THE STATE OF HARYANA THROUGH SECRETARY TO GOVERNMENT OF HARYANA VS JAI SINGH & ORS

THE STATE OF HARYANA THROUGH SECRETARY TO GOVERNMENT OF HARYANA VS JAI SINGH & ORS - Supreme Court Case / Judgment 2022

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6990 OF 2014
THE STATE OF HARYANA THROUGH
SECRETARY TO GOVERNMENT OF HARYANA …..APPELLANT(S)
VERSUS
JAI SINGH & ORS. …..RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 6610-6612 OF 2016
CIVIL APPEAL NO. 6992 OF 2014
CIVIL APPEAL NO. 6991 OF 2014
CIVIL APPEAL NO. 6997 OF 2014
CIVIL APPEAL NO. 7001 OF 2014
CIVIL APPEAL NO. 4435 OF 2015
CIVIL APPEAL NO. 1679 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 28528 OF 2017)
CIVIL APPEAL NO. 1678 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 1072 OF 2018)
CIVIL APPEAL NO. 1675 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 4062 OF 2019)
CIVIL APPEAL NO. 1677 OF 2022
(ARISING OUT OF SLP (CIVIL) 3562 OF 2022)
(DIARY NO. 7418 OF 2020)
AND
1
CIVIL APPEAL NO. 1680 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 3557 OF 2022)
(DIARY NO. 14965 OF 2018)
J U D G M E N T
HEMANT GUPTA, J.
CIVIL APPEAL NO. 6990 OF 2014; CIVIL APPEAL NOS. 6610-
6612 OF 2016; CIVIL APPEAL NO. 6992 OF 2014; CIVIL
APPEAL NO. 6991 OF 2014; CIVIL APPEAL NO. 6997 OF 2014;
CIVIL APPEAL NO. 7001 OF 2014; CIVIL APPEAL NO. 4435 OF
2015; CIVIL APPEAL NO. 1675 OF 2022 AND CIVIL APPEAL NO.
1677 OF 2022
1. The subject matter of challenge in the present appeals is the
amendments in the Punjab Village Common Lands (Regulation)
Act, 19611
, as inserted by Haryana Act No. 9/19922
, published
on 11.2.1992 after the assent of the President of India.
2. The amendments carried out by the Amending Act came up for
consideration before the Full Bench of Punjab and Haryana
High Court in a judgment reported as Jai Singh & Ors. v.
State of Haryana
3
. The High Court struck down the
amendments introduced and held as under:
“In view of the observations cited above, Sections 2(g)
(4) and 2(g)(6) of the Act of 1961 describes the land
reserved for common purposes under Consolidation of
Holdings Act, 1948 by application or pro rata cut to the
holdings of the land owners within their ceiling limits as
Shamlat Deh under the Act of 1961 and since these
lands have been vested in the Panchayat the action is
1 For short, the ‘1961 Act’
2 Amending Act
3 AIR 1995 P&H 243 (Jai Singh I)
2
in violation of Article 31-A. Since definitions by Section
2(g)(4) and 2(g)(6) are so intermingled that no part can
be segregated and held ultravires and these sections
having categorically transgressed the powers of the
State for acquisition of land without compensation,
these provisions can not stand the test of
constitutionality. It is immaterial that the transgression
is open, direct or overt, disguised covert and indirect. It
is a piece of colourable legislation. Violation of Article
31-A is so manifest that it leaves no manner of doubt. I
am of the considered view that Sections 2(g)(4) and
2(g)(6) are void being violative of Article 31-A of the
Constitution of India. Writ of mandamus is, therefore,
issued restraining the State of Haryana from enforcing
the provisions of Sections 2(g)(4) and 2(g)(6) of the Act
of 1992.”
3. Civil Appeal No. 5480 of 1995 titled as State of Haryana v.
Jai Singh before this Court against the said judgment was
accepted on 6.8.1998 and the following order was passed:
"We have made a through search in the judgment under
appeal in order to discover whether any finding was
recorded by the High Court that the land sought to be
affected by the legislative measure under challenge
was within the celling limit of each of the respective
proprietors and was in each's personal cultivation, be it
factually or legally. That there is no such finding is
conceded to by the learned counsel for the parties.
Unless such finding was recorded, in clear terms, the
legislative measure could not have been struck down on
the anvil of Article 31A of the Constitution. In this view
of the matter, we would rather have a complete
decision from the High Court on the subject and,
therefore, necessarily, have to effect a remand to it;
other questions not being adverted to and leaving those
questions to the High Court to be re-affirmed or
otherwise".
As a result, we allow this appeal, set aside the
impugned judgment of the High Court and remit the
matter back to it for re-decision of the question
focussed as also others as indicated above".
3
4. It is thereafter, the Full Bench of Punjab and Haryana High
Court in Jai Singh and Ors. v. State of Haryana
4
 examined
the legality of sub-section 6 of Section 2(g) of the 1961 Act.
The above-mentioned appeals are directed against such order
and the order dated 08.11.2013 passed by the Full Bench
dismissing the review application against the said order in the
case of State of Haryana v. Vir Singh & Ors.
5
.
5. The impugned provisions of the Amending Act read thus:
“2. In this Act, unless the context otherwise requiresxxx xxx xxx
(g) shamilat deh" includes
xxx xxx xxx
(6) lands reserved for the common purposes of a
village under Section 18 of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act,
1948 (East Punjab Act 50 of 1948), the management
and control whereof vest in the Gram Panchayat under
Section 23-A of the aforesaid Act.
Explanation- Lands entered in the column of
ownership of record of rights as ‘Jumla Malkan Wa Digar
Haqdaran Arazi Hassab Rasad, ‘Jumla Malkan’ or
‘Mushtarka Malkan’ shall be Shamilat Deh within the
meaning of this Section.”
6. The Statement of Objects and Reasons for the Bill introduced
on 5.3.1991 containing the above impugned provisions is as
follows:
4 2003 SCC Online P&H 409 (For short, ‘Jai Singh II’)
5 RA -CW No. 350 of 1999 decided on 8.11.2013
4
“To make the provisions of the Punjab Village Common
Lands (Regulation) Act, 1961 more effective, practical,
deterrent and beneficial to the interests of the Gram
Panchayats it is necessary to amend the Punjab Village
Common Lands (Regulation) Act, 1961.”
7. Customary Law by Sir W.H. Rattigan (Sixteenth Edition revised
by Dr. Hari Dev Kohli) was first published in the year 1880. It is
a celebrated reference book, which explained the origin of
Shamilat law in Punjab in Chapter X of the book that the land is
the true basis of unity in villages, supplying the ultimate real
bond of union between the members who constitute the
aggregate proprietary body generally called the “village
community”. It was elaborated as under:-
“That land is the true basis of unity in village groupings,
supplying the ultimate real bond of union between the
members who constitute the aggregate proprietary body
generally called the “village community”, is a fact which may
be verified by the most superficial observer of the
organization which underlies those communities in the
Punjab. Thus, whatever may be the type to which a
particular village may belong, and to whatever extent
individualistic notions of property may have superseded the
earlier ideas of jointness and common holdings, there will be
found still surviving very distinct evidence of the fact that in
its origin the village association was bound together by the
acquisition of a definite space of land, which, as Sir Henry
Maine has so abundantly demonstrated, began at once to
become the basis of its capacity instead of kinship, ever
more and more vaguely conceived. This evidence is to be
found in the reservation within the territorial limits of every
village of some portions of the uncultivated waste for
purposes of common pasture, for assemblies of the people,
for the tethering of the village cattle, and for the possible
extension of the village dwellings. Lands so reserved are
jealously guarded as the common property of the original
body of settlers who founded the village or of their
descendants, and occasionally also those who assisted the
5
settlers in clearing the waste and bringing it under
cultivation are recognised as having a share in these
reserved plots. xxxx xxxx and
Finally, a modified and consolidated Punjab Village Common
Land Regulation Act, 1961 came in the statute book which
vests the village common land in the Gram Panchayats
without putting any constraints on the rights of the village
folks to use the village common land. It is only the ownership
which is vested in the Gram Panchayats along with its
management and power of alienation and thus superseding
the village proprietary body….”
8. The East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 19486
 was enacted to provide for
compulsory consolidation of agricultural holdings and for
preventing their fragmentation. The expression “common
purpose” defined under Section 2(bb) to mean “any purpose in
relation to any common need, convenience or benefit of
village” was inserted by Punjab Act No. 22 of 1954 with
retrospective effect. The scope of such expression came up for
consideration before the Full Bench of Punjab and Haryana
High Court in a judgment reported as Munsha Singh & Ors.
v. The State of Punjab & Ors.
7
. It was held that the
individual proprietors of the land were not left with even a
single right which may be included among the attributes of
ownership and that it was a case of total expropriation of the
right-holders. The Full Bench held that neither the language of
the preamble, nor that of section 18(c) could be extended so
as to include within its ambit wider programme, with a view to
6 For short, the ‘1948 Act’
7 AIR 1960 P&H 317 (FB)
6
bring about social equality by taking away from individual
proprietors their lands and giving them to non-proprietors, or
handing them over to the Panchayat for purposes of
management for any 'common purpose'. The amendment
carried out was thus set aside. It was thereafter, the
expression “common purpose” was amended by Punjab Act No.
27 of 1960. Such amendment was upheld by the Full Bench of
Punjab High Court in a judgment reported as Kishan Singh &
Anr. v. The State of Punjab & Ors.
8
.
9. The correctness of the decision of Full Bench in Kishan Singh
was doubted in view of the judgment reported as
Kavalappara Kottarathil Kochuni v. States of Madras
and Kerala
9
. The matter was considered by a larger Full
Bench of five judges in a judgment reported as Jagat Singh &
Ors. v. The State of Punjab & Ors.
10 The question examined
therein was as to whether it was permissible to keep aside land
owned by private individuals for providing income to the Gram
Panchayat. It was held that the 1948 Act was a measure
designed to promote agrarian reforms and therefore, not ultra
vires the Constitution. The judgment in Jagat Singh came up
for consideration in Ranjit Singh v. State of Punjab
11
8 AIR 1961 P&H 1
9 AIR 1960 SC 1080
10 AIR 1962 P&H 221 (FB)
11 AIR 1965 SC 632
7
wherein the judgment of the High Court was not interfered
with.
10. In Ajit Singh v. State of Punjab
12
, an argument was raised
before the Division Bench that the proprietor (land owner) was
a small landholder within the meaning of the Punjab Security
of Land Tenures Act, 1953, and that, therefore, no part of his
holding could be acquired without payment of compensation at
the market value. The High Court dismissed the petition. Such
judgment came up for consideration before a Constitution
Bench of this Court in a judgment reported as Ajit Singh v.
State of Punjab & Anr.
13
. The Court considered Rule 16(ii) of
the Punjab Holdings (Consolidation and Prevention of
Fragmentation) Rules, 194914 to hold that the title vests in the
proprietary body, the management of the land is done on
behalf of the proprietary body by the Panchayat for common
needs and purposes and for the benefit of estate or estates
concerned. Hence, the beneficiary of the modification of rights
was not the State.
11. At this stage, it may be noted that a Full Bench of Punjab in a
judgment reported as Jit Singh v. The State of Punjab &
Ors.
15
, considered the Punjab Act No. 39 of 1963 amending the
1948 Act. It was held that reservation of land for income of the
Gram Panchayat under the 1948 Act and for extension of the
12 ILR (1966) 1 Punjab 828
13 AIR 1967 SC 856
14 1949 Rules
15 AIR 1964 P&H 419 (FB)
8
abadi of the non-proprietors including Harijans, for Panchayat
Ghar and for manure pits was valid, as covered by Article
31A(1)(a) of the Constitution. In Bhagat Ram & Ors. v. State
of Punjab & Ors.
16
, the Constitution Bench of this Court held
that reservation of land for the income of panchayat is not
permissible, being hit by second proviso to Article 31A of the
Constitution. The question considered in the context of said
clause (ii) of Section 2 (bb) was as to whether the reservation
of land for income of the Panchayat was an acquisition of land
by the State within the second proviso to Article 31A of the
Constitution. It was held by the majority judgment that the said
provision was hit by the second proviso to Article 31A of the
Constitution. The State was accordingly directed to modify the
consolidation scheme and bring it into accord with the majority
judgment. There is no dispute about the said proposition in the
present appeals.
12. In Atma Ram v. State of Punjab
17
, the constitutionality of the
Punjab Security of Land Tenure Act, 1953 as amended by
Punjab Act No. 11 of 1955 was in question. The Constitution
Bench examined Article 31A. It was held that in Punjab there
are very few estates as defined in Section 3(1) of the Punjab
Land Revenue Act, 1887 in the sense that one single
landowner is seized and possessed of an entire estate which is
16AIR 1967 SC 927
17 AIR 1959 SC 519
9
equated with a whole village. In Punjab, an estate and a village
are inter-changeable terms, and almost all villages are owned
in parcels, as holdings by co-sharers, most likely, descendants
of the holder of a whole village which came to be divided
amongst the co-sharers, as a result of devolution of interest.
This Court also noticed that holdings in Punjab are vertical
divisions of an estate whereas in Eastern India, they represent
a horizontal division. The writ petitions were dismissed holding
that the provisions of Article 31A save the Act from any attack
based on the provisions of Articles 14,19 and 31 of the
Constitution.
13. The Five Judges Full Bench in Suraj Bhan & Ors. v. State of
Haryana & Anr.
18 has given the historical background of the
shamilat deh lands in the State of Punjab, including the
present-day State of Haryana. The history of shamilat law as
delineated in the said judgment is quoted hereinunder for
better understanding of the subject in the present appeals. The
words commonly used in this judgment are not common in
use, therefore, the Glossary of the words with their meaning is
appended at the foot of this judgment.
14. The shamilat deh lands in Punjab and Haryana are the
common lands in the villages reserved and utilized for
common purposes by inhabitants of the villages. These were
18 MANU/PH/3354/2016; (2017) 2 Punjab Law Reporter 605
10
kept as such at the time when the villages were formed or
consolidated and the land was colonized. In many cases, land
was contributed by the landowners or the village proprietary
body from their own landholdings for common purposes.
Villages were formed by cultivating the barren, uncultivated,
waste, or fallow land, which are known as 'banjar qadim' or
'banjar jadid' (barren land since long or recent). The
agricultural tribes which cultivated such land and made it
cultivable were the original landowners. Agricultural land
owned by a proprietor in his own right was a 'holding' of the
land and was recorded as such in the revenue records as
'khewat' and the owners were known and recorded as
‘khewatdars’. A khewatdar or landowner may hold the entire
khewat or have a share in it. The khewatdars were collectively
treated as owners of the land in a village ('malkan deh'). The
shamilat lands were enjoyed collectively by the khewatdars
and also by the other inhabitants of the village. These rights
find mention in the Village Land Administration Papers known
as 'Sharat Wajib-ul Arz'.
15. The proprietors of land in an estate had a right of ownership in
the shamilat deh lands, mostly to the extent of the share of
their holdings in the revenue estate. Various revenue terms
were used for describing and indicating the extent of
ownership rights and share of the proprietors. The nonproprietors including labourers, artisans, etc., as also those
11
responsible for collecting the land revenue ('mal guzars') were
entitled to the use of the common lands of the village i.e.,
shamilat deh lands.
16. The shamilat lands are recorded in the revenue records by
various nomenclatures such as shamilat deh, as also shamilat
tikkas, besides shamilat tarrafs, pattis, pannas and tholas. The
said lands are recorded as such in the revenue records for the
common use of the inhabitants of the village or for the
common use of a particular subdivided class of the village like
'tikkas', 'tarrafs', 'pattis', 'pannas' and 'tholas' etc. These types
of lands, however, were not without ownership or proprietary
rights of the owner or 'khewatdar'. Such ownership was and
had been collective in nature and not exclusive. The lands
recorded and described with different aforementioned
nomenclatures would vest accordingly in the 'tarraf', 'patti',
'panna' or 'thola' etc. which is in the form of a unit or a class in
the village. The proprietary body of the village managed the
day-to-day affairs of the inhabitants of the village and also
generated income for common use and kept lands for common
use for its inhabitants.
17. The British Government in India had undertaken the task of
land settlements. The most important aspect of land
settlement was to formulate a 'record of rights' commonly
known as 'fard', which is a detailed register of land in the form
in which they were believed to have been in existence at the
12
time of annexation of Punjab by the British in 1849. These
settlements were carried out by Settlement Officers whose
duty was to prepare the 'record of rights'. The records were
prepared primarily for fiscal purposes; however, these assume
a judicial character, specifically with reference to the
proprietorship or ownership. The records prepared in the past
during settlements play an important role in determining the
rights of owners and cultivators even as on date.
18. The Punjab Settlement Manual by Sir James M. Douie, KCSI,
ICS, 4th Edition, (3rd Reprint 2013)19 delineated the
Development of Settlement Policy in Punjab, which then
included the State of Haryana as well. In these settlements,
various areas and regions of the States were demarcated. The
Punjab Land Revenue Act, 1887 was enacted and is now
applicable in the States of Punjab and Haryana with
modifications by the respective States. The Settlement Manual
by Sir Douie makes a mention of the 'village community' as a
body of proprietors who then or formerly owned part of the
village lands in common, and who were jointly responsible for
the payment of revenue.20 As time passed by, it has been
mentioned that the tendency was for the area held in severalty
to increase, but it was rare indeed to find a village which was
one of the communal types in which there was no common
19 For short, ‘Settlement Manual’ printed by the Controller of Printing & Stationery
Department, Haryana, 2013.
