freedom of transfer for longenjoyed in practice under the British Rule had a still more disintegratingeffect 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 villagesoften consisted of several divisions known by various names such as‘tarraf’, ‘patti’ (where the term ‘tarraf’ is used for main divisions, thesub-divisions are sometimes called ‘pattis’) or ‘panna’ and these againsometimes divided into smaller sections like ‘thoks’, ‘thulas’ etc. Thelands 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) orintermixed (‘khetbat’ i.e., applicable to a ‘patti’ or subdivision of anestate, the land of which do not lie in a single block) and the proprietorsof a ‘patti’ may have common lands of their own and also a share in thegeneral village common land.

20. The Settlement Manual deals with the residents in the villagecommunity who were not proprietors.[23] The village community of thecommunal type was to a considerable extent self-sufficing. Thelandowners included “a nearly complete establishment of occupationsand trades for enabling them to continue to their collective life withoutassistance from any person or body external to them.”[24]

21. The constitutional validity of certain provisions of the PunjabVillage Common Lands (Regulation) Act, 1953[25]came up forconsideration before the Punjab and Haryana High Court in a judgmentreported as Hukam Singh v. State of Punjab[26]. 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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Aexamined Article 31(2) and Article 31A, keeping in view the fact thatthe Punjab Act was reserved for consideration of the President and hadreceived his assent, it was held that the term “extinguishment” appearingin Article 31 of the Constitution does not mean total abolition of rightsknown to law. Further argument was that the Act does not provide forextinguishment or modification of any right in any estate, therefore, theBshamilat deh in a village would not be an estate and the extinguishmentor modification of any right in such part of an estate would not be coveredby 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 totalCabolition of the rights of ownership of landed property, for instance,would be constitutional as it would, according to him, fall underArticle 31-A, but if the right of ownership of a person or a groupof persons is merely extinguished qua those persons and the sameright is vested in some other person that would not fall within theDArticle. I find it impossible to agree that the expression“extinguishment” has been used in Article 31-A of the Constitutionin the special sense suggested by the learned counsel. It issignificant that Article 31-A speaks of acquisition by the State ofany estate or of any rights in an estate and then speaks of theextinguishment or modification of any rights in an estate and I canEfind no ground for thinking that if a person’s rights in an estatehave been taken away from him and given to another person thiswould not be extinguishing those rights. In my opinion, therefore,the impugned Act does fall within the meaning of Article 31-A ofthe Constitution as it provides for the extinguishment of certainFrights in certain property belonging to the village proprietors andalso for the modification of those rights.

…Once again, I am unable to agree. There are in an estate severalkinds of rights owned by various persons and one of such rights isthe right of proprietorship in the village shamilat and when,Gtherefore, the impugned Act provides for the extinguishment ofsuch ownership rights it clearly provides for the extinguishmentor modification of certain rights in an estate. Mr. Tek Chand’sargument that a part of an estate is not an estate appears to havebeen raised before a Full Bench of this Court in connection withthe validity of another statute and it was on that occasion repelled H

by the Full Bench. Khosla, J. who delivered the main judgment inthat case, Bhagirath Ram Chand v. State of Punjab and others [A.I.R. 1954 Punj. 167] , observed in connection with thisargument—

“It is clear that the whole includes the part and where an Actprovides for rights in an estate it provides for rights in part ofan estate.”

We are, in my opinion, bound by the view of the Full Bench soclearly expressed in this respect.”

22. In State of Haryana v. Karnal Co-op. Farmers’ SocietyLimited[27], it was held that the Punjab Act and the Pepsu Village CommonLands (Regulation) Act, 1954[28] are two legislative measures enacted bythe respective States of Punjab and Pepsu to vest the common lands ofvillages in their Panchayats for the common benefit and advantage ofthe whole community of the village. It was held as under:

“3. Villages in pre-independent rural India having village commonor communal lands meant for use by the whole village communitywas their common redeeming feature, in that, the inhabitants ofthe villages whose occupation was predominantly agriculturedependent on their live-stock needed to give manure to their lands,to cart manure to their lands, to plough their lands to carry onseveral other incidental agricultural operations, required commonlands for using as pasturages, pools, ponds, thrashing-floors,cowdung pits, hay stack areas, tethering areas and the like. Villagesin the States of Punjab and Pepsu were of no exception. With thedawn of independence and rise in land value even in villages,powerful and greedy inhabitants in villages became grabbers ofVillage common lands depriving their use to the village community.Some of the States which were enabled by the Constitution ofIndia to organise village Panchayats as units of Self Governmentand encourage growth of agriculture and animal husbandry invillages by suitable legislative measures took prompt steps tolegislate on common lands of the village, so as to restore suchlands for communal use and common benefit of all the inhabitantsof 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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APunjab Village Common Lands (Regulation) Act, 1953 and PepsuVillage Common Lands (Regulation) Act, 1954 are two legislativemeasures enacted by the respective States of Punjab and Pepsuto vest the common lands of villages in their Panchayats forcommon benefit and advantage of the whole community of thevillage concerned. When under the States Reorganisation Act,B1956 Pepsu State merged in Punjab State, the said Pepsu Actcontinued to operate in the area of erstwhile Pepsu. When theoperation of two legislative measures in the new Punjab State,which were in some respects not common, was found to beundesirable, the State of Punjab enacted the Village CommonCLands (Regulation) Act, 1961 referred to by us already as ‘principalAct’ and made it operative in the whole territory of Punjab State,with effect from 4th day of May, 1961. By the principal Act thetwo earlier Acts which had covered the field till then were repealed,as well. The principal Act, as stated in its preamble, sought by itsprovisions to consolidate and amend the law regulating the rightsDin village common lands popularly and colloquially known as‘shamilat deh’ and ‘abadi-deh’. As ‘shamilat deh’ was not definedin the repealed Acts adverted to and there prevailed uncertaintyas to its nature, the principal Act defined ‘shamilat deh’ in Section2(g) thereof in an endeavour to achieve certainty, …..”E23. The nature of shamilat deh lands or village common landswas examined by a Constitution Bench in Gram Panchayat of VillageJamalpur v. Malwinder Singh,[29]. It was observed that prior to thepartition of India, shamilat deh lands in Punjab were owned byproprietors of other lands in the village, “Hasab Rasad Khewat”, that is Fto 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 proprietaryrights or interest in the shamilat deh lands. But since the interest of theproprietors of other lands in shamilat deh lands was incidental to theirproprietary interests in those other lands, such interest in the shamilat was not a mere appendage to their interest in the other lands. A referenceGwas 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 purposesof common pasture, assemblies of people, the tethering of the villagecattle, and the possible extension of the village dwellings’. The lands soH29 (1985) 3 SCC 661

reserved were zealously guarded as the common property of the originalbody of settlers who founded the village or their descendants, andoccasionally also those who assisted the settlers in clearing the wasteand bringing it under cultivation were recognized as having a share inthese reserved plots. It was further noticed, ‘even in villages which haveadopted separate ownership as to the cultivated area, some of suchplots are usually reserved as village common, and in pattidar villages, itis not unusual to find certain portions of the waste reserved for thecommon use of the proprietors of each patti, and other portions forcommon village purposes. The former is designated as Shamlat-pattiand the latter Shamlat deh’. It was said, ‘as a general rule, onlyproprietors of the village (malikan-deh) as distinguished from proprietorsof their own holdings (malikan makbuza khud) are entitled to share inthe “shamilat deh”’. This Court held that Punjab Act was a measure ofagrarian reforms protected by Article 31A of the Constitution, holding asunder:

“12. The Punjab Act of 1953 was reserved for consideration ofthe President and received his assent on December 26, 1953.Prima facie, by reason of the assent of the President the PunjabAct would prevail in the State of Punjab over the Act of theParliament and the Panchayats would be at liberty to deal withthe 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 factthat the Punjab Act was reserved for the assent of the President,though for the specific and limited purpose of Articles 31and 31Aof the Constitution. Article 31, which was deleted by theConstitution (forty-fourth Amendment) Act, 1978 provided forcompulsory acquisition of property. Clause (3) of that Articleprovided that, no law referred to in clause (2), made by theLegislature of a State shall have effect unless such law, havingbeen reserved for the consideration of the President, has receivedhis assent. Article 31-A confers protection upon laws falling withinclauses (a) to (e) of that Article, provided that such laws, if madeby 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 inShamlat-deh lands and vested those lands in the Village A

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APanchayats 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 Actvested in the Gram Panchayat of the village. The vesting of shamilatland in a village panchayat brought about a paradigm shift in the ownershipBof rights in ‘shamilat deh’. The proprietary rights of the proprietarybody of the village in shamilat land were extinguished by a statutorydeclaration. The proprietary and possessory rights of proprietors andnon-proprietors in shamilat deh were to henceforth vest in a GramPanchayat and used for common purposes of the entire village community,under the aegis of the Gram Panchayat. The shamilat deh lands asCdefined under Section 2 (g) of the 1961 Act now vest completely, that is,with ownership and title, in the Panchayat of the village concerned. Thevesting of the shamilat deh lands or the village common lands in thePanchayat has been for agrarian reforms and such vesting is protectedby Article 31A of the Constitution.D25. The other form of common land in the village is the landdescribed as ‘jumla mustarka malkan wa digar haqdaran arzi hasabrasad raqba’,referring to joint holding of the proprietary body and otherright holders as per the share in the land according to their holdings.These had come into effect with the enactment of the 1948 Act, whichEwas an act to provide for compulsory consolidation of agricultural holdings,preventing fragmentation of agricultural holdings and for assignment orreservation of land for common purposes in the villages.

26. The ‘common purpose’ is defined in Section 2 (bb), Section18 and Section 23A of the 1948 Act as follows:F“(bb) “Common purpose” means any purpose in relation to anycommon need, convenience or benefit of the village]; and includesthe following purposes: -

(i) extension of the village Abadi; [30][-].

[(ii)providing income for the Panchayat of the village concernedGfor the benefit of the village community].

31[(iii) village roads and paths; village drains, village wells; pondsor tanks; village watercourses or water channels; village 30 The word “and” omitted by Punjab Act 39 of 1963 and shall be deemed always tohave been omitted.H31 Inserted by Punjab Act 39 of 1963.

bus stands and waiting places; manure pits; hada rori; publiclatrines; 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 andinstitutions of like nature, water-works or tube-wells whethersuch schools, playgrounds, dispensaries, hospitals institutions,water-works or tube-wells may be managed and controlledby the State Government or not.]

18. Land reserved for common purposes. - Notwithstandinganything contained in any law for the time being in force, it shallbe lawful for the Consolidation Officer to direct - (a)that any land specifically assigned for any commonpurpose shall cease to be so assigned and to assign anyother land in its place; (b)that any land under the bed of a stream or torrent flowingthrough 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 reservedfor any common purpose including extension of thevillage abadi, or if the land so reserved is inadequate, toassign other land for such purpose.

32[23A Management and control of lands for common purposesto vest in Panchayats or State Government. –

As soon as a scheme comes into force the management andcontrol of all lands assigned or reserved for common purposes ofthe 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 themanagement and control are to be exercised by the StateGovernment, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in thePanchayat of that village; and the State Government or the Panchayat, as the case may be,shall be entitled to appropriate the income accruing therefrom forthe benefit of the village community, and the rights and interests A

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Provided that in the case of land assigned or reserved for theextension of village abadi or manure pits for the proprietors andnon-proprietors of the village, such land shall vest in the proprietorsBand non-proprietors to whom it is given under the scheme ofConsolidation.]”

27. The consolidation operations are carried out in terms of the1949 Rules. A consolidation scheme is prepared under Rule 4 and areafor the common purpose is to be provided for under Rule 16(ii) of theC1949 Rules, which reads as under: -“Rule 16(i) XX XX XX

16(ii) In an estate or estates where during Consolidationproceedings there is no Shamlat Deh land or such land is consideredinadequate, “land shall be reserved for the village Panchayat andDfor other common purposes”, under section 18(c) of the Act, outof the common pool of the village 3 [at the scale given in theschedule to these rules]. Proprietary rights in respect of land soreserved (except the area reserved for the extension of abadi ofthe proprietors and non-proprietors) shall vest in the proprietarybody of estate or estates concerned and it shall be entered in theEcolumn of ownership of records rights as (Jumla Malkan wa DigarHaqdarana Arazi Hasab Rasad Raqba). The management of suchland shall be done by the Panchayat of the estate or estatesconcerned on behalf of the village proprietary body and thePanchayat shall have the right to utilize the income derived fromFthe land so reserved for the common needs and benefit of theestate or estates concerned.]”

28. The two enactments – Punjab Act and the Pepsu Act referredto above were enacted with the assent of the President of India to meetthe immediate requirement during the consolidation operations as theGholding of proprietors to the extent of their share was being added to theshare of the proprietors. Thereafter, the 1961 Act was enacted with theassent of the President of India to grant inclusive definition to shamilatdeh. The Act as wasoriginally enacted reads as under:

“2. In this Act, unless the context otherwise requires- H

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(g) ‘shamilat deh’ includes-

(1) lands described in the revenue records as shamilat dehexcluding abadi deh;

(2) shamilat tikkas;

(3) lands described in the revenue records as shamilat, tarafs,patties, pannas and tholas and used accordingly to revenue recordsfor the benefit of the village community or a part thereof or forcommon purposes of the village;

(4) lands used or reserved for the benefit of village communityincluding streets, lanes, playgrounds, schools, drinking wells orponds within abadi deh or gorah deh; and

(5) lands in any village described as banjar Qadim and used forcommon purposes of the village according to revenue records; Provided that shamilat deh at least to the extent of twenty-fiveper centum of the total area of the village does not exist in thevillage; but does not include land which-

(i) xxxxxxxxx

3. (1) This Act shall apply, and before the commencement of thisAct, the shamilat law shall be deemed always to have applied, toall lands which are shamilat deh as defined in clause (g) of section2.

