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

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

. 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)

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".

4. It is thereafter, the Full Bench of Punjab and Haryana High

Court in Jai Singh and Ors. v. State of Haryana

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. 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

“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

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.

. 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)

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.

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

. 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

8 AIR 1961 P&H 1

9 AIR 1960 SC 1080

10 AIR 1962 P&H 221 (FB)

11 AIR 1965 SC 632

wherein the judgment of the High Court was not interfered

with.

10. In Ajit Singh v. State of Punjab

, 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.

. 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.

, 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)

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.

, 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

, 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

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

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

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

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

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

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

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

consideration of the President and had received his assent, it

was held that the term “extinguishment” appearing in Article

31 of the Constitution does not mean total abolition of rights

known to law. Further argument was that the Act does not

provide for extinguishment or modification of any right in any

estate, therefore, the shamilat deh in a village would not be an

estate and the extinguishment or modification of any right in

such part of an estate would not be covered by Article 31A of

the Constitution. The Court held as under:

“ …The argument is interesting but not in my opinion

substantial. According to Mr. Tek Chand a law which

provides for the total abolition of the rights of

ownership of landed property, for instance, would be

constitutional as it would, according to him, fall under

Article 31-A, but if the right of ownership of a person or

a group of persons is merely extinguished qua those

persons and the same right is vested in some other

person that would not fall within the Article. I find it

impossible to agree that the expression

“extinguishment” has been used in Article 31-A of the

Constitution in the special sense suggested by the

learned counsel. It is significant that Article 31-A speaks

of acquisition by the State of any estate or of any rights

in an estate and then speaks of the extinguishment or

modification of any rights in an estate and I can find no

ground for thinking that if a person's rights in an estate

have been taken away from him and given to another

person this would not be extinguishing those rights. In

my opinion, therefore, the impugned Act does fall within

the meaning of Article 31-A of the Constitution as it

provides for the extinguishment of certain rights in

certain property belonging to the village proprietors and

also for the modification of those rights.

…Once again, I am unable to agree. There are in an

estate several kinds of rights owned by various persons

and one of such rights is the right of proprietorship in

the village shamilat and when, therefore, the impugned

Act provides for the extinguishment of such ownership

rights it clearly provides for the extinguishment or

modification of certain rights in an estate. Mr. Tek

Chand's argument that a part of an estate is not an

estate appears to have been raised before a Full Bench

of this Court in connection with the validity of another

statute and it was on that occasion repelled 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

, 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).

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

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,

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

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.

[(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;

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.

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.]”

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

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.

(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

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

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

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.

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

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

Judge Bench of Hon’ble the Supreme Court in Ajit Singh’s

case (supra).”

33. The above findings are subject matter of challenge by the

State as well as by the proprietors. The State is aggrieved

against finding no. (iii) of Jai Singh II and conclusion in para

218 (k) of Suraj Bhan, whereas the proprietors are aggrieved

against finding nos. (i) and (ii) of Jai Singh II.

34. Mr. Pradeep Kant, learned Senior Advocate appearing for the

State contended that the land reserved for common purposes

in a Scheme under Section 18(c) read with section 23-A and

Rule 16 (ii) of the 1949 Rules is for the present and future

needs. If a particular piece of land so reserved for common

purposes is not put to use as conceived in the Scheme, it does

not mean the land would revest with the proprietors. There is

no time limit within which the land reserved for common

purposes is to be used. Therefore, once the land has been

reserved for common purposes, the Panchayat can put it to

use for common purposes at any point of time. It was

contended that if the land is not put to common use, the

Panchayat can lease out such land, such leasing out would not

be for the income of the Panchayat but for optimum utilization

of land reserved for common purposes. It was also contended

that if the land is reserved for a particular common purpose, it

can be used for any other common purpose as well for the

benefit of village community, including proprietors and 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

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

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

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

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.

42. It was argued that the land reserved for common purposes

during the consolidation which was more than the land

specifically assigned for common purposes in the consolidation

scheme was in fact a surplus land or a Bachat land. It was thus

contended that the unutilized land i.e., Bachat land has to be

revested with the proprietors as such land does not fall within

the ambit of shamilat deh, nor the management and control of

the same could vest with Gram Panchayat under the provisions

of Sections 18, 23A and Rule 16(ii) of 1948 Act. It was hence

argued that though the land has been reserved for common

purposes in the consolidation scheme under the 1948 Act, but

such land which is neither utilized nor reserved for any specific

common purpose would revest with the proprietors.

43. A reading of the aforementioned judgments and the history of

the shamilat deh (common land) in the State of Punjab,

including State of Haryana, shows that the common land for

the purposes of the present appeals falling in Section 2(g)(1)

and (6) of the 1961 Act as amended by the Amending Act can

be broadly classified into three categories:

(i) shamilet deh recorded in the ownership of the Gram

Panchayat prior to consolidation which vests unequivocally

with the commencement of the Punjab and PEPSU Act.