20 Para 126 of the Settlement Manual
13
property remaining. Joint responsibility had been made a
permanent feature of village tenure by the British Government.
Under the native rule, it did not exist when the State realized
its dues by division of crops or by appraisement. Even when a
cash assessment was made, only a few leading members of
the community became responsible and they generally
occupied the position of revenue farmers in their dealings with
the rest of the brotherhood. But joint responsibility occupied a
far more prominent position in the codes than in practice.
There was reluctance of the village proprietary body to admit
strangers. The admission of strangers into the brotherhood
was always in theory at least, a thing to be guarded against,
and village customs in the matter of inheritance and
preemption were founded on this feeling.21 But under the
native rule, the repugnance to admit strangers often yielded to
the pressure of the Government demand, and outsiders were
allowed to share in rights that had become burdens. The
almost complete freedom of transfer for long enjoyed in
practice under the British Rule had a still more disintegrating
effect on village communities.
19. The Settlement Manual also makes a mention to the subdivisions of villages into 'Pattis' etc.22 It has been stated that
villages often consisted of several divisions known by various
names such as ‘tarraf’, ‘patti’ (where the term ‘tarraf’ is used
21 Para 127 of the Settlement Manual
22 Para 128 of the Settlement Manual
14
for main divisions, the sub-divisions are sometimes called
‘pattis’) or ‘panna’ and these again sometimes divided into
smaller sections like ‘thoks’, ‘thulas’ etc. The lands of two
‘pattis’ may be separated (‘chakbat’ i.e., applicable to a ‘patti’
or sub-division of an estate which has all its land in one block)
or intermixed (‘khetbat’ i.e., applicable to a ‘patti’ or
subdivision of an estate, the land of which do not lie in a single
block) and the proprietors of a ‘patti’ may have common lands
of their own and also a share in the general village common
land.
20. The Settlement Manual deals with the residents in the village
community who were not proprietors.23 The village community
of the communal type was to a considerable extent selfsufficing. The landowners included "a nearly complete
establishment of occupations and trades for enabling them to
continue to their collective life without assistance from any
person or body external to them."24

21. The constitutional validity of certain provisions of the Punjab
Village Common Lands (Regulation) Act, 195325 came up for
consideration before the Punjab and Haryana High Court in a
judgment reported as Hukam Singh v. State of Punjab
26
.
The High Court examined Article 31(2) and Article 31A,
keeping in view the fact that the Punjab Act was reserved for
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
15
consideration of the President and had received his assent, it
was held that the term “extinguishment” appearing in Article
31 of the Constitution does not mean total abolition of rights
known to law. Further argument was that the Act does not
provide for extinguishment or modification of any right in any
estate, therefore, the shamilat deh in a village would not be an
estate and the extinguishment or modification of any right in
such part of an estate would not be covered by Article 31A of
the Constitution. The Court held as under:
“ …The argument is interesting but not in my opinion
substantial. According to Mr. Tek Chand a law which
provides for the total abolition of the rights of
ownership of landed property, for instance, would be
constitutional as it would, according to him, fall under
Article 31-A, but if the right of ownership of a person or
a group of persons is merely extinguished qua those
persons and the same right is vested in some other
person that would not fall within the Article. I find it
impossible to agree that the expression
“extinguishment” has been used in Article 31-A of the
Constitution in the special sense suggested by the
learned counsel. It is significant that Article 31-A speaks
of acquisition by the State of any estate or of any rights
in an estate and then speaks of the extinguishment or
modification of any rights in an estate and I can find no
ground for thinking that if a person's rights in an estate
have been taken away from him and given to another
person this would not be extinguishing those rights. In
my opinion, therefore, the impugned Act does fall within
the meaning of Article 31-A of the Constitution as it
provides for the extinguishment of certain rights in
certain property belonging to the village proprietors and
also for the modification of those rights.
 …Once again, I am unable to agree. There are in an
estate several kinds of rights owned by various persons
and one of such rights is the right of proprietorship in
the village shamilat and when, therefore, the impugned
16
Act provides for the extinguishment of such ownership
rights it clearly provides for the extinguishment or
modification of certain rights in an estate. Mr. Tek
Chand's argument that a part of an estate is not an
estate appears to have been raised before a Full Bench
of this Court in connection with the validity of another
statute and it was on that occasion repelled by the Full
Bench. Khosla, J. who delivered the main judgment in
that case, Bhagirath Ram Chand v. State of Punjab and
others [ A.I.R. 1954 Punj. 167] , observed in connection
with this argument—
“It is clear that the whole includes the part and
where an Act provides for rights in an estate it
provides for rights in part of an estate.”
We are, in my opinion, bound by the view of the Full
Bench so clearly expressed in this respect.”
22. In State of Haryana v. Karnal Co-op. Farmers’ Society
Limited
27
, it was held that the Punjab Act and the Pepsu
Village Common Lands (Regulation) Act, 195428 are two
legislative measures enacted by the respective States of
Punjab and Pepsu to vest the common lands of villages in their
Panchayats for the common benefit and advantage of the
whole community of the village. It was held as under:
“3. Villages in pre-independent rural India having village
common or communal lands meant for use by the whole
village community was their common redeeming feature, in
that, the inhabitants of the villages whose occupation was
predominantly agriculture dependent on their live-stock
needed to give manure to their lands, to cart manure to their
lands, to plough their lands to carry on several other
incidental agricultural operations, required common lands for
using as pasturages, pools, ponds, thrashing-floors, cowdung
pits, hay stack areas, tethering areas and the like. Villages in
the States of Punjab and Pepsu were of no exception. With the
dawn of independence and rise in land value even in villages,
27 (1993) 2 SCC 363.
28 Pepsu Act (Patiala and East Punjab States Union).
17
powerful and greedy inhabitants in villages became grabbers
of Village common lands depriving their use to the village
community. Some of the States which were enabled by the
Constitution of India to organise village Panchayats as units of
Self Government and encourage growth of agriculture and
animal husbandry in villages by suitable legislative measures
took prompt steps to legislate on common lands of the village,
so as to restore such lands for communal use and common
benefit of all the inhabitants of the villages by vesting them in
their respective Panchayats. Punjab Village Common Lands
(Regulation) Act, 1953 and Pepsu Village Common Lands
(Regulation) Act, 1954 are two legislative measures enacted
by the respective States of Punjab and Pepsu to vest the
common lands of villages in their Panchayats for common
benefit and advantage of the whole community of the village
concerned. When under the States Reorganisation Act, 1956
Pepsu State merged in Punjab State, the said Pepsu Act
continued to operate in the area of erstwhile Pepsu. When the
operation of two legislative measures in the new Punjab State,
which were in some respects not common, was found to be
undesirable, the State of Punjab enacted the Village Common
Lands (Regulation) Act, 1961 referred to by us already as
'principal Act' and made it operative in the whole territory of
Punjab State, with effect from 4th day of May, 1961. By the
principal Act the two earlier Acts which had covered the field
till then were repealed, as well. The principal Act, as stated in
its preamble, sought by its provisions to consolidate and
amend the law regulating the rights in village common lands
popularly and colloquially known as 'shamilat deh' and 'abadideh'. As 'shamilat deh' was not defined in the repealed Acts
adverted to and there prevailed uncertainty as to its nature,
the principal Act defined 'shamilat deh' in Section 2(g) thereof
in an endeavour to achieve certainty, …..”
23. The nature of shamilat deh lands or village common lands was
examined by a Constitution Bench in Gram Panchayat of
Village Jamalpur v. Malwinder Singh,
29. It was observed
that prior to the partition of India, shamilat deh lands in Punjab
were owned by proprietors of other lands in the village, "Hasab
Rasad Khewat", that is to say, in the same proportion in which
29 (1985) 3 SCC 661
18
they owned other lands. Therefore, a person who did not own
any land in the village could have no proprietary rights or
interest in the shamilat deh lands. But since the interest of the
proprietors of other lands in shamilat deh lands was incidental
to their proprietary interests in those other lands, such interest
in the shamilat was not a mere appendage to their interest in
the other lands. A reference was made to Chapter X (Village
Common Land) of Rattigan's Digest, which is to the effect that
within the territorial limits of every village, some portion of the
uncultivated wastelands was reserved 'for purposes of
common pasture, assemblies of people, the tethering of the
village cattle, and the possible extension of the village
dwellings'. The lands so reserved were zealously guarded as
the common property of the original body of settlers who
founded the village or their descendants, and occasionally also
those who assisted the settlers in clearing the waste and
bringing it under cultivation were recognized as having a share
in these reserved plots. It was further noticed, ‘even in villages
which have adopted separate ownership as to the cultivated
area, some of such plots are usually reserved as village
common, and in pattidar villages, it is not unusual to find
certain portions of the waste reserved for the common use of
the proprietors of each patti, and other portions for common
village purposes. The former is designated as Shamlat-patti
and the latter Shamlat deh’. It was said, ‘as a general rule,
19
only proprietors of the village (malikan-deh) as distinguished
from proprietors of their own holdings (malikan makbuza khud)
are entitled to share in the “shamilat deh"’. This Court held
that Punjab Act was a measure of agrarian reforms protected
by Article 31A of the Constitution, holding as under:
“12. The Punjab Act of 1953 was reserved for consideration of
the President and received his assent on December 26, 1953.
Prima facie, by reason of the assent of the President the Punjab
Act would prevail in the State of Punjab over the Act of the
Parliament and the Panchayats would be at liberty to deal with
the Shamlat-deh lands according to the relevant Rules or Byelaws governing the matter, including the evacuee interest
therein. But, there is a complication of some nicety arising out
of the fact that the Punjab Act was reserved for the assent of
the President, though for the specific and limited purpose of
Articles 31 and 31A of the Constitution. Article 31, which was
deleted by the Constitution (forty-fourth Amendment) Act, 1978
provided for compulsory acquisition of property. Clause (3) of
that Article provided that, no law referred to in clause (2), made
by the Legislature of a State shall have effect unless such law,
having been reserved for the consideration of the President,
has received his assent. Article 31-A confers protection upon
laws falling within clauses (a) to (e) of that Article, provided
that such laws, if made by a State Legislature, have received
the assent of the President. Clause (a) of Article 31-A
comprehends laws of agrarian reform. Since the Punjab Act of
1953 extinguished all private interests in Shamlat-deh lands
and vested those lands in the Village Panchayats and since, the
Act was a measure of agrarian reform, it was reserved for the
consideration of the President………….”
24. The shamilat land in terms of Section 4 of the 1961 Act vested
in the Gram Panchayat of the village. The vesting of shamilat
land in a village panchayat brought about a paradigm shift in
the ownership of rights in 'shamilat deh'. The proprietary rights
of the proprietary body of the village in shamilat land were
extinguished by a statutory declaration. The proprietary and
20
possessory rights of proprietors and non-proprietors in
shamilat deh were to henceforth vest in a Gram Panchayat and
used for common purposes of the entire village community,
under the aegis of the Gram Panchayat. The shamilat deh
lands as defined under Section 2 (g) of the 1961 Act now vest
completely, that is, with ownership and title, in the Panchayat
of the village concerned. The vesting of the shamilat deh lands
or the village common lands in the Panchayat has been for
agrarian reforms and such vesting is protected by Article 31A
of the Constitution.
25. The other form of common land in the village is the land
described as `jumla mustarka malkan wa digar haqdaran arzi
hasab rasad raqba’, referring to joint holding of the proprietary
body and other right holders as per the share in the land
according to their holdings. These had come into effect with
the enactment of the 1948 Act, which was an act to provide for
compulsory consolidation of agricultural holdings, preventing
fragmentation of agricultural holdings and for assignment or
reservation of land for common purposes in the villages.
26. The ‘common purpose’ is defined in Section 2 (bb), Section 18
and Section 23A of the 1948 Act as follows:
“(bb) "Common purpose" means any purpose in relation to
any common need, convenience or benefit of the
village]; and includes the following purposes: -
(i) extension of the village Abadi; 30[-].
30 The word “and” omitted by Punjab Act 39 of 1963 and shall be deemed always to have
 been omitted.
21
[(ii) providing income for the Panchayat of the
village concerned for the benefit of the village
community].
31[(iii) village roads and paths; village drains, village
wells; ponds or tanks; village watercourses or
water channels; village bus stands and waiting
places; manure pits; hada rori; public latrines;
cremation and burial grounds, Panchayat Ghar;
Janj Ghar; grazing grounds; tanning places;
mela grounds; public places of religious or
charitable nature; and
(iv) schools and playgrounds, dispensaries,
hospitals and institutions of like nature, waterworks or tube-wells whether such schools,
playgrounds, dispensaries, hospitals
institutions, water-works or tube-wells may be
managed and controlled by the State
Government or not.]
18. Land reserved for common purposes. -
Notwithstanding anything contained in any law for the
time being in force, it shall be lawful for the
Consolidation Officer to direct -
(a) that any land specifically assigned for any
common purpose shall cease to be so assigned
and to assign any other land in its place;
(b) that any land under the bed of a stream or
torrent flowing through or from the Shiwalik
mountain range within the [State] shall be
assigned for any common purpose;
(c) that if in any area under consolidation no land is
reserved for any common purpose including
extension of the village abadi, or if the land so
reserved is inadequate, to assign other land for
such purpose.
32[23A Management and control of lands for common purposes
to vest in Panchayats or State Government. –
As soon as a scheme comes into force the management and
control of all lands assigned or reserved for common purposes
of the villages under Section 18, -
(a) in the case of common purposes specified in subclause (iv) of clause (bb) of section 2 in respect of
which the management and control are to be exercised
31 Inserted by Punjab Act 39 of 1963.
32 Substituted by Punjab Act 39 of 1963.
22
by the State Government, shall vest in the State
Government; and
(b) in the case of any other common purpose, shall vest
in the Panchayat of that village;
and the State Government or the Panchayat, as the case may
be, shall be entitled to appropriate the income accruing
therefrom for the benefit of the village community, and the
rights and interests of the owners of such lands shall stand
modified and extinguished accordingly:
Provided that in the case of land assigned or reserved for the
extension of village abadi or manure pits for the proprietors
and non-proprietors of the village, such land shall vest in the
proprietors and non-proprietors to whom it is given under the
scheme of Consolidation.]”
27. The consolidation operations are carried out in terms of the
1949 Rules. A consolidation scheme is prepared under Rule 4
and area for the common purpose is to be provided for under
Rule 16(ii) of the 1949 Rules, which reads as under: -
“Rule 16(i) XX XX XX
16(ii) In an estate or estates where during Consolidation
proceedings there is no Shamlat Deh land or such land
is considered inadequate, “land shall be reserved for
the village Panchayat and for other common purposes”,
under section 18(c) of the Act, out of the common pool
of the village 3 [at the scale given in the schedule to
these rules]. Proprietary rights in respect of land so
reserved (except the area reserved for the extension of
abadi of the proprietors and non-proprietors) shall vest
in the proprietary body of estate or estates concerned
and it shall be entered in the column of ownership of
records rights as (Jumla Malkan wa Digar Haqdarana
Arazi Hasab Rasad Raqba). The management of such
land shall be done by the Panchayat of the estate or
estates concerned on behalf of the village proprietary
body and the Panchayat shall have the right to utilize
the income derived from the land so reserved for the
common needs and benefit of the estate or estates
concerned.]”
23
28. The two enactments – Punjab Act and the Pepsu Act referred to
above were enacted with the assent of the President of India to
meet the immediate requirement during the consolidation
operations as the holding of proprietors to the extent of their
share was being added to the share of the proprietors.
Thereafter, the 1961 Act was enacted with the assent of the
President of India to grant inclusive definition to shamilat deh.
The Act as was originally enacted reads as under:
“2. In this Act, unless the context otherwise requiresxxx xxx xxx
(g) ‘shamilat deh’ includes-
(1) lands described in the revenue records as shamilat
deh excluding abadi deh;
(2) shamilat tikkas;
(3) lands described in the revenue records as shamilat,
tarafs, patties, pannas and tholas and used accordingly
to revenue records for the benefit of the village
community or a part thereof or for common purposes of
the village;
(4) lands used or reserved for the benefit of village
community including streets, lanes, playgrounds,
schools, drinking wells or ponds within abadi deh or
gorah deh; and
(5) lands in any village described as banjar Qadim and
used for common purposes of the village according to
revenue records;
Provided that shamilat deh at least to the extent of
twenty-five per centum of the total area of the village
does not exist in the village;
but does not include land which-
(i) xxx xxx xxx
3. (1) This Act shall apply, and before the
commencement of this Act, the shamilat law shall be
24
deemed always to have applied, to all lands which are
shamilat deh as defined in clause (g) of section 2.
(2) Notwithstanding anything contained in sub-section
(1) or section 4, where any land has vested in a
panchayat under the shamilat law but such land has
been excluded from shamilat deh as defined in clause
(g) of section 2, all rights, title and interest of the
Panchayat in such land shall, as from the
commencement of this Act, cease and such rights, title
and interest shall be revested in the person or persons
in whom they vested immediately before the
commencement of the shamilat law and the panchayat
shall deliver possession of such land to such person or
persons:
Provided that where a panchayat is unable to
deliver possession of any such land on account of its
having been sold or utilised for any of its purposes, the
rights, title and interest of the panchayat in such land
shall not so cease but the panchayat shall,
notwithstanding anything contained in section 10, pay
to the person or persons entitled to such land
compensation to be determined in accordance with
such principles and in such manner as may be
prescribed.
