Full Judgment Text
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PETITIONER:
AJIT SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB & ANR.
DATE OF JUDGMENT:
02/12/1966
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
RAO, K. SUBBA (CJ)
HIDAYATULLAH, M.
BACHAWAT, R.S.
SHELAT, J.M.
CITATION:
1967 AIR 856 1967 SCR (2) 143
CITATOR INFO :
RF 1967 SC 927 (1,2)
F 1967 SC1568 (6)
RF 1972 SC 486 (17)
R 1978 SC 803 (37)
D 1980 SC1682 (67,68)
RF 1989 SC1629 (23)
ACT:
Retrospectivity-Public Officer-Retrospective appointment by
Notification-Acts done before date of Notification, if
valid.
Constitution of India, 1950, Art. 31A(1), Second proviso-
"Acquisition by State", meaning of.
East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act (50 of 1948)-Scheme under-Small portion
of land taken from proprietor holding land within ceiling
limit-Proprietor, if entitled to compensation.
HEADNOTE:
Between May 1961, and May 1962, consolidation proceedings
were taken under the East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948, in an estate in
which the appellant was a small proprietor holding land
within the ceiling limit. The scheme for consolidation
provided for taking of a fraction of each proprietor’s land
and throwing into a common pool which was added to the land
already in the possession of the Gram Panchayat. But no
portion of the common pool apart from what was already owned
by the Panchayat, was reserved for providing income to the
Panchayat. The ownership of the common pool was to vest in
the proprietary body consisting of the several proprietors,
and the Gram Panchayat was to manage and use it for the
common needs and benefits of the estate, under r. 16(ii) of
the Punjab Holdings (Consolidation and Prevention of
Fragmentation) Rules, 1949, so that, the proprietors and
non-proprietors would share in the benefits. The appellant
filed a writ petition in 1965, contending that : (1) The
Consolidation Officer was not appointed till after the
repartition was concluded, that he could not be appointed
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retrospectively, that he had no legal authority when he
commenced the proceedings, and therefore, the scheme was
invalid; and-(2) the scheme amounted to "acquisition by the
State" within the meaning of the second proviso to Art.
31A(1) of the Constitution, with the result that
compensation to the proprietor at the market rate was
payable. The High Court dismissed the petition.
On appeal,
HELD: (Per Subba Rao, C. J., Sikri and Bachawat JJ.) (1)
The Consolidation Officer had no authority to act as such
before he was appointed and what he did, purporting to act
as such officer, had no binding effect on the owners.
Further, the State Government could not appoint him and
clothe him with authority retrospectively. But, as the
appellant was guilty of laches and no manifest injustice was
done to him, the High Court was right in rejecting the
contention. [147 B-D]
(Per Hidayatullah and Shelat, JJ.) : As the petition was
filed more than three years after the completion of the
repartition of holdings. the contention should not be
entertained in the face of the presumption under s. 114,
Indian Evidence Act, namely, that the Officer must have been
appointed to act is such, as Without Such appointment he
would not have acted. [154 B]
144
(2) (Per Subba Rao, C. J. Sikri and Bachawat, JJ.). The
words acquisition by the State" in the second proviso to
Art. 31A(1) do not have any technical meaning. In the
context of Art. 31A the expression must have the same
meaning as it has in Art. 3 1A(1) (a). The essential
difference between "acquisition by the State" on the one
hand and "Modification or extinguishment of rights" on the
other, is that in the first case the beneficiary is the
State while in the second the beneficiary is not the State.
Therefore, 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 proviso. [149 B-D; 150 G]
State of West Bengal v. Subodh Gopal Bose [1954] S.C.R. 587,
Dwarkadas Shriniwas v. The Sholapur Spinning and Weaving Co.
Ltd., 11954] S.C.R. 674, Saghir Ahmad V. State of U.P.
[1955] 1 S.C.R. 707 and Bombay Dyeing and Mfg. CO. Ltd. v.
State of Bombay, [1958] S.C.R. 1122, followed.
But on the facts of this case, the beneficiary of the
modification of rights was neither the State nor the
Panchayat; and therefore, there was no acquisition by the
State within the second proviso. As a result of the scheme
the title to the small fraction of land which was taken away
for forming the common pool remained in the proprietary body
of the holders in the estate and in the revenue records, the
land would be shown as belonging to all the owners in
proportion to their areas. The Gram Panchayat would manage
it on behalf of the proprietary body and use it for common
purposes,and the proprietors would enjoy the benefits. Even
the satisfaction and advancement of the non-proprietors who
derived benefits from the common pool would enure to the
advantage of the proprieters who would from a more efficient
agricultural community. [152 E-G]
Altar Singh v. State of U.P. [1959] Supp. 1 S.C.R. 928,
followed.