(ii) land for common purposes reserved during the process of

consolidation by applying pro-rata cut from the holdings of the

proprietors, not necessarily falling within the permissible

ceiling limits under the land ceiling laws.

(iii) common purposes land reserved by pro-rata cut within the

permissible limits as per the land ceiling laws, the

management and control of which vests with the panchayat.

44. There is no dispute about the land falling in the first category

as held by the High Court in Hukam Singh and subsequently

affirmed by this Court in Malwinder 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

income of Gram Panchayat. The High Court upheld the land

carved out for income of the Gram Panchayat since the 1948

Act was found to be part of agrarian reforms as per its object.

Though the members of the Bench gave different opinions, the

conclusion was that the 1948 Act is an Act having object of

agrarian reforms, protected by Article 31A(1) of the

Constitution. The Civil Appeal No. 743 of 1963 in Ranjit Singh

against such judgment was dismissed by the Constitution

Bench of this Court. The appeals before this Court were heard

and closed for judgment on April 27, 1964 but before the

judgment could be delivered, the Constitution (Seventeenth

Amendment) Act, 1964, received the assent of the President

on June 20, 1964. That amendment inter alia substituted

retrospectively from January 26, 1950, a new sub-clause (a) in

clause (2) of Article 31A and added a proviso to clause (1). The

High Court had decided the issues raised before it considering

the Article 31A as it was then existing. The short point

examined by this Court was, without referring to the

Seventeenth Amendment, whether the transfer of shamilat

deh owned by the proprietors to the village Panchayat for the

purposes of management in the manner described above and

the conferral of proprietary rights on non-proprietors in respect

of lands in abadi deh is illegal and if the several provisions of

law allowing this to be done are ultra vires Article 31 inasmuch

as no compensation is payable or whether the law and the

action taken are protected by Article 31A? The appeals were

dismissed with an observation that the question examined was

the correctness of the decisions under appeal, particularly the

Full Bench decision in Jagat Singh, without expressing any

opinion on the Seventeenth Amendment.

47. As per the facts noticed by this Court, 270 kanals, 13 marlas of

land in village Virk Kalan was given to village panchayat for

management and realization of income, apart from some land

reserved for abadi, manure pits, although the ownership was

shown in the revenue record as Shamilet Deh in the name of

the proprietors. In village Sewana, 400 kanals and 4 marlas

were set apart for the village panchayat for extension of the

abadi and to grant 8 marlas of land to each family of 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

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

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

the protection of Article 31-A. The High Court was thus right in

its conclusion on this part of the case also.”

48. Thus, the property was held to be acquired as a part of the

agrarian reform under Article 31A and no compensation was

payable as provided under Article 31. Therefore, the

acquisition was complete in respect of the land reserved for

common purposes by applying pro-rata cut on the land

holdings of the proprietors. Further, it is pertinent to mention

that the question of payment of compensation was specifically

negated in Ranjit Singh. Therefore, the land stood vested

with the Panchayat under the scheme in view of the said

judgment of this Court. In the present appeals, there is no

dispute that the land by applying pro-rata cut has not been

reserved for the income of the panchayat. Thus, we find that

the land falling in second category i.e., land reserved for

common purposes, not falling within the ceiling limit of the

proprietor would vest with Panchayat. The Amending Act does

not acquire land or deprive the proprietors of their ownership

as such ownership stood already divested in view of

consolidation scheme reserving land for common purposes.

The Amending Act is only a clarificatory or a declaratory

amendment as the land stood vested in the panchayat on the

strength of Ranjit Singh. Hence, Section 2(g)(6) read with

Section 4 of the 1961 Act vests the land reserved for common

purposes by applying pro-rata cut in the village Panchayat.

49. The Amending Act was enacted and published after obtaining

assent of the President of India, thus such Act is part of the

agrarian reform. In the year 1992, when the Amending Act was

enacted, Article 31 stood omitted by virtue of 44th

Constitutional Amendment Act, 1978 with effect from

30.04.1979. Therefore, the provision of payment of

compensation contemplated under Article 31(2) was not

available on the day when the Amending Act was published.

Article 300A was inserted by the same amendment i.e., 44th

Amendment with effect from 30.04.1979. Such Article

contemplated that no person shall be deprived of his property

save by the authority of law. Since the land was already vested

with Gram Panchayat, therefore, there was no question of

payment of compensation in the year 1992.

50. As observed above, the land stood acquired and vested with

the Panchayat by virtue of Ranjit Singh. This Court held that

no compensation was payable in view of the four Acts, namely,

the 1948 Act, the Punjab Act and the Pepsu Act, the 1961 Act

and also the Punjab Security of Land Tenures Act, 1953 as such

Acts were a part of a general scheme of reforms and any

modification of rights such as the present had the protection of

Article 31A. Such land would vest with the Panchayat.

51. The Full Bench of the Punjab and Haryana High Court in a

judgment reported as Parkash Singh & Ors. v. Joint

Development Commissioner, Punjab & Ors.