4. (1) Notwithstanding anything to the contrary
contained in any other law for the time being in force or
in any agreement, instrument, custom or usage or any
decree or order of any court or other authority, all
rights, title and interests whatever in the land,-
(a) which is included in the shamilat deh of any
village and which has not vested in a panchayat
under the shamilat law shall, at the
commencement of this Act, vest in a panchayat
constituted for such village, and, where no such
panchayat has been constituted for such village,
vest the panchayat on such date as a panchayat
having jurisdiction over that village is
constituted;
(b) which is situated within or outside the abadi
deh of a village and which is under the house
owned by a non-proprietor, shall on the
commencement of the shamilat law, be deemed
to have been vested in such non-proprietor.
25
(2) Any land which is vested in a panchayat under the
shamilat law shall be deemed to have been vested in
the panchayat under this Act.
(3) Nothing contained in clause (a) of sub-section (1)
and in sub-section (2) shall affect or shall be deemed
ever to have affected the-
(i) existing rights, title or interest of persons who
though not entered as occupancy tenants in the
revenue records are accorded a similar status by
custom or otherwise, such as Dholidars,
Bhondedars, Butimars, Basikhuopahus,
Saunjidars, Muqararidars;
(ii) rights of persons in cultivating possession of
shamilat deh for more than twelve years without
payment of rent or by payment of charges not
exceeding the land revenue and cesses payable
thereon;
(iii) rights of a mortgagee to whom such land is
mortgaged with possession before the 26th
January, 1950.
5. (1) All lands vested or deemed to have been vested
in a Panchayat under this Act shall be utilized or
disposed of by the Panchayat for the benefit of the
inhabitants of the village concerned in the manner
prescribed;
Provided that where two or more villages have a
common Panchayat in the shamilat deh or each village
shall be utilised and disposed of by the Panchayat for
the benefit of the inhabitants of that village:
Provided further that where there are two or more
shamilat tikkas in a village the shamilat tikka shall be
utilised and disposed of by the panchayat for the
benefit of the inhabitants of that tikka:
Provided further that where the area of land in shamilat
deh of any village so vested or deemed to have been
vested in a Panchayat is in excess of twenty-five per
cent of the total area of that village (excluding abadi
deh), then twenty-five per cent of such total area shall
be left to the Panchayat and out of the remaining area
of shamilat deh an area up to the extent of twenty-five
per cent of such total area shall be utilized for the
settlement of landless tenants and other tenants
ejected or to be ejected of that village and the
26
remaining area of shamilat deh, if any, shall be utilised
for distribution to the small landowners of that village
subject to the provisions relating to permissible area
and permissible limit of the Punjab Security of Land
Tenures Act, 1953, and the Pepsu Tenancy and
Agricultural Lands Act, 1955, as the case may be by the
Collector in consultation with the Panchayat in such
manner as may be prescribed.
xxx xxx xxx
11. Notwithstanding anything contained in the Punjab
Pre-emption Act, 1913, no sale of land in shamilat deh
made by a Panchayat shall be pre-emptible and no
decree of pre-emption in respect of any such sale shall
be executed after the commencement of this Act.”
29. The 1961 Act has undergone many changes in both States of
Punjab and Haryana. In the present appeals, the 1961 Act as is
applicable in the State of Haryana after reorganization of
States w.e.f. 1.11.1966 is under consideration. The noticeable
amendments carried out in the 1961 Act are by Haryana Act
No. 18 of 1971, and Haryana Act No. 2 of 1981 enacted after
the assent of the President of India on 31.1.1981. Sections
13C and 13D were inserted by such amendment which read
thus:
“5 xxx xxx
33[(5) Notwithstanding anything contained in this
section, if in the opinion of the State Government, it is
necessary to take over, to secure proper management
for better utilization for the benefit of the inhabitants of
the village concerned any shamilat deh the Government
may by notification take over the management of such
shamilat deh, for a period not exceeding twenty years.]
34[13C. Finality of orders. – Save as otherwise expressly
provided in this Act, every order made by the Assistant
33 Added by Haryana Act 18 of 1971, Section 2
34 Added by Haryana Act No. 2 of 1981
27
Collector of the first grade, the collector or the
Commissioner shall be final and shall not be called in
question in any manner in any court.
13D. Provisions of this Act to be over-riding. – The
provisions of this Act shall have effect notwithstanding
anything to the contrary contained in any law,
agreement, instrument, custom, usage, decree or order
of any court or other authority”.]
30. Some other amendments have been carried out during the
pendency of these proceedings. Certain arguments have been
addressed on the basis of such amendments as well. The said
amendments read as thus:
35[5A(1)(1) A panchayat may, gift, sell, exchange or
lease the land in shamilat deh vested in it under this Act
to such persons including members of Scheduled Castes
and Backward Classes on such terms and conditions, as
may be prescribed.
5B(1) Any transfer of land, gifted sold, exchanged or
leased before or after the commencement of this Act,
made in contravention of the prescribed terms and
conditions, shall be void and the gifted, sold, exchanged
or leased land so transferred shall revert to, and revert
in, the panchayat free from all encumbrances.
(2) The Government or any officer authorized by it may,
either suo motu or on application made to him by a
panchayat or an inhabitant of the village or the Block
Development and Panchayat Officer, examine the
record for the purpose of satisfying himself as to the
legality or propriety of any sale, lease, gift, exchange,
contract or agreement executed before or after
commencement of this Act, if such sale, lease, gift,
exchange, contract or agreement is found detrimental
to the interest of the villagers and is no longer required
in the interest of the panchayat, the Government may,
after making such enquiry as it may deem fit, cancel
the same and no separate proceedings under any law
shall be required to cancel the sale, lease, gift or
exchange. The panchayat shall be competent to take
35 Substitution of Section 5A and 5B by Act 8 of 2007 and thereafter by Act 23 of
2013
28
over the possession of such premises including the
construction thereon. If any, for which no compensation
shall be payable.]”
31. It was thereafter, considering the respective arguments of the
learned counsel for the parties, the Full Bench in Jai Singh II
held as under:
“22. The petitioners, in view of the stand now taken by
the State join issues only with regard to unutilised
lands, as according to them, the said lands shall also
not fall within the ambit of shamlat deh as defined
under Section 2(g)(1) of the Act of 1961 nor the
management and control whereof can vest with the
Gram Panchayat under the provisions of Sections 18,
23-A and Rule 16(2) of the Act of 1948. They further
clearly and candidly plead and so urge in the Court that
the petitioners are not claiming the lands which have
been reserved under Section 2(bb) read with Sections
18, 23-A and Rule 16(2) of the Act of 1948 and the rules
framed thereunder. In view of the limited controversy
between the parties, as now exists, it appears, there
shall be no need whatsoever, to test the
constitutionality of clause (6) of Section 2(g) of the Act
of 1961 and the explanation appended thereto on the
anvil of either Article 31-A or Article 300-A of the
Constitution of India. We may, however, briefly state
the pleadings of the parties on the issue limited to land,
subject matter of legislative measure, being within or
otherwise the ceiling limit of petitioner-proprietors.
xxx xxx xxx
46. The land reserved for common purposes under
Section 18(c), which might become part and parcel of a
scheme framed under Section 14, for the areas
reserved for common purposes, vests with the
Government or Gram Panchayat, as the case may be,
and the proprietors are left with no right or interest in
such lands meant for common purposes under the
scheme. There is nothing at all mentioned either in the
Act or the rules or the scheme, that came to be framed,
that the proprietors will lose right only with regard to
land which was actually put to any use and not the land
which may be put to common use later in point of time.
29
In none of the sections or rules, which have been
referred to by us in the earlier part of the judgment,
there is even slightest inkling that the scheme
envisages only such lands which have been utilised.
That apart, in all the relevant sections and the rules,
words mentioned are reserved or ‘assigned’. Reference
in this connection may be made to sub-section (3) of
Section 18 and Section 23-A. The provisions of the
statute, as referred to above, would, thus, further fortify
that reference is to land reserved or assigned for
common use, whether utilised or not.
xxx xxx xxx
49. The lands which, however, might have been
contributed by the proprietors on pro-rata basis, but
have not been reserved or earmarked for common
purposes in a scheme, known as Bachat land, it is
equally true, would not vest either with the State or the
Gram Panchayat and instead continue to be owned by
the proprietors of the village in the same proportion in
which they contributed the land owned by them. The
Bachat land, which is not used for common purposes
under the scheme, in view of provisions contained in
Section 22 of the Act of 1948, is recorded as Jumla
Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi
Khewat but the significant difference is that in the
column of ownership proprietors are shown in
possession in contrast to the land which vests with the
Gram Panchayat which is shown as being used for some
or the other common pupose as per the scheme.
xxx xxx xxx
62. In view of the discussion made above, we hold that:-
(i) sub-section (6) of Section 2(g) of the Punjab
Village Common Lands (Regulation) Act, 1961 and the
explanation appended thereto, is only an elucidation of
the existing provisions of the said Act read with
provisions contained in the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act,
1948;
(ii) the un-amended provisions of the Act of 1961
and, in particular, Section 2(g)(1) read with Sections 18
and 23-A of the Act of 1948 and Rule 16(ii) of the Rules
of 1949 cover all such lands which have been
specifically earmarked in a consolidation scheme
prepared under Section 14 read with Rules 5 and 7 and
30
confirmed under Section 20, which has been
implemented under the provisions of Section 24 and no
other lands;
(iii) the lands which have been contributed by the
proprietors on the basis of pro-rata cut on their holdings
imposed during the consolidation proceedings and
which have not been earmarked for any common
purpose in the consolidation scheme prepared under
Section 14 read with Rules 5 and 7 and entered in the
column of ownership as Jumla Mustarka Malkan Wa
Digar Haqdaran Hasab Rasad Arazi Khewat and in the
column of possession with the proprietors, shall not vest
with the Gram Panchayat or the State Government, as
the case may be, on the dint of sub-section (6) of
Section 2(g) and the explanation appended thereto or
any other provisions of the Act of 1961 or the Act of
1948;
(iv) all such lands, which have been, as per the
consolidations scheme, reserved for common purposes,
whether utilised or not, shall vest with the State
Government or the Gram Panchayat, as the case may
be, even though in the column of ownership the entries
may be Jumla Mustarka Malkans Wa Digar Haqdaran
Hasab Rasad Arazi Khewat etc.”
32. The Five Judge Bench in Suraj Bhan held that the
observations in Jai Singh II and Vir Singh conferring right,
title and ownership in respect of Jumla Mustarka Malkan lands
on the Gram Panchayat would be improper and invalid. The
Court held as under:
“218. In view of the above discussion, the legal position
that emerges is as follows:-
xxx xxx
(k) Any observation in Jai Singh’s case (supra) and Veer
Singh’s case (supra) to the extent it is taken as conferring
a right, title and ownership in respect of ‘Jumla Mushtarka
Malkan’ lands on the Gram Panchayat would be improper
and invalid notwithstanding Section 4 of the VCL Act 1961
in view of Section 2 (bb) and Section 23A of the
Consolidation Act 1948; besides, Rule 16(ii) of the
Consolidation Rules 1949 and the judgment of the Five
31
Judge Bench of Hon’ble the Supreme Court in Ajit Singh’s
case (supra).”
33. The above findings are subject matter of challenge by the
State as well as by the proprietors. The State is aggrieved
against finding no. (iii) of Jai Singh II and conclusion in para
218 (k) of Suraj Bhan, whereas the proprietors are aggrieved
against finding nos. (i) and (ii) of Jai Singh II.
34. Mr. Pradeep Kant, learned Senior Advocate appearing for the
State contended that the land reserved for common purposes
in a Scheme under Section 18(c) read with section 23-A and
Rule 16 (ii) of the 1949 Rules is for the present and future
needs. If a particular piece of land so reserved for common
purposes is not put to use as conceived in the Scheme, it does
not mean the land would revest with the proprietors. There is
no time limit within which the land reserved for common
purposes is to be used. Therefore, once the land has been
reserved for common purposes, the Panchayat can put it to
use for common purposes at any point of time. It was
contended that if the land is not put to common use, the
Panchayat can lease out such land, such leasing out would not
be for the income of the Panchayat but for optimum utilization
of land reserved for common purposes. It was also contended
that if the land is reserved for a particular common purpose, it
can be used for any other common purpose as well for the
32
benefit of village community, including proprietors and nonproprietors.
35. It was further contended that Section 2(g)(6) in 1961 Act is not
a new provision but is only a clarificatory and declaratory
amendment of the existing law. Shamilat Deh is the land
owned by Gram Panchayat to be used for common purposes
under Section 2(g)(1) of 1961 Act before consolidation. This
Court in a judgment reported as Sukhdev Singh v. Gram
Sabha Bari khad
36
 held that land recorded in the revenue
record as shamilat deh in the year 1914-15 could not detract
from the nature of the land as it was merely recorded to be in
possession of the owners as per respective shares in khewat in
a pre-consolidation shamilat land. The Court held as under:
“2……………. Firstly, the entry in 'jamabandi' of 1914-15
which recorded that the land was in possession of the
owners was quite innocuous, because it was made for the
reason that it was in nobody else's possession. The fact that
even then it was recorded in the 'Jamabandhi' as "shamlat
deh" shows that the particular character of the land was
recognised even as far back as 1914-15, and it could not
detract from that nature of the land merely because it was
further stated in the 'jamabandi' that it was in the
possession of the owners "as per respective shares in
khewat." ………”
36. On the other hand, the Jumla Mustarka Malkan land is
reserved for common purposes during consolidation. The
reservation of land for common purposes after consolidation
is not different from the shamilat deh land existing prior to
the consolidation as both are reserved for common
36 (1977) 2 SCC 518
33
purposes. The two nomenclatures are on account of
difference of time as shamilat lands were carved out prior to
commencement of shamilat law whereas Jumla Mustarka
Malkan lands were carved out after the commencement of
shamilat law. Therefore, once land is reserved for common
purposes, what was implicit in the definition of shamilat deh
as defined in Section 2(g)(6) of 1961 Act has been made
explicit by virtue of the Amending Act. It was further
contended that explanation of Section 2(g)(6) again uses the
expressions used in Rule 16(ii) of the 1949 Rules. Hence, the
amendment is not vesting of land reserved for common
purposes during consolidation for the benefit of village
community for the first time but is merely a clarificatory
amendment.
37. Alternatively, it was argued that even if it was a new provision
leading to acquisition of land, it was not a case of acquisition
without compensation but acquisition with “Nil” compensation
as the proprietors have been conferred right to use larger tract
of common land in lieu of small portions deducted by applying
pro-rata cut from their shares of holding. Such ultimate use of
land by the Panchayat confers benefit to the entire village
community including proprietors and non-proprietors.
Therefore, while introducing Section 2(g)(6), no compensation
was required to be paid in cash as the benefit in lieu of
34
compensation was already conferred to the proprietors in the
consolidation scheme.
38. Mr. Manoj Swarup, learned Senior Counsel appearing for the
proprietors argued that the effect of the Amending Act is that
the land stands vested with the Panchayat and, therefore,
there is no embargo on the Panchayat to sell or alienate the
land so vested. He draws support from Section 11 of the 1961
Act which curtails the right of pre-emption in respect of sale of
land of the Panchayat. It was argued that the vesting of land
with the Panchayat leads to conferment of all the rights and
interests in the land so vested, therefore, the Panchayat is
competent to sell the land which is not in tune with the
judgment of this Court in Ajit Singh.
39. Ms. Anubha Agarwal, counsel for the proprietors, submitted
that the amendments carried out in the 1961 Act when
Sections 13C and 13D were inserted not only grant finality to
the order passed by the Authority under the Act but also give
over-riding effect to any law, agreement, instrument, custom,
usage, decree or order of any court or other authority.
Therefore, the land, though at one point of time was
earmarked for common purposes and the management and
control vested with the Panchayat, but such provision will have
preference over any other provisions of any other law including
the 1948 Act. The provision read with Sections 5A and 5B of
35
the 1961 Act inserted in the year 2007 shows that the
Panchayat is exercising right, title and interest over the land
vesting with the Panchayat in terms of the 1948 Act, though
only vesting of control and Management to the Panchayat was
upheld by this court in Ajit Singh. Such statutory intervention
is illegal and in the teeth of the judgment of this Court in
mentioned judgment.
40. It was also argued on behalf of the proprietors that the 1948
Act does not contemplate divesting their ownership rights, but
the vesting of land by the Amending Act read with Section 4 of
1961 Act divests the owners of their title over the land without
compensation. Such action violates the mandate of Article
300A of the Constitution as the landowners are being deprived
of land without authority of law i.e., adequate compensation in
lieu of the land so acquired.
41. Learned Counsel for some of the proprietors further argued
that the land reserved for common purposes was in fact never
used for such common purpose and that it has always been in
possession of the proprietors of the village. Thus, the
proprietors are the owners in possession of the land in
question. The proprietors could thus not be deprived of their
title, possession or propriety rights in any manner without
following the due process of law i.e., after payment of market
value of such land.
36
42. It was argued that the land reserved for common purposes
during the consolidation which was more than the land
specifically assigned for common purposes in the consolidation
scheme was in fact a surplus land or a Bachat land. It was thus
contended that the unutilized land i.e., Bachat land has to be
revested with the proprietors as such land does not fall within
the ambit of shamilat deh, nor the management and control of
the same could vest with Gram Panchayat under the provisions
of Sections 18, 23A and Rule 16(ii) of 1948 Act. It was hence
argued that though the land has been reserved for common
purposes in the consolidation scheme under the 1948 Act, but
such land which is neither utilized nor reserved for any specific
common purpose would revest with the proprietors.