Per Hidayatullah and Shelat, JJ. (dissenting) : Article 31A
deals with the special subject of "estates" and its
intention is to give protection to State action against
Arts. 14, 19 and 31 so long as the acquisition is by the
State of any estate, or of any rights therein or the
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extinguishment or modification of any -such rights. To this
protection there is an exception, namely, the second
proviso, under which land under the personal cultivation of
any estate-holder of any kind, which is within the ceiling
limit applicable to him, shall not be acquired unless the
market value of the land is given as compensation. The word
"acquisition" used in the proviso must take its colour from
the same word used earlier in the same Article, and not from
the word as used in an earlier article in juxtaposition with
the word "requisition". It denotes not only the acquisition
of ownership, that is, the entire bundle of rights, but also
acquisition of some rights which leaves the owner, an owner
in name only [162 E-163 Al
In the present case the ’result of the scheme would be that
(i) the proprietor was deprived of his property though only
of a small portion; (ii) though the ownership was vested in
the proprietary body ill rights with ’regard to the
management and income therefrom were vested in the Gram Panchayat
established under Punjab Gram Panchayat Act, 1953; (iii) the
ownership was therefore transferred to another body, the
Gram Panchayat, which is an entity different from the
Proprietor. It is a local authority included within the
definition of "State" in Art. 12, and (iv) the benefit of
the income of such lands goes not to the proprietor only,
but to all proprietors and non-proprietors in the Panchayat
area. Therefore, although the property is not actually
vested in the State Government or the Panchayat, the
Panchayat acquires almost the entire bundle
145
of rights. Hence, it is "acquisition" by the State within
the meaning of the second proviso and compensation at market
value must be given. [163 D-H; 164 A]
Moreover, the fact that what was acquired was a small bit
has no significance. What is small is vague and uncertain,
and the safer rule is, that, if the land of the tenant
cultivating it is below the ceiling fixed by law, and if a
portion of it is acquired, no matter for what purpose the
acquisition takes place, compensation at -a ’rate not lower
than the market value must be paid to him. When the
Constitution speaks of market value, it is not possible to
find compensation in advantages which might accrue
indirectly. [164 B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1018 of
1966.
Appeal by special leave from the judgment and order dated
October 5, 1965 of the Punjab High Court in Civil Writ No.
663 of 1965.
B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the
appellant.
K. L. Gossain, O. P. Malhotra and R. N. Sachthey, for the
respondents.
The Judgment Of SUBBA RAO C.J. and SIKRI and BACHAWAT JJ.
was delivered by SIKRI, J. The dissenting Opinion of HIDAYA-
TULLAH and SHELAT, JJ. was delivered by HIDAYATULLAH, J.
Sikri, J. This appeal by special leave is directed against
the judgment of the Punjab High Court dismissing a petition
filed by the appellant under art. 226 of the Constitution,
praying that the scheme of consolidation of village Ropalon,
Tahsil Samrola, District Ludhiana, be quashed. The scheme
which was sought to be quashed was made under the provisions
of the East Punjab Holdings (Consolidation and Prevention of
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Fragmentation Act, 1948, hereinafter referred to as the Act.
On May 2, 1961, a notification ",as issued under s. 14(1) of
the Act, which provided for a declaration of the intention
of the State Government to make a scheme for the con-
solidation of holdings in the estates. Section 14(2) of the
Act provides for the appointment of a Consolidation Officer
and the preparation of a scheme by him. One Gurkirpal
Singh, purporting to act as the Consolidation Officer,
prepared a draft scheme and published it on November 8,
1961, under s. 19(1) of the Act. On January 6, 1962, or
January 16, 1962, the scheme was confirmed by the Settlement
Officer under S. 20(3) of the Act. After the confirmation,
the Consolidation Officer after obtaining the advice of the
landowners of the estate carried out repartition under s.
21(1) and the boundaries of the holdings as demarcated were
published in the prescribed manner in the estate on February
21, 1962. It appears that the Punjab High Court granted a
stay order and no further proceedings under the Act could be
taken. No possession has been
146
transferred pursuant to the re-partition. On May 11, 1962,
a notification was published in the Gazette, purporting to
appoint Shri Gurkirpal Singh as Consolidation Officer in
respect of the estate Ropalon with effect from November 4,
1961. On March 10, 1965, Ajit Singh, appellant before us,
filed the petition under art. 226 of the Constitution. In
the High Court, as before us, it was urged on behalf of the
appellant that :
(1) there could be no retrospective
appointment of a Consolidation Officer; and
(2) Compensation must be I-),,lid to the
appellant for the land reserved in the scheme
for various purposes in accordance with the
second proviso to art. 3 1 A(1) inserted by
the Seventeenth Amendment.
We need not mention the other grounds raised before the High
Court as they have not been raised before us.
The High Court held that although there could be no
retrospective appointment of a Consolidation Officer, the
objection could not be sustained because of laches of the
appellant. On the second point, the High Court held that
the second proviso to art. 3 1 A(1) was prospective and not
retrospective and did not affect the scheme in question as
the rights under the scheme became vested as soon as the
scheme was sanctioned by the Settlement Officer. The High
Court also expressed a tentative view that the reservation
of lands for common purposes in accordance with the scheme
and the Act did not amount to "acquisition" within the
contemplation of the second proviso to art. 31A(1). The
High Court accordingly dismissed the petition.