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

the matter, as provided by Section 9 of the Code of Civil

Procedure, i.e., a Civil Court.”

52. In Suraj Bhan, the Full Bench of the High Court held that only

the management and control as distinguished from the title

and ownership in respect of lands carved out during

consolidation operations by imposing a pro rata cut on the land

of the proprietors and recorded in the revenue records as

'Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba',

'Jumlan Malkan' or 'Mushtarka Malkan' etc., vest in the

Panchayat. It was held as under:

“146. However, for the removal of doubts, it is clarified

and held that any observations in Jai Singh's case

(supra), and in Veer Singh's case (supra) (in which the

application for review of the judgment in Jai Singh's

case (supra) had been dismissed by making

clarifications), if it is to be taken that the ownership or

title in respect of lands kept for 'common purposes' of

the village by imposing a pro rata cut on the land of the

proprietors and recorded in the revenue records as

'Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad

Raqba', 'Jumlan Malkan' or 'Mushtarka Malkan' etc. vest

with the State or the Gram Panchayat, as the case may

be, without payment of compensation is not the correct

legal position notwithstanding the provisions of Section

4 of the VCL Act 1961 and that in fact, only the

management and control of such lands vests in the

State or the Gram Panchayat, as the case may be.

Therefore, only the management and control as

distinguished from the title and ownership in respect of

lands carved out during consolidation operations by

imposing a pro rata cut on the land of the proprietors

and recorded in the revenue records as 'Jumla Malkan

Wa Digar Haqdaran Arazi Hasab Rasad Raqba', 'Jumlan

Malkan' or 'Mushtarka Malkan' etc., vest in the

Panchayat. Besides, as already noticed, the provision

relating to appropriation of income of the land kept for

'common purposes' in a consolidation scheme has been

invalidated by a Five Judge Bench of the Supreme Court

in Bhagat Singh's case (supra).”

53. We find that such conclusion in Parkash Singh or Suraj

Bhan that ‘Jumlan Malkan’ or 'Mushtarka Malkan' land so

described in the revenue record would not vest with the

Panchayat is not based on the correct reading of judgment of

this Court in Ranjit Singh. Once land had been reserved for

common purposes, irrespective of description in the revenue

record, such land would vest with Panchayat or the State. The

only condition is that it should not be within permissible limits

of the proprietors.

54. Still further, in Parkash Singh, it has been held that the

forum available to a person, who raises a dispute regarding

title in “Jumla Mushtarka Malkan” is the principal Court of civil

jurisdiction having jurisdiction in the matter, as provided by

Section 9 of the Code of Civil Procedure, i.e., a Civil Court.

Though the said judgment is in the context of the State of

Punjab, but the said finding is not sustainable for the reason

that “Jumla Mushtarka Malkan” is a land reserved for common

purposes during consolidation. Though Rule 16(ii) of the 1949

Rules prescribes that the common purposes land after applying

pro-rata cut would be described in the revenue record but the

expression “Jumla Mushtarka Malkan” or “Mushtarka Malkan” is

a land of the proprietors for the benefit of the village

community for common purposes. Therefore, if the revenue

records as “Jumla Mushtarka Malkan” or “Mushtarka Malkan” in

the ownership column, it is the authority under the 1961 Act

and the machinery provided thereunder which would exercise

jurisdiction to determine the dispute as to whether it is

reserved for common purposes or not.

55. We do not find any merit in the arguments raised by learned

counsel for the proprietors that the explanation enlarges the

scope of the common purposes for which land was reserved

under the scheme in terms of 1948 Act. Rule 16(ii) of 1949

Rules specifically mentions that the entry in the column of

ownership of records would be Jumla Malkan Wa Digar

Haqdaran Arazi Hassab Rasad. The other expression used in

the explanation is Jumla Mustarka Malkan or Mustarka Malkan,

which means the ownership of all the proprietors. They are

commonly used in the revenue record but they are not larger

in scope than the entry contemplated in the revenue record as

Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad.

Therefore, neither sub-section 6 nor the explanation is contrary

to Article 300-A as the land stood acquired without payment of

compensation being part of the agrarian reforms, when 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

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

, 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

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

was that most of the proprietors including the writ petitioner

own land within the first ceiling, therefore, the land falling

within the ceiling limit could not be acquired without payment

of compensation on account of insertion of second proviso to

Article 31A(1) by 17th Amendment. The 17th Amendment reads

thus:

“Provided further that where any law makes any provision

for the acquisition by the State of any estate and where

any land comprised therein is held by a person under his

personal cultivation, it shall not be lawful for the State to

acquire any portion of such land as is within the ceiling

limit applicable to him under any law for the time being in

force or any building or structure standing thereon or

appurtenant thereto, unless the law relating to the

acquisition of such land, building or structure, provides for

payment of compensation at a rate which shall not be less

than the market value thereof.”

60. The Division Bench of the High Court inter alia examined the

17th Amendment and held that it was not retrospective in

operation. The petition was dismissed after examining Article

31(2-A) of the Constitution as well as 17th Amendment which

deals with acquisition by the State, leaving requisitioning

untouched. The High Court found that where land is assigned

to a village Panchayat or the State for a common purpose, it

does not seem to provide, technically speaking, for the

transfer of ownership and the State Government and

Panchayat are merely empowered to manage and appropriate

the income accruing from the property for the benefit of village

community, including the original holder, and for no other

purpose. It was held that Article 31(2-A) of the Constitution

lays down that where a law does not provide for the transfer of

ownership, only the management and control would vest in the

village Panchayat. The Court held (page 857-858) as under:

“This brings me to the question whether the assignment of

land for common purposes is acquisition. The controversy on

this point seems to centre round Article 31(2-A) of the

Constitution which lays down that where a law does not

provide for the transfer of the ownership, or right to

possession of any property, to the State or to a Corporation

owned or controlled by the State, it shall not be deemed to

provide for the compulsory acquisition or requisitioning of

property, notwithstanding that it deprives any person of his

property. The learned Advocate-General has submitted that

providing for right to possession of any property means

requisitioning of such property, and compulsory acquisition,

according to this sub-article, is confined only to the transfer

of ownership. In the case in hand, ownership has not been

transferred in law and it is only the management and control

which vests in the village Panchayat concerned or the State,

as the case may be. This may amount to compulsory

requisitioning, but the further proviso introduced by the 17th

Amendment, with which we are concerned, hits only

acquisitions by the State leaving requisitioning untouched.

The 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

be, has been reserved for common purposes in which the

entire village community including the original holder is

interested as equal sharer, and is entitled to secure the

benefit thereof in common with all the co-beneficiaries. The

State Government or the Panchayat are merely empowered

to manage and appropriate the income accruing from the

property for the benefit of the village community, including

the original holder, and for no other purpose. It is only the

right to transfer, or, to the exclusive use or appropriation, of

which the original holder has been deprived.

The benefits of the use of the land reserved for common

purposes are assured to the original holder in common with

all the other members of the community. Whether this can

be considered to be acquisition as distinguished from

requisitioning is a question which does not seem to be

capable of an easy answer. However, keeping in view the

general scheme and purpose of the Act, the scales do seem

to me prima facie to be somewhat inclined in favour of the

view that the statutory vesting of the property in the State

Government or the Panchayat, as the case may be, under

the Act, when it is reserved for common purposes, is perhaps

not intended to amount to acquisition within the

contemplation of the second proviso added to Article 31-A by

the 17th Amendment. But I should not like to express any

considered opinion on this somewhat difficult and vexed

point on the present occasion, leaving it to be settled if

necessary in a more appropriate case.”

61. In appeal, a Constitution Bench of this Court in Ajit Singh

noted that the scheme under the 1948 Act was not part of the

record but 89 bighas, 18 biswas and 18 biswanis of pukhta

land was owned by Gram Panchayat prior to consolidation

which was used for common purposes. Some more area was

reserved for common purposes such as for canals, pathways,

community center, school etc. after applying cut upon right

holders on pro-rata basis and not for income of Panchayat.

This Court held that the proprietor is not entitled to

compensation as the title of the proprietor is not being

divested and that management and control alone vests with

the panchayat. It was thus held that it was not a case of

acquisition of land.

62. This Court considered the questions as to “whether in the

second proviso to Article 31A(1), the expression “acquisition”

means substantial taking over the benefits of property and

conferring it on the State?” and that “whether the acquisition

means the entire process terminating with possession and

extinction of the title of the individual?”. This Court held that

the title vests in the proprietary body, the management of

the land is done on behalf of the proprietary body, the land is

used for the common needs and the benefits of the estate or

estates concerned. The Panchayat would manage such land

on behalf of the proprietors and use for common purposes,

therefore, the beneficiary of the modification of the rights is

not the State. Therefore, there is no acquisition by the State

within the meaning of second proviso. This Court examined

the Constitution (Seventeenth Amendment) Act, 1964 and

negated the argument raised by the proprietor. It was held as

under:

“9. Coming now to the second proviso to Article 31-A, it

would be noticed that only one category is mentioned in

the proviso, the category being “acquisition by the

State of an estate”. It means that the law must make a

provision for the acquisition by the State of an estate.