43. A reading of the aforementioned judgments and the history of
the shamilat deh (common land) in the State of Punjab,
including State of Haryana, shows that the common land for
the purposes of the present appeals falling in Section 2(g)(1)
and (6) of the 1961 Act as amended by the Amending Act can
be broadly classified into three categories:
(i) shamilet deh recorded in the ownership of the Gram
Panchayat prior to consolidation which vests unequivocally
with the commencement of the Punjab and PEPSU Act.
(ii) land for common purposes reserved during the process of
consolidation by applying pro-rata cut from the holdings of the
37
proprietors, not necessarily falling within the permissible
ceiling limits under the land ceiling laws.
(iii) common purposes land reserved by pro-rata cut within the
permissible limits as per the land ceiling laws, the
management and control of which vests with the panchayat.
44. There is no dispute about the land falling in the first category
as held by the High Court in Hukam Singh and subsequently
affirmed by this Court in Malwinder Singh as being part of
the agrarian reforms.
45. The 1948 Act is a pre-constitution law which has received the
assent of Governor General of India on 07.12.1948 and
published in East Punjab Government Gazette (Extraordinary)
dated 14.12.1948. The two subsequent amendments in the
1948 Act by Punjab Act No. 27 of 1960 and Punjab Act No. 39
of 1963 were enacted and published after the assent of the
President of India. Both the amendments were upheld by the
High Court in Kishan Singh and Jagat Singh relating to
Punjab Act No. 27 of 1960 and Jit Singh relating to Punjab Act
No. 39 of 1963.
46. The land falling in the second category was held to be a part of
the agrarian reforms protected by Article 31A of the
Constitution by the Full Bench of the Punjab and Haryana High
Court in Kishan Singh and Jagat Singh. A reading of the
judgment of the High Court in Jagat Singh shows that the
challenge therein was to 20 acres of land for the purpose of
38
income of Gram Panchayat. The High Court upheld the land
carved out for income of the Gram Panchayat since the 1948
Act was found to be part of agrarian reforms as per its object.
Though the members of the Bench gave different opinions, the
conclusion was that the 1948 Act is an Act having object of
agrarian reforms, protected by Article 31A(1) of the
Constitution. The Civil Appeal No. 743 of 1963 in Ranjit Singh
against such judgment was dismissed by the Constitution
Bench of this Court. The appeals before this Court were heard
and closed for judgment on April 27, 1964 but before the
judgment could be delivered, the Constitution (Seventeenth
Amendment) Act, 1964, received the assent of the President
on June 20, 1964. That amendment inter alia substituted
retrospectively from January 26, 1950, a new sub-clause (a) in
clause (2) of Article 31A and added a proviso to clause (1). The
High Court had decided the issues raised before it considering
the Article 31A as it was then existing. The short point
examined by this Court was, without referring to the
Seventeenth Amendment, whether the transfer of shamilat
deh owned by the proprietors to the village Panchayat for the
purposes of management in the manner described above and
the conferral of proprietary rights on non-proprietors in respect
of lands in abadi deh is illegal and if the several provisions of
law allowing this to be done are ultra vires Article 31 inasmuch
as no compensation is payable or whether the law and the
39
action taken are protected by Article 31A? The appeals were
dismissed with an observation that the question examined was
the correctness of the decisions under appeal, particularly the
Full Bench decision in Jagat Singh, without expressing any
opinion on the Seventeenth Amendment.
47. As per the facts noticed by this Court, 270 kanals, 13 marlas of
land in village Virk Kalan was given to village panchayat for
management and realization of income, apart from some land
reserved for abadi, manure pits, although the ownership was
shown in the revenue record as Shamilet Deh in the name of
the proprietors. In village Sewana, 400 kanals and 4 marlas
were set apart for the village panchayat for extension of the
abadi and to grant 8 marlas of land to each family of nonproprietors and 6 kanals being reserved for a primary school
and some more land for a phirni (Village Pathway around
village). In village Mehnd, the land was reserved for a school,
tanning ground, hospital, cremation ground and for nonproprietors. The proprietors were not paid compensation for
the lands. This Court noticed that Punjab Act was upheld by
the High Court in Hukam Singh but observed that Article
31(2) of the Constitution would have rendered the Act as void
but for the enactment of Article 31A. This Court also made
reference to Punjab Security of Land Tenures Act, 1953
providing for fixing the areas for self-cultivation and conferring
rights on the tenants to purchase land under their cultivation
40
from the landholders. Before this Court, the challenge was to
the correctness of a decision in Jagat Singh as also validity of
Punjab Act No. 27 of 1960 which was said to be in breach of
Article 19(1)(f) and Article 31 of the Constitution. Before the
judgment could be delivered, 17th Amendment to the
Constitution came into force and the judgment was delivered
without considering the insertion of second proviso in Article
31A(1). This Court held that village panchayat is an authority
for the purpose of Part III of the Constitution and it has the
protection of Article 31A. Because of this character, even if the
taking over of shamilat deh amounts to acquisition, the High
Court was right in deciding as it did in this case. A reading of
the judgment of Ranjit Singh would show that the land
reserved for income of the panchayat in village Virk Kalan was
not found to be unconstitutional, and further, the carving of
shamilat deh and giving it to Gram Panchayat was found to be
an act of agrarian reform, protected by Article 31A of the
Constitution, even if it amounts to acquisition. This Court held
as under:
“12. From a review of these authorities it follows that when
the Punjab High Court decided these cases on the authority of
Jagat Singh's case, the view taken in this Court was in favour
of giving a large and liberal meaning to the terms 'estate'
'rights in an estate' and 'extinguishment and modification' of
such rights in Article 31-A. No doubt Kochuni's case,
considered a bare transfer of the rights of the sthanee to the
tarwad without alteration of the tenure and without any
pretence of agrarian reform, as not one contemplated by
Article 31-A however liberally construed. But that was a
special case and we cannot apply it to cases where the
41
general scheme of legislation is definitely agrarian reform and
under its provisions something ancillary thereto in the
interests of rural economy, has to be undertaken to give full
effect to the reforms. In our judgment the High Court was right
in not applying the strict rule in Kochuni's case, to the facts
here.
13. The High Court was also right in its view that the proposed
changes in the shamlat deh and abadi deh were included in
the general scheme of planning of rural areas and the
productive utilisation of vacant and waste lands. The scheme
of rural development today envisages not only equitable
distribution of land so that there is no undue imbalance in
society resulting in a landless class on the one hand and a
concentration of land in the hands of a few, on the other, but
envisages also the raising of economic standards and
bettering rural health and social conditions. Provisions for the
assignment of lands to village Panchayat for the use of the
general community, or for hospitals, schools, manure pits,
tanning grounds etc. enure for the benefit of rural population
and must be considered to be essential part of the
redistribution of holdings and open lands to which no
objection is apparently taken. If agrarian reforms are to
succeed, mere distribution of land to the landless is not
enough. There must be a proper planning of rural economy
and conditions and a body like the village Panchayat is best
designed to promote rural welfare than individual owners of
small portions of lands. Further, the village Panchayat is an
authority for purposes of Part III as was conceded before us
and it has the protection of Article 31-A because of this
character even if the taking over of shamlat deh amounts to
acquisition. In our opinion, the High Court was right in
deciding as it did on this part of the case.
14. With respect to abadi deh the same reasoning must apply.
The settling of a body of agricultural artisans (such as the
village carpenter, the village blacksmith, the village tanner,
farrier, wheelwright, barber, washerman etc. etc.) is a part of
rural planning and can be comprehended in a scheme of
agrarian reforms. It is a trite saying that India lives in villages
and a scheme to make villages selfsufficient cannot but be
regarded as part of the larger reforms which consolidation of
holdings, fixing of ceilings on lands, distribution of surplus
lands and utilising of vacant and waste lands contemplate.
The four Acts, namely, the Consolidation Act, the Village
Panchayat Act, the Common Lands Regulation Act and the
Security of Tenure Act are a part of a general scheme of
reforms and any modification of rights such as the present has
42
the protection of Article 31-A. The High Court was thus right in
its conclusion on this part of the case also.”
48. Thus, the property was held to be acquired as a part of the
agrarian reform under Article 31A and no compensation was
payable as provided under Article 31. Therefore, the
acquisition was complete in respect of the land reserved for
common purposes by applying pro-rata cut on the land
holdings of the proprietors. Further, it is pertinent to mention
that the question of payment of compensation was specifically
negated in Ranjit Singh. Therefore, the land stood vested
with the Panchayat under the scheme in view of the said
judgment of this Court. In the present appeals, there is no
dispute that the land by applying pro-rata cut has not been
reserved for the income of the panchayat. Thus, we find that
the land falling in second category i.e., land reserved for
common purposes, not falling within the ceiling limit of the
proprietor would vest with Panchayat. The Amending Act does
not acquire land or deprive the proprietors of their ownership
as such ownership stood already divested in view of
consolidation scheme reserving land for common purposes.
The Amending Act is only a clarificatory or a declaratory
amendment as the land stood vested in the panchayat on the
strength of Ranjit Singh. Hence, Section 2(g)(6) read with
Section 4 of the 1961 Act vests the land reserved for common
purposes by applying pro-rata cut in the village Panchayat.
43
49. The Amending Act was enacted and published after obtaining
assent of the President of India, thus such Act is part of the
agrarian reform. In the year 1992, when the Amending Act was
enacted, Article 31 stood omitted by virtue of 44th
Constitutional Amendment Act, 1978 with effect from
30.04.1979. Therefore, the provision of payment of
compensation contemplated under Article 31(2) was not
available on the day when the Amending Act was published.
Article 300A was inserted by the same amendment i.e., 44th
Amendment with effect from 30.04.1979. Such Article
contemplated that no person shall be deprived of his property
save by the authority of law. Since the land was already vested
with Gram Panchayat, therefore, there was no question of
payment of compensation in the year 1992.
50. As observed above, the land stood acquired and vested with
the Panchayat by virtue of Ranjit Singh. This Court held that
no compensation was payable in view of the four Acts, namely,
the 1948 Act, the Punjab Act and the Pepsu Act, the 1961 Act
and also the Punjab Security of Land Tenures Act, 1953 as such
Acts were a part of a general scheme of reforms and any
modification of rights such as the present had the protection of
Article 31A. Such land would vest with the Panchayat.
51. The Full Bench of the Punjab and Haryana High Court in a
44
judgment reported as Parkash Singh & Ors. v. Joint
Development Commissioner, Punjab & Ors.
37
 has found
that “Jumla Mushtarka Malkan” land is not included in the
shamilat deh in the State of Punjab, therefore, the 1961 Act
will not confer jurisdiction on the Collector to decide the
dispute regarding title. The Full Bench held that the only forum
available to a person who raises a dispute regarding title in
“Jumla Mushtarka Malkan” is the principal Court of civil
jurisdiction. The Court held as under:
“61. The question that now remains is to identify the
forum, a person who raises a plea that the land is not
“Jumla Mushtarka Malkan” or that it was created by
applying an illegal pro rata cut or that the land was not
reserved for common purposes during consolidation,
would be required to approach. After due consideration
of the entire matter, we find no provision in the 1961
Act, the 1976 Act or the Consolidation Act that provides
a forum to a person who raises such a plea and,
therefore, in the absence of any fora for deciding such a
dispute a person may have to approach a Civil Court
but Section 44 of the Consolidation Act prohibits a Civil
Court from entertaining any matter which the State
Government or any officers are empowered by the
Consolidation Act to determine or dispose of Section 44,
however, cannot be read to prohibit Civil Courts from
deciding a question of title relating to “Jumla Mushtarka
Malkan” as what is prohibited by Section 44 is matters
that fall to the jurisdiction of State Government or to
any officer duly empowered by the Consolidation Act to
decide. The Consolidation Act does not confer power
whether on the State Government or the officers
empowered thereunder to decide a question of title.
The jurisdiction of a Civil Court to entertain a dispute
regarding “Jumla Mushtarka Malkan” is, therefore, not
barred by Section 44 of the Consolidation Act. The only
forum available to a person, who raises a dispute
regarding title in “Jumla Mushtarka Malkan” is the
principal Court of civil jurisdiction having jurisdiction in
37 2013 SCC OnLine P&H 26809
45
the matter, as provided by Section 9 of the Code of Civil
Procedure, i.e., a Civil Court.”
52. In Suraj Bhan, the Full Bench of the High Court held that only
the management and control as distinguished from the title
and ownership in respect of lands carved out during
consolidation operations by imposing a pro rata cut on the land
of the proprietors and recorded in the revenue records as
'Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba',
'Jumlan Malkan' or 'Mushtarka Malkan' etc., vest in the
Panchayat. It was held as under:
“146. However, for the removal of doubts, it is clarified
and held that any observations in Jai Singh's case
(supra), and in Veer Singh's case (supra) (in which the
application for review of the judgment in Jai Singh's
case (supra) had been dismissed by making
clarifications), if it is to be taken that the ownership or
title in respect of lands kept for 'common purposes' of
the village by imposing a pro rata cut on the land of the
proprietors and recorded in the revenue records as
'Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad
Raqba', 'Jumlan Malkan' or 'Mushtarka Malkan' etc. vest
with the State or the Gram Panchayat, as the case may
be, without payment of compensation is not the correct
legal position notwithstanding the provisions of Section
4 of the VCL Act 1961 and that in fact, only the
management and control of such lands vests in the
State or the Gram Panchayat, as the case may be.
Therefore, only the management and control as
distinguished from the title and ownership in respect of
lands carved out during consolidation operations by
imposing a pro rata cut on the land of the proprietors
and recorded in the revenue records as 'Jumla Malkan
Wa Digar Haqdaran Arazi Hasab Rasad Raqba', 'Jumlan
Malkan' or 'Mushtarka Malkan' etc., vest in the
Panchayat. Besides, as already noticed, the provision
relating to appropriation of income of the land kept for
'common purposes' in a consolidation scheme has been
invalidated by a Five Judge Bench of the Supreme Court
46
in Bhagat Singh's case (supra).”
53. We find that such conclusion in Parkash Singh or Suraj
Bhan that ‘Jumlan Malkan’ or 'Mushtarka Malkan' land so
described in the revenue record would not vest with the
Panchayat is not based on the correct reading of judgment of
this Court in Ranjit Singh. Once land had been reserved for
common purposes, irrespective of description in the revenue
record, such land would vest with Panchayat or the State. The
only condition is that it should not be within permissible limits
of the proprietors.
54. Still further, in Parkash Singh, it has been held that the
forum available to a person, who raises a dispute regarding
title in “Jumla Mushtarka Malkan” is the principal Court of civil
jurisdiction having jurisdiction in the matter, as provided by
Section 9 of the Code of Civil Procedure, i.e., a Civil Court.
Though the said judgment is in the context of the State of
Punjab, but the said finding is not sustainable for the reason
that “Jumla Mushtarka Malkan” is a land reserved for common
purposes during consolidation. Though Rule 16(ii) of the 1949
Rules prescribes that the common purposes land after applying
pro-rata cut would be described in the revenue record but the
expression “Jumla Mushtarka Malkan” or “Mushtarka Malkan” is
a land of the proprietors for the benefit of the village
community for common purposes. Therefore, if the revenue
records as “Jumla Mushtarka Malkan” or “Mushtarka Malkan” in
47
the ownership column, it is the authority under the 1961 Act
and the machinery provided thereunder which would exercise
jurisdiction to determine the dispute as to whether it is
reserved for common purposes or not.
55. We do not find any merit in the arguments raised by learned
counsel for the proprietors that the explanation enlarges the
scope of the common purposes for which land was reserved
under the scheme in terms of 1948 Act. Rule 16(ii) of 1949
Rules specifically mentions that the entry in the column of
ownership of records would be Jumla Malkan Wa Digar
Haqdaran Arazi Hassab Rasad. The other expression used in
the explanation is Jumla Mustarka Malkan or Mustarka Malkan,
which means the ownership of all the proprietors. They are
commonly used in the revenue record but they are not larger
in scope than the entry contemplated in the revenue record as
Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad.
Therefore, neither sub-section 6 nor the explanation is contrary
to Article 300-A as the land stood acquired without payment of
compensation being part of the agrarian reforms, when prorata cut was applied on the land of the proprietors.
56. We do not find any merit in the arguments raised that on the
basis of insertion of Sections 13C and 13D by virtue of
amendment in the year 1981 and insertion of Sections 5A and
48
5B by virtue of amendments carried out in 2007 or on the
strength of Section 11 of the 1961 Act as originally enacted,
the legality and validity of the Amending Act is any way
affected. The Panchayat was conferred ownership rights over
the land when pro-rata cut was applied on the land of the
proprietors to reserve land for the common purposes under the
1948 Act. The Panchayat is therefore the absolute owner of
such property which came to be vested in the Panchayat with
the commencement of shamilat law. The entire right, title or
interest in the said land forming part of second category
mentioned above vests with the Panchayat in view of the
judgment of this Court in Ranjit Singh.
57. In a judgment reported as Mahant Sankarshan Ramanuja
Das Goswami, etc. v. State of Orissa and another
38
, it has
been held that the benefit of Article 31-A is available also to
the Amending Act provided the assent of the President is
obtained to such Amending Act. It was held as under:
“12. The first argument is clearly untenable. It assumes
that the benefit of Article 31-A is only available to those
laws which by themselves provide for compulsory
acquisition of property for public purposes and not to
laws amending such laws, the assent of the President
notwithstanding. This means that the whole of the law,
original and amending, must be passed again, and be
reserved for the consideration of the President, and
must be freshly assented to by him. This is against the
legislative practice in this country. It is to be presumed
that the President gave his assent to the amending Act
38 AIR 1967 SC 59
49
in its relation to the Act it sought to amend, and this is
more so, when by the amending law the provisions of
the earlier law relating to compulsory acquisition of
property for public purposes were sought to be
extended to new kinds of properties. In assenting to
such law, the President assented to new categories of
properties being brought within the operation of the
existing law, and he, in effect, assented to a law for the
compulsory acquisition for public purposes of these new
categories of property. The assent of the President to
the amending Act thus brought in the protection of
Article 31-A as a necessary consequence. The
amending Act must be considered in relation to the old
law which it sought to extend and the President
assented to such an extension or, in other words, to a
law for the compulsory acquisition of property for public
purposes.”