Mr. B.R.L. Iyengar, the learned counsel for
the appellant, has urged the following points
before us;
(1) Gurkirpal Singh, when he commenced
consolidation proceedings and prepared and
published the draft scheme of consolidation
did not have legal authority to do so. The
scheme being invalid could not be made valid
by being enforced by the Settlement Officer.
(2) The notification appointing Gurkirpal
Singh Consolidation Officer retrospectively
with effect from November 4, 1961, was
invalid,. as neither the Government nor its
delegate, Harcharan Singh, P.C.S., Officer on
Special Duty, could appoint a Consolidation
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Officer retrospectively.
(3) In the second proviso to art. 31 (A)(1),
the expression "acquisition" means substantial
taking over the benefits of property and
conferring it on the State.
147
(4) Acquisition means the entire process terminating with
possession and extinction of the title of the individual.
There seems to be substance in the first two points. It
seems to us clear that before a person can start acting as a
Consolidation Officer lie must be appointed a,, such.
Before he is appointed he has no authority to exercise any
of the functions of a Consolidation Officer. What he does
purporting to act as a Consolidation Officer has no binding
force on the owners and other persons affected in the
estate. The Government cannot by appointing him
retrospectively clothe him with authority retrospectively.
This can be done only by the Legislature Subject to the
provisions of the Constitution.
But the appellant cannot succeed on these grounds because
the High Court, in its discretion, has held that the
appellant is not entitled to rely on these objections
because of laches. We cannot say that the discretion has
been exercised wrongly. After the notification was
published on May 11, 1962, appointing Gurkirpal Singh
retrospectively with effect from November 4, 1961, it must
have been clear to the appellant that Gurkirpal Singh had
not been appointed Consolidation Officer before lie started
preparing consolidation proceedings. No adequate
explanation has been given for the delay. Further it has
not been shown that there has been any manifest injustice.
Coming now to the third point raised by Mr. Iyenger we may
first mention that it was held by this Court in Ranjit Singh
v. State of Punjab(1) that the Act was protected from
challenge by art. 3 IA. It is necessary to set out the
relevant constitutional provisions The relevant portion of
art. 3 1 A reads as under :
"31A. (1) Notwithstanding anything contained
in article 13, no law providing for-
(a) the acquisition by the State of any
estate or of any rights therein or the
extinguishment or modification of any such
rights..........
shall be deemed to be void on the ground that
it is inconsistent with, or takes away or
abridges any of the rights conferred by
article 14, article 19 or article 31 Provided
that....................
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
148
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.
(2)(b) the expression ’rights’ in relation to
an estate shall include any rights vesting in
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a proprietor, sub-proprietor, under-
proprietor, tenure-holder, raiyat, under-
raiyat or other intermediary and any rights or
privileges in respect of land revenue."
Relevant portions of articles 19 and 31 may also be set out
because the learned counsel have laid stress on the language
employed therein.
"19. (1) All citizens shall have the right--
(f) to acquire, hold and dispose of
property.
31. (1) No person shall be deprived of his
property save by authority of law.
(2) No property shall be compulsorily
acquired or requisitioned save for a public
purpose and save by authority of a law which
provides for compensation for the property so
acquired or requisitioned and either fixes the
amount of the compensation or specifies the
principles on which, and the manner in which,
the compensation is to be determined and
given; and no such law shall be called in
question in any court on the ground that the
compensation provided by that law is not
adequate.
(2A) 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."
It would be noticed that art. 31 A(1)(a) mentions four
categories; first acquisition by the State of an estate;
second, acquisition by the State of rights in an estate;
third, the extinguishment of rights in an estate, and,
fourthly, the modification of rights in an estate. These
four categories are mentioned separately and are different.
In the first two categories the State "acquires" either an
estate or rights in an estate. In other words, there is a
transference of an estate or the rights in an estate to the
State. When there is a transference of an estate to the
State, it could be said that all the rights of the holder of
the estate have been extinguished. But if the result in the
case of the extinguishment is the transference of all the
rights in an estate ,to the State, it would properly fall
within the expression "acquisition
149
by the State of an estate". Similarly, in the case of an
acquisition by the State of a right in an estate it could
also be said that the rights of the owner have been modified
since one of the rights of the owner has been acquired.
It seems to us that there is this essential difference
between "acquisition by the State" on the one hand and
"modification or extinguishment of rights" on the other that
in the first case the beneficiary is the State while in the
latter case the beneficiary of the modification or the
extinguishment is not the State. For example, suppose the
State is the landlord of an estate and there is a lease of
that property, and a law provides for the extinguishment of
leases held in an estate. In one sense it would be an
extinguishment of the rights of a lessee, but it would
properly fall under the category of acquisition by the State
because the beneficiary of the extinguishment would be the
State.
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Coming now to the second proviso to art. 31A, 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 art. 31A, the expression
"acquisition by the State of an estate" in the second
proviso to art. 31A(1) must have the same meaning as it has
in cl. (1)(a) to art. 3 1 A. It is urged on behalf of the
respondents before us that the expression "acquisition by
the State of any estate" in art. 31A(1)(a) has the same
meaning as it has in art. 31(2A). 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 The State of West
Bengal v. Subodh Gopal Bose,(1) Dwarkadas Shrinivas of
Bombay v. The Sholapur Spinning & Weaving Co. Ltd.(2) Saghir
Ahmad v. State of U.P.(3) and Bombay Dyeing and Manu-
facturing Co. Ltd. v. The State of Bombay(4). In these
cases this Court had given a wide meaning to the word
"acquisition". In Dwarkadas Shrinivas of Bombay v. The
Sholapur Spinning & Weaving Co. Ltd.(2) Mahajan, J.,
observed at page 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."
(1) [1964]S.C.R. 587.
(3) [1955] 1 S.C.R. 7 7.
(2) [1954] S.C.R. 674.
(4) [1958] S.C.R. 1122..
150
He further observed at p. 705 :
"I prefer to follow the view of the majority
of the Court, because it seems to me that it
is more in consonance with juridical principle
that possession after all is nine-tenths of
ownership, and once possession is taken away,
practically everything is taken away, and that
in construing the Constitution it is the
substance and the practical result of the act
of the State that should be considered rather
than its purely legal aspect."
Bose J., observed at p. 734 as follows:
"In my opinion, the possession and acquisition
referred to in clause (2) mean the sort of
’possession’ and ’ acquisition’ that amounts
to ’deprivation’ within the meaning of clause
(1). No hard and fast rule can be laid down.
Each case must depend on its own facts. But
if there is substantial deprivation, then
clause (2) is, in my judgment, attracted. By
substantial deprivation I mean the sort of
deprivation that substantially robs a man of
those attributes of enjoyment which normally
accompany rights to, or an interest in,
property. The form is unessential. It is the
the substance that we must seek."
Let us now see whether the other part of the second proviso
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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 art. 31A 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 art. 31A.
But the question still remains whether even if a wider
meaning is given to the word "acquisition" what has been
done by the scheme and the. Act is acquisition or not
within the meaning of the second proviso,. In other words,
does the scheme only modify rights
151
or does it amount to acquisition of land? The scheme is not
part of the record, but it appears that 89B- 18B- 11 B
(Pukhta) of land was owned by the Gram Panchayat prior to
consolidation, which was used for common purposes. Some
further area was reserved for common purposes as khals,
paths, khurrahs, Panchayat ghars and schools, etc., after
applying cut upon the rightholders on pro-rata basis. It
does not appear that any land, apart from what was already
owned by the Panchayat, was reserved for providing income to
the Panchayat. Therefore, in this case we are not concerned
with the validity of acquisition for such a purpose.
Rule 16(ii) of the Punjab Holdings (Consolidation and
Prevention of Fragmentation) Rules, 1949, provides :
"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 at a scale
prescribed by Government from time to time.
Proprietary rights in respect of land so
reserved (except the area reserved for the
extension of abadi of 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
record of rights as (Jumla Malkan wa Digar
Haqdaran 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 utilise
the income derived from the land so reserved
for the common needs and benefits of the
estate or estates concerned."
It will be noticed that the title still vest in the property
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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.
In Attar Singh v. The State of U.P.(1) Wanchoo J., speaking
for the Court, said this of the similar proviso in a similar
Act, -namely the U.P. Consolidation of Holdings Act (U.P.
Act V of 1954) as amended by the U.P. Act XVI of 1957 :
"Thus the land which is taken over is a small
bit, which sold by itself would hardly fetch
anything. These
(1) [1959]supp. S.C.R. 928 at p.938.
152
small bits of land are collected from various
tenureholders and consolidated in one place
and added to the land which might be lying
vacant so that it may be used for the purposes
of s. 14(1)(ee). A compact area is thus
created and it is used for the purposes of the
tenure-holders themselves and other villagers.
Form CH-21 framed under r. 41(a) shows the
purposes to which this land would be applied,
namely, (1) plantation of trees, (2) pasture
land,
(3) manure pits, (4) threshing floor, (5)
cremation ground,
(6) graveyards, (7) primary or other school,
(8) playground, (9) Panchayatghar, and (10)
such other objects. These small bits of land
thus acquired from tenure-holders are
consolidated and used for these purposes,
which are directly for the benefit of the
tenure-holders. They are deprived of a small
bit and in place of it they are given ad-
vantages in a much larger area of land made up
of these small bits and also of vacant land."
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.
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
inures 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.
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
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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.
In this view of the matter it is not necessary to deal with
the fourth point raised by the learned counsel for the
appellant because
153
it does not matter whether the acquisition is complete or
not, as even if we hold that the acquisition is not complete
and it has yet to be completed, the second proviso to art.
31A(1) would not prevent the State from proceeding with the
acquisition.
in the result the appeal fails and is dismissed, but there
would be no order as to costs.
Hidayatullah, J. This is an appeal against the judgment and
order of the High Court of Punjab, October 5, 1965,
dismissing a petition under Arts. 226 and 227 or the
Constitution filed by the appellant to quash the
consolidation of village Ropalon, Tehsil Sarmrala, District
Ludhiana. He challenged the consolidation mainly on two
grounds which alone were pressed before us in this appeal.
The first was that the Consolidation Officer (Gurkirpal
Singh) was not appointed under the Fast Punjab Holdings (
Consolidation and Prevention of Fragmentation) Act, 1948,
till after the repartition was concluded. The consolidation
work done by him was, accordingly said to be without
jurisdiction and a nullity. The second ground was that
there were 89 bighas, 18 biswas and 18 biswanis of pukhta
lands with the Gram Panchayat prior to the consolidation
proceedings but under the consolidation an additional 123
kanals and 14 marlas were taken from the common pool and
were given to the Panchayat and a pro rat a cut was applied
to the land of all the landholders. The appellant contended
that, as he was a small landholder and his land had also
been taken without the payment of compensation, as required
under Art. 31-A(l), 2nd proviso, the acquisition was illegal
and confiscato1ry. The opposite party joined issue on both
the points and also submitted that on fresh measurements 123
kanals and 14 marlas land was found to be in excess.
The High Court rejected the first contention on the ground
of laches on the part of the appellant and also on merits.
We see no reason to differ. The State Government acting
under s. 41 delegated its powers under ss. 14(1) and (2) of
the Consolidation Act to one Harcharan Singh. Section 14(2)
gives powers to appoint a Consolidation Officer. Harcharan
Singh was, there it is fairly fore, competent to appoint a
Consolidation Officer. obvious that Gurkirpal Singh would
not act as Consolidation Officer unless appointed to act as
such by Harcharan Singh. The affidavit of the State does
not state that an order was passed and relies on the
notification. No doubt a notification was issued by
Harcharan Singh as late as May 3, 1962, appointing Gurkirpal
Singh as Consolidation Officer with effect from November 4,
1961, but s. 14(2) only speaks of appointment of a
Consolidation Officer and does not lay down that it shall be
by notification. In this respect it differs from some other
sections such as s. 20 of the Act
M19 Sup.CI/66-10
154
under which Settlement Officers (Consolidation) are to be
appointed by notification. It is true that the original
order appointing Gurkirpal Singh was not produced but there
is a presumption that he must have been so appointed because
he would not act without a proper appointment. The
notification which is produced would itself be redundant if
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an order appointing Gurkirpal Singh before he began to act
as Consolidation Officer had, in fact, been passed. The
only defect is that the original order is not available but
as the petition was filed more than three years after the
completion of the consolidation the objection can hardly be
entertained in the face of the presumption under s. 114 of
the Indian Evidence Act. We would, therefore, not entertain
the objection. It is a moot point, however, whether
Harcharan Singh could make up his lapse (if any) by a
subsequent and a retrospective notification. As we do not
entertain the objection we do not consider that question.
As regards the second point it may be pointed out that on an
earlier occasion the Consolidation Act was challenged as
ultra vires the Constitution inasmuch as it sought to
deprive the landholders of their property and Art. 31 was
invoked. Before the judgment of this Court could be
delivered the Seventeenth Amendment of the Constitution came
into force. Counsel in that case were invited to reopen the
argument if they desired but declined. The Court,
therefore, considered the validity of the Consolidation Act
and upheld it on the ground that it was a measure of
agrarian reform and was protected even before Art. 31-A was
amended by the Seventeenth Amendment Act. The judgment of
this Court is reported in Ranjit Singh and others v. State
of Punjab and others() and it expressly refrained from
making any allusion to the Seventeenth Amendment. At the
hearing of this appeal no attempt was made to question the
Consolidation Act and it must, therefore, be assumed to be
validly enacted and to be constitutional.
The question that remains is whether the appellant, who is a
small landholder holding land within the ceiling and has
lost some of it, is entitled to compensation at market rate
as required by the second proviso to Art. 31-A as now
incorporated in the Constitution. To understand this we
shall refer first to what is being done under the
Consolidation Act and then consider whether the Act is
unsupportable in view of the second proviso to Article 31-
A(1) as contended. The Consolidation Act is passed to
provide for the compulsory consolidation of agricultural
holdings and to prevent their fragmentation. Section 18 of
the Act provides that notwithstanding anything contained in
any law for the time being in force it shall be lawful for
any Consolidation Officer to direct inter alia:
(1) [1965] 1 S.C.R. 82.
155
(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)
(c) that if in any area under consolidation
no land is reserved for any common purpose
including extension of the village abadi, or
if the land so reserved is inadequate, to
assign other land for such purpose.
Section 46 of the Consolidation Act empowers the State
Government to make rules for carrying out the purposes of
the Act and in particular to provide for
"(e) the manner in which the area is to be
reserved under section 18 and the manner in
which it is to be dealt with and also the
manner in which the village abadi is to be
given to proprietors and non-proprietors
(including scheduled castes, Sikh backward
classes, artisans and labourers) on payment of
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compensation or otherwise;"
In furtherance of this power two rules have been framed
which are numbered 16(i) and 16(ii). These rules provide
for the reservation of the abadi for the proprietors as well
as the non-proprietors and for reservation of land for the
Gram Panchayat. On the present occasion we are concerned
with sub-rule (ii), which was added on April 9, 1957 by the
Punjab Government to the rules framed under the Act. It
reads :
"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, under section18(c) of the
out of the common pool of the village at a
scale prescribed by Government from time to
time. Proprietary rights in respect of land,
so reserved (except the area reserved for the
extension of abadi of proprietors and non-
proprietors) shall vest in the proprietary
body of the estate or estates concerned, and
it shall be entered in the column of ownership
of record of rights as (jumla malikan wa digar
haqdaran arazi basab 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 benefits of the
estate or estates concerned."
156
The rule was declared ultra vires by the Punjab High Court
in Munsha Singh v. State of Punjab.(1) The sub-rule was,
however, saved by the second amending Act (27 of 1960) which
gave legal cover to the sub-rule by including a definition
of "common purpose" to the following effect
"2(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;
(ii) provide income for the Panchayat of the
village concerned for the benefit of the
village community;
(iii) village roads and paths; village drains;
village wells, ponds or tanks; village water-
courses 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,
water works or tube-wells, whether such
schools, play grounds, dispensaries,
hospitals, institutions, waterworks or tube-
wells may be managed and controlled by the
State Government or not."
Simultaneously a new section (s. 23-A) was inserted in the
Consolidation Act to the following effect :-
"23-A. As soon as a scheme comes into force
the management and control of all lands
assigned or reserved for common purposes of
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the village under section 18 -
(a) in the case of common purposes specified
in sub-clause (iv) of clause (bb) of section 2
in respect of which the management and control
are to be exercised by the State Government ,
shall vest in the State Government; and
(b) in the case of any other common purpose,
shall vest in the panchayat of that village;
and the State Government or the Panchayat, as
the case may be, shall be entitled to appro-
(1) I.L.R. [1960] 1 Punjab 589.
157
priate 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-pro-
prietors of the village, such land shall vest
in the proprietors and non-proprietors to whom
it is given under the scheme of
consolidation."
The preamble of the Consolidation Act was also amended
suitably All these amendments were with retrospective
effect.
The Punjab Gram Panchayat Act, 1953 (4 of 1953) has been
passed to provide for better administration in the rural
areas of the Punjab by Panchayats. By s. 19 of the
Panchayat Act various administrative duties are assigned to
the panchayat which is to look after matters like
sanitation, drainage, supply of water, burial and cremation
grounds, public health, schools and hospitals etc. and in
particular it provides :
"(f) pounds for animals;
(n) the development of agriculture and
village industries, and the destruction of
weeds and pests;
(o) starting and maintaining a grain fund
for the cultivators and lending them seed for
sowing purposes on such conditions as the Gram
Panchayat may approve;
(q) allotment of places for preparation and
conservation of manure;
(t) framing and carrying out schemes for the
improved methods of cultivation and management
of land to increase production."
The Punjab Legislature also passed the Punjab Village Common
Lands (Regulation) Act (I of 1954) with the object of
regulating the rights in shamlat deh and abadi deh. The
Regulation Act vests all rights of management in. the
shamlat deh in the village Panchayat and in the land in the
abadi deh under a house owned by a non-proprietor. Section
4 lays down how the Panchayat is to deal with the matters
and provides as follows
158
"All lands vested in a panchayat by virtue of
the provisions of this Act shall be utilised
or disposed of by the panchayat for the
benefit of the inhabitants of the
village concerned, in the manner prescribed."
Section 6 provides:
"Any income accruing from the use and occupa-
tion of the lands vested in a panchayat shall
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be credited to the panchayat fund and shall be
utilised in the manner prescribed."
Section 7 finally provides as follows
"No person shall be entitled to any
compensation for any loss suffered or alleged
to have been suffered as a result of coming
into force of this Act."
There is, however, on the statute book in the Punjab yet
another Act which is intituled Punjab Security of Land
Tenures Act, (10 of 1953) as amended by Act 57 of 1953 and
Act I I of 1955. By that Act security of land tenures,
fixing of areas for ’self-cultivation’ is provided and there
is conferment of rights on tenants to purchase lands under
their cultivation from landholders.
These Acts between them, therefore, provide for the
establishment of Gram Panchayat which is to deal with the
shamlat deh and to look after the social needs of a village,
yet giving security to the tenants and allowing for
consolidation of holdings, with a view to preventing
fragmentation. The operation of these Acts is visible in
the facts of this case, because the shamlat deh is altered
and more land is granted in the consolidation to the village
Panchayat ostensibly for the purpose of construction of
Panchayat Ghar and a school and for various other common
purposes. No compensation is paid for the lands which have
been taken away from the landholders even though they claim
that their case is taken out of Arts. 31 and 31A and is
covered by the second proviso to Art. 31-A(1) of the
Constitution as framed by the Seventeenth Amendment.
These articles were amended by the First, the Fourth and the
Seventeenth Amendments, but reference is made here to the
articles (omitting portions not relevant to our purpose) as
they stand after the Seventeenth Amendment :
"31. (1) No person shall be deprived of his
property save by authority of law.
(2) No property shall be compulsorily
acquired or requisitioned save for a public
purpose and save by authority of law which
provides for compensation for the property so
acquired or requisitioned and either fixed the
amount
159
of the compensation or specifies the
principles on which, and the manner in which,
the compensation is to be determined and
given; and no such law shall be called in
question in any court on the ground that the
compensation provided by that law is not
adequate.
(2A) 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.
31A. Saving of laws providing for acquisition
of estates, etc.
(1) Notwithstanding anything contained in
article 13, no law providing for---
(a) the acquisition by the State of any
estate or of any rights therein or the
extinguishment or modification of any such
rights, or
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shall be deemed to be void on the ground that
it is inconsistent with, or takes away or
abridges any of the rights conferred by
article 14, article 19 or article 31
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 compensa-
tion at a rate which shall not be less than
the market value thereof.
160
(2) In this article,-
(a) the expression "estate" shall, in
relation to any local area, have the same
meaning as that expression or its local
equivalent has in the existing law relating to
land tenures in force in that area and shall
also include-
(i) any jagir, inam or muafi or other
similar grant and in the States of Madras and
Kerala, any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any ].and held or let for purposes of
agriculture or for purposes ancillary thereto,
including waste land, forest land, land for
pasture or sites of buildings and other
structures occupied by cultivators of land,
agricultural labourers and village artisans;
(b) the expression ’rights’, in relation to
any estate, shall include any rights vesting
in a proprietor, tenure-holder, raiyat, under-
raiyat or other intermediary and any rights or
privileges in respect of land revenue."
The case of the appellant is that under the 2nd proviso to
Art. 31-A(1), he is entitled to compensation because land
under his personal cultivation is an estate, and land within
the ceiling limit cannot be acquired without payment of
compensation which is less than the market value of his
land, notwithstanding any law enabling acquisition of land
for the Panchayat. The State contends that no land has been
acquired because all lands continue to be recorded in the
names of the owners in proportion to the area originally
held by them as provided by rule 16(ii) and the lands are to
be used for the benefit of the proprietors. The appellant
contends that this is acquisition all the same. A question
thus arises : what is meant by ’acquisition’ and ’to
acquire’ in the second proviso?
To determine the correct meaning it is necessary to view
Articles 31 and 31-A together. The State seeks to establish
a contrast between acquisition and requisition and contends
that "acquisition" means a total deprivation of the property
for all time and "requisition" means either a partial
deprivation or deprivation for a time. It submits that by
the former there is a change of ownership and by the latter
a change in possession or enjoyment without a change in
ownership. This contrast the State seeks to establish
161
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from the way in which the words "acquisition" and
"requisition" and "acquired" and "requisitioned" are used in
juxtaposition in the two Articles. We have, therefore, to
examine the scheme of the two Articles to see if they throw
any light upon the matter.
Before this is done it may be admitted that the distinction
between "acquisition" and "requisition" is a real one and
legislative practice in the past has clearly provided
separately for acquisition and requisition in Acts which
were even named acquisition and requisition Acts. The
distinction was also made by the Government of India Act,
1935. Legislative practice, however, uniform is not always
conclusive. We must discover from the Constitution itself,
how the words are to be understood. What then are the
indications in the Constitution?
The first indication is in the legislative entry No. 42 in
List 3 (Seventh Schedule) which was added by the
Constitution Seventh Amendment. Before the Amendment the
entry read :
"42. Principles on which compensation for
property acquired or requisitioned for the
purposes of the Union or of a State or for any
other public purpose is to be determined, and
the form and the manner in which such
compensation is to be given."
The entry now reads "Acquisition and requisitioning of
property". These entries give an indication that the
Constitution continues to make a distinction between the two
terms. Next Art. 31 begins by laying down in clause (1)
that no person shall be deprived of his property save by
authority of law and goes on to say in cl. (2) that no
property shall be compulsorily acquired or requisitioned
save for public purpose and save by authority of law which
provides for compensation for the property so acquired or
requisitioned and either fixes the amount of compensation or
specifies the principles on which and the manner in which,
the compensation is to be determined and given. The words
of the article refer to acquisition and requisition of
property. Clause 2(A), which was added by the Fourth
Amendment, uses different phraseology. This clause says
that where a law does not provide for the transfer of
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. This means
that property shall not be considered to be compulsorily
acquired or requisitioned unless the law provides for the
transfer of the ownership or right to possession to the
State or to a corporation owned or controlled by the State.
The Gram Panchayat is a local authority and by virtue of the
definition of "State" in Art. 12 stands included in that
term. Therefore, a law providing for the transfer of
ownership or right to possession to
162
the Gram Panchayat is for the purposes of Art. 31-A(1) and
(2), a law providing for the compulsory acquisition or
requisitioning of the property.
The contention of the State is that in Art. 31(2A) we get
the :clue to the meanings of the words "acquisition" and
"requisition" and that the former indicates the transfer of
ownership and the latter the transfer of the right to
possession. It is, therefore, submitted that the transfer
of the use of the land to Gram Panchayat with the ownership
still in the cultivators (as is shown by the entry of their
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names as owners of shamlat deh) and use of the land for
their benefit indicate a requisitioning of the lands, that
is to ’Say, a transfer of the right to possession merely and
not acquisition, that is to say, transfer of ownership. The
conclusion is thus drawn that inasmuch as the second proviso
speaks of acquisition and not requisition, it cannot apply
to the case of the appellant and persons like him who are
still regarded as owners of the lands although they may be
deprived of the immediate right to possession by the handing
,over of land to the Panchayat for management. It is urged
that such persons are not entitled to the advantage of the
second proviso since their land is not acquired as
contemplated therein. We ,cannot accept this argument.
Article 31-A deals with a special subject, namely, the
saving of laws providing for acquisition of ’estates’. This
article saves any law from an attack under Arts. 14, 19 and
31 provided it is for the acquisition by the State of an
estate or of any rights therein or the extinguishment or
modification of any such rights. It will be noticed that
here the article does not refer to property as such, but
speaks of an estate as defined in the Article and also of
rights in the estate. Estate is defined to include, among
other things, " any land held or let for purposes of
agriculture or for purposes ancillary thereto, including
waste land, forest land, land for pasture or sites of
buildings and other structures occupied by cultivators of
land, agricultural labourers and village artisans".
Applying the definition, the lands under cultivation must be
regarded as ’estates’. Now the intention underlying Art.
31-A is to give protection to State action against Arts. 14,
19 and 31 so long as the acquisition is by the State of any
estate or of any rights therein or the extinguishment or
modification of any such rights. To this protection there
is only one exception and that is to be found in the second
proviso. It is that land under the personal cultivation of
any estate holder of any kind which is within the ceiling
limit applicable to such person, shall not be acquired,
unless at least market value of the land is given as
compensation. Such land can be acquired but only on
compensation which is not less than the market value. The
word "acquisition" used in the proviso must take its colour
from the same word used earlier and not from the word as
used in the earlier article in juxtaposition with the
1 6 3
word requisition. The word must denote not only the
acquisition of ownership, that is to say, the entire bundle
of rights, but also acquisition of some rights particularly
an acquisition which leaves the person an owner in name
only.
Article 31-A, it is submitted by the State, introduces two
further concepts, viz., extinguishment of rights and
modification of rights. In the case of extinguishment, if
all the rights in the property are extinguished, the result
would be nothing else than acquisition. For, no property
can remain in suspense without the rights therein being
vested in someone or the other. In this case the property
goes to the Panchayat which is included in ’State’. In the
case of modification of rights all the rights of ownership
remain in the owner except that they would be
modified by some statutory provisions. In such a
case the conception either of acquisition orrequisition may
not apply. In the present case bits of properties are
being taken from the lands belonging to the appellants and
others and are thrown in a common lot. The ownership is
supposed to be vested in a proprietary body consisting of
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several proprietors. The statute provides that though
ownership is vested in the said proprietary body the
management of the land would be with the Panchayat. The only
obligation thrown on the Panchayat is that the income
arising from such land should be utilized for the common
benefit not only of the proprietors but also of non-
proprietors in the Panchayat area. The result of these
provisions is (1) that a proprietor is undoubtedly deprived
of his property howsoever small a proportion it may be
thereof; (2) the ownership in such a property is transferred
to another body which under the statute is an entity
different from the proprietor himself; (3) though the
ownership is vested in such a proprietary body all rights
withregard to the management and income thereof are vested
in aPanchayat; and (4) the benefit of the income from such
lands goes not to the proprietor but to all the
proprietors as well as non-proprietors in the Panchayat
area. Although the property is not actually vested either in
the State Government or the Panchayat a device is being
made in the Act to escape the concept or ,acquisition’
to avoid the payment of compensation required under the
second proviso to Art. 31A. In substance and in effect this
is nothing but a colourable use of the provisions of Art.
31-A bymaking out a case of modification of rights when
there is in realityan acquisition, mainly for the sake of
avoiding compensation.
Therefore, when the State acquires almost the
entire bundle of rights, it is acquisition within the second
proviso and compensation at market rates must be given. It
is not at all difficult to determine this compensation. The
total land of the holder must be assessed at market value
and the value of the dimunition of the area determined
proportionately. The appellant is thus entitled to
compensation and he cannot be deprived of land within
164
his ceiling without payment of compensation calculated in
the manner indicated. It is admitted that his land has been
reduced to something less than the ceiling applicable to
him.
It is contended that what is acquired is a small bit from
each landholder and that is not of much significance. We do
not know what rule is in contemplation. If it is the de
minimis rule, we can only say that it would be a most
unsatisfactory mode of avoidance of the constitutional
provision. What is a small bit is a very vague and
uncertain expression. The safe rule is that the
Constitution means what it says, that is, land within the
ceiling is not to be touched unless compensation at market
rate is given. We would, therefore, reject the plea that we
should ignore these small bits of land especially as they
will be used for the general good and will confer some
benefit also upon those who will lose them.
We would accordingly allow the appeal with costs.
ORDER
In accordance with the Opinion of the majority Civil Appeal
No. 1018 of 1966 is dismissed without costs.
V. P. S.
165