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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

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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.

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(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..

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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