58. Therefore, the Amending Act having been enacted after the
assent of the President, is protected in terms of Article 31A of
the Constitution.
59. In respect of the third category, the land within the ceiling limit
of the proprietor was pooled for common purposes and was
found to be part of the agrarian reforms by Division Bench of
the Punjab High Court in Ajit Singh. The argument raised was
that the proprietor (land owner) was a small landholder within
the meaning of the Punjab Security of Land Tenures Act, 1953,
therefore, no part of his holding could be acquired without
payment of compensation at the market value. The writ
petitioner had pleaded that in pursuance of the Cooperative
Societies Act, 100 bighas of land was given to the local
panchayat for common purposes, whereas in this scheme
prepared under 1948 Act, another 100 bighas of land was
being provided for the same purpose. The argument raised
50
was that most of the proprietors including the writ petitioner
own land within the first ceiling, therefore, the land falling
within the ceiling limit could not be acquired without payment
of compensation on account of insertion of second proviso to
Article 31A(1) by 17th Amendment. The 17th Amendment reads
thus:
“Provided further that where any law makes any provision
for the acquisition by the State of any estate and where
any land comprised therein is held by a person under his
personal cultivation, it shall not be lawful for the State to
acquire any portion of such land as is within the ceiling
limit applicable to him under any law for the time being in
force or any building or structure standing thereon or
appurtenant thereto, unless the law relating to the
acquisition of such land, building or structure, provides for
payment of compensation at a rate which shall not be less
than the market value thereof.”
60. The Division Bench of the High Court inter alia examined the
17th Amendment and held that it was not retrospective in
operation. The petition was dismissed after examining Article
31(2-A) of the Constitution as well as 17th Amendment which
deals with acquisition by the State, leaving requisitioning
untouched. The High Court found that where land is assigned
to a village Panchayat or the State for a common purpose, it
does not seem to provide, technically speaking, for the
transfer of ownership and the State Government and
Panchayat are merely empowered to manage and appropriate
the income accruing from the property for the benefit of village
community, including the original holder, and for no other
51
purpose. It was held that Article 31(2-A) of the Constitution
lays down that where a law does not provide for the transfer of
ownership, only the management and control would vest in the
village Panchayat. The Court held (page 857-858) as under:
“This brings me to the question whether the assignment of
land for common purposes is acquisition. The controversy on
this point seems to centre round Article 31(2-A) of the
Constitution which lays down that where a law does not
provide for the transfer of the ownership, or right to
possession of any property, to the State or to a Corporation
owned or controlled by the State, it shall not be deemed to
provide for the compulsory acquisition or requisitioning of
property, notwithstanding that it deprives any person of his
property. The learned Advocate-General has submitted that
providing for right to possession of any property means
requisitioning of such property, and compulsory acquisition,
according to this sub-article, is confined only to the transfer
of ownership. In the case in hand, ownership has not been
transferred in law and it is only the management and control
which vests in the village Panchayat concerned or the State,
as the case may be. This may amount to compulsory
requisitioning, but the further proviso introduced by the 17th
Amendment, with which we are concerned, hits only
acquisitions by the State leaving requisitioning untouched.
The petitioner's learned counsel has, on the other hand,
placed his reliance on the observations of Tek Chand, J.
in Munsha Singh's case and on the Supreme Court decision
in Ranjit Singh's case, the relevant passage from which has
been reproduced above. In this connection, it may be
remembered that the further proviso introduced in Article 31-
A(1) speaks of payment of compensation only in case of
acquisition by the State of land within the ceiling limit
applicable to the persons mentioned therein. Where such
land is assigned to a village Panchayat or the State for the
common purpose, it does not seem to me to provide
technically speaking for the transfer of ownership, and
indeed it is not the petitioner's case that title has actually
passed to the Panchayat or the State. What is argued is that
all the ingredients of ownership are taken away and what is
left with the owner is merely the husk or the shadow. As at
present advised, I find some difficulty in readily agreeing
with this submission because the property, though vesting in
the Panchayat, or the State Government, as the case may
52
be, has been reserved for common purposes in which the
entire village community including the original holder is
interested as equal sharer, and is entitled to secure the
benefit thereof in common with all the co-beneficiaries. The
State Government or the Panchayat are merely empowered
to manage and appropriate the income accruing from the
property for the benefit of the village community, including
the original holder, and for no other purpose. It is only the
right to transfer, or, to the exclusive use or appropriation, of
which the original holder has been deprived.
The benefits of the use of the land reserved for common
purposes are assured to the original holder in common with
all the other members of the community. Whether this can
be considered to be acquisition as distinguished from
requisitioning is a question which does not seem to be
capable of an easy answer. However, keeping in view the
general scheme and purpose of the Act, the scales do seem
to me prima facie to be somewhat inclined in favour of the
view that the statutory vesting of the property in the State
Government or the Panchayat, as the case may be, under
the Act, when it is reserved for common purposes, is perhaps
not intended to amount to acquisition within the
contemplation of the second proviso added to Article 31-A by
the 17th Amendment. But I should not like to express any
considered opinion on this somewhat difficult and vexed
point on the present occasion, leaving it to be settled if
necessary in a more appropriate case.”
61. In appeal, a Constitution Bench of this Court in Ajit Singh
noted that the scheme under the 1948 Act was not part of the
record but 89 bighas, 18 biswas and 18 biswanis of pukhta
land was owned by Gram Panchayat prior to consolidation
which was used for common purposes. Some more area was
reserved for common purposes such as for canals, pathways,
community center, school etc. after applying cut upon right
holders on pro-rata basis and not for income of Panchayat.
This Court held that the proprietor is not entitled to
53
compensation as the title of the proprietor is not being
divested and that management and control alone vests with
the panchayat. It was thus held that it was not a case of
acquisition of land.
62. This Court considered the questions as to “whether in the
second proviso to Article 31A(1), the expression “acquisition”
means substantial taking over the benefits of property and
conferring it on the State?” and that “whether the acquisition
means the entire process terminating with possession and
extinction of the title of the individual?”. This Court held that
the title vests in the proprietary body, the management of
the land is done on behalf of the proprietary body, the land is
used for the common needs and the benefits of the estate or
estates concerned. The Panchayat would manage such land
on behalf of the proprietors and use for common purposes,
therefore, the beneficiary of the modification of the rights is
not the State. Therefore, there is no acquisition by the State
within the meaning of second proviso. This Court examined
the Constitution (Seventeenth Amendment) Act, 1964 and
negated the argument raised by the proprietor. It was held as
under:
“9. Coming now to the second proviso to Article 31-A, it
would be noticed that only one category is mentioned in
the proviso, the category being “acquisition by the
State of an estate”. It means that the law must make a
provision for the acquisition by the State of an estate.
But what is the true meaning of the expression
54
“acquisition by the State of an estate”. In the context of
Article 31-A, the expression “acquisition by the State of
an estate” in the second proviso to Article 31-A(1) must
have the same meaning as it has in clause (1)(a) to
Article 31-A. It is urged on behalf of the respondents
before us that the expression “acquisition by the State
of any estate” in Article 31-A(1)(a) has the same
meaning as it has in Article 31(2-A). In other words, it is
urged that the expression “acquisition by the State of
any estate” means transfer of the ownership or right to
possession of an estate to the State Mr Iyengar on the
other hand urges that the expression “acquisition by
the State” has a very wide meaning and it would bear
the same meaning as was given by this Court in State
of West Bengal v. Subodh Gopal Bose [(1964) SCR
587] , Dwarkadas Shrinivas of Bombay v. Sholapur
Spinning & Weaving Co. Ltd. [(1954) SCR 674] Saghir
Ahmad v. State of U.P. [(1955) 1 SCR 707] and Bombay
Dyeing and Manufacturing Co. Ltd. v. State of
Bombay [(1958) SCR 1122] . In these cases this Court
had given a wide meaning to the word “acquisition”.
In Dwarkadas Shrinivas of Bombay v. Sholapur Spinning
& Weaving Co. Ltd. [(1954) SCR 674] Mahajan, J.,
observed at p. 704 as follows:
“The word ‘acquisition’ has quite a wide concept,
meaning the procuring of property or the taking of it
permanently or temporarily. It does not necessarily
imply the acquisition of legal title by the State in the
property taken possession of.”
10. Let us now see whether the other part of the
second proviso throws any light on this question. It
would be noticed that it refers to ceiling limits. It is well
known that under various laws dealing with land
reforms, no person apart from certain exceptions can
hold land beyond a ceiling fixed under the law.
Secondly, the proviso says that not only the land
exempted from acquisition should be within the ceiling
limit but it also must be under personal cultivation. The
underlying idea of this proviso seems to be that a
person who is cultivating land personally, which is his
source of livelihood, should not be deprived of that land
under any law protected by Article 31-A unless at least
compensation at the market rate is given. In various
States most of the persons have already been deprived
of land beyond the ceiling limit on compensation which
55
was less than the market value. It seems to us that in
the light of all the considerations mentioned above the
words “acquisition by the State” in the second proviso
do not have a technical meaning, as contended by the
learned counsel for the respondent. If the State has in
substance acquired all the rights in the land for its own
purposes, even if the title remains with the owner, it
cannot be said that it is not acquisition within the
second proviso to Article 31-A.
xx xx xx
12. … It will be noticed that the title still vests in the
property body, the management of the land is done on
behalf of the proprietary body, and the land is used for
the common needs and benefits of the estate or estates
concerned. In other words a fraction of each proprietor's
land is taken and formed into a common pool so that
the whole may be used for the common needs and
benefits of the estate, mentioned above. The
proprietors naturally would also share in the benefits
along with others.
13. …In other words, a proprietor gets advantages
which he could never have got apart from the scheme.
For example, if he wanted a threshing floor, a manure
pit, land for pasture, khal etc. he would not have been
able to have them on the fraction of his land reserved
for common purposes.
14. Does such taking away of property then amount to
acquisition by the State of any land? Who is the real
beneficiary? Is it the Panchayat? It is clear that the title
remains in the proprietary body and in the revenue
records the land would be shown as belonging to “all
the owners and other right holders in proportion to their
areas”. The Panchayat will manage it on behalf of the
proprietors and use it for common purposes; it cannot
use it for any other purpose. The proprietors enjoy the
benefits derived from the use of land for common
purposes. It is true that the non-proprietors also derive
benefit but their satisfaction and advancement enures
in the end to the advantage of the proprietors in the
form of a more efficient agricultural community. The
Panchayat as such does not enjoy any benefit. On the
facts of this case it seems to us that the beneficiary of
the modification of rights is not the State, and therefore
56
there is no acquisition by the State within the second
proviso.
15. In the context of the 2nd proviso, which is trying to
preserve the rights of a person holding land under his
personal cultivation, it is impossible to conceive that
such adjustment of the rights of persons holding land
under their personal cultivation in the interest of village
economy was regarded as something to be
compensated for in cash.”
63. Thus, in respect of the land taken from the proprietors from
their permissible ceiling limits, it is the management and
control alone which would vest with the panchayat. The
management and control include leasing of land and use of the
land by non-proprietors, Scheduled Castes and Schedules
Tribes etc. which is for the benefit of the village community.
Therefore, vesting under Section 4 would be limited to
management and control. It is pertinent to note here that for
the land taken from the proprietors by applying pro-rata cut
from the permissible ceiling limits of the proprietors,
management and control alone vests with the Panchayat but
such vesting of management and control is irreversible and the
land would not revert to the proprietors for redistribution as
the common purposes for which land has been carved out not
only include the present requirements but the future
requirements as well. Such land would not be available for
sale so as to confer title on the purchaser in view of the fact
that the Panchayat is not the full owner of the land but while
57
exercising control and management, it is duty bound to
safeguard the land for the benefit of the village community.
64. The Panchayat will not have title over the land but as part of
management and control, the panchayat is at liberty to put the
land for the use for the common purposes. Such common
purposes as defined under Section 2(bb) of 1948 Act are
interchangeable and also can be used for any other common
purposes. It is to be noted that common purposes are ever
evolving, they are not fixed in time. With the change in time
and expectations of the village community, common purposes
have to be given wider meaning in view of the object of such
reservation of land. Therefore, though the panchayat has
management and control in respect of the land which was
carved out from the land falling within the ceiling limits, the
panchayat would have complete control over the said part of
the land. The word ‘vesting’ appearing in Section 4 has to be
read down to mean that management and control of such land
alone would vest in the panchayat.
65. In Shish Ram & Ors. v. State of Haryana & Ors.
39
, an
argument was raised that the land reserved for a particular
common purpose can be used only for the said purpose. This
Court held that a land vesting in the Gram Panchayat can be
used for any one or more of the purposes. It was held as
under:
39 (2000) 6 SCC 84
58
“6. We do not agree with the submission of the learned
counsel of the appellants that in Bishamber Dayal
case [1986 Punj LJ 208 : AIR 1986 P&H 203 (FB)] the Full
Bench of the High Court had taken a different view than
the one which was taken in Khushi Puri case [1978 Punj
LJ 78 : 1978 Rev LR 443] . The High Court appears to
have consistently held that the land vesting in the Gram
Panchayat can be used for any one or more of the
purposes specified in sub-rule (2) of Rule 3, leasing out
for cultivation being one of the purposes. We find no
reason to disagree with the High Court and in fact
approve the position of law settled by it in Khushi Puri
case [1978 Punj LJ 78 : 1978 Rev LR 443] which was
upheld by the Full Bench in Bishamber Dayal
case [1986 Punj LJ 208 : AIR 1986 P&H 203 (FB)].”
66. Having said so, though the land vests with the Panchayat, but
such land should be utilized only for common purposes for the
benefit of village community. Such benefits to the village
community is not limited to traditional benefits of the village
community i.e., land for grazing of cattle, dumping of dead
animals, schools and hospitals but also the activities which
would be required in future, keeping in view the modernization
of the village economy which will ultimately for the benefit of
the village community.
67. Therefore, we affirm the conclusions No (i) and (ii) arrived at
by the Full Bench in Jai Singh II, though for different reasons.
The finding in para 218 (k) in Suraj Bhan is set aside for the
reasons recorded above. There is no challenge to Conclusion
No. (iv) in the order of Jai Singh II, therefore, the same stands
affirmed as well.
59
68. With respect to the conclusion no. (iii) by the Full Bench in Jai
Singh-II, it was observed that the land which has been
cultivated by the proprietors on pro-rata cut and which have
not been earmarked for any common purpose, commonly
called as Bachat land, shall not vest with the Gram Panchayat.
We are unable to agree with such conclusion. The land
reserved for common purposes was reserved for the
requirement of village community in praesenti and in future. If
the land has not been put to use for any common purpose
soon after the consolidation and/or thereafter, it cannot be said
to be a Bachat land. The land mass is not going to increase but
the requirement of the people and the expectations of the
village community is ever expanding. Therefore, even if any
land reserved for common purposes is not actually being put
to any common purpose, it cannot be termed as a Bachat land
and thus open for the purpose of repartition amongst the
proprietors sought.
69. The expression Bachat land was first used by the High Court in
Gurdial Singh v. State of Haryana
40 wherein, the Panchayat
was the owner of 850 standards kanals and 15 marlas. After
considering the land owned by Panchayat prior to
consolidation and the land, management and control of which
came with Gram Panchayat, it was found that 48 standard
kanals and 14 marlas were actually utilised for various
40 1979 PLJ 350
60
common purposes and the remaining 112 standard kanals and
7 marlas were ordered to be redistributed pro-rata amongst
the right-holders under Section 42 of the 1948 Act by the
Assistant Director, Consolidation of Holdings. The order of the
Assistant Director Consolidation to redistribute the land was
not interfered with.
70. In a judgment reported as Bagga Singh v. The
Commissioner, Ferozepur Division, Ferozepur
41
,
Panchayat filed an application for eviction for the ejectment of
the writ petitioner. It was asserted that he is in possession as
proprietor. 2 kanals out of 50 kanals reserved for common
purposes was utilized for passages and remaining 48 kanals
was said to be left as Bachat land by the writ petitioner. It was
held by the learned Single Bench that though the land in
dispute is entered in the name of proprietary body of the
village in the revenue record, but this would not be sufficient
to draw an inference that it was reserved for common
purposes of village. The High Court held that though initially
the land was reserved for common purposes but since it was
never utilized for any such purpose, therefore it is Bachat land
which means the area left unutilized. The Court held as under:
“4. For any land to be common purposes land under the
1976 Act, two conditions have to be satisfied that it was
reserved for common purposes under Section 18 and its
management and control vests in the Gram Panchayat
under Section 23-A of the Consolidation Act. No doubt,
41 (1984) SCC OnLine P&H 384
61
the land in dispute is entered in the name of proprietary
body of the village in the revenue record but his fact
alone would not be sufficient to draw an inference that
it was reserved for common purposes of the village. As
discussed above, the list of the land reserved for
common purposes of the village as well as the entires in
the Jamabandi clearly show that the land in dispute
though initially reserved for common purposes of the
village but was never utilised for any such purpose and
was entered in the name of the proprietary body of the
village being Bachat land which means the area left
over unutilized. The Panchayat, therefore, was not
entitled to manage and control the land in dispute and
as such the authorities below had no jurisdiction to
order ejectment of the petitioner under the Eviction
Act.”