But what is the true meaning of the expression

“acquisition by the State of an estate”. In the context of

Article 31-A, the expression “acquisition by the State of

an estate” in the second proviso to Article 31-A(1) must

have the same meaning as it has in clause (1)(a) to

Article 31-A. It is urged on behalf of the respondents

before us that the expression “acquisition by the State

of any estate” in Article 31-A(1)(a) has the same

meaning as it has in Article 31(2-A). In other words, it is

urged that the expression “acquisition by the State of

any estate” means transfer of the ownership or right to

possession of an estate to the State Mr Iyengar on the

other hand urges that the expression “acquisition by

the State” has a very wide meaning and it would bear

the same meaning as was given by this Court in State

of West Bengal v. Subodh Gopal Bose [(1964) SCR

587] , Dwarkadas Shrinivas of Bombay v. Sholapur

Spinning & Weaving Co. Ltd. [(1954) SCR 674] Saghir

Ahmad v. State of U.P. [(1955) 1 SCR 707] and Bombay

Dyeing and Manufacturing Co. Ltd. v. State of

Bombay [(1958) SCR 1122] . In these cases this Court

had given a wide meaning to the word “acquisition”.

In Dwarkadas Shrinivas of Bombay v. Sholapur Spinning

& Weaving Co. Ltd. [(1954) SCR 674] Mahajan, J.,

observed at p. 704 as follows:

“The word ‘acquisition’ has quite a wide concept,

meaning the procuring of property or the taking of it

permanently or temporarily. It does not necessarily

imply the acquisition of legal title by the State in the

property taken possession of.”

10. Let us now see whether the other part of the

second proviso throws any light on this question. It

would be noticed that it refers to ceiling limits. It is well

known that under various laws dealing with land

reforms, no person apart from certain exceptions can

hold land beyond a ceiling fixed under the law.

Secondly, the proviso says that not only the land

exempted from acquisition should be within the ceiling

limit but it also must be under personal cultivation. The

underlying idea of this proviso seems to be that a

person who is cultivating land personally, which is his

source of livelihood, should not be deprived of that land

under any law protected by Article 31-A unless at least

compensation at the market rate is given. In various

States most of the persons have already been deprived

of land beyond the ceiling limit on compensation which

was less than the market value. It seems to us that in

the light of all the considerations mentioned above the

words “acquisition by the State” in the second proviso

do not have a technical meaning, as contended by the

learned counsel for the respondent. If the State has in

substance acquired all the rights in the land for its own

purposes, even if the title remains with the owner, it

cannot be said that it is not acquisition within the

second proviso to Article 31-A.

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

there is no acquisition by the State within the second

proviso.

15. In the context of the 2nd proviso, which is trying to

preserve the rights of a person holding land under his

personal cultivation, it is impossible to conceive that

such adjustment of the rights of persons holding land

under their personal cultivation in the interest of village

economy was regarded as something to be

compensated for in cash.”

63. Thus, in respect of the land taken from the proprietors from

their permissible ceiling limits, it is the management and

control alone which would vest with the panchayat. The

management and control include leasing of land and use of the

land by non-proprietors, Scheduled Castes and Schedules

Tribes etc. which is for the benefit of the village community.

Therefore, vesting under Section 4 would be limited to

management and control. It is pertinent to note here that for

the land taken from the proprietors by applying pro-rata cut

from the permissible ceiling limits of the proprietors,

management and control alone vests with the Panchayat but

such vesting of management and control is irreversible and the

land would not revert to the proprietors for redistribution as

the common purposes for which land has been carved out not

only include the present requirements but the future

requirements as well. Such land would not be available for

sale so as to confer title on the purchaser in view of the fact

that the Panchayat is not the full owner of the land but while

exercising control and management, it is duty bound to

safeguard the land for the benefit of the village community.

64. The Panchayat will not have title over the land but as part of

management and control, the panchayat is at liberty to put the

land for the use for the common purposes. Such common

purposes as defined under Section 2(bb) of 1948 Act are

interchangeable and also can be used for any other common

purposes. It is to be noted that common purposes are ever

evolving, they are not fixed in time. With the change in time

and expectations of the village community, common purposes

have to be given wider meaning in view of the object of such

reservation of land. Therefore, though the panchayat has

management and control in respect of the land which was

carved out from the land falling within the ceiling limits, the

panchayat would have complete control over the said part of

the land. The word ‘vesting’ appearing in Section 4 has to be

read down to mean that management and control of such land

alone would vest in the panchayat.

65. In Shish Ram & Ors. v. State of Haryana & Ors.

, 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

“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.

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

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

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

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

., 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

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

. In a judgment reported as Gram

Panchayat, Village Bhedpura v. Additional Director,

Consolidation, Punjab

, 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

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

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

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

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

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

and also the judgment

in V.M. Salgaocar & Bros. Pvt. Ltd. v. Commissioner of

Income Tax

. On the other hand, Mr. Kant relied upon

judgment of this Court in S. Shanmugavel Nadar v. State of

T.N.

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

universal or unlimited application. The nature of

jurisdiction exercised by the superior forum and the

content or subject-matter of challenge laid or which

could have been laid shall have to be kept in view.”

77. In V.M. Salgaocar, the question of law framed was answered

in favour of the assessee and against the revenue by the High

Court. The Civil Appeal at the instance of revenue was

dismissed without any speaking order. It was held that the

previous proceedings would operate as binding precedent that

once this Court has dismissed the appeal, the High Court in a

subsequent assessment year cannot take a different view. It

may be noticed that the aforesaid judgment was delivered on

10.04.2000 whereas Kunhayammed was delivered in

19.07.2000 by a larger bench.

78. In S. Shanmugavel Nadar, this Court has referred to the

judgment of this Court in V.M. Salgaocar while examining the

legality of the Madras City Tenants Protection (Amendment)

Act, 1994. The constitutional validity was upheld by the High

Court in first round. The Special Leave Petition was dismissed

on the ground that the State of Tamil Nadu was not made a

party. This Court had not examined the constitutional validity

of the Amending Act. In a subsequent round before the Full

Bench considering the challenge to the Amending Act, the

Division Bench of the High Court was cited as a binding

precedent affirmed by this Court. This Court held that when an

order of the superior forum results in confirmation, reversal or

modification the order, what emerges is the operative part

alone is binding i.e., the mandate or decree issued by the court

which have been expressed in a positive or negative form. This

Court also examined that dismissal of Special Leave Petition

can either result into res-judicata or a binding precedent under

Article 141 of the Constitution. It was held as under:

“10. Firstly, the doctrine of merger. Though loosely an

expression merger of judgment, order or decision of a

court or forum into the judgment, order or decision of a

superior forum is often employed, as a general rule the

judgment or order having been dealt with by a superior

forum and having resulted in confirmation, reversal or

modification, what merges is the operative part i.e. the

mandate or decree issued by the court which may have

been expressed in a positive or negative form. For

example, take a case where the subordinate forum

passes an order and the same, having been dealt with

by a superior forum, is confirmed for reasons different

from the one assigned by the subordinate forum, what

would merge in the order of the superior forum is the

operative part of the order and not the reasoning of the

subordinate forum; otherwise there would be an

apparent contradiction. However, in certain cases, the

reasons for decision can also be said to have merged in

the order of the superior court if the superior court has,

while formulating its own judgment or order, either

adopted or reiterated the reasoning, or recorded an

express approval of the reasoning, incorporated in the

judgment or order of the subordinate forum.

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)

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

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

, 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.

, 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

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

and could never become the subject-matter of an

appeal before the appellate authority. The theory that

the order of the tribunal merges in the order of the

appellate authority cannot therefore apply to the order

of registration passed by the Income Tax Officer in the

present case.”

82. Thus, the principle of merger would be that the order of the

higher court becomes the operative order and not the order

which was appealed from and not interfered with.

83. In the appeal against the judgment of Gurjant Singh, only

grievance raised before this Court was in respect of a direction

of fixing a time limit to re-partition the land. It was the said

direction which was deleted from the order. By such exercise of

jurisdiction in appeal, the reasoning of the High Court is not

deemed to be the reasoning of this Court. Such argument

would in fact give rise to strange results as the reasoning of

the High Court would have to be accepted as reasoning of the

Supreme Court. There cannot be a more absurd argument. As

held by this Court in S. Shanmugavel Nadar, there can be

only one operative judgment/order. Once this Court has

deleted the time limit to complete the re-partition, the

operative order remains of the High Court that Bachat land can

be partitioned i.e., operative part of the order. The reasoning

recorded by the High Court is not however affirmed by this

Court. It would be a judgment of the High Court alone which

can be cited as a precedent in other cases but not as an order

of this Court. Consequently, we do not find any merit in the

argument so raised. In fact, by applying the doctrine of

merger, the order of this Court becomes operative order but

since the order is of deletion of a direction only, the effect

would be that the order of the High Court has not been

interfered with.

84. Keeping in view of the above discussions, we find that the land

reserved for common purposes cannot be re-partitioned

amongst the proprietors only because at a particular given

time, the land so reserved has not been put to common use.

The learned counsel for the parties could not point out any

particular time-line during which the common purposes have

to be accomplished. Since ‘common purpose’ is a dynamic

expression, as it keeps changing due to the change in

requirement of the society and the passing times, therefore

once the land has been reserved for common purposes, it

cannot be reverted to the proprietors for redistribution.

Therefore, the conclusion no. (iii) arrived at by the High Court

is set-aside as unutilized land is not available for redistribution

amongst the proprietors. The finding recorded by the different

Benches of the High Court are clearly erroneous and not

sustainable. Thus, the conclusion no (iii) arrived at by the High

Court in Jai Singh II is set aside.

CIVIL APPEAL NO. 1679 OF 2022; CIVIL APPEAL NO. 1678 OF

2022 AND CIVIL APPEAL NO. 1680 OF 2022

85. In the abovementioned appeals, the challenge on behalf of the

proprietors is to the provisions of the Haryana Municipal

(Amendment) Act, 1999 (Act No. 17 of 1999) and to Section

2(52A) and Section 161(1)(g) of the Haryana Municipal

Corporation Act, 1994 inter alia on the ground that the said Act

infringes upon the fundamental rights of the proprietors as the

same is not directed towards agrarian reforms. The land

owners have sought a direction that the land reverts back to

them. By virtue of the amendments, the shamilat deh was to

vest with the Municipalities. The amendments were said to be

violative of Articles 13, 14, 31-A and also Article 300A of the

Constitution.