(2) Notwithstanding anything contained in sub-section (1) or section4, where any land has vested in a panchayat under the shamilatlaw but such land has been excluded from shamilat deh as definedin clause (g) of section 2, all rights, title and interest of thePanchayat in such land shall, as from the commencement of thisAct, cease and such rights, title and interest shall be revested inthe person or persons in whom they vested immediately beforethe commencement of the shamilat law and the panchayat shalldeliver possession of such land to such person or persons:

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utilised for any of its purposes, the rights, title and interest of thepanchayat in such land shall not so cease but the panchayat shall,notwithstanding anything contained in section 10, pay to the personor persons entitled to such land compensation to be determined inaccordance with such principles and in such manner as may beprescribed.

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4. (1) Notwithstanding anything to the contrary contained in anyother law for the time being in force or in any agreement,instrument, custom or usage or any decree or order of any courtor other authority, all rights, title and interests whatever in theland,- C

(a) which is included in the shamilat deh of any village andwhich has not vested in a panchayat under the shamilatlaw shall, at the commencement of this Act, vest in apanchayat constituted for such village, and, where no suchpanchayat has been constituted for such village, vest theDpanchayat on such date as a panchayat having jurisdictionover that village is constituted; (b) which is situated within or outside the abadi deh of avillage and which is under the house owned by a non-proprietor, shall on the commencement of the shamilat law,Ebe deemed to have been vested in such non-proprietor.

(2) Any land which is vested in a panchayat under the shamilatlaw shall be deemed to have been vested in the panchayat underthis Act.

(3) Nothing contained in clause (a) of sub-section (1) and in sub-Fsection (2) shall affect or shall be deemed ever to have affectedthe-

(i) existing rights, title or interest of persons who though notentered as occupancy tenants in the revenue records areaccorded a similar status by custom or otherwise, such asDholidars, Bhondedars, Butimars, Basikhuopahus,Saunjidars, Muqararidars; G

(ii) rights of persons in cultivating possession of shamilatdeh for more than twelve years without payment of rent orby payment of charges not exceeding the land revenue andcesses payable thereon; H

(iii) rights of a mortgagee to whom such land is mortgagedwith possession before the 26[th] January, 1950.

5. (1) All lands vested or deemed to have been vested in aPanchayat under this Act shall be utilized or disposed of by thePanchayat for the benefit of the inhabitants of the village concernedin the manner prescribed; Provided that where two or more villages have a commonPanchayat in the shamilat deh or each village shall be utilised anddisposed of by the Panchayat for the benefit of the inhabitants ofthat village:

Provided further that where there are two or more shamilat tikkasin a village the shamilat tikka shall be utilised and disposed of bythe panchayat for the benefit of the inhabitants of that tikka:

Provided further that where the area of land in shamilat deh ofany village so vested or deemed to have been vested in a Panchayatis 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 areashall be left to the Panchayat and out of the remaining area ofshamilat deh an area up to the extent of twenty-five per cent ofsuch total area shall be utilized for the settlement of landless tenantsand other tenants ejected or to be ejected of that village and theremaining area of shamilat deh, if any, shall be utilised fordistribution to the small landowners of that village subject to theprovisions relating to permissible area and permissible limit of thePunjab Security of Land Tenures Act, 1953, and the Pepsu Tenancyand Agricultural Lands Act, 1955, as the case may be by theCollector in consultation with the Panchayat in such manner asmay be prescribed.

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11. Notwithstanding anything contained in the Punjab Pre-emptionAct, 1913, no sale of land in shamilat deh made by a Panchayatshall be pre-emptible and no decree of pre-emption in respect ofany such sale shall be executed after the commencement of thisAct.”

29. The 1961 Act has undergone many changes in both States ofPunjab and Haryana. In the present appeals, the 1961 Act as is applicable A

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Ain the State of Haryana after reorganization of States w.e.f. 1.11.1966 isunder consideration. The noticeable amendments carried out in the 1961Act are by Haryana Act No. 18 of 1971, and Haryana Act No. 2 of1981 enacted after the assent of the President of India on 31.1.1981.Sections 13C and 13D were inserted by such amendment which readthus:B

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33[(5) Notwithstanding anything contained in this section, if in theopinion of the State Government, it is necessary to take over, tosecure proper management for better utilization for the benefit ofCthe inhabitants of the village concerned any shamilat deh theGovernment may by notification take over the management ofsuch shamilat deh, for a period not exceeding twenty years.]

34[13C. Finality of orders. – Save as otherwise expressly providedin this Act, every order made by the Assistant Collector of theDfirst grade, the collector or the Commissioner shall be final andshall not be called in question in any manner in any court.

13D. Provisions of this Act to be over-riding. – The provisions ofthis Act shall have effect notwithstanding anything to the contrarycontained in any law, agreement, instrument, custom, usage,Edecree or order of any court or other authority”.]30. Some other amendments have been carried out during thependency of these proceedings. Certain arguments have been addressedon the basis of such amendments as well. The said amendments read asthus:

F“[35][5A(1)(1) A panchayat may, gift, sell, exchange or lease theland in shamilat deh vested in it under this Act to such personsincluding members of Scheduled Castes and Backward Classeson such terms and conditions, as may be prescribed.

5B(1) Any transfer of land, gifted sold, exchanged or leased beforeGor after the commencement of this Act, made in contravention ofthe prescribed terms and conditions, shall be void and the gifted,sold, exchanged or leased land so transferred shall revert to, andrevert in, the panchayat free from all encumbrances.

33 Added by Haryana Act 18 of 1971, Section 234 Added by Haryana Act No. 2 of 1981H35 Substitution of Section 5A and 5B by Act 8 of 2007 and thereafter by Act 23 of 2013

(2) The Government or any officer authorized by it may, eithersuo motu or on application made to him by a panchayat or aninhabitant of the village or the Block Development and PanchayatOfficer, examine the record for the purpose of satisfying himselfas to the legality or propriety of any sale, lease, gift, exchange,contract or agreement executed before or after commencementof this Act, if such sale, lease, gift, exchange, contract or agreementis found detrimental to the interest of the villagers and is no longerrequired in the interest of the panchayat, the Government may,after making such enquiry as it may deem fit, cancel the sameand no separate proceedings under any law shall be required tocancel the sale, lease, gift or exchange. The panchayat shall becompetent to take over the possession of such premises includingthe construction thereon. If any, for which no compensation shallbe payable.]”

31. It was thereafter, considering the respective arguments of thelearned counsel for the parties, the Full Bench in Jai Singh II held asunder:

“22. The petitioners, in view of the stand now taken by the Statejoin issues only with regard to unutilised lands, as according tothem, the said lands shall also not fall within the ambit of shamlatdeh as defined under Section 2(g)(1) of the Act of 1961 nor themanagement and control whereof can vest with the GramPanchayat under the provisions of Sections 18, 23-A and Rule16(2) of the Act of 1948. They further clearly and candidly pleadand so urge in the Court that the petitioners are not claiming thelands which have been reserved under Section 2(bb) read withSections 18, 23-A and Rule 16(2) of the Act of 1948 and the rulesframed thereunder. In view of the limited controversy betweenthe parties, as now exists, it appears, there shall be no needwhatsoever, to test the constitutionality of clause (6) of Section2(g) of the Act of 1961 and the explanation appended thereto onthe anvil of either Article 31-A or Article 300-A of the Constitutionof India. We may, however, briefly state the pleadings of the partieson the issue limited to land, subject matter of legislative measure,being within or otherwise the ceiling limit of petitioner-proprietors.

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A46. The land reserved for common purposes under Section 18(c),which might become part and parcel of a scheme framed underSection 14, for the areas reserved for common purposes, vestswith the Government or Gram Panchayat, as the case may be,and the proprietors are left with no right or interest in such landsmeant for common purposes under the scheme. There is nothingBat all mentioned either in the Act or the rules or the scheme, thatcame to be framed, that the proprietors will lose right only withregard to land which was actually put to any use and not the landwhich may be put to common use later in point of time. In none ofthe sections or rules, which have been referred to by us in theCearlier part of the judgment, there is even slightest inkling that thescheme envisages only such lands which have been utilised. Thatapart, in all the relevant sections and the rules, words mentionedare reserved or ‘assigned’. Reference in this connection may bemade to sub-section (3) of Section 18 and Section 23-A. Theprovisions of the statute, as referred to above, would, thus, furtherDfortify that reference is to land reserved or assigned for commonuse, whether utilised or not.

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49. The lands which, however, might have been contributed byEthe proprietors on pro-rata basis, but have not been reserved orearmarked for common purposes in a scheme, known as Bachatland, it is equally true, would not vest either with the State or theGram Panchayat and instead continue to be owned by theproprietors of the village in the same proportion in which theycontributed the land owned by them. The Bachat land, which isFnot used for common purposes under the scheme, in view ofprovisions contained in Section 22 of the Act of 1948, is recordedas Jumla Mustarka Malkan Wa Digar Haqdaran Hasab RasadArazi Khewat but the significant difference is that in the columnof ownership proprietors are shown in possession in contrast toGthe land which vests with the Gram Panchayat which is shown asbeing used for some or the other common pupose as per thescheme.

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62. In view of the discussion made above, we hold that:- H

(i) sub-section (6) of Section 2(g) of the Punjab Village CommonLands (Regulation) Act, 1961 and the explanation appended thereto,is only an elucidation of the existing provisions of the said Actread 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 of1948 and Rule 16(ii) of the Rules of 1949 cover all such landswhich have been specifically earmarked in a consolidation schemeprepared under Section 14 read with Rules 5 and 7 and confirmedunder Section 20, which has been implemented under the provisionsof Section 24 and no other lands;

(iii) the lands which have been contributed by the proprietors onthe basis of pro-rata cut on their holdings imposed during theconsolidation proceedings and which have not been earmarkedfor any common purpose in the consolidation scheme preparedunder Section 14 read with Rules 5 and 7 and entered in the columnof ownership as Jumla Mustarka Malkan Wa Digar HaqdaranHasab Rasad Arazi Khewat and in the column of possession withthe proprietors, shall not vest with the Gram Panchayat or theState Government, as the case may be, on the dint of sub-section(6) of Section 2(g) and the explanation appended thereto or anyother provisions of the Act of 1961 or the Act of 1948;

(iv) all such lands, which have been, as per the consolidationsscheme, reserved for common purposes, whether utilised or not,shall vest with the State Government or the Gram Panchayat, asthe case may be, even though in the column of ownership theentries may be Jumla Mustarka Malkans Wa Digar HaqdaranHasab Rasad Arazi Khewat etc.”

32. The Five Judge Bench in Suraj Bhan held that the observationsin Jai Singh II and Vir Singh conferring right, title and ownership inrespect of Jumla Mustarka Malkan lands on the Gram Panchayat wouldbe improper and invalid. The Court held as under:

“218. In view of the above discussion, the legal position thatemerges is as follows:-xxxxxx A

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A(k) Any observation in Jai Singh’s case (supra) and Veer Singh’scase (supra) to the extent it is taken as conferring a right, title andownership in respect of ‘Jumla Mushtarka Malkan’ lands on theGram Panchayat would be improper and invalid notwithstandingSection 4 of the VCL Act 1961 in view of Section 2 (bb) andSection 23A of the Consolidation Act 1948; besides, Rule 16(ii) ofBthe Consolidation Rules 1949 and the judgment of the Five JudgeBench of Hon’ble the Supreme Court in Ajit Singh’s case (supra).”

33. The above findings are subject matter of challenge by theState as well as by the proprietors. The State is aggrieved against findingno. (iii) of Jai Singh II and conclusion in para 218 (k) of Suraj Bhan,Cwhereas the proprietors are aggrieved against finding nos. (i) and (ii) ofJai Singh II.

34. Mr. Pradeep Kant, learned Senior Advocate appearing forthe State contended that the land reserved for common purposes in aScheme under Section 18(c) read with section 23-A and Rule 16 (ii) ofDthe 1949 Rules is for the present and future needs. If a particular pieceof land so reserved for common purposes is not put to use as conceivedin 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 purposesis to be used. Therefore, once the land has been reserved for commonEpurposes, the Panchayat can put it to use for common purposes at anypoint 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 forthe income of the Panchayat but for optimum utilization of land reservedfor common purposes. It was also contended that if the land is reservedfor a particular common purpose, it can be used for any other commonFpurpose as well for the benefit of village community, including proprietorsand non-proprietors.

35. It was further contended that Section 2(g)(6) in 1961 Act isnot a new provision but is only a clarificatory and declaratory amendmentof the existing law. Shamilat Deh is the land owned by Gram PanchayatGto be used for common purposes under Section 2(g)(1) of 1961 Actbefore consolidation. This Court in a judgment reported as SukhdevSingh v. Gram Sabha Bari khad[36] held that land recorded in the revenuerecord as shamilat deh in the year 1914-15 could not detract from thenature of the land as it was merely recorded to be in possession of theH36 (1977) 2 SCC 518

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OFHARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

owners as per respective shares in khewat in a pre-consolidation shamilatland. The Court held as under:

“2……………. Firstly, the entry in ‘jamabandi’ of 1914-15 whichrecorded that the land was in possession of the owners was quiteinnocuous, because it was made for the reason that it was innobody else’s possession. The fact that even then it was recordedin the ‘Jamabandhi’ as “shamlat deh” shows that the particularcharacter of the land was recognised even as far back as 1914-15, and it could not detract from that nature of the land merelybecause it was further stated in the ‘jamabandi’ that it was in thepossession of the owners “as per respective shares in khewat.”