71. In another judgment reported as Gram Panchayat, Gunia
Majri v. Director, Consolidation of Holdings & Ors
42
., the
learned Single Bench held that if the land reserved for
common purposes stands satisfied by the utilization of the
land required for each such purpose, the remaining land
should be redistributed back to the proprietors. The Court held
as under:
 “Precisely, this very view has been taken by the
Director/Additional Direction, Consolidation of Holdings,
in the present writ petitions and the cases have been
remitted by issuing the directions to the Consolidation
Officers for re-distribution of land to the original
proprietors from whom it was taken during
consolidation pro rata by defining the shares of the
right-holders. These orders are sought to be challenged
on the ground that entries like Hasab Rasad Khewat,
Jumla Mushtarka Malkan or Jumla Malkar Wa Digar
Haqdaran Arazi Hasab Rasad Raqba, do not entitle the
right-holders to claim this land once the same was
earmarked and reserved for common purposes. The
plea taken by the Gram Panchayats and lessees of the
42 (1990) SCC OnLine P&H 823
62
Panchayat is wholly without any basis in view of the
aforesaid judgments.”
72. Similar view has been taken by the learned Singh Bench in Baj
Singh v. State of Punjab
43
. In a judgment reported as Gram
Panchayat, Village Bhedpura v. Additional Director,
Consolidation, Punjab
44
, an argument was again raised
before the Division Bench that the land still left which is known
as Bachat land should be redistributed after utilizing the land
reserved for common purposes.
73. Mr. Manoj Swarup, learned Senior Counsel for the proprietors,
referred to a judgment of the High Court in Gurjant Singh v.
Commissioner, Ferozepore Division
45 wherein many
appeals were taken up for hearing together, the lead judgment
being LPA No. 868 of 1992. The said LPA arose out of Writ
Petition No. 18016 of 1991 wherein a writ petition was filed
against common order of eviction affirmed by Commissioner,
Ferozepur Division on 06.08.1991. The Panchayat had sought
eviction of the appellants before the High Court as an
unauthorized occupant. The learned District Development and
Panchayat Officer exercising the powers of the Collector
passed an order for the eviction. Such order of eviction was
affirmed by the Commissioner, Ferozepur Division. In a writ
petition before the High Court, it was pleaded that the land in
43 (1992) 1 PLR 10
44 (1997) 1 PLR 391
45 (2000) SCC OnLine P&H 56
63
dispute along with other land was reserved for common
purposes during consolidation and after utilizing the land for
common purposes, the land in dispute remained as Bachat
land and is not being used for any common purpose. The
learned Single Bench in the order reported as Balwant Singh
v. State of Punjab
46
 dismissed the writ petitions as the
argument was raised that the Bachat land could not be held to
vest in the panchayat. In Gurjant Singh case, the argument
raised was as under:
“4. Mr. Chopra, learned counsel representing the
appellants vehemently contends that the land found
Bachat (surplus) after utilizing it for common purposes,
cannot possibly vest with the gram panchayat and this
precise question is not res integra having been so held
by a string of judicial precedents of Supreme Court and
this Court.
xxx xxx xxx
16. In view of the consistent view taken by the Hon'ble
Supreme Court and this Court from time to time, it is
not possible to hold in tune with the findings recorded
by the learned Single Judge and, therefore, it has to be
held that the Bachat land i.e. land which remains
unutilised after utilising the land for the common
purposes so provided under the consolidation scheme
vests with the proprietors and not with the gram
panchayat. Inasmuch, as there is no material brought
on records of the case showing how a mutation came to
be entered in favour of gram panchayat with regard to
land which was consistently shown in the records of
rights as belonging to proprietors, the mutation entry in
favour of gram panchayat has to be completely ignored.
It may be mentioned that this view was also taken by
the same Hon'ble Judge in a D.B. who decided the writ
petitions giving rise to the present Letters Patent
Appeals. It is quite apparent that the provisions of East
Punjab Holdings (Consolidation and Prevention of
46 (1992) SCC OnLine P&H 570
64
Fragmentation) Act, 1948 and the judgments that have
been cited before us were not brought to the notice of
the learned single Judge. The judgment in appeal
recorded by the learned single Judge in Civil Writ
Petitions No. 18016, 18018 and 18049 of 1991 cannot,
thus, sustain.
17. Before we may part with this order, we would like to
mention that several cases of this nature are being filed
almost every day as is also informed to us by the
learned Counsel representing the parties. It appears to
us that gram panchayat even though conscious of the
fact that such lands cannot possibly belong to it rakes
up the issue primarily for the reason that some
individuals have occupied the Bachat land. The present
case also provides such an example. It has been
repeatedly held by this Court and reference whereof has
already been made above that the unutilised land after
utilising the land ear-marked for the common purposes,
has to be redistributed amongst the proprietors
according to the share in which they had contributed
the land belonging to them for common purposes. This
exercise, it appears, has not been done throughout the
States of Punjab and Haryana and villages forming part
of Union Territory, Chandigarh even though there is a
specific provision for doing that. We have already
reproduced the relevant sections of the Act which in
turn do contain the provision of re-partition. This nonexercise of statutory provision has led to widespread
litigation both in States of Punjab and Haryana and
villages forming part of Union Territory, Chandigarh.
With a view to curb this unnecessary and avoidable
litigation as also keeping in view the common good and
benefit of proprietors who had contributed land
belonging to them for common purposes, we not only
direct in this case that the concerned authorities under
the Act should redistribute the Bachat land amongst the
proprietors according to their shares but this exercise
must be done throughout the States of Punjab and
Haryana and villages forming part of Union Territory
Chandigarh. A copy of this order, thus, be sent to the
Chief Secretaries of Punjab and Haryana, Civil
Secretariat, Chandigarh and Adviser to the
Administrator, Union Territory, Chandigarh with a
direction that proper instructions be passed on to the
concerned authorities under the Statute to
redistribute/re-partition Bachat land amongst the
proprietors according to their shares. This exercise be
65
done as expeditiousiy as possible and preferably within
six months for re-partition must commence. Liberty to
apply in the event of non-compliance of directions,
referred to above.”
74. The argument was thus that such land carved out by pro-rata
cut from the land holding of the proprietors therefore, the
proprietors have a right over such land in proportions to the
shares of the proprietors in the khewa, in case, the same is not
put to use for common purposes. The Civil Appeal Nos. 5709-
5714 of 2001 against the order of the High Court in Gurjant
Singh were decided on 27.8.2001. It was thus argued that the
reasoning recorded by the High Court is the reasoning not only
approved by this Court but shall also be deemed to be
reasoning recorded by this Court. The order passed by this
Court in State of Punjab v. Gurjant Singh, reads thus:
“Leave granted.
Mr. Harish N. Salve, learned Solicitor General submitted
that the State of Punjab takes objection only in regard
to the following observations made in the impugned
judgment:
“This exercise, it appears, has not been done
throughout the State of Punjab and Haryana and
villages forming part of Union Territory, Chandigarh
even though there is a specific provision for doing that.
This exercise be done as expeditiously as
possible and preferable within six months proceedings
for re-partition must commence. Liberty to apply in the
event of non-compliance of directions, referred to
above.”
Learned counsel for the respondent submits that
he has no objection in deleting the aforesaid portions
from the impugned judgment. We allow these appeals
66
to the extent of deleting of the abovesaid passage from
the impugned judgment.
These appeals are disposed of accordingly.”
75. The argument advanced was that since the appeal was
decided by this Court, the findings recorded by the High Court
stands affirmed by this Court and that we are bound by the
judgment of the High Court. He relied upon the judgment in
Kunhayammed v. State of 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 relied upon
judgment of this Court in S. Shanmugavel Nadar v. State of
T.N.
49
.
76. We find that the judgment of Kunhayammed referred to by
Mr. Swaroop is not helpful to the argument raised. In fact, it
was held as under:
“12. The logic underlying the doctrine of merger is that
there cannot be more than one decree or operative
orders governing the same subject-matter at a given
point of time. When a decree or order passed by an
inferior court, tribunal or authority was subjected to a
remedy available under the law before a superior forum
then, though the decree or order under challenge
continues to be effective and binding, nevertheless its
finality is put in jeopardy. Once the superior court has
disposed of the lis before it either way — whether the
decree or order under appeal is set aside or modified or
simply confirmed, it is the decree or order of the
superior court, tribunal or authority which is the final,
binding and operative decree or order wherein merges
the decree or order passed by the court, tribunal or the
authority below. However, the doctrine is not of
47 (2000) 6 SCC 359
48 (2000) 5 SCC 373
49 (2002) 8 SCC 361
67
universal or unlimited application. The nature of
jurisdiction exercised by the superior forum and the
content or subject-matter of challenge laid or which
could have been laid shall have to be kept in view.”
77. In V.M. Salgaocar, the question of law framed was answered
in favour of the assessee and against the revenue by the High
Court. The Civil Appeal at the instance of revenue was
dismissed without any speaking order. It was held that the
previous proceedings would operate as binding precedent that
once this Court has dismissed the appeal, the High Court in a
subsequent assessment year cannot take a different view. It
may be noticed that the aforesaid judgment was delivered on
10.04.2000 whereas Kunhayammed was delivered in
19.07.2000 by a larger bench.
78. In S. Shanmugavel Nadar, this Court has referred to the
judgment of this Court in V.M. Salgaocar while examining the
legality of the Madras City Tenants Protection (Amendment)
Act, 1994. The constitutional validity was upheld by the High
Court in first round. The Special Leave Petition was dismissed
on the ground that the State of Tamil Nadu was not made a
party. This Court had not examined the constitutional validity
of the Amending Act. In a subsequent round before the Full
Bench considering the challenge to the Amending Act, the
Division Bench of the High Court was cited as a binding
precedent affirmed by this Court. This Court held that when an
order of the superior forum results in confirmation, reversal or
68
modification the order, what emerges is the operative part
alone is binding i.e., the mandate or decree issued by the court
which have been expressed in a positive or negative form. This
Court also examined that dismissal of Special Leave Petition
can either result into res-judicata or a binding precedent under
Article 141 of the Constitution. It was held as under:
“10. Firstly, the doctrine of merger. Though loosely an
expression merger of judgment, order or decision of a
court or forum into the judgment, order or decision of a
superior forum is often employed, as a general rule the
judgment or order having been dealt with by a superior
forum and having resulted in confirmation, reversal or
modification, what merges is the operative part i.e. the
mandate or decree issued by the court which may have
been expressed in a positive or negative form. For
example, take a case where the subordinate forum
passes an order and the same, having been dealt with
by a superior forum, is confirmed for reasons different
from the one assigned by the subordinate forum, what
would merge in the order of the superior forum is the
operative part of the order and not the reasoning of the
subordinate forum; otherwise there would be an
apparent contradiction. However, in certain cases, the
reasons for decision can also be said to have merged in
the order of the superior court if the superior court has,
while formulating its own judgment or order, either
adopted or reiterated the reasoning, or recorded an
express approval of the reasoning, incorporated in the
judgment or order of the subordinate forum.
xxx xxx xxx
12. Thirdly, as we have already indicated, in the present
round of litigation, the decision in M. Varadaraja Pillai
case [85 LW 760] was cited only as a precedent and not
as res judicata. The issue ought to have been examined
by the Full Bench in the light of Article 141 of the
Constitution and not by applying the doctrine of merger.
Article 141 speaks of declaration of law by the Supreme
Court. For a declaration of law there should be a speech
i.e. a speaking order. In Krishena Kumar v. Union of
India [(1990) 4 SCC 207 : 1991 SCC (L&S) 112 : (1990)
69
14 ATC 846] this Court has held that the doctrine of
precedents, that is being bound by a previous decision,
is limited to the decision itself and as to what is
necessarily involved in it. In State of U.P. v. Synthetics
and Chemicals Ltd. [(1991) 4 SCC 139] R.M. Sahai, J.
(vide para 41) dealt with the issue in the light of the
rule of sub silentio. The question posed was: can the
decision of an appellate court be treated as a binding
decision of the appellate court on a conclusion of law
which was neither raised nor preceded by any
consideration or in other words can such conclusions be
considered as declaration of law? His Lordship held that
the rule of sub silentio is an exception to the rule of
precedents. “A decision passes sub silentio, in the
technical sense that has come to be attached to that
phrase, when the particular point of law involved in the
decision is not perceived by the court or present to its
mind.” A court is not bound by an earlier decision if it
was rendered “without any argument, without reference
to the crucial words of the rule and without any citation
of the authority”. A decision which is not express and is
not founded on reasons, nor which proceeds on
consideration of the issues, cannot be deemed to be a
law declared, to have a binding effect as is
contemplated by Article 141. His Lordship quoted the
observation from B. Shama Rao v. Union Territory of
Pondicherry [AIR 1967 SC 1480 : (1967) 2 SCR 650] “it
is trite to say that a decision is binding not because of
its conclusions but in regard to its ratio and the
principles, laid down therein”. His Lordship tendered an
advice of wisdom — “Restraint in dissenting or
overruling is for sake of stability and uniformity but
rigidity beyond reasonable limits is inimical to the
growth of law.” (SCC p. 163, para 41)
xxx xxx xxx
14. It follows from a review of several decisions of this
Court that it is the speech, express or necessarily
implied, which only is the declaration of law by this
Court within the meaning of Article 141 of the
Constitution.”
79. In S. Shanmugavel Nadar, the Bench had the advantage of
considering Kunhayammed and V.M. Salgaocar. A perusal
70
of the aforesaid judgment would show that if leave is granted
in a special leave petition, the appellate order becomes
operative and executable order. But the nature of jurisdiction
exercised by the superior forum and the content of subject
matter of challenge laid or which could have been laid had to
be kept in view.
80. In a recent judgment reported as Kaikhosrou (Chick)
Kavasji Framji v. Union of India and another
50
, this Court
held as under:
“53. In our view, the principle of merger is fairly well
settled. For merger to operate, the superior court must
go into the merits of the issues decided by the
subordinate court and record finding(s) one way or
other on its merits. If this is not done by the superior
court, a plea of merger has no application in such a
case and the order of the subordinate court would
continue to hold the field (see S. Shanmugavel Nadar v.
State of T.N.).”
81. In another judgment reported as Commissioner of IncomeTax, Bombay v. M/s. Amritlal Bhogilal and Co.
51
, an appeal
was filed before the Appellate Assistant Commissioner against
an order passed by the Income-Tax Officer. However, the
Income-Tax Officer passed an order refusing to grant
registration to the firm to the two assessment years 1947-48
and 1948-49. An argument was raised that since the order of
the Assessing Officer has been affirmed in appeal, the nonregistration of the firm could also be challenged before the
50 (2019) 20 SCC 705
51 AIR 1958 SC 868
71
Appellant Assistant Commissioner. This Court noticed the fact,
that the department has not been conferred in the right of
appeal against the order either refusing to register the firm or
cancelling the registration of the firm. This Court considered
such an argument and held as under:
“13. …….. It is thus clear that wide powers have been
conferred on the Appellate Assistant Commissioner
under Section 31. It is also clear that, before the
Appellate Authority exercises his powers, he is bound to
hear the Income Tax Officer or his representative. It has
been urged before us by Mr Ayyangar on behalf of the
respondent that these provisions indicate that, in
exercise of his wide powers the Appellate Assistant
Commissioner can, in a proper case, after hearing the
Income Tax Officer or his representative, set aside the
order of registration passed by the Income Tax Officer.
We are not prepared to accept this argument. The
powers of the Appellate Assistant Commissioner,
however wide, have, we think, to be exercised in
respect of the matters which are specifically made
appealable under Section 30(1) of the Act. If any order
has been deliberately left out from the jurisdiction of
the Appellate Assistant Commissioner it would not be
open to the Appellate Authority to entertain a plea
about the correctness, propriety or validity of such an
order. ……It is true that, in dealing with the assessee's
appeal against the order of assessment, the Appellate
Assistant Commissioner may modify the assessment,
reverse it or send it back for further enquiry; but any
order that the Appellate Assistant Commissioner may
make in respect of any of the matters brought before
him in appeal will not and cannot affect the order of
registration made by the Income Tax Officer. If that be
the true position, the order of registration passed by the
Income Tax Officer stands outside the jurisdiction of the
Appellate Assistant Commissioner and does not strictly
form part of the proceedings before the appellate
authority. Even after the appeal is decided and in
consequence the appellate order is the only order which
is valid and enforceable in law, what merges in the
appellate order is the Income Tax Officer's order under
appeal and not his order of registration which was not
72
and could never become the subject-matter of an
appeal before the appellate authority. The theory that
the order of the tribunal merges in the order of the
appellate authority cannot therefore apply to the order
of registration passed by the Income Tax Officer in the
present case.”
82. Thus, the principle of merger would be that the order of the
higher court becomes the operative order and not the order
which was appealed from and not interfered with.
83. In the appeal against the judgment of Gurjant Singh, only
grievance raised before this Court was in respect of a direction
of fixing a time limit to re-partition the land. It was the said
direction which was deleted from the order. By such exercise of
jurisdiction in appeal, the reasoning of the High Court is not
deemed to be the reasoning of this Court. Such argument
would in fact give rise to strange results as the reasoning of
the High Court would have to be accepted as reasoning of the
Supreme Court. There cannot be a more absurd argument. As
held by this Court in S. Shanmugavel Nadar, there can be
only one operative judgment/order. Once this Court has
deleted the time limit to complete the re-partition, the
operative order remains of the High Court that Bachat land can
be partitioned i.e., operative part of the order. The reasoning
recorded by the High Court is not however affirmed by this
Court. It would be a judgment of the High Court alone which
can be cited as a precedent in other cases but not as an order
of this Court. Consequently, we do not find any merit in the
73
argument so raised. In fact, by applying the doctrine of
merger, the order of this Court becomes operative order but
since the order is of deletion of a direction only, the effect
would be that the order of the High Court has not been
interfered with.