86. In Civil Appeal No. 1679 of 2022, the appellant has purchased

land admeasuring 6.4625 acres (51 Kanals 14 Marlas) said to

be from the erstwhile owners through registered sale deeds.

The appellant cannot be said to be proprietor as it is a

company whereas the vendors of the appellant may be

proprietors but the facts are not clearly established on record.

Mr. Kamat, learned Senior Advocate appearing for the

appellant argued that the appellant has challenged the

provisions of the Haryana Municipal Corporation (Amendment)

Act, 1999 amending the Haryana Municipal Corporation Act,

199452 but the State has not filed any appeal against the

judgment arising out of the writ petition filed by the appellant.

It was argued that the provisions of the Amending Acts,

amending the 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.

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’

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.

and

Municipal Committee, Sirhind v. Parshotam Dass &

Ors.

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

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’

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’

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.

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.

Therefore, the argument that the State has not filed an appeal

against the order passed in the writ petition does not merit any

consideration since the entire judgment is in appeal.

95. The fact is that the Full Bench of the Punjab and Haryana High

Court in Rajender Parshad has struck down the Haryana

Municipal Common Lands (Regulation) Act, 1974 as

unconstitutional inter alia on the ground that such Act is not a

measure of agrarian reform. The infirmities pointed out by the

High Court in Rajender Parshad are very well applicable to

the amending Statutes amending the 1973 Municipal Act and

the 1994 Corporation Act. Therefore, we have no hesitation to

affirm the findings recorded by the High Court that the

amending statutes amending the 1973 Municipal Act and the

1994 Corporation Act are also unconstitutional as they are not

part of the agrarian reforms.

96. However, we find merit in the argument raised by Mr. Pradeep

Kant that if whole or part of the Panchayat area comes within

the municipal limits, and the Panchayat ceases to exist, land

would vest with the municipality and will not revert back to the

proprietors. The relevant extract from the Haryana Panchayati

Raj Act, 1994 reads as under:

“7. Demarcation of sabha area – (1) The Government

may, by notification, declare any village or a part of a

village or group of contiguous villages with a population

of not less than five hundred to constitute one or more

sabha areas:

Provided that Government may in exceptional

cases, by reasons to be recorded in writing, relax the

limit of population of 500:

Provided further that neither the whole nor any

part of a-

(a) municipality constituted under the Haryana

Municipal Act, 1973;

(b) cantonment;

shall be included in a sabha area unless the

majority of voters in any municipality desire the

establishment of a Gram Panchayat in which case the

assets and liabilities, if any, of the municipality shall

vest in the Gram Panchayat and the municipality shall

cease to exist.

(2) The population shall be ascertained on basis

of last preceding decennial census of which the relevant

figures have been published.

(3) Government may, by notification, include any

area in or exclude any area from the sabha area.

(4) If the whole of the sabha area is included in a

municipality or a cantonment, the Gram Panchayat shall

cease to exist and the assets and liabilities of it shall

vest in the municipality or cantonment, as the case may

be.

(5) If the whole of the sabha area is included in

the Faridabad Complex under the Faridabad Complex

(Regulation and Development) Act, 1971, the Gram

Panchayat shall cease to exist and its assets and

liabilities shall vest in the Faridabad Complex.”

97. Section 2-A of the 1973 Municipal Act deals with classification

and constitution of municipalities such as Municipal Committee

for a transitional area with population of not more than fifty

thousand, Municipal Council for a smaller urban area with

population of more than fifty thousand but less than three lacs

and the Municipal Corporation for a larger urban area with

population of three lacs or more60. Section 3 empowers the

State Government to propose any local area to be a

municipality under the 1973 Municipal Act. Section 4

empowers the State Government to alter the limits of

municipality whereas Section 5 empowers the State

Government to exclude any area from the municipality.

Relevant provisions from the 1973 Municipal Act read thus:

“3. Procedure for declaring municipality.—(1) The State

Government may, by notification, propose any local

area to be a municipality under this Act.

(2) Every such notification shall define the limits of the

local area to which it relates.

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

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.

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

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

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

(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

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

, 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

essential commodity in contradistinction with a part

thereof alone can be fixed. According to him, there is no

such thing as a partial control of the price. I see no

merit in this submission. If the non-availability of

essential commodities, which grows with the passage of

time, has to be checked, then the evil must be nipped

in the bud. In other words, if the supply position can be

improved by taking less drastic action, the State

Government should be allowed to take that action

instead of allowing the problem to go out of hands. If

the interpretation suggested by Mr. Mittal is accepted,

then the authorities under the Act, would have to wait

till the essential commodities become so costly and

scarce as to make absolute control of prices the only

imperative. Besides, there is a legal maxim omne majus

continet in se minus - the greater contains the less. This

maxim has been referred to with approval in Atma

Ram v. State of Punjab, AIR 1959 Supreme Court

519 - If the State Government has the volition and the

right to travel the whole distance, I see no reason why it

should be commanded to go further if it exercises an

option of stopping midway. ..............”

103. The Section 7(4) of the Panchayati Raj Act, 1994 is to be read

with the provisions of the 1973 Municipal Act. However, both

the statutes had undergone extensive changes after the

insertion of Part IX and IX A in the Constitution empowering the

third tier of the democratic set up. The Panchayati Raj Act

contemplates vesting of property of Gram Panchayat with the

municipality., whereas the Municipal Act takes into its ambit

the properties which were vesting with Panchayat. The 1973

Municipal Act contemplates that even if part of the property of

Gram Panchayat is included in the Municipal Limits, it would

vest with the municipality. Thus, the word ‘whole’ appearing in

Section 7(4) of Panchayati Raj Act does include part of the

Gram Panchayat area coming within the municipal limits. It is

the same view which was taken by this Court in a Notified

Area Committee, Sirhind.

104. Thus, if the whole or part of Gram Panchayat area is included

in the municipal limits, the land reserved for common purposes

as part of agrarian reforms would stand vested with the

municipality. Such vesting is not a part of agrarian reforms but

shall be on account of extension of municipal limits. When the

municipal limits are extended, the residents of the Panchayat

also became residents of the municipality. The common

purposes of the village community prior to extension of the

municipal limits would be deemed to be common purposes for

which land can be utilized by the municipality. Therefore, such

vesting of land reserved for common purposes is not an

acquisition for the first time but transition of the land reserved

for common purposes in the changed scenario when the land

vest with the municipality.

105. The argument of the proprietors that if whole of the Sabha

area merges with the municipality, only then there can be

vesting of land reserved for common purposes with the

municipality is untenable. Such an argument would lead to

anomalous results. The title, right and interest of the property

cannot be held in abeyance. There has to be continued control

and management over the land reserved for common purposes

under the 1948 Act. Therefore, even if a part of Sabha area is

merged into the municipality, the municipality will have control

over the land so reserved for the erstwhile village community

which will now form part of the urban area. In view thereof, we

do not find any merit in the argument raised on behalf of the

proprietors and dismiss the writ petitions filed by them while

allowing the appeals of the State.

106. The argument of the proprietors that the land which is not

capable of being used for common purposes of the inhabitants

of a particular village shall be reverted to the proprietors is

untenable and unsustainable. The land has been put to

common pool by applying pro-rata cut. Once pro-rata cut has

been applied, the management and control of such land vest

with the Panchayat. There is no question of reverting the land

to the proprietors. As discussed above, the land which is not

part of the permissible limits under the land ceiling laws stand

acquired and vested with the Panchayat in terms of judgment

of this Court in Ranjit Singh. However, in respect of the land

forming part of permissible limits of the proprietor under the

land ceiling laws, the management and control vest with the

Panchayat. Neither the 1961 Act nor the 1948 Act

contemplates redistribution of land to the proprietors. It is an

irrevocable act which cannot be undone. Therefore, once land

vest with the Panchayat, it can be used for common purposes

of the community and will never revert back to the proprietors.

107. We find that the scope of the two provisions under the 1985

Act and 1961 Act are different and distinct. Under the 1985

Act, the Gram Panchayat could seek eviction from

unauthorized occupants, the management and control as of

the land reserved for common purposes whereof vested in the

Gram Panchayat in a summary way where the possession of

the occupant was unauthorized. But if there is dispute in

respect of the nature of occupation by the occupant or by the

panchayat, procedure under the 1961 Act alone can be

resorted to as Section 13A of the 1961 Act confers power upon

the Collector to decide the question of right, title or interest in

any land or immoveable property vested or deemed to have

been vested in the panchayat. Therefore, in case of a dispute

about the right, title or interest in any land for or on behalf of

any person, the remedy under the 1961 Act alone can be

exercised. This will include right, title or interest in all the three

categories of land i.e., shamilat deh owned by panchayat,

shamilat land vested in terms of 1948 Act falling in second

category and the land, the management and control whereof is

vested with the panchayat, land being within the permissible

limits of the proprietor, the management and control of which

vest with the panchayat.

108. Consequently, we hold that Act No. 9 of 1992, the Amending

Act is valid and does not suffer from any vice of constitutional

infirmity. The entire land reserved for common purposes by

applying pro-rata cut had to be utilized by the Gram Panchayat

for the present and future needs of the village community and

that no part of the land can be re-partitioned amongst the

proprietors.

109. With the aforesaid discussion and findings, the appeals filed by

the State and panchayats are allowed and those filed by the

proprietors are dismissed. Consequently, the writ petitions

filed before the High Court shall also stand dismissed.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

APRIL 07, 2022.

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.

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

(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.

(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

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.

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