As per the case facts, a review petition was filed after the Supreme Court allowed an appeal by the State of Haryana against a High Court judgment concerning common lands ...
No Acts & Articles mentioned in this case
2024 INSC 424 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CIVIL) NO.526 OF 2023
IN
CIVIL APPEAL NO.6990 OF 2014
KARNAIL SINGH ...PETITIONER (S)
VERSUS
STATE OF HARYANA & ORS. ...RESPONDENT (S)
INDEX
I. FACTUAL BACKGROUND…………………………...... Paras 1 to 3
II. SUBMISSIONS OF THE PARTIES Paras 4 to 11
III. CONSIDERATION ON THE SCOPE OF REVIEW
JURISDICTION
Paras 12 to 14
IV. CONSIDERATION OF THE JUDGMENT OF THE FULL
BENCH OF THE HIGH COURT IN JAI SINGH II
Paras 15 to 21
V. CONSIDERATION OF THE CONSTITUTION BENCH
JUDGMENTS OF THIS COURT IN RANJIT SINGH, AJIT
SINGH AND BHAGAT RAM
Paras 22 to 58
VI. CONSIDERATION OF THE JUDGMENT OF THE FULL
BENCH OF THE HIGH COURT IN JAI SINGH II
REFERRING ITS EARLIER JUDGMENT IN GURJANT
SINGH AND SEVERAL OTHER JUDGMENTS
Paras 59 to 65
VII. CONSIDERATION OF THE JUDGMENT OF THE FULL
BENCH OF THE HIGH COURT IN JAI SINGH II WITH
REGARD TO DOCTRINE OF STARE DECISIS
Paras 66 to 67
VIII. CONCLUSION Para 68 to 69
2
J U D G M E N T
B.R. GAVAI, J.
I. FACTUAL BACKGROUND
1. The present review petition has been filed by the original
respondent No.28 in the Appeal, seeking review of the judgment
of this Court passed on 7
th April 2022, thereby allowing the Civil
Appeal No. 6990 of 2014 filed by the State of Haryana against the
judgement and order passed by the Full Bench of the High Court
of Punjab and Haryana at Chandigarh (hereinafter referred to as
“Full Bench of the High Court”) in Civil Writ Petition No. 5877 of
1992 dated 13
th March 2003
2. The bare necessary facts giving rise to the present review
petition are thus:
2.1 The State of Haryana, by way of Government Gazette
Notification dated 11
th February 1992 (hereinafter referred to as
“Haryana Act No. 9 of 1992”) inserted sub-clause (6) to Section
3
2(g) of the Haryana
1 Village Common Lands (Regulation) Act,
1961 (hereinafter referred to as “the 1961 Act”) along with an
explanation to the said sub-clause which received the assent of
the President on 14
th January 1992. The sub-clause (6) to Section
2(g) of the 1961 Act reads thus:
“2. In this Act, unless the context
otherwise requires –
xxx xxx xxx
(g) “shamilat deh” includes-
xxx xxx xxx
(6) lands reserved for the common
purposes of a village under Section 18 of
the East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act,
1948 (East Punjab Act 50 of 1948), the
management and control whereof vests in
the Gram Panchayat under section 23-A of
the aforesaid Act.
Explanation – Lands entered in the
column of ownership of record of rights as
“Jumla Malkan Wa Digar Haqdaran Arazi
Hassab Rasad”, “Jumla Malkan” or
1
For the word “Punjab” deemed to have been substituted w.e.f. 01.11.1966 vide Haryana
Act No.15 of 2021, the Haryana Short Titles Amendment Act 2021 dated 05.04.2021.
4
“Mushtarka Malkan” shall be shamilat
deh within the meaning of this section.”
2.2 Being aggrieved by the said amendment, the present review
petitioner along with similarly situated landowners, holding land
in villages, who contribute a share of their holdings to form a
common pool of land called ‘shamilat deh’, meant exclusively for
the common purposes of the village inhabitants filed a batch of
Writ Petitions before the High Court. Considering the matter to
be involving important questions of law, likely to arise in a large
number of cases and involving a large chunk of land; the Hon’ble
Division Bench, then seized of the matter vide Orders dated 01
st
June, 1993 directed the papers of the case to be placed before
the Hon’ble Chief Justice for constituting a Full Bench of the High
Court for determination of the vires of the Haryana Act No. 9 of
1992 and the explanation thereof. The Full Bench of the High
Court vide judgement dated 18
th January 1995 allowed the batch
5
of Writ Petitions, wherein the judgement came to be recorded in
CWP No. 5877 of 1992.
2.3 The State of Haryana challenged the decision of the Full
Bench of the High Court before this Court vide Civil Appeal No.
5480 of 1995; wherein this Court held that certain essentials of
Article 31-A of the Constitution of India were overlooked and
remanded the matter back to the High Court for re-consideration
of the issues in light of Article 31A of the Constitution of India.
2.4 Accordingly, the Full Bench of the High Court vide
judgement and order dated 13
th March 2003, partly allowed the
petition in terms of the following:
“In view of the discussion made above, we
hold that:
(i) The sub-section (6) of Section 2(g) of
the Punjab Village Common Lands
(Regulation) Act, 1961 and the
explanation appended thereto, is only
an elucidation of the existing
provisions of the said Act read with
provisions contained in the East
Punjab Holdings (Consolidation and
6
Prevention of Fragmentation) Act,
1948.
(ii) the un-amended provisions of the Act
of 1961 and, in particular, Section
2(g)(1) read with Sections 18 and 23-A
of the Act of 1948 and Rule 16(ii) of the
Rules of 1949 cover all such lands
which have been specifically
earmarked in a consolidation scheme
prepared under Section 14 read with
Rules 5 and 7 and confirmed under
Section 20, which has been
implemented under the provisions of
Section 24 and no other lands;
(iii) the lands which have been
contributed by the proprietors on the
basis of pro-rata cut on their holdings
imposed during the consolidation
proceedings and which have not been
earmarked for any common purpose
in the consolidation scheme prepared
under Section 14 read with Rules 5
and 7 and entered in the column of
ownership as Jumla Malkan Wa Digar
Haqdaran Hasab Rasad Arazi Khewat
and in the column of possession with
the Gram Panchayat or the State
Government, as the case may be, on
the dint of sub-section (6) of Section
2(g) and the explanation appended
7
thereto or any other provisions of the
Act of 1961 or the Act of 1948;
(iv) all such lands, which have been, as
per the consolidation scheme,
reserved for common purposes,
whether utilized or not, shall vest with
the State Government or the Gram
Panchayat, as the case may be, even
though in the column of ownership the
entries may be Jumla Mustarka
Malkans Wa Digar Haqdaran Hasab
Rasad Arazi Khewat etc.”
2.5 The Full Bench of the High Court also issued certain
consequential directions with regard to certain mutation entries
made by the Revenue Authorities.
2.6 Being aggrieved thus, the State of Haryana filed a Civil
Appeal No. 6990 before this Court, which came to be allowed by
judgement and order under review dated 07
th April 2022
(hereinafter referred to as “JUR”); and the Writ Petition of the
Original Writ Petitioners was consequently dismissed.