84. Keeping in view of the above discussions, we find that the land
reserved for common purposes cannot be re-partitioned
amongst the proprietors only because at a particular given
time, the land so reserved has not been put to common use.
The learned counsel for the parties could not point out any
particular time-line during which the common purposes have
to be accomplished. Since ‘common purpose’ is a dynamic
expression, as it keeps changing due to the change in
requirement of the society and the passing times, therefore
once the land has been reserved for common purposes, it
cannot be reverted to the proprietors for redistribution.
Therefore, the conclusion no. (iii) arrived at by the High Court
is set-aside as unutilized land is not available for redistribution
amongst the proprietors. The finding recorded by the different
Benches of the High Court are clearly erroneous and not
sustainable. Thus, the conclusion no (iii) arrived at by the High
Court in Jai Singh II is set aside.
74
CIVIL APPEAL NO. 1679 OF 2022; CIVIL APPEAL NO. 1678 OF
2022 AND CIVIL APPEAL NO. 1680 OF 2022
85. In the abovementioned appeals, the challenge on behalf of the
proprietors is to the provisions of the Haryana Municipal
(Amendment) Act, 1999 (Act No. 17 of 1999) and to Section
2(52A) and Section 161(1)(g) of the Haryana Municipal
Corporation Act, 1994 inter alia on the ground that the said Act
infringes upon the fundamental rights of the proprietors as the
same is not directed towards agrarian reforms. The land
owners have sought a direction that the land reverts back to
them. By virtue of the amendments, the shamilat deh was to
vest with the Municipalities. The amendments were said to be
violative of Articles 13, 14, 31-A and also Article 300A of the
Constitution.
86. In Civil Appeal No. 1679 of 2022, the appellant has purchased
land admeasuring 6.4625 acres (51 Kanals 14 Marlas) said to
be from the erstwhile owners through registered sale deeds.
The appellant cannot be said to be proprietor as it is a
company whereas the vendors of the appellant may be
proprietors but the facts are not clearly established on record.
Mr. Kamat, learned Senior Advocate appearing for the
appellant argued that the appellant has challenged the
provisions of the Haryana Municipal Corporation (Amendment)
Act, 1999 amending the Haryana Municipal Corporation Act,
75
199452 but the State has not filed any appeal against the
judgment arising out of the writ petition filed by the appellant.
It was argued that the provisions of the Amending Acts,
amending the Haryana Municipal Act, 197353 or the 1994
Corporation Act introducing ‘shamilat land’ as vesting in
municipality are not part of agrarian reforms and do not have
the protection under Article 31A of the Constitution. Therefore,
it is an acquisition by urban local body and the property of the
proprietors can be acquired only by way of compensation.
Since no compensation is contemplated under the amending
statutes, therefore, such amendments are absolutely
unconstitutional. The said issue has already been decided by
the Full Bench of Punjab and Haryana High Court in Rajender
Parshad & Ors. v. State of Haryana & Ors.
54
.
87. The Full Bench of the High Court in Rajender Parshad had
struck down the Haryana Municipal Common Lands
(Regulation) Act, 197455 as suffering from the vice of
unconstitutionality. It was found that the said Act was not a
measure of agrarian reforms, therefore, could not enjoy the
protection envisaged by Article 31A(1)(a) of the Constitution.
88. The High Court in Suraj Bhan struck down the provisions of
the amending statutes amending the 1973 Municipal Act and
52 1994 Corporation Act
53 1973 Municipal Act
54 AIR 1980 P&H 37
55 For short, the ‘1974 Act’
76
the 1994 Corporation Act relying upon the Full Bench decision
in Rajender Parshad. The appellant in Civil Appeal No. 1679
of 2022 is aggrieved against the direction to pay compensation
treating the action of the State as an acquisition and holding
that the owners are entitled to compensation under Article
300-A of the Constitution.
89. The High Court in Suraj Bhan held that the proprietors cannot
be divested of their proprietary rights in 'Jumla Mushtarka
Malkan' or 'Jumla Malkan Wa Digar Haqdaran Arazi Hasab
Rasad Raqba' lands without payment of compensation by a
mere declaration of such inclusion or vesting by Section 2(g)
(6) of the 1961 Act. The High Court further held that the
provisions of the Amending Acts amending the 1973 Municipal
Act and the 1994 Corporation Act would amount to compulsory
acquisition without payment of compensation which is
impermissible in law. The Court held that the judgments in
Notified Area Committee & Anr. v. Des Raj & Ors.
56
 and
Municipal Committee, Sirhind v. Parshotam Dass &
Ors.
57
 are not applicable as the issue was confined to the
effect of reversion of land to the land owners in the context of
Rule 3 of the Punjab Gram Panchayat Rules, 1965. The High
Court held as under:
“207. In Municipal Committee, Sirhind v. Parshotam
Dass (supra) and in the Notified Area Committee v. Des
Raj (supra), the issue was confined to the effect of
56 (1995) 5 SCC 317
57 (1996) 8 SCC 324
77
reversion of land to the land owners in the context of
Rule 3 of the Punjab Gram Panchayat Rules, 1965 and
the original owners were held not entitled to claim the
property in question in the context of said Rule.
Besides, in Notified Area Committee v. Des Raj (supra),
the proviso to Rule 3 of the Punjab Gram Panchayat
Rules, 1965 was held to be inapplicable as the land
came to be vested in the concerned Panchayat by
operation of the VCL Act 1953 under which the Gram
Panchayat had acquired its right and the repeal of the
said VCL Act 1953 by the VCL Act 1961, it was said, did
not in any way affect the right which the Gram
Panchayat had acquired over the land.
xx xx xx
211. In the present case, when the land being taken
over by a municipality and would, thus, have the
characteristics of an urban area, it cannot be said that
the same is for giving effect to the directive principles
of the State policy or for agrarian reforms. Rather the
common purposes for which the land was being utilized
by the 'inhabitants of the village' would cease. Besides,
there is no dispute to the proposition that the areas of
the Gram Panchayat which are merged into the
municipalities would not be entitled to a hearing in
compliance with the principles of natural justice before
their merger.”
90. Mr. Pradeep Kant, learned senior counsel appearing for the
State argued that the land vested in the Panchayat in terms of
Section 4 of the 1961 Act, hence the land of Panchayat now
merely stands transferred from one statutory body to the other
by extending the municipal limits and thus that the proprietors
would not be entitled to any compensation. Mr. Kant also
argued that the Haryana Panchayati Raj Act, 199458
contemplates the satisfaction where the whole of the sabha
area included in the municipality or cantonment, the Gram
58 For short, the ‘1994 Act’
78
Panchayat shall cease to exist and the assets and liabilities
shall vest with the municipality.
91. Mr. Kamat has raised an argument that the stand of the State
that the amendment was necessitated to remove the
encroachments on the land reserved for common purpose is
not tenable. It was pointed out that for such purpose, the
Haryana Common Purposes Land Eviction and Rent Recovery
Act, 198559 has been enacted to treat the land reserved for
common purposes under 1948 Act as public premises. The said
aspect has been considered by the Five Judges Bench in Suraj
Bhan to hold that both proceedings under the 1961 Act and
under the 1985 Act are parallel proceedings and that it is open
to choose any. The Court held as under:
“83. It may appropriately be noticed that the Haryana
State has also framed the Haryana Common Purposes
Land Eviction and Rent Recovery Act, 1985. The said
Act is to provide for eviction of unauthorized occupants
from land reserved for common purposes under the
Consolidation Act 1948. In terms of Section 2 of the said
Act 'Common Purposes Land' has been defined to mean
land reserved for common purposes of a village under
Section 18 of the Consolidation Act 1948, the
management and control whereof vests in the State
Government or the Panchayat under Section 23-A of the
said 16-02-2022 (Page 31 of 89) www.manupatra.com
Supreme Court Judges Library Consolidation Act 1948.
Section 3 of the Haryana Common Purposes Land
Eviction and Rent Recovery Act, 1985 provides for
application of the Haryana Public Premises and Land
(Eviction and Rent Recovery) Act, 1972 to common
purposes. It is provided that notwithstanding anything
contained in any law for the time being in force, the
provisions of the Haryana Public Premises and Land
(Eviction and Rent Recovery) Act, 1972, shall apply to
59 Hereinafter referred to as the '1985 Act’
79
common purposes land which shall be deemed to be
public premises for the purpose of the said Act. The
provisions of the VCL Act 1961 are, however, more
comprehensive and deal with disputes inter se parties
as well as other disputes in terms of its various
provisions, as have been noticed above. The provisions
of the VCL Act 1961 would be in addition to the
procedure provided for eviction of unauthorized
occupants from land reserved for common purposes
under the Consolidation Act 1948. The provisions of the
VCL Act 1961 shall have, however, have overriding
effect in view of Section 13-D thereof. Besides, the
provisions of the VCL Act 1961 are invoked and
administered by the officials of the Rural Development
and Panchayats Department, Haryana. The officials of
the said Department have been invested with the
powers of the Collector, the Commissioner and the
Financial Commissioner under the VCL Act 1961. The
Sarpanches and Panches of the Gram Panchayats are
more familiar in their day-to-day dealings with the
officials of the Panchayat Department at the Block
Level, District Level and the State Level. Therefore,
having an additional forum for resolution of disputes of
lands which are vested in the Panchayats or the
management and control of the same is with the
Panchayats. Besides, in case two procedures are
provided for eviction of unauthorized occupants of lands
which vest in the Panchayat or the Panchayat has
management and control would not be illegal or
improper.”
92. Ms. Agarwal has referred to Section 5 of the 1961 Act to
contend that the shamilat land is for the benefit of the
inhabitants of a same village but in case, there is common
benefit for more than one village, the land has to be used for
the benefit of the inhabitants of that village and not of the
other village. It was further contended that shamilat deh land
is a concept of rural areas and its import into urban municipal
laws is wholly erroneous construction by the State Legislature.
80
The transfer of such land to the municipal bodies would be to
the detriment of villagers and, therefore, bad in law. The
vesting of land in municipal bodies is not an agrarian reform
and, thus, not protected by Article 31-A.
93. It was further argued that shamilat land is not an asset of
Gram Panchayat and cannot be transferred. The Gram
Panchayat only has the management and control of land
carved out during consolidation under the 1948 Act for a
limited purpose for benefits of villagers of that village. Such
vesting is a trust created with the Panchayat and cannot be
transferred or vested with any other person. Still further, the
Gram Panchayat can transfer only that much right which it
had, therefore, the transfer of the shamilat land to the
municipality lead to divesting of the interest of the proprietors
and, therefore, the proprietors in any case would have
continue to use the land so reserved for the benefit of the
community.
94. We do not find any merit in the argument that since the State
has not challenged the orders in the writ petition filed by the
appellant, therefore, the State cannot challenge the judgment
of Full Bench in Suraj Bhan. The State is in appeal against
the entire judgment rendered by the Full Bench in Suraj Bhan.
The provisions amending the 1994 Corporation Act are pari
materia with the provisions amending the 1973 Municipal Act.
81
Therefore, the argument that the State has not filed an appeal
against the order passed in the writ petition does not merit any
consideration since the entire judgment is in appeal.
95. The fact is that the Full Bench of the Punjab and Haryana High
Court in Rajender Parshad has struck down the Haryana
Municipal Common Lands (Regulation) Act, 1974 as
unconstitutional inter alia on the ground that such Act is not a
measure of agrarian reform. The infirmities pointed out by the
High Court in Rajender Parshad are very well applicable to
the amending Statutes amending the 1973 Municipal Act and
the 1994 Corporation Act. Therefore, we have no hesitation to
affirm the findings recorded by the High Court that the
amending statutes amending the 1973 Municipal Act and the
1994 Corporation Act are also unconstitutional as they are not
part of the agrarian reforms.
96. However, we find merit in the argument raised by Mr. Pradeep
Kant that if whole or part of the Panchayat area comes within
the municipal limits, and the Panchayat ceases to exist, land
would vest with the municipality and will not revert back to the
proprietors. The relevant extract from the Haryana Panchayati
Raj Act, 1994 reads as under:
“7. Demarcation of sabha area – (1) The Government
may, by notification, declare any village or a part of a
village or group of contiguous villages with a population
of not less than five hundred to constitute one or more
sabha areas:
82
Provided that Government may in exceptional
cases, by reasons to be recorded in writing, relax the
limit of population of 500:
Provided further that neither the whole nor any
part of a-
(a) municipality constituted under the Haryana
Municipal Act, 1973;
(b) cantonment;
shall be included in a sabha area unless the
majority of voters in any municipality desire the
establishment of a Gram Panchayat in which case the
assets and liabilities, if any, of the municipality shall
vest in the Gram Panchayat and the municipality shall
cease to exist.
(2) The population shall be ascertained on basis
of last preceding decennial census of which the relevant
figures have been published.
(3) Government may, by notification, include any
area in or exclude any area from the sabha area.
(4) If the whole of the sabha area is included in a
municipality or a cantonment, the Gram Panchayat shall
cease to exist and the assets and liabilities of it shall
vest in the municipality or cantonment, as the case may
be.
(5) If the whole of the sabha area is included in
the Faridabad Complex under the Faridabad Complex
(Regulation and Development) Act, 1971, the Gram
Panchayat shall cease to exist and its assets and
liabilities shall vest in the Faridabad Complex.”
97. Section 2-A of the 1973 Municipal Act deals with classification
and constitution of municipalities such as Municipal Committee
for a transitional area with population of not more than fifty
thousand, Municipal Council for a smaller urban area with
population of more than fifty thousand but less than three lacs
and the Municipal Corporation for a larger urban area with
83
population of three lacs or more60. Section 3 empowers the
State Government to propose any local area to be a
municipality under the 1973 Municipal Act. Section 4
empowers the State Government to alter the limits of
municipality whereas Section 5 empowers the State
Government to exclude any area from the municipality.
Relevant provisions from the 1973 Municipal Act read thus:
“3. Procedure for declaring municipality.—(1) The State
Government may, by notification, propose any local
area to be a municipality under this Act.
(2) Every such notification shall define the limits of the
local area to which it relates.
xx xx xx
(10) A Committee shall come into existence at such
time as the State Government may, by notification,
appoint in this behalf.
4. Notification of intention to after limits of municipality.
—(1) The State Government may, by notification, and in
such other manner as it may determine, declare its
intention to include within a municipality any local area
in the vicinity of the same and defined in the
notification.
(2) xx xx xx
(4) When any local area has been included in a
municipality under sub-section (3), this Act, and, except
as the State Government may, by notification, direct
otherwise, all notifications, rules; bye-laws, order,
directions and powers issued made, or conferred under
this Act and in force throughout whole of the
municipality at the time, shall apply to such area.
5. Notification of intention to exclude local area from
municipally.—The State Government may, by
notification, and in such other manner as it may deem
60 As amended by Haryana Act No. 11 of 2002
84
fit, declare its intention to exclude from a municipality
any local area comprised therein and defined in the
notification.”
98. In the Notified Area Committee, an argument was raised
that the land once vested with the Panchayat under the Punjab
Act in terms of Section 3(a) of the said Act would be mutated
in favor of the appellant after the enactment of the 1974 Act.
As the said Act was declared void, it stands revested with the
proprietors. Such argument was negated by this Court, though
the High Court had accepted such argument. This Court held
as under:
“3. There being no dispute as to the vesting of the land
pursuant to 1953 Act in the Gram Panchayat concerned,
all that we are required to decide is whether the stand
of the plaintiffs-respondents that the same got reverted
to them pursuant to what has been mentioned in the
aforesaid proviso is correct or not.
4. To decide the aforesaid question, let Rule 3 of the
Punjab Gram Panchayat Rules, 1965 be noted, which
reads as under:
3. “If the whole of Sabha area is included in
Municipality, cantonment or notified area all
rights, obligations, property, assets and liabilities
if any, whether arising out of any contract or
otherwise shall vest in the Municipal Committee,
Cantonment Board or Notified Area Committee
as the case may be:
Provided that the land, which vests in the
panchayat under the Punjab Village Common
Lands (Regulation) Act, 1961 or the land,
management and control of which vests in the
panchayat under the East Punjab Consolidation
and Prevention of Fragmentation Act, 1948, shall
revert to the co-sharers and owners thereof.
85
5. The respondents first contention is that for the
appellant to claim vesting of the land in it, the first
requirement is that the whole of the sabha area must
have been included in it. It is then urged that even if
this part of the requirement be held to be satisfied,
because of what has been stated in the aforesaid
proviso, the land did revert to them. The further leaf of
this argument is that the omission of the proviso by
notification dated 22nd December, 1976 cannot alter
the position inasmuch as the area of village Gudha, in
which the land is admittedly situate, had been declared
to be part of notified area on 6-10-75; and so, the
proviso operated by its own force on that date, because
of which its omission later on could not alter the legal
position.
6. Insofar as the first contention is concerned, Shri
Ashri, learned counsel appearing for the appellants,
brings to our notice what has been stated in sub-section
(2) of Section 8 of the Panchayat Act, which is in the
following language :-
xxx xxx
This shows that the only effect of non- inclusion of the
whole of the area of a Gram panchayat is that the
jurisdiction of the concerned Notified Area Committee
shall get reduced and would be confined to the part
included. As in the present case there is nothing to
show that the part of the Gram Panchayat in which the
suit land is situate had not been included in the
territorial area of the appellant- committee, the first
contention advanced on behalf of the respondent,
which had found acceptance with the Courts below,
cannot be regarded as legally sound.”