………”

………”

36. On the other hand, the Jumla Mustarka Malkan land isreserved for common purposes during consolidation. The reservation ofland for common purposes after consolidation is not different from theshamilat deh land existing prior to the consolidation as both are reservedfor common purposes. The two nomenclatures are on account ofdifference of time as shamilat lands were carved out prior tocommencement of shamilat law whereas JumlaMustarka Malkanlands were carved out after the commencement of shamilat law.Therefore, once land is reserved for common purposes, what was implicitin the definition of shamilat deh as defined in Section 2(g)(6) of 1961Act has been made explicit by virtue of the Amending Act. It was furthercontended that explanation of Section 2(g)(6) again uses the expressionsused in Rule 16(ii) of the 1949 Rules. Hence, the amendment is notvesting of land reserved for common purposes during consolidation forthe benefit of village community for the first time but is merely aclarificatory amendment.

37. Alternatively, it was argued that even if it was a new provisionleading to acquisition of land, it was not a case of acquisition withoutcompensation but acquisition with “Nil” compensation as the proprietorshave been conferred right to use larger tract of common land in lieu ofsmall portions deducted by applying pro-rata cut from their shares ofholding. Such ultimate use of land by the Panchayat confers benefit tothe entire village community including proprietors and non-proprietors.Therefore, while introducing Section 2(g)(6), no compensation wasrequired to be paid in cash as the benefit in lieu of compensation wasalready conferred to the proprietors in the consolidation scheme.

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A38. Mr. Manoj Swarup, learned Senior Counsel appearing for theproprietors argued that the effect of the Amending Act is that the landstands vested with the Panchayat and, therefore, there is no embargo onthe Panchayat to sell or alienate the land so vested. He draws supportfrom Section 11 of the 1961 Act which curtails the right of pre-emptionin respect of sale of land of the Panchayat. It was argued that the vestingBof land with the Panchayat leads to conferment of all the rights andinterests in the land so vested, therefore, the Panchayat is competent tosell the land which is not in tune with the judgment of this Court in AjitSingh.

39. Ms. Anubha Agarwal, counsel for the proprietors, submittedCthat the amendments carried out in the 1961 Act when Sections 13C and13D were inserted not only grant finality to the order passed by theAuthority under the Act but also give over-riding effect to any law,agreement, instrument, custom, usage, decree or order of any court orother authority. Therefore, the land, though at one point of time wasDearmarked for common purposes and the management and control vestedwith the Panchayat, but such provision will have preference over anyother provisions of any other law including the 1948 Act. The provisionread with Sections 5A and 5B of the 1961 Act inserted in the year 2007shows that the Panchayat is exercising right, title and interest over theland vesting with the Panchayat in terms of the 1948 Act, though onlyEvesting of control and Management to the Panchayat was upheld by thiscourt in Ajit Singh. Such statutory intervention is illegal and in the teethof the judgment of this Court in mentioned judgment.

40. It was also argued on behalf of the proprietors that the 1948Act does not contemplate divesting their ownership rights, but the vestingFof land by the Amending Act read with Section 4 of 1961 Act divests theowners of their title over the land without compensation. Such actionviolates the mandate of Article 300A of the Constitution as the landownersare being deprived of land without authority of law i.e., adequatecompensation in lieu of the land so acquired.G41. Learned Counsel for some of the proprietors further arguedthat the land reserved for common purposes was in fact never used forsuch common purpose and that it has always been in possession of theproprietors of the village. Thus, the proprietors are the owners inpossession of the land in question. The proprietors could thus not beHdeprived of their title, possession or propriety rights in any manner without following the due process of law i.e., after payment of market value ofsuch land.

42. It was argued that the land reserved for common purposesduring the consolidation which was more than the land specificallyassigned for common purposes in the consolidation scheme was in facta surplus land or a Bachat land. It was thus contended that the unutilizedland i.e., Bachat land has to be revested with the proprietors as suchland does not fall within the ambit of shamilat deh, nor the managementand control of the same could vest with Gram Panchayat under theprovisions of Sections 18, 23A and Rule 16(ii) of 1948 Act. It was henceargued that though the land has been reserved for common purposes inthe consolidation scheme under the 1948 Act, but such land which isneither utilized nor reserved for any specific common purpose wouldrevest with the proprietors.

43. A reading of the aforementioned judgments and the history ofthe shamilat deh (common land) in the State of Punjab, including Stateof Haryana, shows that the common land for the purposes of the presentappeals falling in Section 2(g)(1) and (6) of the 1961 Act as amended bythe Amending Act can be broadly classified into three categories:

(i) shamilet deh recorded in the ownership of the GramPanchayat prior to consolidation which vests unequivocallywith the commencement of the Punjab and PEPSU Act.

(ii) land for common purposes reserved during the process ofconsolidation by applying pro-rata cut from the holdings ofthe proprietors, not necessarily falling within the permissibleceiling limits under the land ceiling laws.

(iii) common purposes land reserved by pro-rata cut withinthe permissible limits as per the land ceiling laws, themanagement and control of which vests with the panchayat.

44. There is no dispute about the land falling in the first categoryas held by the High Court in Hukam Singh and subsequently affirmedby this Court in Malwinder Singhas being part of the agrarian reforms.

45. The 1948 Act is a pre-constitution law which has received theassent of Governor General of India on 07.12.1948 and published inEast Punjab Government Gazette (Extraordinary) dated 14.12.1948. Thetwo subsequent amendments in the 1948 Act by Punjab Act No. 27 of A

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A1960 and Punjab Act No. 39 of 1963 were enacted and published afterthe assent of the President of India. Both the amendments were upheldby the High Court in Kishan Singh and Jagat Singh relating to PunjabAct 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 partBof the agrarian reforms protected by Article 31A of the Constitution bythe Full Bench of the Punjab and Haryana High Court in Kishan Singhand Jagat Singh. A reading of the judgment of the High Court in JagatSingh shows that the challenge therein was to 20 acres of land for thepurpose of income of Gram Panchayat.The High Court upheld the landcarved out for income of the Gram Panchayat since the 1948 Act wasCfound to be part of agrarian reforms as per its object. Though the membersof the Bench gave different opinions, the conclusion was that the 1948Act is an Act having object of agrarian reforms, protected by Article31A(1) of the Constitution. The Civil Appeal No. 743 of 1963 in RanjitSingh against such judgment was dismissed by the Constitution BenchDof this Court. The appeals before this Court were heard and closed forjudgment on April 27, 1964 but before the judgment could be delivered,the Constitution (Seventeenth Amendment) Act, 1964, received the assentof the President on June 20, 1964. That amendment inter alia substitutedretrospectively from January 26, 1950, a new sub-clause (a) in clause(2) of Article 31A and added a proviso to clause (1). The High CourtEhad decided the issues raised before it considering the Article 31A as itwas then existing. The short point examined by this Court was, withoutreferring to the Seventeenth Amendment, whether the transfer ofshamilat deh owned by the proprietors to the village Panchayat for thepurposes of management in the manner described above and the conferralFof proprietary rights on non-proprietors in respect of lands in abadi dehis illegal and if the several provisions of law allowing this to be done areultra vires Article 31 inasmuch as no compensation is payable or whetherthe law and the action taken are protected by Article 31A? The appealswere dismissed with an observation that the question examined was thecorrectness of the decisions under appeal, particularly the Full BenchGdecision in Jagat Singh,without expressing any opinion on theSeventeenth Amendment.

47. As per the facts noticed by this Court, 270 kanals, 13 marlasof land in village Virk Kalan was given to village panchayat formanagement and realization of income, apart from some land reservedH

for abadi, manure pits, although the ownership was shown in the revenuerecord as Shamilet Deh in the name of the proprietors. In village Sewana,400 kanals and 4 marlas were set apart for the village panchayat forextension of the abadi and to grant 8 marlas of land to each family ofnon-proprietors and 6 kanals being reserved for a primary school andsome more land for a phirni (Village Pathway around village). In villageMehnd, the land was reserved for a school, tanning ground, hospital,cremation ground and for non-proprietors. The proprietors were not paidcompensation for the lands. This Court noticed that Punjab Act wasupheld by the High Court in Hukam Singh but observed that Article31(2) of the Constitution would have rendered the Act as void but forthe enactment of Article 31A. This Court also made reference to PunjabSecurity of Land Tenures Act, 1953 providing for fixing the areas forself-cultivation and conferring rights on the tenants to purchase landunder their cultivation from the landholders. Before this Court, thechallenge was to the correctness of a decision in Jagat Singh as alsovalidity of Punjab Act No. 27 of 1960 which was said to be in breach ofArticle 19(1)(f) and Article 31 of the Constitution. Before the judgmentcould be delivered, 17[th] Amendment to the Constitution came into forceand the judgment was delivered without considering the insertion ofsecond proviso in Article 31A(1). This Court held that village panchayatis an authority for the purpose of Part III of the Constitution and it hasthe protection of Article 31A. Because of this character, even if thetaking over of shamilat deh amounts to acquisition, the High Court wasright in deciding as it did in this case. A reading of the judgment of RanjitSingh would show that the land reserved for income of the panchayat invillage Virk Kalan was not found to be unconstitutional, and further, thecarving of shamilat deh and giving it to Gram Panchayat was found tobe 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 thePunjab High Court decided these cases on the authority of JagatSingh’s case, the view taken in this Court was in favour of givinga large and liberal meaning to the terms ‘estate’’rights in an estate’and ‘extinguishment and modification’ of such rights in Article31-A. No doubt Kochuni’s case, considered a bare transfer ofthe rights of the sthanee to the tarwad without alteration of thetenure and without any pretence of agrarian reform, as not onecontemplated by Article 31-A however liberally construed. But AB

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that was a special case and we cannot apply it to cases where thegeneral scheme of legislation is definitely agrarian reform andunder its provisions something ancillary thereto in the interests ofrural economy, has to be undertaken to give full effect to thereforms. In our judgment the High Court was right in not applyingthe strict rule in Kochuni’s case, to the facts here.

13. The High Court was also right in its view that the proposedchanges in the shamlat deh and abadi deh were included in thegeneral scheme of planning of rural areas and the productiveutilisation of vacant and waste lands. The scheme of ruraldevelopment today envisages not only equitable distribution of landso that there is no undue imbalance in society resulting in a landlessclass on the one hand and a concentration of land in the hands ofa few, on the other, but envisages also the raising of economicstandards and bettering rural health and social conditions.Provisions for the assignment of lands to village Panchayat forthe use of the general community, or for hospitals, schools, manurepits, tanning grounds etc. enure for the benefit of rural populationand must be considered to be essential part of the redistribution ofholdings and open lands to which no objection is apparently taken.If agrarian reforms are to succeed, mere distribution of land tothe landless is not enough. There must be a proper planning ofrural economy and conditions and a body like the village Panchayatis best designed to promote rural welfare than individual ownersof small portions of lands. Further, the village Panchayat is anauthority for purposes of Part III as was conceded before us andit has the protection of Article 31-A because of this charactereven if the taking over of shamlat deh amounts to acquisition. Inour opinion, the High Court was right in deciding as it did on thispart of the case.

14. With respect to abadi deh the same reasoning must apply. Thesettling of a body of agricultural artisans (such as the villagecarpenter, the village blacksmith, the village tanner, farrier,wheelwright, barber, washerman etc. etc.) is a part of ruralplanning and can be comprehended in a scheme of agrarianreforms. It is a trite saying that India lives in villages and a schemeto make villages selfsufficient cannot but be regarded as part ofthe larger reforms which consolidation of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant andwaste lands contemplate. The four Acts, namely, the ConsolidationAct, the Village Panchayat Act, the Common Lands RegulationAct and the Security of Tenure Act are a part of a general schemeof reforms and any modification of rights such as the present hasthe protection of Article 31-A. The High Court was thus right inits conclusion on this part of the case also.”

48. Thus, the property was held to be acquired as a part of theagrarian reform under Article 31A and no compensation was payable asprovided under Article 31. Therefore, the acquisition was complete inrespect of the land reserved for common purposes by applying pro-ratacut on the land holdings of the proprietors. Further, it is pertinent tomention that the question of payment of compensation was specificallynegated in Ranjit Singh. Therefore, the land stood vested with thePanchayat 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 forcommon purposes, not falling within the ceiling limit of the proprietorwould vest with Panchayat. The Amending Act does not acquire land ordeprive the proprietors of their ownership as such ownership stoodalready divested in view of consolidation scheme reserving land forcommon purposes. The Amending Act is only a clarificatory or adeclaratory amendment as the land stood vested in the panchayat on thestrength of Ranjit Singh. Hence, Section 2(g)(6) read with Section 4 ofthe 1961 Act vests the land reserved for common purposes by applyingpro-rata cut in the village Panchayat.

49. The Amending Act was enacted and published after obtainingassent of the President of India, thus such Act is part of the agrarianreform. In the year 1992, when the Amending Act was enacted, Article31 stood omitted by virtue of 44[th] Constitutional Amendment Act, 1978with effect from 30.04.1979. Therefore, the provision of payment ofcompensation contemplated under Article 31(2) was not available onthe day when the Amending Act was published. Article 300A was insertedby the same amendment i.e., 44[th] Amendment with effect from30.04.1979. Such Article contemplated that no person shall be deprivedof his property save by the authority of law. Since the land was alreadyvested with Gram Panchayat, therefore, there was no question of paymentof compensation in the year 1992.

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A50. As observed above, the land stood acquired and vested withthe Panchayat by virtue of Ranjit Singh. This Court held that nocompensation was payable in view of the four Acts, namely, the 1948Act, the Punjab Act and the Pepsu Act, the 1961 Act and also the PunjabSecurity of Land Tenures Act, 1953 as such Acts were a part of ageneral scheme of reforms and any modification of rights such as theBpresent had the protection of Article 31A. Such land would vest with thePanchayat.

51. The Full Bench of the Punjab and Haryana High Court in ajudgment reported as Parkash Singh & Ors. v. Joint DevelopmentCommissioner, Punjab & Ors.[37] has found that “Jumla MushtarkaCMalkan” land is not included in the shamilat deh in the State of Punjab,therefore, the 1961 Act will not confer jurisdiction on the Collector todecide the dispute regarding title. The Full Bench held that the onlyforum available to a person who raises a dispute regarding title in “JumlaMushtarka Malkan” is the principal Court of civil jurisdiction. The CourtDheld as under:

“61. The question that now remains is to identify the forum, aperson who raises a plea that the land is not “Jumla MushtarkaMalkan” or that it was created by applying an illegal pro rata cutor that the land was not reserved for common purposes duringEconsolidation, would be required to approach. After dueconsideration of the entire matter, we find no provision in the 1961Act, the 1976 Act or the Consolidation Act that provides a forumto a person who raises such a plea and, therefore, in the absenceof any fora for deciding such a dispute a person may have toapproach a Civil Court but Section 44 of the Consolidation ActFprohibits a Civil Court from entertaining any matter which theState Government or any officers are empowered by theConsolidation Act to determine or dispose of Section 44, however,cannot be read to prohibit Civil Courts from deciding a question oftitle relating to “Jumla Mushtarka Malkan” as what is prohibitedGby Section 44 is matters that fall to the jurisdiction of StateGovernment or to any officer duly empowered by the ConsolidationAct to decide. The Consolidation Act does not confer powerwhether on the State Government or the officers empoweredthereunder to decide a question of title. The jurisdiction of a Civil Court to entertain a dispute regarding “Jumla Mushtarka Malkan”is, therefore, not barred by Section 44 of the Consolidation Act.The only forum available to a person, who raises a dispute regardingtitle in “Jumla Mushtarka Malkan” is the principal Court of civiljurisdiction having jurisdiction in the matter, as provided by Section9 of the Code of Civil Procedure, i.e., a Civil Court.”

52. In Suraj Bhan, the Full Bench of the High Court held thatonly the management and control as distinguished from the title andownership in respect of lands carved out during consolidation operationsby imposing a pro rata cut on the land of the proprietors and recorded inthe revenue records as ‘Jumla Malkan Wa Digar Haqdaran Arazi HasabRasad Raqba’, ‘Jumlan Malkan’ or ‘Mushtarka Malkan’ etc., vest in thePanchayat. It was held as under:

“146. However, for the removal of doubts, it is clarified and heldthat any observations in Jai Singh’s case (supra), and in VeerSingh’s case (supra) (in which the application for review of thejudgment in Jai Singh’s case (supra) had been dismissed by makingclarifications), if it is to be taken that the ownership or title inrespect of lands kept for ‘common purposes’ of the village byimposing a pro rata cut on the land of the proprietors and recordedin the revenue records as ‘Jumla Malkan Wa Digar HaqdaranArazi Hasab Rasad Raqba’, ‘Jumlan Malkan’ or ‘MushtarkaMalkan’ etc. vest with the State or the Gram Panchayat, as thecase may be, without payment of compensation is not the correctlegal position notwithstanding the provisions of Section 4 of theVCL Act 1961 and that in fact, only the management and controlof such lands vests in the State or the Gram Panchayat, as thecase may be. Therefore, only the management and control asdistinguished from the title and ownership in respect of lands carvedout during consolidation operations by imposing a pro rata cut onthe 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 thePanchayat. Besides, as already noticed, the provision relating toappropriation of income of the land kept for ‘common purposes’in a consolidation scheme has been invalidated by a Five JudgeBench of the Supreme Court in Bhagat Singh’s case (supra).”

53. We find that such conclusion in Parkash Singh or SurajBhan that ‘Jumlan Malkan’ or ‘Mushtarka Malkan’ land so described in A

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Athe revenue record would not vest with the Panchayat is not based onthe correct reading of judgment of this Court in Ranjit Singh. Onceland had been reserved for common purposes, irrespective of descriptionin 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 theproprietors.B

54. Still further, in Parkash Singh, it has been held that theforumavailable to a person, who raises a dispute regarding title in “JumlaMushtarka Malkan” is the principal Court of civil jurisdiction havingjurisdiction in the matter, as provided by Section 9 of the Code of CivilProcedure, i.e., a Civil Court. Though the said judgment is in the contextCof the State of Punjab, but the said finding is not sustainable for thereason that “Jumla Mushtarka Malkan” is a land reserved for commonpurposes during consolidation. Though Rule 16(ii) of the 1949 Rulesprescribes that the common purposes land after applying pro-rata cutwould be described in the revenue record but the expression “Jumla DMushtarka Malkan” or “Mushtarka Malkan” is a land of the proprietorsfor the benefit of the village community for common purposes. Therefore,if the revenue records as “Jumla Mushtarka Malkan” or “MushtarkaMalkan” in the ownership column, it is the authority under the 1961 Actand the machinery provided thereunder which would exercise jurisdictionto determine the dispute as to whether it is reserved for common purposesEor not.

55. We do not find any merit in the arguments raised by learnedcounsel for the proprietors that the explanation enlarges the scope of thecommon purposes for which land was reserved under the scheme interms of 1948 Act. Rule 16(ii) of 1949 Rules specifically mentions thatFthe entry in the column of ownership of records would be Jumla MalkanWa Digar Haqdaran Arazi Hassab Rasad. The other expression usedin the explanation is Jumla Mustarka Malkan or Mustarka Malkan,which means the ownership of all the proprietors. They are commonlyused in the revenue record but they are not larger in scope than the entry contemplated in the revenue record as Jumla Malkan Wa DigarGHaqdaran Arazi Hassab Rasad. Therefore, neither sub-section 6 northe explanation is contrary to Article 300-A as the land stood acquiredwithout 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 theHbasis of insertion of Sections 13C and 13D by virtue of amendment in the year 1981 and insertion of Sections 5A and 5B by virtue ofamendments carried out in 2007 or on the strength of Section 11 of the1961 Act as originally enacted, the legality and validity of the AmendingAct is any way affected. The Panchayat was conferred ownership rightsover the land when pro-rata cut was applied on the land of the proprietorsto reserve land for the common purposes under the 1948 Act. ThePanchayat is therefore the absolute owner of such property which cameto be vested in the Panchayat with the commencement of shamilat law.The entire right, title or interest in the said land forming part of secondcategory mentioned above vests with the Panchayat in view of thejudgment of this Court in Ranjit Singh.

57. In a judgment reported as Mahant Sankarshan RamanujaDas Goswami, etc. v. State of Orissa and another[38], it has been heldthat the benefit of Article 31-A is available also to the Amending Actprovided 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 thebenefit of Article 31-A is only available to those laws which bythemselves provide for compulsory acquisition of property for publicpurposes and not to laws amending such laws, the assent of thePresident notwithstanding. This means that the whole of the law,original and amending, must be passed again, and be reserved forthe consideration of the President, and must be freshly assentedto by him. This is against the legislative practice in this country. Itis to be presumed that the President gave his assent to theamending Act in its relation to the Act it sought to amend, and thisis more so, when by the amending law the provisions of the earlierlaw relating to compulsory acquisition of property for publicpurposes were sought to be extended to new kinds of properties.In assenting to such law, the President assented to new categoriesof properties being brought within the operation of the existinglaw, and he, in effect, assented to a law for the compulsoryacquisition for public purposes of these new categories of property.The assent of the President to the amending Act thus brought inthe protection of Article 31-A as a necessary consequence. Theamending Act must be considered in relation to the old law whichit sought to extend and the President assented to such an extension AB

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Aor, in other words, to a law for the compulsory acquisition ofproperty for public purposes.”

58. Therefore, the Amending Act having been enacted after theassent of the President, is protected in terms of Article 31A of theConstitution.B

59. In respect of the third category, the land within the ceiling limitof the proprietor was pooled for common purposes and was found to bepart of the agrarian reforms by Division Bench of the Punjab High Courtin Ajit Singh. The argument raised was that the proprietor (land owner)was a small landholder within the meaning of the Punjab Security ofCLand Tenures Act, 1953, therefore, no part of his holding could beacquired without payment of compensation at the market value. Thewrit petitioner had pleaded that in pursuance of the Cooperative SocietiesAct, 100 bighas of land was given to the local panchayat for commonpurposes, whereas in this scheme prepared under 1948 Act, another 100bighas of land was being provided for the same purpose. The argumentDraised was that most of the proprietors including the writ petitioner ownland within the first ceiling, therefore, the land falling within the ceilinglimit could not be acquired without payment of compensation on accountof insertion of second proviso to Article 31A(1) by 17[th] Amendment.The 17[th] Amendment reads thus:

E“Provided further that where any law makes any provision forthe acquisition by the State of any estate and where any landcomprised therein is held by a person under his personal cultivation,it shall not be lawful for the State to acquire any portion of suchland as is within the ceiling limit applicable to him under any lawFfor the time being in force or any building or structure standingthereon or appurtenant thereto, unless the law relating to theacquisition of such land, building or structure, provides for paymentof compensation at a rate which shall not be less than the marketvalue thereof.”

G60. The Division Bench of the High Court inter alia examinedthe 17[th] Amendment and held that it was not retrospective in operation.The petition was dismissed after examining Article 31(2-A) of theConstitution as well as 17[th] Amendment which deals with acquisition bythe State, leaving requisitioning untouched. The High Court found thatwhere land is assigned to a village Panchayat or the State for a commonH

purpose, it does not seem to provide, technically speaking, for the transferof ownership and the State Government and Panchayat are merelyempowered to manage and appropriate the income accruing from theproperty for the benefit of village community, including the original holder,and for no other purpose. It was held that Article 31(2-A) of theConstitution lays down that where a law does not provide for the transferof ownership, only the management and control would vest in the villagePanchayat.The Court held (page 857-858) as under:

“This brings me to the question whether the assignment of landfor common purposes is acquisition. The controversy on this pointseems to centre round Article 31(2-A) of the Constitution whichlays down that where a law does not provide for the transfer ofthe ownership, or right to possession of any property, to the Stateor to a Corporation owned or controlled by the State, it shall notbe deemed to provide for the compulsory acquisition orrequisitioning of property, notwithstanding that it deprives anyperson of his property. The learned Advocate-General hassubmitted that providing for right to possession of any propertymeans requisitioning of such property, and compulsory acquisition,according to this sub-article, is confined only to the transfer ofownership. In the case in hand, ownership has not been transferredin law and it is only the management and control which vests inthe village Panchayat concerned or the State, as the case maybe. This may amount to compulsory requisitioning, but the furtherproviso introduced by the 17th Amendment, with which we areconcerned, hits only acquisitions by the State leaving requisitioninguntouched. The petitioner’s learned counsel has, on the other hand,placed his reliance on the observations of Tek Chand, J. in MunshaSingh’s case and on the Supreme Court decision in Ranjit Singh’scase, the relevant passage from which has been reproducedabove. In this connection, it may be remembered that the furtherproviso introduced in Article 31-A(1) speaks of payment ofcompensation only in case of acquisition by the State of land withinthe ceiling limit applicable to the persons mentioned therein. Wheresuch land is assigned to a village Panchayat or the State for thecommon purpose, it does not seem to me to provide technicallyspeaking for the transfer of ownership, and indeed it is not thepetitioner’s case that title has actually passed to the Panchayat orthe State. What is argued is that all the ingredients of ownership ABC

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Aare taken away and what is left with the owner is merely the huskor the shadow. As at present advised, I find some difficulty inreadily agreeing with this submission because the property, thoughvesting in the Panchayat, or the State Government, as the casemay be, has been reserved for common purposes in which theentire village community including the original holder is interestedBas equal sharer, and is entitled to secure the benefit thereof incommon with all the co-beneficiaries. The State Government orthePanchayat are merely empowered to manage and appropriatethe income accruing from the property for the benefit of the villagecommunity, including the original holder, and for no other purpose.CIt is only the right to transfer, or, to the exclusive use orappropriation, of which the original holder has been deprived.

The benefits of the use of the land reserved for common purposesare assured to the original holder in common with all the othermembers of the community. Whether this can be considered toDbe acquisition as distinguished from requisitioning is a questionwhich does not seem to be capable of an easy answer. However,keeping in view the general scheme and purpose of the Act, thescales do seem to me prima facie to be somewhat inclined infavour of the view that the statutory vesting of the property in theState Government or the Panchayat, as the case may be, underEthe Act, when it is reserved for common purposes, is perhaps notintended to amount to acquisition within the contemplation of thesecond proviso added to Article 31-A by the 17th Amendment.But I should not like to express any considered opinion on thissomewhat difficult and vexed point on the present occasion, leavingFit to be settled if necessary in a more appropriate case.”

61. In appeal, a Constitution Bench of this Court in Ajit Singhnoted that the scheme under the 1948 Act was not part of the record but89 bighas, 18 biswas and 18 biswanis of pukhta land was owned byGram Panchayat prior to consolidation which was used for common purposes. Some more area was reserved for common purposes such asGfor canals, pathways, community center, school etc. after applying cutupon right holders on pro-rata basis and not for income of Panchayat.This Court held that the proprietor is not entitled to compensation as thetitle of the proprietor is not being divested and that management andcontrol alone vests with the panchayat. It was thus held that it was not aHcase of acquisition of land.

62. This Court considered the questions as to “whether in thesecond proviso to Article 31A(1), the expression “acquisition” meanssubstantial taking over the benefits of property and conferring it on theState?” and that “whether the acquisition means the entire processterminating with possession and extinction of the title of the individual?”.This Court held that the title vests in the proprietary body, the managementof the land is done on behalf of the proprietary body, the land is used forthe common needs and the benefits of the estate or estates concerned.The Panchayat would manage such land on behalf of the proprietorsand use for common purposes, therefore, the beneficiary of themodification of the rights is not the State. Therefore, there is no acquisitionby the State within the meaning of second proviso. This Court examinedthe Constitution (Seventeenth Amendment) Act, 1964 and negated theargument raised by the proprietor. It was held as under:

“9. Coming now to the second proviso to Article 31-A, it would benoticed that only one category is mentioned in the proviso, thecategory being “acquisition by the State of an estate”. It meansthat the law must make a provision for the acquisition by the Stateof an estate. But what is the true meaning of the expression“acquisition by the State of an estate”. In the context of Article31-A, the expression “acquisition by the State of an estate” in thesecond proviso to Article 31-A(1) must have the same meaningas it has in clause (1)(a) to Article 31-A. It is urged on behalf ofthe respondents before us that the expression “acquisition by theState of any estate” in Article 31-A(1)(a) has the same meaningas it has in Article 31(2-A). In other words, it is urged that theexpression “acquisition by the State of any estate” means transferof the ownership or right to possession of an estate to the StateMr Iyengar on the other hand urges that the expression “acquisitionby the State” has a very wide meaning and it would bear thesame meaning as was given by this Court in State of WestBengal v. Subodh Gopal Bose [(1964) SCR 587] , DwarkadasShrinivas of Bombay v. Sholapur Spinning & Weaving Co.Ltd. [(1954) SCR 674] Saghir Ahmad v. State of U.P. [(1955) 1SCR 707] and Bombay Dyeing and Manufacturing Co.Ltd. v. State of Bombay [(1958) SCR 1122] . In these cases thisCourt 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 theprocuring of property or the taking of it permanently or temporarily.It does not necessarily imply the acquisition of legal title by theState in the property taken possession of.”

10. Let us now see whether the other part of the second provisothrows any light on this question. It would be noticed that it refersto ceiling limits. It is well known that under various laws dealingwith land reforms, no person apart from certain exceptions canhold land beyond a ceiling fixed under the law. Secondly, the provisosays that not only the land exempted from acquisition should bewithin the ceiling limit but it also must be under personal cultivation.The underlying idea of this proviso seems to be that a person whois cultivating land personally, which is his source of livelihood,should not be deprived of that land under any law protected byArticle 31-A unless at least compensation at the market rate isgiven. In various States most of the persons have already beendeprived of land beyond the ceiling limit on compensation whichwas less than the market value. It seems to us that in the light ofall the considerations mentioned above the words “acquisition bythe State” in the second proviso do not have a technical meaning,as contended by the learned counsel for the respondent. If theState has in substance acquired all the rights in the land for its B

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own purposes, even if the title remains with the owner, it cannotbe said that it is not acquisition within the second proviso to Article31-A.

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F12. … It will be noticed that the title still vests in the propertybody, the management of the land is done on behalf of theproprietary body, and the land is used for the common needs andbenefits of the estate or estates concerned. In other words afraction of each proprietor’s land is taken and formed into acommon pool so that the whole may be used for the commonGneeds and benefits of the estate, mentioned above. The proprietorsnaturally would also share in the benefits along with others.

13. …In other words, a proprietor gets advantages which he couldnever have got apart from the scheme. For example, if he wanteda threshing floor, a manure pit, land for pasture, khal etc. he would H

not have been able to have them on the fraction of his land reservedfor common purposes.

14. Does such taking away of property then amount to acquisitionby the State of any land? Who is the real beneficiary? Is it thePanchayat? It is clear that the title remains in the proprietarybody and in the revenue records the land would be shown asbelonging to “all the owners and other right holders in proportionto their areas”. The Panchayat will manage it on behalf of theproprietors and use it for common purposes; it cannot use it forany other purpose. The proprietors enjoy the benefits derived fromthe use of land for common purposes. It is true that the non-proprietors also derive benefit but their satisfaction andadvancement enures in the end to the advantage of the proprietorsin the form of a more efficient agricultural community. ThePanchayat as such does not enjoy any benefit. On the facts ofthis case it seems to us that the beneficiary of the modification ofrights is not the State, and therefore there is no acquisition by theState within the second proviso.

15. In the context of the 2nd proviso, which is trying to preservethe rights of a person holding land under his personal cultivation, itis impossible to conceive that such adjustment of the rights ofpersons holding land under their personal cultivation in the interestof village economy was regarded as something to be compensatedfor in cash.”

63. Thus, in respect of the land taken from the proprietors fromtheir permissible ceiling limits, it is the management and control alonewhich would vest with the panchayat. The management and controlinclude leasing of land and use of the land by non-proprietors, ScheduledCastes and Schedules Tribes etc. which is for the benefit of the villagecommunity. Therefore, vesting under Section 4 would be limited tomanagement and control. It is pertinent to note here that for the landtaken from the proprietors by applying pro-rata cut from the permissibleceiling limits of the proprietors, management and control alone vestswith the Panchayat but such vesting of management and control isirreversible and the land would not revert to the proprietors forredistribution as the common purposes for which land has been carvedout not only include the present requirements but the future requirementsas well. Such land would not be available for sale so as to confer title on AB

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Athe purchaser in view of the fact that the Panchayat is not the full ownerof the land but while exercising control and management, it is duty boundto safeguard the land for the benefit of the village community.

64. The Panchayat will not have title over the land but as part ofmanagement and control, the panchayat is at liberty to put the land forBthe use for the common purposes. Such common purposes as definedunder Section 2(bb) of 1948 Act are interchangeable and also can beused for any other common purposes. It is to be noted that commonpurposes are ever evolving, they are not fixed in time. With the changein time and expectations of the village community, common purposeshave to be given wider meaning in view of the object of such reservationCof land. Therefore, though the panchayat has management and controlin respect of the land which was carved out from the land falling withinthe ceiling limits, the panchayat would have complete control over thesaid part of the land. The word ‘vesting’ appearing in Section 4 has to beread down to mean that management and control of such land aloneDwould vest in the panchayat.

65. In Shish Ram & Ors. v. State of Haryana & Ors.[39], anargument was raised that the land reserved for a particular commonpurpose can be used only for the said purpose. This Court held that aland vesting in the Gram Panchayat can be used for any one or more ofEthe purposes. It was held as under:

“6. We do not agree with the submission of the learned counsel ofthe appellants that in Bishamber Dayal case [1986 Punj LJ 208: AIR 1986 P&H 203 (FB)] the Full Bench of the High Court hadtaken a different view than the one which was taken in KhushiPuri case [1978 Punj LJ 78 : 1978 Rev LR 443] . The High CourtFappears to have consistently held that the land vesting in the GramPanchayat can be used for any one or more of the purposesspecified in sub-rule (2) of Rule 3, leasing out for cultivation beingone of the purposes. We find no reason to disagree with the HighCourt and in fact approve the position of law settled by it in KhushiGPuri case [1978 Punj LJ 78 : 1978 Rev LR 443] which was upheldby 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, butsuch land should be utilized only for common purposes for the benefit ofH39 (2000) 6 SCC 84

village community. Such benefits to the village community is not limitedto traditional benefits of the village community i.e., land for grazing ofcattle, dumping of dead animals, schools and hospitals but also the activitieswhich would be required in future, keeping in view the modernization ofthe village economy which will ultimately for the benefit of the villagecommunity.

67. Therefore, we affirm the conclusions No (i) and (ii) arrived atby the Full Bench in Jai Singh II, though for different reasons. Thefinding in para 218 (k) in Suraj Bhan is set aside for the reasons recordedabove. There is no challenge to Conclusion No. (iv) in the order of JaiSingh II, therefore, the same stands affirmed as well.

68. With respect to the conclusion no. (iii) by the Full Bench inJai Singh-II, it was observed that the land which has been cultivatedby the proprietors on pro-rata cut and which have not been earmarkedfor any common purpose, commonly called as Bachat land, shall notvest with the Gram Panchayat. We are unable to agree with suchconclusion.The land reserved for common purposes was reserved forthe requirement of village community in praesenti and in future. If theland has not been put to use for any common purpose soon after theconsolidation 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 peopleand the expectations of the village community is ever expanding.Therefore, even if any land reserved for common purposes is not actuallybeing put to any common purpose, it cannot be termed as a Bachat landand thus open for the purpose of repartition amongst the proprietorssought.

69. The expression Bachat land was first used by the High Courtin Gurdial Singh v. State of Haryana[40 ]wherein, the Panchayat wasthe owner of 850 standards kanals and 15 marlas. After considering theland owned by Panchayat prior to consolidation and the land, managementand control of which came with Gram Panchayat, it was found that 48standard kanals and 14 marlas were actually utilised for various commonpurposes and the remaining 112 standard kanals and 7 marlas wereordered to be redistributed pro-rata amongst the right-holders underSection 42 of the 1948 Act by the Assistant Director, Consolidation ofHoldings. The order of the Assistant Director Consolidation to redistributethe land was not interfered with.40 1979 PLJ 350

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A70. In a judgment reported as Bagga Singh v. The Commissioner,Ferozepur Division, Ferozepur[41], Panchayat filed an application foreviction for the ejectment of the writ petitioner. It was asserted that heis in possession as proprietor. 2 kanals out of 50 kanals reserved forcommon purposes was utilized for passages and remaining 48 kanalswas said to be left as Bachat land by the writ petitioner. It was held byBthe learned Single Bench that though the land in dispute is entered in thename of proprietary body of the village in the revenue record, but thiswould not be sufficient to draw an inference that it was reserved forcommon purposes of village. The High Court held that though initiallythe land was reserved for common purposes but since it was neverCutilized for any such purpose, therefore it is Bachat land which meansthe 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 commonpurposes under Section 18 and its management and control vestsDin the Gram Panchayat under Section 23-A of the ConsolidationAct. No doubt, the land in dispute is entered in the name ofproprietary body of the village in the revenue record but his factalone would not be sufficient to draw an inference that it wasreserved for common purposes of the village. As discussed above,the list of the land reserved for common purposes of the village asEwell as the entires in the Jamabandi clearly show that the land indispute though initially reserved for common purposes of the villagebut was never utilised for any such purpose and was entered inthe name of the proprietary body of the village being Bachat landwhich means the area left over unutilized. The Panchayat,Ftherefore, was not entitled to manage and control the land in disputeand as such the authorities below had no jurisdiction to orderejectment of the petitioner under the Eviction Act.”

71. In another judgment reported as Gram Panchayat, GuniaMajri v. Director, Consolidation of Holdings & Ors[42]., the learnedGSingle Bench held that if the land reserved for common purposes standssatisfied by the utilization of the land required for each such purpose, theremaining land should be redistributed back to the proprietors. The Courtheld as under:

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“Precisely, this very view has been taken by the Director/Additional Direction, Consolidation of Holdings, in the present writpetitions and the cases have been remitted by issuing the directionsto the Consolidation Officers for re-distribution of land to theoriginal proprietors from whom it was taken during consolidationpro rata by defining the shares of the right-holders. These ordersare sought to be challenged on the ground that entries like HasabRasad Khewat, Jumla Mushtarka Malkan or Jumla Malkar WaDigar Haqdaran Arazi Hasab Rasad Raqba, do not entitle theright-holders to claim this land once the same was earmarked andreserved for common purposes. The plea taken by the GramPanchayats and lessees of the Panchayat is wholly without anybasis in view of the aforesaid judgments.”

72. Similar view has been taken by the learned Singh Bench inBaj Singh v. State of Punjab[43]. In a judgment reported as GramPanchayat, Village Bhedpura v. Additional Director, Consolidation,Punjab[44], an argument was again raised before the Division Bench thatthe land still left which is known as Bachat land should be redistributedafter 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 Division[45]wherein many appeals weretaken up for hearing together, the lead judgment being LPA No. 868 of1992. The said LPA arose out of Writ Petition No. 18016 of 1991 whereina writ petition was filed against common order of eviction affirmed byCommissioner, Ferozepur Division on 06.08.1991. The Panchayat hadsought eviction of the appellants before the High Court as an unauthorizedoccupant. The learned District Development and Panchayat Officerexercising the powers of the Collector passed an order for the eviction.Such order of eviction was affirmed by the Commissioner, FerozepurDivision. In a writ petition before the High Court, it was pleaded that theland in dispute along with other land was reserved for common purposesduring consolidation and after utilizing the land for common purposes,the land in dispute remained as Bachat land and is not being used for anycommon purpose. The learned Single Bench in the order reported asBalwant Singh v. State of Punjab[46] dismissed the writ petitions as the 43 (1992) 1 PLR 10

44 (1997) 1 PLR 391

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46 (1992) SCC OnLine P&H 570

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Aargument was raised that the Bachat land could not be held to vest in thepanchayat. In Gurjant Singh case, the argument raised was as under:

“4. Mr. Chopra, learned counsel representing the appellantsvehemently contends that the land found Bachat (surplus) afterutilizing it for common purposes, cannot possibly vest with thegram panchayat and this precise question is not res integra havingbeen so held by a string of judicial precedents of Supreme Courtand this Court.

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16. In view of the consistent view taken by the Hon’ble SupremeCourt and this Court from time to time, it is not possible to hold intune with the findings recorded by the learned Single Judge and,therefore, it has to be held that the Bachat land i.e. land whichremains unutilised after utilising the land for the common purposesso provided under the consolidation scheme vests with theproprietors and not with the gram panchayat. Inasmuch, as thereis no material brought on records of the case showing how amutation came to be entered in favour of gram panchayat withregard to land which was consistently shown in the records ofrights as belonging to proprietors, the mutation entry in favour ofgram panchayat has to be completely ignored. It may be mentionedthat this view was also taken by the same Hon’ble Judge in aD.B. who decided the writ petitions giving rise to the presentLetters Patent Appeals. It is quite apparent that the provisions ofEast Punjab Holdings (Consolidation and Prevention ofFragmentation) Act, 1948 and the judgments that have been citedbefore us were not brought to the notice of the learned singleJudge. The judgment in appeal recorded by the learned singleJudge in Civil Writ Petitions No. 18016, 18018 and 18049 of 1991cannot, thus, sustain.

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17. Before we may part with this order, we would like to mentionthat several cases of this nature are being filed almost every dayas is also informed to us by the learned Counsel representing theparties. It appears to us that gram panchayat even thoughconscious of the fact that such lands cannot possibly belong to itrakes up the issue primarily for the reason that some individualshave occupied the Bachat land. The present case also provides G

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such an example. It has been repeatedly held by this Court andreference whereof has already been made above that the unutilisedland after utilising the land ear-marked for the common purposes,has to be redistributed amongst the proprietors according to theshare in which they had contributed the land belonging to themfor common purposes. This exercise, it appears, has not beendone throughout the States of Punjab and Haryana and villagesforming part of Union Territory, Chandigarh even though there isa specific provision for doing that. We have already reproducedthe relevant sections of the Act which in turn do contain theprovision of re-partition. This non-exercise of statutory provisionhas led to widespread litigation both in States of Punjab andHaryana and villages forming part of Union Territory, Chandigarh.With a view to curb this unnecessary and avoidable litigation asalso keeping in view the common good and benefit of proprietorswho had contributed land belonging to them for common purposes,we not only direct in this case that the concerned authorities underthe Act should redistribute the Bachat land amongst the proprietorsaccording to their shares but this exercise must be done throughoutthe States of Punjab and Haryana and villages forming part ofUnion Territory Chandigarh. A copy of this order, thus, be sent tothe 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 onto the concerned authorities under the Statute to redistribute/re-partition Bachat land amongst the proprietors according to theirshares. This exercise be done as expeditiousiy as possible andpreferably 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-ratacut from the land holding of the proprietors therefore, the proprietorshave a right over such land in proportions to the shares of the proprietorsin 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 HighCourt in Gurjant Singh were decided on 27.8.2001. It was thus arguedthat the reasoning recorded by the High Court is the reasoning not onlyapproved by this Court but shall also be deemed to be reasoning recorded A

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“Leave granted.

Mr. Harish N. Salve, learned Solicitor General submitted that theState of Punjab takes objection only in regard to the followingBobservations made in the impugned judgment:

“This exercise, it appears, has not been done throughoutthe State of Punjab and Haryana and villages forming part ofUnion Territory, Chandigarh even though there is a specificprovision for doing that.

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This exercise be done as expeditiously as possible andpreferable within six months proceedings for re-partition mustcommence. Liberty to apply in the event of non-compliance ofdirections, referred to above.”

Learned counsel for the respondent submits that he has noobjection in deleting the aforesaid portions from the impugnedjudgment. We allow these appeals to the extent of deleting of theabovesaid passage from the impugned judgment.

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These appeals are disposed of accordingly.”

E75. The argument advanced was that since the appeal was decidedby this Court, the findings recorded by the High Court stands affirmedby this Court and that we are bound by the judgment of the High Court.He relied upon the judgment in Kunhayammed v. State of Kerala[47]and also the judgment in V.M. Salgaocar & Bros. Pvt. Ltd. v.Commissioner of Income Tax[48]. On the other hand, Mr. Kant reliedFupon judgment of this Court in S. Shanmugavel Nadar v. State of T.N.[49].

76. We find that the judgment of Kunhayammed referred to byMr. Swaroop is not helpful to the argument raised. In fact, it was held asunder:

G“12. The logic underlying the doctrine of merger is that therecannot be more than one decree or operative orders governingthe same subject-matter at a given point of time. When a decree 47 (2000) 6 SCC 35948 (2000) 5 SCC 373H49 (2002) 8 SCC 361

or order passed by an inferior court, tribunal or authority wassubjected to a remedy available under the law before a superiorforum then, though the decree or order under challenge continuesto be effective and binding, nevertheless its finality is put injeopardy. Once the superior court has disposed of the lis before iteither way — whether the decree or order under appeal is setaside or modified or simply confirmed, it is the decree or order ofthe superior court, tribunal or authority which is the final, bindingand operative decree or order wherein merges the decree or orderpassed by the court, tribunal or the authority below. However, thedoctrine is not of universal or unlimited application. The nature ofjurisdiction exercised by the superior forum and the content orsubject-matter of challenge laid or which could have been laidshall have to be kept in view.”

77. In V.M. Salgaocar, the question of law framed was answeredin favour of the assessee and against the revenue by the High Court.The Civil Appeal at the instance of revenue was dismissed without anyspeaking order. It was held that the previous proceedings would operateas binding precedent that once this Court has dismissed the appeal, theHigh Court in a subsequent assessment year cannot take a differentview. It may be noticed that the aforesaid judgment was delivered on10.04.2000 whereas Kunhayammed was delivered in 19.07.2000 by alarger bench.

78. In S. Shanmugavel Nadar, this Court has referred to thejudgment of this Court in V.M. Salgaocar while examining the legalityof the Madras City Tenants Protection (Amendment) Act, 1994. Theconstitutional validity was upheld by the High Court in first round. TheSpecial Leave Petition was dismissed on the ground that the State ofTamil Nadu was not made a party. This Court had not examined theconstitutional validity of the Amending Act. In a subsequent round beforethe Full Bench considering the challenge to the Amending Act, the DivisionBench of the High Court was cited as a binding precedent affirmed bythis Court. This Court held that when an order of the superior forumresults in confirmation, reversal or modification the order, what emergesis the operative part alone is binding i.e., the mandate or decree issuedby the court which have been expressed in a positive or negative form.This Court also examined that dismissal of Special Leave Petition caneither result into res-judicata or a binding precedent under Article 141 ofthe Constitution. It was held as under:

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“10. Firstly, the doctrine of merger. Though loosely an expressionmerger of judgment, order or decision of a court or forum into thejudgment, order or decision of a superior forum is often employed,as a general rule the judgment or order having been dealt with bya superior forum and having resulted in confirmation, reversal ormodification, what merges is the operative part i.e. the mandateor decree issued by the court which may have been expressed ina positive or negative form. For example, take a case where thesubordinate forum passes an order and the same, having beendealt with by a superior forum, is confirmed for reasons differentfrom the one assigned by the subordinate forum, what would mergein the order of the superior forum is the operative part of theorder and not the reasoning of the subordinate forum; otherwisethere would be an apparent contradiction. However, in certaincases, the reasons for decision can also be said to have merged inthe order of the superior court if the superior court has, whileformulating its own judgment or order, either adopted or reiteratedthe 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 oflitigation, the decision in M. Varadaraja Pillai case [85 LW 760]was cited only as a precedent and not as res judicata. The issueought to have been examined by the Full Bench in the light ofArticle 141 of the Constitution and not by applying the doctrine ofmerger. Article 141 speaks of declaration of law by the SupremeCourt. For a declaration of law there should be a speech i.e. aspeaking order. In Krishena Kumar v. Union of India [(1990) 4SCC 207 : 1991 SCC (L&S) 112 : (1990) 14 ATC 846] this Courthas held that the doctrine of precedents, that is being bound by aprevious decision, is limited to the decision itself and as to what isnecessarily involved in it. In State of U.P. v. Synthetics andChemicals 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. Thequestion posed was: can the decision of an appellate court betreated as a binding decision of the appellate court on a conclusionof law which was neither raised nor preceded by any considerationor in other words can such conclusions be considered as declaration of law? His Lordship held that the rule of sub silentio isan exception to the rule of precedents. “A decision passes subsilentio, in the technical sense that has come to be attached to thatphrase, when the particular point of law involved in the decision isnot perceived by the court or present to its mind.” A court is notbound by an earlier decision if it was rendered “without anyargument, without reference to the crucial words of the rule andwithout any citation of the authority”. A decision which is notexpress and is not founded on reasons, nor which proceeds onconsideration of the issues, cannot be deemed to be a law declared,to have a binding effect as is contemplated by Article 141. HisLordship quoted the observation from B. Shama Rao v. UnionTerritory of Pondicherry [AIR 1967 SC 1480 : (1967) 2 SCR 650]“it is trite to say that a decision is binding not because of itsconclusions but in regard to its ratio and the principles, laid downtherein”. His Lordship tendered an advice of wisdom — “Restraintin dissenting or overruling is for sake of stability and uniformitybut rigidity beyond reasonable limits is inimical to the growth oflaw.” (SCC p. 163, para 41)

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14. It follows from a review of several decisions of this Courtthat it is the speech, express or necessarily implied, which only isthe declaration of law by this Court within the meaning of Article141 of the Constitution.”

79. In S. Shanmugavel Nadar, the Bench had the advantage ofconsidering Kunhayammed and V.M. Salgaocar. A perusal of theaforesaid judgment would show that if leave is granted in a special leavepetition, the appellate order becomes operative and executable order.But the nature of jurisdiction exercised by the superior forum and thecontent of subject matter of challenge laid or which could have been laidhad to be kept in view.

80. In a recent judgment reported as Kaikhosrou (Chick) KavasjiFramji v. Union of India and another[50], this Court held as under:

“53. In our view, the principle of merger is fairly well settled. Formerger to operate, the superior court must go into the merits ofthe issues decided by the subordinate court and record finding(s)

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Aone way or other on its merits. If this is not done by the superiorcourt, a plea of merger has no application in such a case and theorder 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-BTax, Bombay v. M/s. Amritlal Bhogilal and Co.[51], an appeal was filedbefore the Appellate Assistant Commissioner against an order passedby the Income-Tax Officer. However, the Income-Tax Officer passedan order refusing to grant registration to the firm to the two assessmentyears 1947-48 and 1948-49. An argument was raised that since the orderof the Assessing Officer has been affirmed in appeal, the non-registrationCof the firm could also be challenged before the Appellant AssistantCommissioner. This Court noticed the fact, that the department has notbeen conferred in the right of appeal against the order either refusing toregister the firm or cancelling the registration of the firm. This Courtconsidered such an argument and held as under:D“13. …….. It is thus clear that wide powers have been conferredon the Appellate Assistant Commissioner under Section 31. It isalso clear that, before the Appellate Authority exercises hispowers, he is bound to hear the Income Tax Officer or hisrepresentative. It has been urged before us by Mr Ayyangar onEbehalf of the respondent that these provisions indicate that, inexercise of his wide powers the Appellate Assistant Commissionercan, in a proper case, after hearing the Income Tax Officer or hisrepresentative, set aside the order of registration passed by theIncome Tax Officer. We are not prepared to accept this argument.The powers of the Appellate Assistant Commissioner, howeverFwide, have, we think, to be exercised in respect of the matterswhich are specifically made appealable under Section 30(1) ofthe Act. If any order has been deliberately left out from thejurisdiction of the Appellate Assistant Commissioner it would notbe open to the Appellate Authority to entertain a plea about theGcorrectness, propriety or validity of such an order. ……It is truethat, in dealing with the assessee’s appeal against the order ofassessment, the Appellate Assistant Commissioner may modifythe assessment, reverse it or send it back for further enquiry; butany order that the Appellate Assistant Commissioner may make

in respect of any of the matters brought before him in appeal willnot and cannot affect the order of registration made by the IncomeTax Officer. If that be the true position, the order of registrationpassed by the Income Tax Officer stands outside the jurisdictionof the Appellate Assistant Commissioner and does not strictly formpart of the proceedings before the appellate authority. Even afterthe appeal is decided and in consequence the appellate order isthe only order which is valid and enforceable in law, what mergesin the appellate order is the Income Tax Officer’s order underappeal and not his order of registration which was not and couldnever become the subject-matter of an appeal before the appellateauthority. The theory that the order of the tribunal merges in theorder of the appellate authority cannot therefore apply to the orderof registration passed by the Income Tax Officer in the presentcase.”

82. Thus, the principle of merger would be that the order of thehigher court becomes the operative order and not the order which wasappealed from and not interfered with.

83. In the appeal against the judgment of Gurjant Singh, onlygrievance raised before this Court was in respect of a direction of fixinga time limit to re-partition the land. It was the said direction which wasdeleted from the order. By such exercise of jurisdiction in appeal, thereasoning of the High Court is not deemed to be the reasoning of thisCourt. Such argument would in fact give rise to strange results as thereasoning of the High Court would have to be accepted as reasoning ofthe Supreme Court. There cannot be a more absurd argument. As heldby this Court in S. Shanmugavel Nadar, there can be only one operativejudgment/order. Once this Court has deleted the time limit to completethe re-partition, the operative order remains of the High Court that Bachatland can be partitioned i.e., operative part of the order. The reasoningrecorded by the High Court is not however affirmed by this Court. Itwould be a judgment of the High Court alone which can be cited as aprecedent 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 applyingthe doctrine of merger, the order of this Court becomes operative orderbut since the order is of deletion of a direction only, the effect would bethat the order of the High Court has not been interfered with.

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Athe proprietors only because at a particular given time, the land so reservedhas not been put to common use. The learned counsel for the partiescould not point out any particular time-line during which the commonpurposes have to be accomplished. Since ‘common purpose’ is a dynamicexpression, as it keeps changing due to the change in requirement of thesociety and the passing times, therefore once the land has been reservedBfor common purposes, it cannot be reverted to the proprietors forredistribution. Therefore, the conclusion no. (iii) arrived at by the HighCourt is set-aside as unutilized land is not available for redistributionamongst the proprietors. The finding recorded by the different Benchesof the High Court are clearly erroneous and not sustainable. Thus, theCconclusion no (iii) arrived at by the High Court in Jai Singh II is setaside.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 theDproprietors is to the provisions of the Haryana Municipal (Amendment)Act, 1999 (Act No. 17 of 1999) and to Section 2(52A) and Section161(1)(g) of the Haryana Municipal Corporation Act, 1994 inter alia onthe ground that the said Act infringes upon the fundamental rights of theproprietors as the same is not directed towards agrarian reforms. TheEland owners have sought a direction that the land reverts back to them.By virtue of the amendments, the shamilat deh was to vest with theMunicipalities. 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 purchasedFland admeasuring 6.4625 acres (51 Kanals 14 Marlas) said to be fromthe erstwhile owners through registered sale deeds. The appellant cannotbe said to be proprietor as it is a company whereas the vendors of theappellant may be proprietors but the facts are not clearly established onrecord. Mr. Kamat, learned Senior Advocate appearing for the appellantargued that the appellant has challenged the provisions of the HaryanaGMunicipal Corporation (Amendment) Act, 1999 amending the HaryanaMunicipal Corporation Act, 1994[52] but the State has not filed any appealagainst 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 ActH

Haryana Municipal Act, 1973[53] or the 1994 Corporation Act introducing‘shamilat land’ as vesting in municipality are not part of agrarian reformsand do not have the protection under Article 31A of the Constitution.Therefore, it is an acquisition by urban local body and the property of theproprietors can be acquired only by way of compensation. Since nocompensation is contemplated under the amending statutes, therefore,such amendments are absolutely unconstitutional. The said issue hasalready been decided by the Full Bench of Punjab and Haryana HighCourt in Rajender Parshad & Ors. v. State of Haryana & Ors.[54].

87. The Full Bench of the High Court in Rajender Parshad hadstruck down the Haryana Municipal Common Lands (Regulation) Act,1974[55] as suffering from the vice of unconstitutionality. It was foundthat the said Act was not a measure of agrarian reforms, therefore,could not enjoy the protection envisaged by Article 31A(1)(a) of theConstitution.

88. The High Court in Suraj Bhan struck down the provisions ofthe amending statutes amending the 1973 Municipal Act and the 1994Corporation Act relying upon the Full Bench decision in RajenderParshad. The appellant in Civil Appeal No. 1679 of 2022 is aggrievedagainst the direction to pay compensation treating the action of the Stateas an acquisition and holding that the owners are entitled to compensationunder Article 300-A of the Constitution.

89. The High Court in Suraj Bhan held that the proprietors cannotbe 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 suchinclusion or vesting by Section 2(g)(6) of the 1961 Act. The High Courtfurther held that the provisions of the Amending Acts amending the 1973Municipal Act and the 1994 Corporation Act would amount to compulsoryacquisition without payment of compensation which is impermissible inlaw. 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’

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Ato the effect of reversion of land to the land owners in the context ofRule 3 of the Punjab Gram Panchayat Rules, 1965. The High Court heldas under:

“207. In Municipal Committee, Sirhind v. Parshotam Dass (supra)and in the Notified Area Committee v. Des Raj (supra), the issueBwas confined to the effect of reversion of land to the land ownersin the context of Rule 3 of the Punjab Gram Panchayat Rules,1965 and the original owners were held not entitled to claim theproperty in question in the context of said Rule. Besides, in NotifiedArea Committee v. Des Raj (supra), the proviso to Rule 3 of thePunjab Gram Panchayat Rules, 1965 was held to be inapplicableCas the land came to be vested in the concerned Panchayat byoperation of the VCL Act 1953 under which the Gram Panchayathad acquired its right and the repeal of the said VCL Act 1953 bythe VCL Act 1961, it was said, did not in any way affect the rightwhich the Gram Panchayat had acquired over the land.

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211. In the present case, when the land being taken over by amunicipality and would, thus, have the characteristics of an urbanarea, it cannot be said that the same is for giving effect to thedirective principles of the State policy or for agrarian reforms.ERather the common purposes for which the land was being utilizedby the ‘inhabitants of the village’ would cease. Besides, there isno dispute to the proposition that the areas of the Gram Panchayatwhich are merged into the municipalities would not be entitled toa hearing in compliance with the principles of natural justice beforetheir merger.”F

90. Mr. Pradeep Kant, learned senior counsel appearing for theState argued that the land vested in the Panchayat in terms of Section 4of the 1961 Act, hence the land of Panchayat now merely standstransferred from one statutory body to the other by extending the municipallimits and thus that the proprietors would not be entitled to anyGcompensation. Mr. Kant also argued that the Haryana Panchayati RajAct, 1994[58] contemplates the satisfaction where the whole of the sabhaarea included in the municipality or cantonment, the Gram Panchayatshall cease to exist and the assets and liabilities shall vest with themunicipality.H58 For short, the‘1994 Act’

91. Mr. Kamat has raised an argument that the stand of the Statethat the amendment was necessitated to remove the encroachments onthe land reserved for common purpose is not tenable. It was pointed outthat for such purpose, the Haryana Common Purposes Land Evictionand Rent Recovery Act, 1985[59] has been enacted to treat the landreserved for common purposes under 1948 Act as public premises. Thesaid aspect has been considered by the Five Judges Bench in SurajBhan to hold that both proceedings under the 1961 Act and under the1985 Act are parallel proceedings and that it is open to choose any. TheCourt held as under:

“83. It may appropriately be noticed that the Haryana State hasalso framed the Haryana Common Purposes Land Eviction andRent Recovery Act, 1985. The said Act is to provide for evictionof unauthorized occupants from land reserved for commonpurposes under the Consolidation Act 1948. In terms of Section 2of the said Act ‘Common Purposes Land’ has been defined tomean land reserved for common purposes of a village under Section18 of the Consolidation Act 1948, the management and controlwhereof vests in the State Government or the Panchayat underSection 23-A of the said 16-02-2022 (Page 31 of 89)www.manupatra.com Supreme Court Judges LibraryConsolidation Act 1948. Section 3 of the Haryana CommonPurposes Land Eviction and Rent Recovery Act, 1985 providesfor application of the Haryana Public Premises and Land (Evictionand Rent Recovery) Act, 1972 to common purposes. It is providedthat notwithstanding anything contained in any law for the timebeing in force, the provisions of the Haryana Public Premises andLand (Eviction and Rent Recovery) Act, 1972, shall apply tocommon purposes land which shall be deemed to be publicpremises for the purpose of the said Act. The provisions of theVCL Act 1961 are, however, more comprehensive and deal withdisputes inter se parties as well as other disputes in terms of itsvarious provisions, as have been noticed above. The provisions ofthe VCL Act 1961 would be in addition to the procedure providedfor eviction of unauthorized occupants from land reserved forcommon purposes under the Consolidation Act 1948. The provisionsof 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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AVCL Act 1961 are invoked and administered by the officials ofthe Rural Development and Panchayats Department, Haryana.The officials of the said Department have been invested with thepowers of the Collector, the Commissioner and the FinancialCommissioner under the VCL Act 1961. The Sarpanches andPanches of the Gram Panchayats are more familiar in their day-Bto-day dealings with the officials of the Panchayat Department atthe Block Level, District Level and the State Level. Therefore,having an additional forum for resolution of disputes of lands whichare vested in the Panchayats or the management and control ofthe same is with the Panchayats. Besides, in case two proceduresCare provided for eviction of unauthorized occupants of lands whichvest in the Panchayat or the Panchayat has management andcontrol would not be illegal or improper.”

92. Ms. Agarwal has referred to Section 5 of the 1961 Act tocontend that the shamilat land is for the benefit of the inhabitants of aDsame village but in case, there is common benefit for more than onevillage, the land has to be used for the benefit of the inhabitants of thatvillage and not of the other village. It was further contended that shamilatdeh land is a concept of rural areas and its import into urban municipallaws is wholly erroneous construction by the State Legislature. Thetransfer of such land to the municipal bodies would be to the detrimentEof villagers and, therefore, bad in law. The vesting of land in municipalbodies 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 ofGram Panchayat and cannot be transferred. The Gram Panchayat onlyFhas the management and control of land carved out during consolidationunder the 1948 Act for a limited purpose for benefits of villagers of thatvillage. Such vesting is a trust created with the Panchayat and cannot betransferred or vested with any other person. Still further, the GramPanchayat can transfer only that much right which it had, therefore, theGtransfer of the shamilat land to the municipality lead to divesting of theinterest of the proprietors and, therefore, the proprietors in any casewould have continue to use the land so reserved for the benefit of thecommunity.

94. We do not find any merit in the argument that since the StateHhas not challenged the orders in the writ petition filed by the appellant, therefore, the State cannot challenge the judgment of Full Bench in SurajBhan. The State is in appeal against the entire judgment rendered bythe Full Bench in Suraj Bhan. The provisions amending the 1994Corporation Act are pari materia with the provisions amending the 1973Municipal Act. Therefore, the argument that the State has not filed anappeal against the order passed in the writ petition does not merit anyconsideration since the entire judgment is in appeal.

95. The fact is that the Full Bench of the Punjab and HaryanaHigh Court in Rajender Parshad has struck down the Haryana MunicipalCommon Lands (Regulation) Act, 1974 as unconstitutional inter alia onthe ground that such Act is not a measure of agrarian reform. Theinfirmities pointed out by the High Court in Rajender Parshad are verywell applicable to the amending Statutes amending the 1973 MunicipalAct and the 1994 Corporation Act. Therefore, we have no hesitation toaffirm the findings recorded by the High Court that the amending statutesamending the 1973 Municipal Act and the 1994 Corporation Act are alsounconstitutional as they are not part of the agrarian reforms.

96. However, we find merit in the argument raised by Mr. PradeepKant that if whole or part of the Panchayat area comes within themunicipal limits, and the Panchayat ceases to exist, land would vest withthe municipality and will not revert back to the proprietors. The relevantextract from the Haryana Panchayati Raj Act, 1994 reads as under:

“7. Demarcation of sabha area – (1) The Government may, bynotification, declare any village or a part of a village or group ofcontiguous villages with a population of not less than five hundredto constitute one or more sabha areas:

Provided that Government may in exceptional cases, byreasons to be recorded in writing, relax the limit of population of500:

Provided further that neither the whole nor any part of a- (a) municipality constituted under the Haryana MunicipalAct, 1973; (b) cantonment; shall be included in a sabha area unless the majority of votersin any municipality desire the establishment of a Gram Panchayatin which case the assets and liabilities, if any, of the municipality A

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(4) If the whole of the sabha area is included in a municipalityor a cantonment, the Gram Panchayat shall cease to exist and theassets and liabilities of it shall vest in the municipality orCcantonment, as the case may be.

(5) If the whole of the sabha area is included in the FaridabadComplex under the Faridabad Complex (Regulation andDevelopment) Act, 1971, the Gram Panchayat shall cease to existand its assets and liabilities shall vest in the Faridabad Complex.”

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97. Section 2-A of the 1973 Municipal Act deals with classificationand constitution of municipalities such as Municipal Committee for atransitional area with population of not more than fifty thousand, MunicipalCouncil for a smaller urban area with population of more than fiftythousand but less than three lacs and the Municipal Corporation for aElarger urban area with population of three lacs or more[60]. Section 3empowers the State Government to propose any local area to be amunicipality under the 1973 Municipal Act. Section 4 empowers theState Government to alter the limits of municipality whereas Section 5empowers the State Government to exclude any area from theFmunicipality. Relevant provisions from the 1973 Municipal Act read thus:

“3. Procedure for declaring municipality.—(1) The StateGovernment may, by notification, propose any local area to be amunicipality under this Act.

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(10) A Committee shall come into existence at such time as theState Government may, by notification, appoint in this behalf.

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(4) When any local area has been included in a municipality undersub-section (3), this Act, and, except as the State Governmentmay, by notification, direct otherwise, all notifications, rules; bye-laws, order, directions and powers issued made, or conferred underthis Act and in force throughout whole of the municipality at thetime, shall apply to such area.

5. Notification of intention to exclude local area from municipally.—The State Government may, by notification, and in such othermanner as it may deem fit, declare its intention to exclude from amunicipality any local area comprised therein and defined in thenotification.”

98. In the Notified Area Committee, an argument was raisedthat the land once vested with the Panchayat under the Punjab Act interms of Section 3(a) of the said Act would be mutated in favor of theappellant after the enactment of the 1974 Act. As the said Act wasdeclared void, it stands revested with the proprietors. Such argumentwas negated by this Court, though the High Court had accepted suchargument. This Court held as under:

“3. There being no dispute as to the vesting of the land pursuantto 1953 Act in the Gram Panchayat concerned, all that we arerequired to decide is whether the stand of the plaintiffs-respondentsthat the same got reverted to them pursuant to what has beenmentioned in the aforesaid proviso is correct or not.

4. To decide the aforesaid question, let Rule 3 of the Punjab GramPanchayat 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 contractor otherwise shall vest in the Municipal Committee, CantonmentBoard or Notified Area Committee as the case may be:

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Provided that the land, which vests in the panchayat underthe Punjab Village Common Lands (Regulation) Act, 1961 orthe land, management and control of which vests in thepanchayat under the East Punjab Consolidation and Preventionof Fragmentation Act, 1948, shall revert to the co-sharers andowners thereof.

5. The respondents first contention is that for the appellant toclaim vesting of the land in it, the first requirement is that thewhole of the sabha area must have been included in it. It is thenurged that even if this part of the requirement be held to be satisfied,because of what has been stated in the aforesaid proviso, the landdid revert to them. The further leaf of this argument is that theomission of the proviso by notification dated 22nd December, 1976cannot alter the position inasmuch as the area of village Gudha, inwhich the land is admittedly situate, had been declared to be partof notified area on 6-10-75; and so, the proviso operated by itsown force on that date, because of which its omission later oncould not alter the legal position.

6. Insofar as the first contention is concerned, Shri Ashri, learnedcounsel appearing for the appellants, brings to our notice whathas been stated in sub-section (2) of Section 8 of the PanchayatAct, which is in the following language :- xxx xxx

This shows that the only effect of non- inclusion of the whole ofthe area of a Gram panchayat is that the jurisdiction of the concernedNotified Area Committee shall get reduced and would be confinedto the part included. As in the present case there is nothing toshow that the part of the Gram Panchayat in which the suit land issituate had not been included in the territorial area of the appellant-committee, the first contention advanced on behalf of therespondent, which had found acceptance with the Courts below,cannot be regarded as legally sound.”

99. In Municipal Committee, Sirhind, the plaintiff filed a suitagainst the Municipal Committee for a declaration that the subject matterof the suit land is the property of the plaintiff as proprietors. The municipallimit of Sirhind Municipality was extended, covering a part of Gram Sabhaarea of Nagar Panchayat and the disputed area came under the Municipal Limits. The argument which found favor with the High Court was thatunless the whole land of the Sabha area is included in an urban estateunder the provisions of the Punjab Municipal Act, there can be no vestingof the Sabha area with the municipality. Such argument was not acceptedby this Court as the ‘whole’ was said to be including a ‘part’. Still further,the argument of the proprietors that the shamilat property would standreverted to the proprietors was not accepted. It was held as under:

“7. But a contention has been advanced which found favour withthe courts below that unless the whole land of the Sabha area isincluded in an urban estate under the provisions of the PunjabMunicipal Act, then there can be no vesting of the Sabha areawith the municipality. We are unable to accept this contentionsince the expression ‘whole’ in sub-section (3) of Section 4 of thePunjab Gram Panchayat Act must be held to be including a ‘part’and therefore if a part of the Sabha area is included within themunicipal limits then that part of the Sabha area becomes a partof the municipality and it ceases to be a part of the Gram Panchayat.Section 8 of the Gram Panchayat Act stood deleted from theGram Panchayat Act in the year 1962. Section 4(3) extractedabove was added to the Punjab Gram Panchayat Act with effectfrom 14-7-1978. The Punjab Gram Panchayat Rules, 1965 hadbeen framed in exercise of power under Section 101 of the PunjabGram Panchayat Act by the State Government. Rule 3 is the rulefor disposal of assets and liabilities of Gram Sabha. The said ruleprovides that if the whole of the Sabha area is included in amunicipality, cantonment city, urban estate or notified area, rights,obligations, property, assets and liabilities, if any, whether arisingout of any contract or otherwise shall vest in the MunicipalCommittee, Cantonment Board, (Municipal Corporation, ChiefAdministrator or Notified Area Committee, as the case may be).

10. A combined reading of the aforesaid provisions of the GramPanchayat Act, the rules made thereunder and the PunjabMunicipal Act unequivocally indicate that on and from the date ofissuance of a notification extending the municipal limits over apart of the Sabha area that part of the Sabha area forms a part ofthe municipality and it is the municipality in whom right, title andinterest over the area vests. It is difficult to accept the reasoning AB

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Aadvanced by the courts below that only when the entire Sabhaarea comes within the municipal limits then the property vestsand not otherwise. In our considered opinion the expression ‘whole’in Section 4(3) of the Gram Panchayat Act brings within its sweepalso a part of the Sabha area and therefore the disputed propertiesin the case in hand which originally formed a part of Sabha areaBof Village Brahman Majra having been included in municipal limitsof Sirhind Municipality by notification dated 18-9-1968, it is themunicipality on whom the right, title and interest of the propertyvested and it never revested at (sic in) the khewatdars as foundby the courts below. The courts below including the High CourtCnot only committed error in interpreting Section 4(3) of the GramPanchayat Act but also committed error in relying upon the provisoto Rule 3 of the Gram Panchayat Rules since on the date whenthe notification was issued extending the municipal limits of SirhindMunicipality on 18-9-1968 Section 4(3) of the Gram PanchayatAct was not in force and therefore Rule 3 could not have operatedDupon. As has been stated earlier Section 56 of the Municipal Actand Section 4 of the Gram Panchayat Act make the legislativeintention clear that when a part of the Sabha area gets includedwithin the municipal limits of any municipality the propertycomprised therein vests with the Municipal Committee. In thisEview of the matter the plaintiffs who were the original khewatdarscannot claim the property in question and it is the municipalitywhich continues to be the owner of the disputed property.

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12. Sub-section (2) of Section 3 would be attracted only whenFland vested in Municipal Committee, Sirhind has been excludedfrom “Shamlat deh” as defined in clause (g) of Section 2 of thesaid Act. Section 2(g) has 9 exclusion clauses but there is not aniota of material on record and in fact the case in hand has notbeen examined from that angle to establish that the disputedGproperty stood excluded from “Shamlat deh” by operation of anyof the sub-clauses which excludes from the definition of “Shamlatdeh” in Section 2(g). In that view of the matter the contention ofMr Madhava Reddy cannot be sustained.”

100. The sub-section (4) of Section 7 of the 1994 Act contemplatesHthat if the whole of the Sabha area is included in a municipality, the Gram Panchayat shall cease to exist, whereas on the other hand, the1973 Municipal Act contemplates inclusion of part of local area into amunicipality. In fact, Section 7(4) is pari materia with Section 4(3) of thePunjab Gram Panchayat Act, 1952, since repleaded by 1973 MunicipalAct.

101. The Panchayati Raj Act contemplates cessation of GramPanchayat if whole of the Sabha area is included in the municipality,whereas the 1973 Municipal Act contemplates the local area which maybe part of Gram Panchayat area can be included in the municipality.Even an area from the municipal limits can be excluded from the municipallimits as well. In Atma Ram this Court also examined the maxim thatOmne Majus continet in se minus (the greater contains the less). ThisCourt held as under:-

“12. Another branch of the same argument was that if the makersof the Constitution intended to include within the purview of Article31A, not only entire estates but also portions thereof, nothing wouldhave been easier than to say so in terms, and that in the absenceof any specific mention of “portions of an estate”, we should notread that article as covering “portions of an estate” also. In ouropinion, there is no substance in this contention, because theymust be attributed full knowledge of the legal maxim that “thegreater contains the less” – Omne Majus continet in se minus.........Thus the Full Bench specifically held that Article 31Aof theConstitution applied equally to portions of estates also. This decisionof the Full Bench[61] was followed by a Division Bench of thesame High Court, consisting of Bhandari C. J. and Dulat J., in thecase of Hukam Singh v. State of Punjab, 57 PLR 359 : ( AIR1955 Punjab 220).That Bench was concerned with theprovisions 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 ruledthat the ‘whole’ includes the part, and that where an Act providesfor rights in an estate, it provides for rights in a part of an estatealso. .............. In our opinion, the view taken by the earlier FullBench is the correct one. The learned Chief Justice who was aparty to both the conflicting views on the same question has notindicated his own reasons for changing his view. The Full Bench A

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Ahas accepted the force of the legal maxim that the greater containsthe less, referred to above but has not, it must be said with allrespect, given any good reasons for departing from that well-established maxim. .........”

102. The reference was made to later Full Bench judgment ofBPunjab High Court reported as State of Punjab v. S. Kehar Singh[62]andearlier Full Bench reported as Bhagirath. Even in a later Full Bench ofthe High Court in a judgment reported as M/s. Hari Ram Paras Ramv. State of Haryana[63], the expression ‘whole’ will include part has beenaccepted. It was held as under:- C“19. Mr. Mittal was pretty vehement in submitting that underSection 3(2)(c) of the Act the price of the entire essentialcommodity in contradistinction with a part thereof alone can befixed. According to him, there is no such thing as a partial controlof the price. I see no merit in this submission. If the non-availabilityof essential commodities, which grows with the passage of time,Dhas to be checked, then the evil must be nipped in the bud. Inother words, if the supply position can be improved by taking lessdrastic action, the State Government should be allowed to takethat action instead of allowing the problem to go out of hands. Ifthe interpretation suggested by Mr. Mittal is accepted, then theEauthorities under the Act, would have to wait till the essentialcommodities become so costly and scarce as to make absolutecontrol of prices the only imperative. Besides, there is a legalmaxim omne majus continet in se minus - the greater contains theless. This maxim has been referred to with approval in Atma Ramv. State of Punjab, AIR 1959 Supreme Court 519 - If the StateFGovernment has the volition and the right to travel the wholedistance, I see no reason why it should be commanded to go furtherif it exercises an option of stopping midway. ..............”

103. The Section 7(4) of the Panchayati Raj Act, 1994 is to beread with the provisions of the 1973 Municipal Act. However, both theGstatutes had undergone extensive changes after the insertion of Part IXand IX A in the Constitution empowering the third tier of the democraticset up. The Panchayati Raj Act contemplates vesting of property ofGram Panchayat with the municipality., whereas the Municipal Act takes62 AIR 1959 P&H 8; 1958 SCC Online Punj 89H63 ILR (1982) 1 Punjab and Haryana 317

into its ambit the properties which were vesting with Panchayat. The1973 Municipal Act contemplates that even if part of the property ofGram Panchayat is included in the Municipal Limits, it would vest withthe municipality. Thus, the word ‘whole’ appearing in Section 7(4) ofPanchayati Raj Act does include part of the Gram Panchayat area comingwithin the municipal limits. It is the same view which was taken by thisCourt in a Notified Area Committee, Sirhind.

104. Thus, if the whole or part of Gram Panchayat area is includedin the municipal limits, the land reserved for common purposes as part ofagrarian reforms would stand vested with the municipality. Such vestingis not a part of agrarian reforms but shall be on account of extension ofmunicipal limits. When the municipal limits are extended, the residentsof the Panchayat also became residents of the municipality. The commonpurposes of the village community prior to extension of the municipallimits would be deemed to be common purposes for which land can beutilized by the municipality. Therefore, such vesting of land reserved forcommon purposes is not an acquisition for the first time but transition ofthe land reserved for common purposes in the changed scenario whenthe land vest with the municipality.

105. The argument of the proprietors that if whole of the Sabhaarea merges with the municipality, only then there can be vesting of landreserved for common purposes with the municipality is untenable. Suchan argument would lead to anomalous results. The title, right and interestof the property cannot be held in abeyance. There has to be continuedcontrol and management over the land reserved for common purposesunder the 1948 Act. Therefore, even if a part of Sabha area is mergedinto the municipality, the municipality will have control over the land soreserved for the erstwhile village community which will now form partof the urban area. In view thereof, we do not find any merit in theargument raised on behalf of the proprietors and dismiss the writ petitionsfiled by them while allowing the appeals of the State.

106. The argument of the proprietors that the land which is notcapable of being used for common purposes of the inhabitants of aparticular village shall be reverted to the proprietors is untenable andunsustainable. The land has been put to common pool by applying pro-rata cut. Once pro-rata cut has been applied, the management and controlof such land vest with the Panchayat. There is no question of revertingthe land to the proprietors. As discussed above, the land which is not AB

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Apart of the permissible limits under the land ceiling laws stand acquiredand vested with the Panchayat in terms of judgment of this Court inRanjit Singh. However, in respect of the land forming part of permissiblelimits of the proprietor under the land ceiling laws, the management andcontrol vest with the Panchayat. Neither the 1961 Act nor the 1948 Actcontemplates redistribution of land to the proprietors. It is an irrevocableBact which cannot be undone. Therefore, once land vest with the Panchayat,it can be used for common purposes of the community and will neverrevert back to the proprietors.

107. We find that the scope of the two provisions under the 1985Act and 1961 Act are different and distinct. Under the 1985 Act, theCGram Panchayat could seek eviction from unauthorized occupants, themanagement and control as of the land reserved for common purposeswhereof vested in the Gram Panchayat in a summary way where thepossession of the occupant was unauthorized. But if there is dispute inrespect of the nature of occupation by the occupant or by the panchayat,Dprocedure under the 1961 Act alone can be resorted to as Section 13Aof the 1961 Act confers power upon the Collector to decide the questionof right, title or interest in any land or immoveable property vested ordeemed to have been vested in the panchayat. Therefore, in case of adispute about the right, title or interest in any land for or on behalf of anyperson, the remedy under the 1961 Act alone can be exercised. This willEinclude right, title or interest in all the three categories of land i.e., shamilatdeh owned by panchayat, shamilat land vested in terms of 1948 Actfalling in second category and the land, the management and controlwhereof is vested with the panchayat, land being within the permissiblelimits of the proprietor, the management and control of which vest withFthe panchayat.

108. Consequently, we hold that Act No. 9 of 1992, the AmendingAct is valid and does not suffer from any vice of constitutional infirmity.The entire land reserved for common purposes by applying pro-rata cuthad to be utilized by the Gram Panchayat for the present and futureGneeds 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 filedby the State and panchayats are allowed and those filed by the proprietorsare dismissed. Consequently, the writ petitions filed before the High Courtshall also stand dismissed.H

GLOSSARY OF THE WORDS USED IN THE JUDGMENT

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THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF985HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]23.Marla 30.25 sq. yards A24.kanal 20 marlas = 605 sq. yards 25.Acre 160 marlas = 4840 sq. yards PukhtaKachcha26.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 4Bigha 75 Biswa B30.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. CEach 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 Din 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 BoseMatters disposed of.E(Assisted by : Deepak Panwar, LCRA)

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