8
2.7 Seeking review, the present Review Petition has been filed
by the review petitioner. This Court on 31
st January. 2023 passed
the following order in the present Review Petitions:
“List this review petition for hearing in
open Court.”
2.8 Subsequently, this Court on 10
th April, 2023 passed the
following order:
“1. Permission to file review petition(s) is
granted.
2. Delay Condoned.
3. Issue Notice on the I.A. (Diary) Nos.
69003 and 69005 of 2023 in Diary No.
14941 of 2022, M.A. (Diary) No. 13972 of
2023 and on the review petition(s),
returnable on 24.04.2023.
4. In addition to normal mode of service,
liberty is granted to serve the Standing
Counsel for the State.”
3. Accordingly, we have heard Shri Narender Hooda, learned
Senior Counsel and Shri Pradeep Gupta, learned counsel
appearing on behalf of the review petitioner, Shri Pradeep Kant,
9
learned Senior Counsel and Shri B.K. Satija, learned Additional
Advocate General appearing for the respondent-State of Haryana.
II. SUBMISSIONS OF THE PARTIES
4. Shri Narender Hooda submits that the JUR is totally
contrary to the law laid down by the Constitution Bench of this
Court in the case of Bhagat Ram & others vs. State of Punjab
& others
2 (hereinafter referred to as “Bhagat Ram”). It is
submitted that the JUR also does not correctly consider the law
laid down by the Constitution Bench of this Court in the case of
Ranjit Singh and others vs. State of Punjab and others
3
(hereinafter referred to as “Ranjit Singh”) so also another
Constitution Bench judgment of this Court in the case of Ajit
Singh vs. State of Punjab & another
4 (hereinafter referred to
as “Ajit Singh”).
2
(1967) 2 SCR 165 : AIR 1967 SC 927
3
(1965) 1 SCR 82 : AIR 1965 SC 632
4
(1967) 2 SCR 143: AIR 1967 SC 856
10
5. Shri Hooda submits that after considering the provisions of
Section 23-A and Section 24 of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948
(hereinafter referred to as “the Consolidation Act”), this Court in
Bhagat Ram has clearly held that, till possession has changed
under Section 24, the management and control does not vest in
the Panchayat under Section 23-A. It has also been held that the
rights of the holders are not modified or extinguished till persons
have changed possession and entered into the possession of the
holdings allotted to them under the scheme. He therefore
submits that the Full Bench of the High Court in the case of Jai
Singh & others vs. State of Haryana
5 (hereinafter referred to
as “Jai Singh II”) has correctly relying on Bhagat Ram held that
the land which is reserved, but not earmarked for any common
purpose, would not come under the purview of Section 2(g)(6) of
the 1961 Act, as inserted by Haryana Act No.9 of 1992.
5
2003 SCC OnLine P&H 409
11
6. Shri Hooda submits that the Constitution Bench of this
Court in Ajit Singh was dealing with the lands which were
reserved for common purposes such as khals, paths, khurrahs,
panchayat ghars and schools etc. It was held that in view of Rule
16(ii) of the Punjab Holdings (Consolidation and Prevention of
Fragmentation) Rules, 1949 (hereinafter referred to as “the
Consolidation Rules”), the title still vests in the proprietary body,
and the management of the said lands is done on behalf of the
proprietary body. It was further held that the land was used for
the common needs and benefits of the estate or estates
concerned. This Court held that a fraction of each proprietor’s
land was taken and formed into a common pool so that the whole
may be used for the common needs and benefits of the estate as
mentioned above. It has been held that the proprietors naturally
would also be entitled to a share in the benefits along with others.
In the facts of the said case, this Court held that all such lands,
which had been specifically earmarked in the Consolidation
12
Scheme for the purposes mentioned therein and were used for
the purposes therein for the benefit of the proprietors among
others, would not amount to acquisition, but a ‘modification’ of
the rights. It was held that , by such ‘modification’, the
beneficiary was not the State and as such, would not be hit by
the second proviso to Article 31-A of the Constitution of India.
7. Shri Hooda further submits that even in Ranjit Singh, the
Consolidation Scheme earmarked lands reserved under Section
18(c) of the Consolidation Act for various common purposes. The
Constitution Bench of this Court held that the provisions for the
assignment of lands to village Panchayat for the use of the
general community, or for hospitals, schools, manure pits,
tanning grounds etc. enures for the benefit of rural population
and it must be considered to be an essential part of the
redistribution of holdings and open lands.
8. Shri Hooda further submitted that in a catena of judgments,
this Court has held that the lands, though reserved but not
13
earmarked and put for any common purpose under the
Consolidation Scheme prepared under Section 14 of the
Consolidation Act read with Rules 5 and 7 of the Consolidation
Rules and entered in the column of ownership as ‘Jumla
Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi
Khewat’ and in the column of possession with the proprietors,
also known as Bachat lands, would not vest in the Gram
Panchayat or the State Government. Shri Hooda submits that
based on such judgments, thousands of transactions have been
entered into between the parties. It is submitted that, though
invoking the doctrine of stare decisis was not necessary, this
Court in the JUR has not even touched that aspect of the matter.
All the judgments which have been holding the field for decades
and thousands of transactions which have been entered into
between the parties, have been set at naught at the stroke of a
pen by the JUR.
14
9. Shri Hooda further submits that in view of the JUR, the
rights of the parties which were crystalized by the judgments of
the High Court and which was affirmed by this Court by
judgment dated 27
th August, 2001
6 have also been adversely
affected without such parties having been heard. He therefore
submits that the JUR needs to be recalled and the appeals filed
by the State deserve to be dismissed.
10. Per contra, Shri Pradeep Kant, learned Senior Counsel
appearing on behalf of the respondent-State of Haryana submits
that the present review petition itself is not maintainable. It is
submitted that the review applicant was a party respondent to
the appeal and the JUR has been delivered after hearing the
learned counsel for the parties. It is submitted that the scope of
review is very limited. It is also submitted that under the guise
of a review, a party cannot be permitted to reagitate and reargue
6
2001 SCC OnLine SC 1488 [State of Punjab vs. Gurjant Singh and others (CA Nos.5709-5714 of 2001 @
SLP(C) Nos.16173-16178 of 2000)
15
the questions which have already been addressed and decided.
He placed reliance on the following judgments of this Court in
support of his submissions:
(i) Sow Chandra Kante and another vs. Sheikh Habib
7
(ii) Parsion Devi and others vs. Sumitri Devi and others
8
(iii) Kerala State Electricity Board vs. Hitech
Electrothermics & Hydropower Ltd. and others
9
(iv) Kamlesh Verma vs. Mayawati and others
10
(v) Union of India vs. Sandur Manganese and Iron Ores
Limited and others
11
(vi) Shanti Conductors Private Limited vs. Assam State
Electricity Board and others
12
7
(1975) 1 SCC 674
8
(1997) 8 SCC 715
9
(2005) 6 SCC 651
10
(2013) 8 SCC 320
11
(2013) 8 SCC 337
12
(2020) 2 SCC 677
16
(vii) Shri Ram Sahu (Dead) through legal representatives
and others vs. Vinod Kumar Rawat and others
13
11. With the assistance of the learned counsel for the parties,
we have scrutinized the material on record.
III. CONSIDERATION ON THE SCOPE OF REVIEW
JURISDICTION
12. At the outset, we must reiterate that the scope of review by
this Court is very limited. The scope of review jurisdiction has
been delineated by this Court in a catena of judgments. We
would not like to burden the present judgment by reproducing
all those judgments. This Court in the case of Kamlesh Verma
vs. Mayawati and others (supra), after surveying the earlier law
laid down by this Court has summarized the principles thus:
“Summary of the principles
20. Thus, in view of the above, the
following grounds of review are
maintainable as stipulated by the statute:
13
(2021) 13 SCC 1
17
20.1. When the review will be
maintainable:
(i) Discovery of new and important
matter or evidence which, after the
exercise of due diligence, was not within
knowledge of the petitioner or could not
be produced by him;
(ii) Mistake or error apparent on the
face of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason”
have been interpreted in Chhajju
Ram v. Neki [(1921-22) 49 IA 144 : (1922)
16 LW 37 : AIR 1922 PC 112] and approved
by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose
Athanasius [AIR 1954 SC 526 : (1955) 1
SCR 520] to mean “a reason sufficient on
grounds at least analogous to those
specified in the rule”. The same principles
have been reiterated in Union of
India v. Sandur Manganese & Iron Ores
Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen
concluded adjudications.
18
(ii) Minor mistakes of inconsequential
import.
(iii) Review proceedings cannot be
equated with the original hearing of the
case.
(iv) Review is not maintainable unless
the material error, manifest on the face
of the order, undermines its soundness
or results in miscarriage of justice.
(v) A review is by no means an appeal
in disguise whereby an erroneous
decision is reheard and corrected but lies
only for patent error.
(vi) The mere possibility of two views
on the subject cannot be a ground for
review.
(vii) The error apparent on the face of
the record should not be an error which
has to be fished out and searched.
(viii) The appreciation of evidence on
record is fully within the domain of the
appellate court, it cannot be permitted to
be advanced in the review petition.
(ix) Review is not maintainable when
the same relief sought at the time of
arguing the main matter had been
negatived.”
19
13. It is thus settled that the review would be permissible only
if there is a mistake or error apparent on the face of the record or
any other sufficient reason is made out. We are also equally
aware of the fact that the review proceedings cannot be equated
with the original hearing of the case. The review of the judgment
would be permissible only if a material error, manifest on the face
of the order, undermines its soundness or results in miscarriage
of justice. We are also aware that such an error should be an
error apparent on the face of the record and should not be an
error which has to be fished out and searched.
14. In the light of the aforesaid principles, we will have to
examine the present case.
IV. CONSIDERATION OF THE JUDGMENT OF THE FULL
BENCH OF THE HIGH COURT IN JAI SINGH II
15. The background in which Jai Singh II has been decided
has already been stated by us in the beginning. In the first round
of litigation, the High Court had held the provisions of Section
20
2(g)(6) of the 1961 Act to be unconstitutional being violative of
second proviso to Article 31-A of the Constitution of India. This
Court in the first round has set aside the judgment of the Full
Bench of the High Court and remanded the matter for deciding
the factual aspect as to whether the lands in question were within
the ceiling limit or not.
16. As such, the scope of the dispute in the second round was
very limited. The Full Bench of the High Court, after coming to a
finding of fact that the lands in question were within the ceiling
limit, partly allowed the petition. The operative part of the
judgment of the Full Bench of the High Court has already been
reproduced by us hereinabove in paragraph 2.4.
17. The State was not aggrieved with the findings on issue nos.
(i), (ii) and (iv).
By clause (i), the Full Bench of the High Court held that
sub-section (6) of Section 2(g) of the 1961 Act and the explanation
appended thereto is only an elucidation of the existing provisions
21
of the said Act read with the provisions contained in the
Consolidation Act.
By clause (ii), it held that the unamended provisions of the
1961 Act and, in particular, Section 2(g)(1) read with Sections 17
and 23-A of the Consolidation Act and Rule 16(ii) of the
Consolidation Rules cover all such lands which have been
specifically earmarked in a consolidation scheme prepared under
Section 14 read with Rules 5 and 7 and confirmed under Section
20, which has been implemented under the provisions of Section
24 and no other lands.
By clause (iv), the Full Bench of the High Court held that,
all such lands in the consolidation scheme which were reserved
for common purposes, whether utilized or not, shall vest with the
State Government or the Gram Panchayat, as the case may be ;
even though in the column of ownership the entries may be
‘Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad
Arazi Khewat’ etc.
22
18. The grievance of the State was only with regard to clause
(iii), wherein it has been held that the lands which had been
contributed by the proprietors on the basis of pro-rata cut on
their holdings imposed during the consolidation proceedings and
which have not been earmarked for any common purpose in the
consolidation scheme prepared under Section 14 read with Rules
5 and 7 and have been entered in the column of ownership as
‘Jumla Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat ’,
and in the column of possession with the Gram Panchayat or the
State Government, would not vest in the Gram Panchayat or the
State Government but continue to vest with the proprietors.
19. This Court in the JUR has held that conclusion no.(iii)
arrived at by the High Court was erroneous and not sustainable
and accordingly set it aside. It has been held that the unutilized
land was not available for redistribution amongst the proprietors.
This Court further held that the findings recorded by the different
benches of the High Court were clearly erroneous and not
23
sustainable. This Court held that the land reserved for common
purposes cannot be re-partitioned amongst the proprietors only
because at a particular given time, the land so reserved has not
been put to common use. This Court held that the ’common
purpose’ is a dynamic expression as it keeps changing due to the
change in requirement of the society and the passing times and
therefore, once the land has been reserved for common purposes,
it cannot be reverted to the proprietors for redistribution.
20. The limited enquiry that would be permissible for us in
these proceedings is as to whether the said finding is a material
error, manifest on the face of the order, undermines its
soundness or results in the miscarriage of justice or not.
21. At the cost of repetition, we reiterate that it will not be
permissible for us to hear the matter as if it was an appeal arising
from the JUR.
24
V. CONSIDERATION OF THE CONSTITUTION BENCH
JUDGMENTS OF THIS COURT IN RANJIT SINGH, AJIT
SINGH AND BHAGAT RAM
22. For considering the controversy, a reference to three
Constitution Bench Judgments of this Court would be necessary.
23. The first one is in the case of Ranjit Singh. In the said case,
the Constitution Bench of this Court was concerned with the
consolidation proceedings in which portions of land from those
commonly owned by the appellants therein as proprietors, had
been reserved for the village Panchayat and handed over to it for
diverse purposes; whereas, other portions had been reserved
either for non-proprietors or for the common purposes of the
villages. In the said case, in the village Virk Kalan, 270 kanals
and 13 marlas had been given to the village Panchayat for
management and realization of income, even though the
ownership was still shown in village papers as Shamilat Deh in
the names of the proprietors; 10 kanals and 3 marlas had been
reserved for abadi to be distributed among persons entitled
25
thereto, and 3 kanals and 7 marlas had been reserved for manure
pits. Similarly, in village Sewana, certain lands were set apart
for the village Panchayat for extension of the abadi and to enable
grants of certain land to be made to each family of non -
proprietors and certain lands had been reserved for a primary
school and some more for a phirni. Similarly, in village Mehnd,
land had been reserved for the village Panchayat, a school,
tanning ground, hospital, cremation ground and for non -
proprietors. The proprietors were not paid compensation for the
lands and as such, taking away and allotment of the lands was
the subject matter of challenge in those appeals in the said case.
24. The appeals before this Court were heard and closed for
judgment on 27
th April 1964. The judgment had to be postponed
till after the vacation. However, before the Court could
reassemble after the vacation on 20
th July 1964, the Constitution
(Seventeenth Amendment) Act, 1964 received the assent of the
President i.e. on 20
th June, 1964. Vide the said Amendment, a
26
new sub-clause (a) in clause (2) of Article 31-A was substituted
retrospectively and added a proviso to clause (1). The appeals
were set down to be mentioned on July 20/23, 1964, and counsel
were asked if, in view of the amendment, they wished to say
anything. However, neither of parties wished to argue. The
appeals were thus decided on the old arguments, though it was
clear to the Court that the amendment of Article 31-A, which had
a far-reaching effect, must have affected one or other of the
parties. The Constitution Bench upheld the judgment of the High
Court which had held that the transfer of shamilat deh owned by
the proprietors to the village Panchayat for the purposes of
management and the conferral of proprietary rights on non -
proprietors in respect of lands in abadi deh was not ultra vires
Article 31 inasmuch as, no compensation was payable.
25. It must be noted that the judgment of the High Court was
rendered by interpreting Article 31-A as it existed prior to the
Constitution (Seventeenth Amendment) Act, 1964. This Court
27
though called upon the parties to address the Court on the effect
of the Constitution (Seventeenth Amendment) Act, 1964, no
arguments were advanced. As such, in Ranjit Singh, this Court
did not have the occasion to consider the effect of the
Constitution (Seventeenth Amendment) Act, 1964 by which the
second proviso was added to Article 31-A of the Constitution of
India. In that view of the matter, the judgment of the
Constitution Bench of this Court in Ranjit Singh will not have a
bearing on the present matter.
26. In the case of Ajit Singh (supra), again the challenge was
to the scheme made under the provisions of the Consolidation
Act. One of the grounds raised before the High Court as well as
this Court was that the compensation must be paid to the
appellant for the land reserved in the scheme for various
purposes in accordance with the second proviso to Article 31-A(1)
inserted by the Constitution (Seventeenth Amendment) Act,
1964.
28
27. It will be relevant to refer to the following paragraphs in Ajit
Singh:
“6. 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 [(1965) 1 SCR 82]
that the Act was protected from challenge
by Article 31-A. It is necessary to set out
the relevant constitutional provisions. The
relevant portion of Article 31-A reads as
under:
“31-A. (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
29
therein is held by a person under his
personal cultivation, it shall not be
lawful for the State to acquire any
portion of such land as is within the
ceiling limit applicable to him under
any law for the time being in force or
any building or structure standing
thereon or appurtenant thereto,
unless the law relating to the
acquisition of such land, building or
structure, provides for payment of
compensation at a rate which shall
not be less than the market value
thereof.
(2)(b) the expression ‘rights’ in
relation to an estate shall include any
rights vesting in 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.
30
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.
(2-A) 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.”
31
7. It would be noticed that Article 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 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.
8. 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”
32
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.
9. Coming now to the second proviso to
Article 31-A, it would be noticed that only
one category is mentioned in the proviso,
the category being “acquisition by the
State of an estate”. It means that the law
must make a provision for the acquisition
by the State of an estate. But what is the
true meaning of the expression
“acquisition by the State of an estate”. In
the context of Article 31-A, the expression
“acquisition by the State of an estate” in
the second proviso to Article 31-A(1) must
have the same meaning as it has in clause
(1)(a) to Article 31-A. It is urged on behalf
of the respondents before us that the
expression “acquisition by the State of any
33
estate” in Article 31-A(1)(a) has the same
meaning as it has in Article 31(2-A). In
other words, it is urged that the expression
“acquisition by the State of any estate”
means transfer of the ownership or right
to possession of an estate to the State. Mr.
Iyengar on the other hand urges that the
expression “acquisition by the State” has a
very wide meaning and it would bear the
same meaning as was given by this Court
in State of West Bengal v. Subodh Gopal
Bose [(1964) SCR 587] , Dwarkadas
Shrinivas of Bombay v. Sholapur Spinning
& Weaving Co. Ltd. [(1953) 2 SCC 791 :
(1954) SCR 674] Saghir Ahmad v. State of
U.P. [(1955) 1 SCR 707] and Bombay
Dyeing and Manufacturing Co. Ltd. v. State
of Bombay [(1958) SCR 1122] . In these
cases this Court had given a wide meaning
to the word “acquisition”. In Dwarkadas
Shrinivas of Bombay v. Sholapur Spinning
& Weaving Co. Ltd. [(1953) 2 SCC 791 :
(1954) SCR 674] Mahajan, J., observed at
p. 704 as follows:
“The word ‘acquisition’ has quite a
wide concept, meaning the procuring of
property or the taking of it permanently
or temporarily. It does not necessarily
imply the acquisition of legal title by the
State in the property taken possession
of.”
34
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
35
unessential. It is the substance that we
must seek.”
10. Let us now see whether the other part
of the second proviso throws any light on
this question. It would be noticed that it
refers to ceiling limits. It is well known that
under various laws dealing with land
reforms, no person apart from certain
exceptions can hold land beyond a ceiling
fixed under the law. Secondly, the proviso
says that not only the land exempted from
acquisition should be within the ceiling
limit but it also must be under personal
cultivation. The underlying idea of this
proviso seems to be that a person who is
cultivating land personally, which is his
source of livelihood, should not be
deprived of that land under any law
protected by Article 31-A unless at least
compensation at the market rate is given.
In various States most of the persons have
already been deprived of land beyond the
ceiling limit on compensation which was
less than the market value. It seems to us
that in the light of all the considerations
mentioned above the words “acquisition
by the State” in the second proviso do not
have a technical meaning, as contended
by the learned counsel for the respondent.
If the State has in substance acquired all
36
the rights in the land for its own purposes,
even if the title remains with the owner, it
cannot be said that it is not acquisition
within the second proviso to Article 31-A.
11. 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 or does it amount to
acquisition of land? The scheme is not part
of the record, but it appears that 89B-18B-
11B (Pukhta) of land was owned by the
Gram Panchayat prior to consolidation,
which was used for common purposes.
Some further area was reserved f or
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.”
37
28. A perusal of the aforesaid paragraphs would reveal that in
paragraph 6, this Court reproduced the provisions of Article 31-
A, as amended.
29. In paragraph 7, this Court carved out 4 categories covered
by Article 31-A as under:
(i) acquisition by the State of an estate;
(ii) acquisition by the State of rights in an estate;
(iii) the extinguishment of rights in an estate; and
(iv) the modification of rights in an estate.
30. Analyzing the said provision, the Constitution Bench held
that, in the first two categories, the State “acquires” either an
estate or rights in an estate i.e., there is a transference of an
estate or the rights in an estate to the State. The Constitution
Bench held that 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. It further held that, if the result in the
case of the extinguishment is the transference of all the rights in
38
an estate to the State, it would properly fall within the expression
“acquisition by the State of an estate”. It further held that, 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.
31. In paragraph 8, the Constitution Bench carved out the
difference between “acquisition by the State” on the one hand and
“modification or extinguishment of rights” on the other. It held
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.
32. In paragraph 9, this Court recorded that in the second
proviso to Article 31-A, only one category is mentioned i.e.,
“acquisition by the State of an estate”. It observed that the law
must make a provision for the acquisition by the State of an
estate. It went on to analyze the true meaning of the expression
“acquisition by the State of an estate”. It was sought to be urged
39
before this Court, 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 a catena of judgments.
33. In paragraph 10, this Court recorded that the second
proviso to Article 31-A refers to ceiling limits. It was further
observed that the proviso provides that, not only the land
exempted from acquisition should be within the ceiling limit but
it also must be under personal cultivation. The Court held that
the underlying idea of this proviso was that a person who is
cultivating land personally, which is his source of livelihood,
should not be deprived of that land under any law protected by
Article 31-A unless at least compensation at the market rate is
given. The Court held that the words “acquisition by the State”
in the second proviso cannot be given a technical meaning, as
was contended on behalf of the State. It held that, 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
40
said that it is not acquisition within the second proviso to Article
31-A.
34. In paragraph 11, this Court recorded the facts in the said
case. It recorded that some of the lands were 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 a cut upon the rightholders on pro-rata basis. It
observed that apart from what was already owned by the
Panchayat, no other land was reserved for providing income to
the Panchayat. As such, the Court was not concerned with the
validity of acquisition for such a purpose.
35. It will also be relevant to refer to the following paragraphs
of the said judgment in Ajit Singh:
“12. 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
41
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 the 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 a nd benefits of the
estate or estates concerned.”
It will be noticed that the title still vests in
the property body, the management of the
land is done on behalf of the proprietary
body, and the land is used for the common
needs and benefits of the estate or estates
concerned. In other words a fraction of
42
each proprietor's land is taken and formed
into a common pool so that the whole may
be used for the common needs and
benefits of the estate, mentioned above.
The proprietors naturally would also share
in the benefits along with others.
13. In Attar Singh v. State of U.P. [(1959)
Supp 1 SCR 928 at p 938] 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 5 of 1954) as amended by the
U.P. Act 16 of 1957:
“Thus the land which is taken over is
a small bit, which sold by itself would
hardly fetch anything. These 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 Section
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 Rule 41(a) shows the purposes to
which this land would be applied,
namely, (1) plantation of trees, (2)
pasture land, (3) manure pits, (4)
43
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 advantages 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.
14. Does such taking away of property
then amount to acquisition by the State of
any land? Who is the real beneficiary? Is it
the Panchayat? It is clear that the title
remains in the proprietary body and in the
revenue records the land would be shown
as belonging to “all the owners and other
right holders in proportion to their areas”.
44
The Panchayat will manage it on behalf of
the proprietors and use it for common
purposes; it cannot use it for any other
purpose. The proprietors enjoy the
benefits derived from the use of land for
common purposes. It is true that the non-
proprietors also derive benefit but their
satisfaction and advancement enures in
the end to the advantage of the proprietors
in the form of a more efficient agricultural
community. The Panchayat as such does
not enjoy any benefit. On the facts of this
case it seems to us that the beneficiary of
the modification of rights is not the State,
and therefore there is no acquisition by the
State within the second proviso.
15. In the context of the 2nd proviso,
which is trying to preserve the rights of a
person holding land under his personal
cultivation, it is impossible to conceive
that such adjustment of the rights of
persons holding land under their personal
cultivation in the interest of village
economy was regarded as something to be
compensated for in cash.”
36. In paragraph 12, after reproducing Rule 16(ii) of the
Consolidation Rules, this Court observed that the title still vests
45
in the proprietary body. However, 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. It further held that a fraction of each proprietor's
land is taken and formed into a common pool so that the whole
area may be used for the common needs and benefits of the
estate, mentioned above. It further held that the proprietors
naturally would also share in the benefits along with others.
37. In paragraph 14, this Court held that it was 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”. This Court held
that the Panchayat would manage it on behalf of the proprietors
and use it for common purposes and that it cannot use it for any
other purpose. This Court held that the proprietors also enjoy
the benefits derived from the use of land for common purposes.
It observed that the non-proprietors also derive benefit but their
46
satisfaction and advancement enures in the end to the advantage
of the proprietors in the form of a more efficient agricultural
community. The Panchayat as such does not enjoy any benefit.
This Court held, in light of the facts of the said case, that the
beneficiary of the modification of rights was not the State, and
therefore there was no acquisition by the State within the
meaning of the second proviso.
38. In paragraph 15, this Court, referring to second proviso,
held that it is impossible to conceive that such adjustment of the
rights of persons holding land under their personal cultivation in
the interest of village economy was regarded as something to be
compensated for in cash.
39. It can thus be seen that in Ajit Singh, this Court was
considering the portion of lands which was taken from the
proprietors; formed into a common pool and used for common
needs and benefits of the estate or estates concerned. It was held
that the said land could not be used for any other purpose. It
47
has further affirmed that the proprietors also enjoy the benefits
derived from the use of land for common purposes.
40. It is further pertinent to note that in Ajit Singh, this Court
held that the words “acquisition by the State” in the second
proviso cannot be given a technical meaning. It has been held
that 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 ambit
of the second proviso to Article 31-A.
41. Justice M. Hidayatullah (as his Lordship then was) in his
minority judgment disagreed with the majority view. He held that
when the State acquires almost the entire bundle of rights, it is
acquisition within the meaning of the second proviso and
compensation at market rates must be given.
42. The third judgment of the Constitution Bench of this Court
is in the case of Bhagat Ram, which would be the most relevant
for the present purpose.
48
43. It will be relevant to note that judgments in both Ajit Singh
and Bhagat Ram were delivered on the very same day.
44. In the said case (i.e. Bhagat Ram ), the Court was
considering the question, as to whether the reservation of land
for income of the Panchayat is acquisition of land by the State
within the ambit of the second proviso to Article 31-A?
45. It will be relevant to refer to the following observations of
the Constitution Bench of this Court in Bhagat Ram in the
judgment delivered by Hon. S.M. Sikri, J (as his Lordship then
was):
“2. The first question that arises is
whether the scheme insofar as it makes
reservations of land for income of the
Panchayat is hit by the second proviso to
Article 31-A. The scheme reserves lands
for phirni, paths, agricultural paths,
manure pits, cremation grounds, etc., and
also reserves an area of 100 kanals 2
marlas (standard kanals) for income of the
Panchayat. We have already held in Ajit
Singh case [(1967) 2 SCR 143] that
acquisition for the common purposes such
as phirnis, paths, etc., is not acquisition
49
by the State within the second proviso to
Article 31-A. But this does not dispose of
the question whether the reservation of
land for income of the Panchayat is
acquisition of land by the state within the
second proviso to Article 31-A. We held in
that case that there was 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. Here it
seems to us that the beneficiary is the
Panchayat which falls within the definition
of the word “State” under Article 12 of the
Constitution. The income derived by the
Panchayat is in no way different from its
any other income. It is true that Section
2(bb) of the East Punjab Holdings
(Consolidation and Prevention of
Fragmentation) Act, 1948, defines
“common purpose” to include the following
purposes:
“… providing income for the
Panchayat of the village concerned for
the benefit of the village community.”
Therefore, the income can only be used for
the benefit of the village community. But
so is any other income of the Panchayat of
a village to be used. The income is the
income of the Panchayat and it would
50
defeat the whole object of the second
proviso if we were to give any other
construction. The Consolidation Officer
could easily defeat the object of the second
proviso to Article 31-A by reserving for the
income of the Panchayat a major portion
of the land belonging to a person holding
land within the ceiling limit. Therefore, in
our opinion, the reservation of 100 kanals
2 marlas for the income of the Panchayat
in the scheme is contrary to the second
proviso and the scheme must be modified
by the competent authority accordingly.”
46. It can thus be seen that, this Court held that there was an
essential difference between “acquisition by the State” on the one
hand and “modification or extinguishment of rights” on the other
hand. It was held that in the first case, the beneficiary was the
State while in the latter case, the beneficiary of the modification
or the extinguishment was not the State. This Court held that
since the Panchayat would fall within the definition of the word
“State” under Article 12 of the Constitution, if the acquisition is
for the purposes of providing income to the Panchayat, it would
defeat the whole object of the second proviso. This Court held
51
that the Consolidation Officer could easily defeat the object of the
second proviso to Article 31-A by reserving for the income of the
Panchayat a major portion of the land belonging to a person
holding land within the ceiling limit.
47. The second argument which was advanced before this Court
in Bhagat Ram was that acquisition had already taken place
before the Constitution (Seventeenth Amendment) Act, 1964
came into force and therefore the scheme was not hit by the
second proviso to Article 31-A. It was sought to be argued that
the requirements as contemplated under Sections 23, 24 and
21(2) of the Consolidation Act were already complete and as such,
the acquisition had already taken place before the Constitution
(Seventeenth Amendment) Act, 1964.
48. It will be relevant to refer to the following observations of
this Court in the majority judgment in Bhagat Ram while
rejecting the aforesaid submissions:
52
“4. It is clear from this affidavit that
possession has not been transferred in
pursuance of the repartition. The learned
Counsel for the petitioners relies on this
fact and says that in view of Section 23-A
and Section 24 the “acquisition” does not
take place till all the persons entitled to
possession of holdings under the Act have
entered into possession of the holdings.
Sections 23-A and 24 read as follows:
“23-A. As soon as a scheme comes
into force, the management and control
of all lands assigned or reserved for
common purposes of the village under
Section 18, shall vest in the Panchayat
of that village which shall also be
entitled to appropriate the incom e
accruing therefrom for the benefit of the
village community, and the rights and
interest of the owners of such lands
shall stand modified and extinguished
accordingly.
24. (1) As soon as the persons
entitled to possession of holdings under
this Act have entered into possession of
the holdings respectively allotted to
them, the scheme shall be deemed to
have come into force and the possession
of the allottees affected by the scheme
of consolidation, or, as the case may be,
by repartition, shall remain
53
undisturbed until a fresh scheme is
brought into force or a change is
ordered in pursuance of provisions of
sub-section (2), (3) and (4) of Section 21
or an order passed under Section 36 or
42 of this Act.
(2) A Consolidation Officer shall be
competent to exercise all or any of the
powers of a Revenue Officer under the
Punjab Land Revenue Act, 1887 (Act 17
of 1887), for purposes of compliance
with the provisions of sub-section (1).”
5. It seems to us clear from these
provisions that till possession has
changed under Section 24, the
management and control does not vest in
the Panchayat under Section 23-A. Not
only does the management and control not
vest but the rights of the holders are not
modified or extinguished till persons have
changed possession and entered into the
possession of the holdings allotted to them
under the scheme. Mr Gossain, the
learned Counsel for the State, tried to
meet this point by urging that by virtue of
repartition under Section 21, the rights to
possession of the new holdings were
finalised and could be enforced. This may
be so; but this cannot be equivalent to
54
“acquisition” within the second proviso to
Article 31-A.
6. In the result we hold that the scheme is
hit by the second proviso to Article 31 A
insofar as it reserves 100 kanals 2 marlas
for the income of the Panchayat. We direct
the State to modify the scheme to bring it
into accord with the second proviso as
interpreted by us, proceed according to
law. There would be an order as to costs.”
49. It can thus clearly be seen that the Constitution Bench of
this Court in Bhagat Ram held that, upon reading of Sections
23-A and 24 of the Consolidation Act it was clear that , till
possession has changed under Section 24, the management and
control does not vest in the Panchayat under Section 23-A of the
Consolidation Act. It further held that not only does the
management and control not vest but the rights of the holders
are not modified or extinguished till persons have changed
possession and entered into the possession of the holdings
allotted to them under the scheme. Though the counsel for the
55
State tried to urge that, by virtue of repartition under Section 21,
the rights to possession of the new holdings were finalized and
could be enforced, this Court held that this cannot be equivalent
to “acquisition” within the second proviso to Article 31-A of the
Constitution of India.
50. The Full Bench of the High Court in the case of Jai Singh
II has drawn a fine distinction between the land reserved for
common purposes under Section 18(c) of the Consolidation Act
which might become part and parcel of a scheme framed under
Section 14, for the areas reserved for common purposes, though
they have actually not been put to any common use and may be
put to common use in a later point of time on one hand and the
lands which might have been contributed by the proprietors on
pro-rata basis but have not been reserved or earmarked for
common purposes in the scheme. It will be relevant to refer to
the following observations of the Full Bench of the High Court:
56
“The land reserved for common purposes
under Section 18(c), which might become
part and parcel of a scheme framed under
Section 14, for the areas reserved for
common purposes, vests with the
Government or Gram Panchayat, as the
case may be, and the proprietors are left
with no right or interest in such lands
meant for common purposes under the
scheme. There is nothing at all mentioned
either in the Act or the rules or the
scheme, that came to be framed, that the
proprietors will lose right only with regard
to land which was actually put to any use
and not the land which may be put to
common use later in point of time. In none
of the sections or Rules, which have been
referred to by us in the earlier part of
scheme envisages only such lands which
have been utilized. That apart, in all the
relevant sections and the rules, words
mentioned are ‘reserved or assigned’.
Reference in this connection may be made
to sub-section (3) of Section 18 and
Section 23-A. The provisions of the
statute, as referred to above, would, thus,
further fortify that reference is to land
reserved or assigned for common use,
whether utilized or not.
*** *** ***
57
The lands which, however, might have
been contributed by the proprietors on
pro-rata basis, but have not been reserved
or earmarked for common purposes in a
scheme, known as Bachat land, it is
equally true, would not vest either with the
State or the Gram Panchayat and instead
continue to be owned by the proprietors of
the village in the same proportion in which
they contribute the land owned by them.
The Bachat land, which is not used for
common purposes under the scheme, in
view of provisions contained in Section 22
of the Act of 1948, is recorded as Jumla
Mustarka Malkan Wa Digar Haqdaran
Hasab Rasad Arazi Khewat but the
significant differences is that in the
column of ownership proprietors are
shown in possession in contrast to the
land which vests with the Gram Panchayat
which is shown as being used for some or
the other common purposes as per the
scheme.
We might have gone into this issue in
all its details but in as much as the point
in issue is not res-integra and in fact
stands clinched by string of judicial
pronouncements of this Court as well as
Hon’ble Supreme Court, there is no
necessity at all to interpret the provisions
of the Act and the rules any further on this
issue.
58
The Hon’ble Supreme Court in
Bhagat Ram and ors. Vs. State of Punjab
and ors. AIR 1967 Supreme Court 927,
dealt with reservation of certain area in the
consolidation scheme for income of the
Panchayat. Brief facts of the case
aforesaid would reveal that a scheme
made in respect of consolidation of village
Dolike Sunderpur was questioned on the
ground that in as much as it makes
reservation of land for income of the Gram
Panchayat, it is hit by second proviso to
Article 31-A of the Constitution of India.
The scheme in question reserved lands for
phirni, paths, agricultural paths, manure
pits, cremation grounds etc. and also
reserved an area of 100 kanals 2 marlas
(standard kanals) for income of the
Panchayat. It was held as under:
“The income derived by the Panchayat is
in no way different from its any other
income. It is true that Section 2(bb) of the
East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948,
defines “common purpose” to include the
following purposes:
“… providing income for the
Panchayat of the village concerned for
the benefit of the village community.”
59
Therefore, the income can only be used for
the benefit of the village community. But
so is any other income of the Panchayat of
a village to be used. The income is the
income of the Panchayat and it would
defeat the whole object of the second
proviso if we were to give any other
construction. The Consolidation Officer
could easily defeat the object of the second
proviso to Article 31-A by reserving for the
income of the Panchayat a major portion
of the land belonging to a person holding
land within the ceiling limit. Therefore, in
our opinion, the reservation of 100 kanals
2 marlas for the income of the Panchayat
in the scheme is contrary to the second
proviso and the scheme must be modified
by the competent authority accordingly.”
The ratio of the judgment aforesaid
would clearly suggest that it is the land
reserved for common purposes under the
scheme which would be saved, which,
otherwise, would be hit by second proviso
to Article 31-A of the Constitution of India.
Surely, if the land, which has not been
reserved for common purposes under the
scheme and is Bachat or surplus land, i.e.,
the one which is still left out after
providing the land in scheme for common
purposes, if it is to vest with the State or
Gram Panchayat, the same would be
nothing but compulsory acquisition within
60
the ceiling limit of an individual without
payment of compensation and would
offend second proviso to Article 31-A of the
Constitution of India.”
51. As has been observed earlier, the Constitution Bench of this
Court in Bhagat Ram, in no uncertain terms, held that till
possession has changed under Section 24 of the Consolidation
Act, the management and control does not vest in the Panchayat
under Section 23-A of the said Act. It further held that not only
does the management and control not vest but the rights of the
holders are not modified or extinguished till persons have
changed possession and entered into the possession of the
holdings allotted to them under the scheme. Construing this, the
Full Bench of the High Court in Jai Singh II held that, if the land
which has not been reserved for common purposes under the
scheme and is Bachat or surplus land, i.e., the land which is still
left out after providing the land under the scheme for common
purposes; if it is to vest with the State or Gram Panchayat, the
61
same would be nothing but compulsory acquisition of land within
the ceiling limit of an individual without payment of
compensation and would offend the second proviso to Article 31-
A of the Constitution of India.
52. It can thus be seen that the judgment of the Full Bench of
the High Court in Jai Singh II is based basically on the
Constitution Bench judgment of this Court in the case of Bhagat
Ram, which clearly held that, until possession has changed
under Section 24, the management and control does not vest in
the Panchayat under Section 23-A of the Consolidation Act. It
further held that, not only does the management and control not
vest but the rights of the holders are not modified or extinguished
till persons have changed possession and entered into the
possession of the holdings allotted to them under the scheme.
53. In the JUR, except a cursory reference to Bhagat Ram in
paragraph 11, this Court held that there was no dispute about
the said proposition in the present appeals.
62
54. With great respect, we may state that when the judgment of
the Full Bench of the High Court rested on the law laid down by
the Constitution Bench of this Court in Bhagat Ram, the least
that was expected of this Court in the JUR was to explain as to
why the Full Bench of the High Court was wrong in relying on
Bhagat Ram. However, leave aside the cursory reference in the
JUR in paragraph 11, there is no reference in the entire judgment
to Bhagat Ram. Though this Court in the JUR has referred to
the Constitution Bench judgments in Ranjit Singh and Ajit
Singh, there is not even a whisper about the Constitution Bench
judgment in Bhagat Ram, except in paragraph 11, though it had
a direct bearing on the issue in question.
55. The Constitution Bench judgment of this Court in Bhagat
Ram in unequivocal terms held that the management and control
does not vest in the Panchayat under Section 23 -A of the
Consolidation Act till possession has changed under Section 24
of the said Act. It further held that, the rights of the holders are
63
not modified or extinguished till persons have changed
possession and entered into the possession of the holdings
allotted to them under the scheme. In the said case, the specific
contention raised by the State that the requirements as
contemplated under Sections 23, 24 and 21(2) of the
Consolidation Act were already complete and as such, the
acquisition had already taken place before the Constitution
(Seventeenth Amendment) Act, 1964, was specifically rejected by
this Court. Needless to state that, all these steps are subsequent
to the assignment under Section 18(c) of the Consolidation Act.
56. In the light of these findings of the Constitution Bench of
this Court in Bhagat Ram, the finding of this Court in the JUR
that the vesting in the Panchayat is complete on mere assignment
under Section 18(c) of the Consolidation Act is totally contrary to
the findings recorded in paragraph 5 of the Constitution Bench
judgment in Bhagat Ram.
64
57. As already discussed herein above, except the cursory
reference in paragraph 11 in the JUR, this Court has not even
referred to the ratio laid down by the Constitution Bench of this
Court in paragraph 5 in Bhagat Ram. No law is required to state
that a judgment of the Constitution Bench would be binding on
the Benches of a lesser strength. Bhagat Ram has been decided
by a strength of Five Learned Judges, this Court having a bench
strength of two Learned Judges could not have ignored the law
laid down by the Constitution Bench in paragraph 5 in Bhagat
Ram.
58. We find that ignoring the law laid down by the Constitution
Bench of this Court in Bhagat Ram and taking a view totally
contrary to the same itself would amount to a material error,
manifest on the face of the order. Ignoring the judgment of the
Constitution Bench, in our view, would undermine its
soundness. The review could have been allowed on this short
ground alone. However, the matter does not rest at that.
65
VI. CONSIDERATION OF THE JUDGMENT OF THE FULL
BENCH OF THE HIGH COURT IN JAI SINGH II
REFERRING ITS EARLIER JUDGMENT IN GURJANT
SINGH AND SEVERAL OTHER JUDGMENTS
59. It will be relevant to refer to the following observations of
the Full Bench of the High Court in Jai Singh II:
“Division Bench of this Court, in which
one of us (V.K. Bali, J.) was a member,
after referring to case law on the subject
from 1967 to 1997 in Bhagat Ram vs.
State of Punjab, (1967) 69, PLR, 287, Des
Raj vs. Gram sabha of Village Ladhot,
1981 PLJ, 300, Chhajju Ram vs. The Joint
Director, Panchayats, (1986-1) 89, PLR,
586, Gram Panchayat, Gunia Majri vs.
Director Consolidation of Holdings, (1991-
1) 99 PLR, 342, Gram Panchayat Sahara
(formerly Dhuma) vs. Baldev Singh, 1977
PLJ, 276, Baj Singh vs. State of Punjab
(1992-1) 101 RLR, 10, Kala Singh vs.
Commissioner, Hisar Division, 1984 PLJ,
169, Joginder Singh vs. The Director
Consolidation of Holdings (1997-2) 116
PLR 116, Bhagwan Singh vs. The Director
Consolidation of Holdings, Punjab, (1997-
2) 116 PLR, 472 and Gram Panchayat,
66
Village Bhedpura vs. The Additional
Director, Consolidation, (1997-1) 115 PLR,
391, held that the Bachat land, i.e., land
which remains unutilized after utilizing
the land for the common purposes so
provided under the consolidation scheme
vests with the proprietors and not with the
Gram Panchayat”. It was further held that
“the unutilized land after utilizing the land
earmarked for the common purposes, has
to be redistributed amongst the
proprietors according to the share in
which they had contributed the land
belonging to them for common purposes”.
There is no need to give facts of the judicial
precedents relied upon in Gurjant Singh’s
case (supra) as the same stand mentioned
already therein and reiteration thereof
would necessarily burden this judgment.
The decision of Division Bench of this
Court in Gurjant Singh’s case (supra) was
tested, at the instance of the State of
Punjab, in Civil Appeal No. 5709-5714 of
2001. Only, the general directions given
in the judgment recorded in Gurjant
Singh’s case (supra) for distribution of
land to the proprietors were set aside and
that too on the concession of learned
counsel, who represented the
Respondents in the case aforesaid. Order
passed by the Hon’ble Supreme Court on
August 27, 2001, reads thus:-
67
“Leave granted.
Mr. Harsh N. Salve, learned Solicitor
General, submitted that the State of
Punjab takes objection only in regard
to the following observations made in
the impugned judgment:-
“This exercise, it appears, has
not been done throughout the
State of Punjab and Haryana
and villages forming part of
Union Territory, Chandigarh,
even though there is a specific
provision for doing that.
This exercise be done as
expeditiously as possible and
preferably within six months
proceedings for repartition
must commence. Liberty to
apply in the event of non -
compliance of directions
referred to above.”
Learned counsel for the Respondent
submits that they had no objection in
deleting the aforesaid portions from
the impugned judgment. We allow
these appeals to be extent of deleting
of the above said passage from the
impugned judgment.
These appeals are disposed of
accordingly.”
68
60. It is thus clear that the Full Bench of the High Court has
referred to the judgment of the Division Bench of the said Court
in the case of Gurjant Singh.
61. It is pertinent to note that in the case of Gurjant Singh, the
Division Bench of the High Court had noted a series of judgments
delivered by the said High Court relying on the law laid down by
the Constitution Bench of this Court in Bhagat Ram. All these
decisions had held that the land which remains unutilized after
utilizing the land for the common purposes so provided under the
consolidation scheme vests with the proprietors and not with the
Gram Panchayat. It was further held that the unutilized land
i.e., the Bachat land, left after utilizing the land earmarked for
the common purposes, has to be redistributed amongst the
proprietors according to the share in which they had contributed
the land belonging to them for common purposes.
69
62. It is to be noted that the JUR referred to the judgment in
the case of Gurjant Singh and the order passed by this Court in
Civil Appeal Nos.5709-5714 of 2001, wherein the State had
objected only with regard to the observations wherein the time
limit was provided for effecting redistribution of the Bachat land
amongst the proprietors according to their share.
63. It is thus clear that the State itself did not press the appeals
with regard to the directions for redistribution of the Bachat land
amongst the proprietors according to their share. Its only
grievance was with regard to the directions to do it within a
specified period of time. However, this Court in the JUR held
that the doctrine of merger would not be applicable. However,
we do not wish to go into the correctness of that finding since we
are sitting in review jurisdiction.
64. The JUR referred to various judgments of the Punjab &
Haryana High Court which took the view that the Bachat lands
are entitled for redistribution. The JUR cursorily observed in
70
paragraph 84 that the findings recorded by the different Benches
of the High Court are clearly erroneous and not sustainable.
When a catena of judgments were delivered by the various
Benches of the High court relying on the judgment of the
Constitution Bench of this Court in Bhagat Ram, the least that
was expected in the JUR was a reasoning as to how the findings
of the various Benches of the High Court including in Gurjant
Singh, relying on the judgment of the Constitution Bench of this
Court in Bhagat Ram, are erroneous.
65. In our considered view, the non -consideration of the
reasoning given by the Full Bench of the High Court in Jai Singh
II, which findings were given by relying on the judgment of the
Constitution Bench of this Court in Bhagat Ram, and not
showing as to how the findings therein were erroneous in law,
would also amount to an error, apparent on the face of the record.
VII. CONSIDERATION OF THE JUDGMENT OF THE FULL
BENCH OF THE HIGH COURT IN JAI SINGH II WITH
REGARD TO DOCTRINE OF STARE DECISIS
71
66. Thirdly, the Full Bench of the High Court in Jai Singh II
in the alternative held that, a consistent view has been taken in
more than 100 judgments by the Punjab & Haryana High Court
and applying the doctrine of stare decisis, such a view cannot be
upset. While holding so, the Full Bench of the High Court has
relied on various judgments of this Court as well as the various
High Courts. However, in the JUR, there is not even a reference
to the reasoning given by the Full Bench of the High Court with
regard to the applicability of the doctrine of stare decisis. There
are catena of judgments of this Court explaining the doctrine of
stare decisis and its application. However, we do not propose to
go into them since the scope in review jurisdiction is limited. We
do not wish to go into the question as to whether the doctrine of
stare decisis would be applicable in the facts of the present case
or not. However, the least that the JUR was expected was to
consider the reasoning given by the Full Bench of the High Court
and to consider as to how the said reasoning was not sustainable
72
in law. However, the JUR does not even refer to the said
discussion in its judgment.
67. In our considered view, the non -consideration of the
reasoning given by the Full Bench of the High Court in Jai Singh
II, that on account of more than 100 decisions rendered by
various Benches of the High Court, the doctrine of stare decisis
is applicable, would also be an error apparent on the face of the
record.
VIII. CONCLUSION
68. In that view of the matter, we are of the considered view that
the JUR needs to be recalled on the aforesaid grounds mentioned
by us.
69. In the result, we pass the following order:
(i) The Review Petition is allowed.
(ii) The judgment and order of this Court dated 7
th April
2022 in Civil Appeal No. 6990 of 2014 is recalled and
the appeal is restored to file.
73
(iii) The appeal is directed to be listed for hearing
peremptorily on 7
th August 2024 at Serial No.1.
…….........................J.
[B.R. GAVAI]
…….........................J.
[SANDEEP MEHTA ]
NEW DELHI;
MAY 16, 2024
Legal Notes
Add a Note....