99. In Municipal Committee, Sirhind, the plaintiff filed a suit
against the Municipal Committee for a declaration that the
subject matter of the suit land is the property of the plaintiff as
proprietors. The municipal limit of Sirhind Municipality was
extended, covering a part of Gram Sabha area of Nagar
Panchayat and the disputed area came under the Municipal
86
Limits. The argument which found favor with the High Court
was that unless the whole land of the Sabha area is included in
an urban estate under the provisions of the Punjab Municipal
Act, there can be no vesting of the Sabha area with the
municipality. Such argument was not accepted by this Court
as the ‘whole’ was said to be including a ‘part’. Still further,
the argument of the proprietors that the shamilat property
would stand reverted to the proprietors was not accepted. It
was held as under:
“7. But a contention has been advanced which found
favour with the courts below that unless the whole land
of the Sabha area is included in an urban estate under
the provisions of the Punjab Municipal Act, then there
can be no vesting of the Sabha area with the
municipality. We are unable to accept this contention
since the expression ‘whole’ in sub-section (3) of
Section 4 of the Punjab Gram Panchayat Act must be
held to be including a ‘part’ and therefore if a part of
the Sabha area is included within the municipal limits
then that part of the Sabha area becomes a part of the
municipality and it ceases to be a part of the Gram
Panchayat. Section 8 of the Gram Panchayat Act stood
deleted from the Gram Panchayat Act in the year 1962.
Section 4(3) extracted above was added to the Punjab
Gram Panchayat Act with effect from 14-7-1978. The
Punjab Gram Panchayat Rules, 1965 had been framed
in exercise of power under Section 101 of the Punjab
Gram Panchayat Act by the State Government. Rule 3 is
the rule for disposal of assets and liabilities of Gram
Sabha. The said rule provides that if the whole of the
Sabha area is included in a municipality, cantonment
city, urban estate or notified area, rights, obligations,
property, assets and liabilities, if any, whether arising
out of any contract or otherwise shall vest in the
Municipal Committee, Cantonment Board, (Municipal
Corporation, Chief Administrator or Notified Area
Committee, as the case may be).
xx xx xx
87
10. A combined reading of the aforesaid provisions of
the Gram Panchayat Act, the rules made thereunder
and the Punjab Municipal Act unequivocally indicate
that on and from the date of issuance of a notification
extending the municipal limits over a part of the Sabha
area that part of the Sabha area forms a part of the
municipality and it is the municipality in whom right,
title and interest over the area vests. It is difficult to
accept the reasoning advanced by the courts below that
only when the entire Sabha area comes within the
municipal limits then the property vests and not
otherwise. In our considered opinion the expression
‘whole’ in Section 4(3) of the Gram Panchayat Act
brings within its sweep also a part of the Sabha area
and therefore the disputed properties in the case in
hand which originally formed a part of Sabha area of
Village Brahman Majra having been included in
municipal limits of Sirhind Municipality by notification
dated 18-9-1968, it is the municipality on whom the
right, title and interest of the property vested and it
never revested at (sic in) the khewatdars as found by
the courts below. The courts below including the High
Court not only committed error in interpreting Section
4(3) of the Gram Panchayat Act but also committed
error in relying upon the proviso to Rule 3 of the Gram
Panchayat Rules since on the date when the notification
was issued extending the municipal limits of Sirhind
Municipality on 18-9-1968 Section 4(3) of the Gram
Panchayat Act was not in force and therefore Rule 3
could not have operated upon. As has been stated
earlier Section 56 of the Municipal Act and Section 4 of
the Gram Panchayat Act make the legislative intention
clear that when a part of the Sabha area gets included
within the municipal limits of any municipality the
property comprised therein vests with the Municipal
Committee. In this view of the matter the plaintiffs who
were the original khewatdars cannot claim the property
in question and it is the municipality which continues to
be the owner of the disputed property.
xx xx xx
12. Sub-section (2) of Section 3 would be attracted only
when land vested in Municipal Committee, Sirhind has
been excluded from “Shamlat deh” as defined in clause
88
(g) of Section 2 of the said Act. Section 2(g) has 9
exclusion clauses but there is not an iota of material on
record and in fact the case in hand has not been
examined from that angle to establish that the disputed
property stood excluded from “Shamlat deh” by
operation of any of the sub-clauses which excludes from
the definition of “Shamlat deh” in Section 2(g). In that
view of the matter the contention of Mr Madhava Reddy
cannot be sustained.”
100. The sub-section (4) of Section 7 of the 1994 Act contemplates
that if the whole of the Sabha area is included in a
municipality, the Gram Panchayat shall cease to exist, whereas
on the other hand, the 1973 Municipal Act contemplates
inclusion of part of local area into a municipality. In fact,
Section 7(4) is pari materia with Section 4(3) of the Punjab
Gram Panchayat Act, 1952, since repleaded by 1973 Municipal
Act.
101. The Panchayati Raj Act contemplates cessation of Gram
Panchayat if whole of the Sabha area is included in the
municipality, whereas the 1973 Municipal Act contemplates
the local area which may be part of Gram Panchayat area can
be included in the municipality. Even an area from the
municipal limits can be excluded from the municipal limits as
well. In Atma Ram this Court also examined the maxim that
Omne Majus continet in se minus (the greater contains the
less). This Court held as under:-
“12. Another branch of the same argument was that if
the makers of the Constitution intended to include
within the purview of Article 31A, not only entire estates
but also portions thereof, nothing would have been
89
easier than to say so in terms, and that in the absence
of any specific mention of "portions of an estate", we
should not read that article as covering "portions of an
estate" also. In our opinion, there is no substance in
this contention, because they must be attributed full
knowledge of the legal maxim that “the greater
contains the less” – Omne Majus continet in se
minus. ........Thus the Full Bench specifically held that
Article 31A of the Constitution applied equally to
portions of estates also. This decision of the Full Bench61
was followed by a Division Bench of the same High
Court, consisting of Bhandari C. J. and Dulat J., in the
case of Hukam Singh v. State of Punjab, 57 PLR
359 : ( AIR 1955 Punjab 220). That Bench was
concerned with the provisions of another Act -Punjab
Village Common Lands (Regulation) Act, 1954. In that
case, the Division Bench, naturally, followed the
decision of the Full Bench in so far as it had ruled that
the 'whole' includes the part, and that where an Act
provides for rights in an estate, it provides for rights in
a part of an estate also. .............. In our opinion, the
view taken by the earlier Full Bench is the correct one.
The learned Chief Justice who was a party to both the
conflicting views on the same question has not
indicated his own reasons for changing his view. The
Full Bench has accepted the force of the legal maxim
that the greater contains the less, referred to above but
has not, it must be said with all respect, given any good
reasons for departing from that well-established maxim.
.........”
102. The reference was made to later Full Bench judgment of Punjab High
Court reported as State of Punjab v. S. Kehar Singh
62 and earlier
Full Bench reported as Bhagirath. Even in a later Full Bench of the
High Court in a judgment reported as M/s. Hari Ram Paras Ram v.
State of Haryana
63
, the expression ‘whole’ will include part has
been accepted. It was held as under:-
“19. Mr. Mittal was pretty vehement in submitting that
under Section 3(2)(c) of the Act the price of the entire
61 AIR 1954 Punjab 167
62 AIR 1959 P&H 8; 1958 SCC Online Punj 89
63 ILR (1982) 1 Punjab and Haryana 317
90
essential commodity in contradistinction with a part
thereof alone can be fixed. According to him, there is no
such thing as a partial control of the price. I see no
merit in this submission. If the non-availability of
essential commodities, which grows with the passage of
time, has to be checked, then the evil must be nipped
in the bud. In other words, if the supply position can be
improved by taking less drastic action, the State
Government should be allowed to take that action
instead of allowing the problem to go out of hands. If
the interpretation suggested by Mr. Mittal is accepted,
then the authorities under the Act, would have to wait
till the essential commodities become so costly and
scarce as to make absolute control of prices the only
imperative. Besides, there is a legal maxim omne majus
continet in se minus - the greater contains the less. This
maxim has been referred to with approval in Atma
Ram v. State of Punjab, AIR 1959 Supreme Court
519 - If the State Government has the volition and the
right to travel the whole distance, I see no reason why it
should be commanded to go further if it exercises an
option of stopping midway. ..............”
103. The Section 7(4) of the Panchayati Raj Act, 1994 is to be read
with the provisions of the 1973 Municipal Act. However, both
the statutes had undergone extensive changes after the
insertion of Part IX and IX A in the Constitution empowering the
third tier of the democratic set up. The Panchayati Raj Act
contemplates vesting of property of Gram Panchayat with the
municipality., whereas the Municipal Act takes into its ambit
the properties which were vesting with Panchayat. The 1973
Municipal Act contemplates that even if part of the property of
Gram Panchayat is included in the Municipal Limits, it would
vest with the municipality. Thus, the word ‘whole’ appearing in
Section 7(4) of Panchayati Raj Act does include part of the
91
Gram Panchayat area coming within the municipal limits. It is
the same view which was taken by this Court in a Notified
Area Committee, Sirhind.
104. Thus, if the whole or part of Gram Panchayat area is included
in the municipal limits, the land reserved for common purposes
as part of agrarian reforms would stand vested with the
municipality. Such vesting is not a part of agrarian reforms but
shall be on account of extension of municipal limits. When the
municipal limits are extended, the residents of the Panchayat
also became residents of the municipality. The common
purposes of the village community prior to extension of the
municipal limits would be deemed to be common purposes for
which land can be utilized by the municipality. Therefore, such
vesting of land reserved for common purposes is not an
acquisition for the first time but transition of the land reserved
for common purposes in the changed scenario when the land
vest with the municipality.
105. The argument of the proprietors that if whole of the Sabha
area merges with the municipality, only then there can be
vesting of land reserved for common purposes with the
municipality is untenable. Such an argument would lead to
anomalous results. The title, right and interest of the property
cannot be held in abeyance. There has to be continued control
and management over the land reserved for common purposes
92
under the 1948 Act. Therefore, even if a part of Sabha area is
merged into the municipality, the municipality will have control
over the land so reserved for the erstwhile village community
which will now form part of the urban area. In view thereof, we
do not find any merit in the argument raised on behalf of the
proprietors and dismiss the writ petitions filed by them while
allowing the appeals of the State.
106. The argument of the proprietors that the land which is not
capable of being used for common purposes of the inhabitants
of a particular village shall be reverted to the proprietors is
untenable and unsustainable. The land has been put to
common pool by applying pro-rata cut. Once pro-rata cut has
been applied, the management and control of such land vest
with the Panchayat. There is no question of reverting the land
to the proprietors. As discussed above, the land which is not
part of the permissible limits under the land ceiling laws stand
acquired and vested with the Panchayat in terms of judgment
of this Court in Ranjit Singh. However, in respect of the land
forming part of permissible limits of the proprietor under the
land ceiling laws, the management and control vest with the
Panchayat. Neither the 1961 Act nor the 1948 Act
contemplates redistribution of land to the proprietors. It is an
irrevocable act which cannot be undone. Therefore, once land
vest with the Panchayat, it can be used for common purposes
of the community and will never revert back to the proprietors.
93
107. We find that the scope of the two provisions under the 1985
Act and 1961 Act are different and distinct. Under the 1985
Act, the Gram Panchayat could seek eviction from
unauthorized occupants, the management and control as of
the land reserved for common purposes whereof vested in the
Gram Panchayat in a summary way where the possession of
the occupant was unauthorized. But if there is dispute in
respect of the nature of occupation by the occupant or by the
panchayat, procedure under the 1961 Act alone can be
resorted to as Section 13A of the 1961 Act confers power upon
the Collector to decide the question of right, title or interest in
any land or immoveable property vested or deemed to have
been vested in the panchayat. Therefore, in case of a dispute
about the right, title or interest in any land for or on behalf of
any person, the remedy under the 1961 Act alone can be
exercised. This will include right, title or interest in all the three
categories of land i.e., shamilat deh owned by panchayat,
shamilat land vested in terms of 1948 Act falling in second
category and the land, the management and control whereof is
vested with the panchayat, land being within the permissible
limits of the proprietor, the management and control of which
vest with the panchayat.
108. Consequently, we hold that Act No. 9 of 1992, the Amending
Act is valid and does not suffer from any vice of constitutional
94
infirmity. The entire land reserved for common purposes by
applying pro-rata cut had to be utilized by the Gram Panchayat
for the present and future needs of the village community and
that no part of the land can be re-partitioned amongst the
proprietors.
109. With the aforesaid discussion and findings, the appeals filed by
the State and panchayats are allowed and those filed by the
proprietors are dismissed. Consequently, the writ petitions
filed before the High Court shall also stand dismissed.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(V. RAMASUBRAMANIAN)
NEW DELHI;
APRIL 07, 2022.
95
GLOSSARY OF THE WORDS USED IN THE JUDGMENT
S.No. Term Used Meaning
1. Abadi Land which is the site of a house,
homestead or building.
2. Abadi Deh Land reserved for houses of the village
community. Lies within the Laldora (red
line). Is normally assigned one Khewat
and one Khasra no. No land revenue is
charged.
3. Bachat land Land left out which was carved out by
imposing a cut on proprietors which was
reserved for common purposes during
Consolidation.
4. Types of land
(a) Banjar Jadid Old Fallow that has remained
uncultivated for four Harvests but may
still be brought to cultivation
(b) Banjar Qadim Old Fallow that has remained
uncultivated for eight Harvests but may
still be brought to cultivation.
(c) Gair Mumkin
Land
Land that is no longer capable of being
used for cultivation as it is the site of a
house, building, road, canal, river etc
(d) Nehri land Land that is irrigated by a canal
(e) Barani Rain fed
(f) Chahi Irrigated by wells or Tubewells
(g) Aabi Irrigated by means other than canal or
well
5. Deh Land
6. Fard Document prepared by the revenue
official
7. Documents that form part of the Records of Rights U/s 31 of
the Punjab Land Records Act, 1887
96
(a) Jamabandi Records names of land owners, tenants
or assignees of land revenue in the
estate or who are entitled to receive
rents, profits or produce of the estate or
to occupy land therein.
(b) Wajib-ul-arz
Or Sharat Wajibul-arz
The statement of custom respecting
rights and liabilities in the estate and
also contains the rights of proprietors
and non-proprietors in the common
land of the village. It is also called the
village administration paper.
(c) Shajra kishtwar A Map of the estate
(shajra kishtawar (map of the village) is
prepared on a strong cloth called a
Latha
A copy of the Map is called the Aksh
Shajra).
9. Hasab Rasad Zare
Khewat
Share of a proprietor in common land.
According to the revenue assessed on
his proprietary holding.
10. Jumla Mushtarka Malkan Land carved out for common purpose
from the holding of the proprietors, the
control and management of which vests
with Panchayat.
11. Jumla Mushtarka Malkan
Wa digar Haqdaran Arazi
Hasab Rasad Raqba
Joint holding of the proprietary body
and other right holders as per share in
the land contributed during
consolidation on a pro rata basis. The
management and control of such land
vests in the Panchayats.
12. Khewat Number Is the number assigned to an owner of
his land holding. Only a landowner will
be assigned a khewat number.
13. Khewatdar The holder of Land/share in a village.
14. Khatauni Records the name of person in
possession
15. Mal Guzars The person who pays the revenue
assessed on an estate
16. Malikan Deh Proprietary body of the village.
17. Malikan Makbuza Khurd Owner in self cultivation
18. Mushtarka Malkan Joint ownership of all the proprietors
19. Phirni Pathway around the village habitation
97
i.e. the village path around the Abadi
Deh
20. Shamilat Common purposes
21. Shamilat Deh Lands Reserved and used for common
purposes.
22. Tarrafs, Pattis, Pannas
and Tholas
The village was divided into different
Pattis/sections based upon caste,
religion, occupation, etc. of the persons
residing in the village. Patti is
described as division of land into
separate portions or strips in a village.
Patti is basically, therefore, a small
division of the village. The terms ‘Taraf’,
‘panna’ and ‘Thola’ may be different but
are akin to Patti and also deal with
community of villagers residing
separately.
23. Marla 30.25 sq. yards
24. kanal 20 marlas = 605 sq. yards
25. Acre 160 marlas = 4840 sq. yards
Pukhta Kachcha
26. Biswani 7.5625 sq. yards 2.521 sq. yards
27. Biswa 151.25 sq. yards 50.42 sq. yards
28. Bigha 3025 sq. yards 1008.33 sq. yards
Acre 5 Bighas 12 Biswa 4 Bigha 75 Biswa
30. Hadbast Boundary of a village or revenue estate.
Each village or revenue estate is
assigned a separate Hadbast number.
31. Rectangle/Mushtatil The land is divided into different
rectangles/Mushtatils. The rectangle is
represented by (//) in the revenue
record.
Each Mushtatil contains 25 Khasra
Numbers with Khasra No. 13 being in
the center.
The holding of the land owner is
represented by the rectangle/ Mushtatil
number, followed by the Khasra number
and the area of each khasra number
32. Khasra number Khasra number is given to a specific
piece of land in the village. One or
more Khasra form a khatauni, one or
more Khatauni form a Khewat. The
Khasra numbers in a khatauni may or
may not be mentioned sequentially.
98

Comments

Popular posts from this blog

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर