# \JIT SINGH v. STA'.f.E OF PUNJAB & ANR

- **Citation:** [1967] 2 S.C.R. 143
- **Court:** Supreme Court of India
- **Decided:** 1966-12-02
- **Case number:** Civil Appeal No. 1018 of 1966
- **Bench:** K. Subba Rao, C.J. M. Hidayatullah, S!Kri, R. S. Bachawat, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jit-singh-v-sta-f-e-of-punjab-anr-3971
- **Pages:** 22

## Headnote

Retrospeclivity-Public Officer-Retrospective appointment by l'/01i/i·
cation-Acts dpne before date of Notification, if valid.
Constitution of India, 1950, Arr. 3 lA ( 1), Second proviso-"AcquisitiOn .by Statti', meaning of.
E:P.st Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (SO of 1948)--Scheme under-Small portion
of land taken
from proprietor holding land within ceiling limit-Pr }rietor, if entitled
10 compensation.
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 llolding land within the ceiling liiμit.
The scheme for Cl>n·
solidation provided for taking of a fraotion 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, Che proprietor J and non-proprietors would share in the benefits.
The appellan: filed a writ petition in 1965, contending that: (I)
The
ConsoLdation Officer was not appointed till after the repartition was CtJncluded, that. he eould not be appointed
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(J) of the
Constitution, with the result· that compensation to the proprietor at
the
market rate was payable. The High Court di.,missed the petition.
On appeal,
HELD: (Per SubiJa Rao. C. J., Sik1i and Bachawat
JJ.) (1)
The
Consolidation Officer haU no authority to act as such before he was appoin:ed and what he did, ·purporting to act as such officer, had no binding effect on the ownecs.
Further,
the State Government could not
appoint him and clothe him with authority re:rospectively.
But, as the
appellant was guilty of Jaches and no manifest injustice was done to him~
the High Court was right in rejec·ing the contention. [147 B-D]
(Per Hidayatullah and Shela!, JJ.) : A> the petition w.- filed more
lhan three years after the compJet:on of the repartition of holding5. the.
contention should not be entertained in the face of the presUmption urder
s. 114. Indian Evidence Act, nan1ely.
that the Officer
must have been
appointed to act as such, as without such appointment he would not have
acted. [154 BJ
144
SUPREME COURT REPORTS
[1967] 2 S.C.R.
(2) (Per Subba Rao, C. J. S1kri and
llachawat,
JJ.). The word'
"acquisition hy the State" in the second proviso to Art. 3 IA(I) do not
have any technical meaning.
In the cont-.t of Art. 31A the e•pression
must have the same meaning as it bas in Art. 3 IA( I )(a). The essential
difference between "acquisition by the State" on the one band and "modification or extinguishment of ri$hts" on the other, is that in the first case
the beneficiary is the State wbde in the second the beneficiary is not the
State. Therefore, if the State has in substance acquired all the rights in
the land tor its own pu'l"'ses, even if the title remains with the owner,
it canno1 be said that it 1s not acquisilion within !he proviso. [149 B-D;
150 G]
Start of Wtst Btngal v. Subodh Gopal
Bose
[1954]
S.C.R.
581,
Dwarkadas Shriniwas v. TM Sho/apur Spinning and
Weaving Co. Ltd.,
(1954] S.C.R. 674, Sagh/r Ahmad v. State of U.P. [1955] I S.C.R.
707
and Bombay Dyeing and Mfg. Co. Ltd. v. Statt of Bombay, [1958] S.C.R.
1122, followed.
But on the facts of this case, the beneficiary of the modification ol
rights was neither

## Text

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,\JIT SINGH
v.
STA'.f.E OF PUNJAB & ANR.
December 2, 1966
[K. SUBBA RAO, C.J. M. HIDAYATULLAH, S. M, S!KRI,
R. S. BACHAWAT AND J. M. SHELAT, JJ.j
Retrospeclivity-Public Officer-Retrospective appointment by l'/01i/i·
cation-Acts dpne before date of Notification, if valid.
Constitution of India, 1950, Arr. 3 lA ( 1), Second proviso-"AcquisitiOn .by Statti', meaning of.
E:P.st Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (SO of 1948)--Scheme under-Small portion
of land taken
from proprietor holding land within ceiling limit-Pr }rietor, if entitled
10 compensation.
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 llolding land within the ceiling liiμit.
The scheme for Cl>n·
solidation provided for taking of a fraotion 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, Che proprietor J and non-proprietors would share in the benefits.
The appellan: filed a writ petition in 1965, contending that: (I)
The
ConsoLdation Officer was not appointed till after the repartition was CtJncluded, that. he eould not be appointed
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(J) of the
Constitution, with the result· that compensation to the proprietor at
the
market rate was payable. The High Court di.,missed the petition.
On appeal,
HELD: (Per SubiJa Rao. C. J., Sik1i and Bachawat
JJ.) (1)
The
Consolidation Officer haU no authority to act as such before he was appoin:ed and what he did, ·purporting to act as such officer, had no binding effect on the ownecs.
Further,
the State Government could not
appoint him and clothe him with authority re:rospectively.
But, as the
appellant was guilty of Jaches and no manifest injustice was done to him~
the High Court was right in rejec·ing the contention. [147 B-D]
(Per Hidayatullah and Shela!, JJ.) : A> the petition w.- filed more
lhan three years after the compJet:on of the repartition of holding5. the.
contention should not be entertained in the face of the presUmption urder
s. 114. Indian Evidence Act, nan1ely.
that the Officer
must have been
appointed to act as such, as without such appointment he would not have
acted. [154 BJ
144
SUPREME COURT REPORTS
[1967] 2 S.C.R.
(2) (Per Subba Rao, C. J. S1kri and
llachawat,
JJ.). The word'
"acquisition hy the State" in the second proviso to Art. 3 IA(I) do not
have any technical meaning.
In the cont-.t of Art. 31A the e•pression
must have the same meaning as it bas in Art. 3 IA( I )(a). The essential
difference between "acquisition by the State" on the one band and "modification or extinguishment of ri$hts" on the other, is that in the first case
the beneficiary is the State wbde in the second the beneficiary is not the
State. Therefore, if the State has in substance acquired all the rights in
the land tor its own pu'l"'ses, even if the title remains with the owner,
it canno1 be said that it 1s not acquisilion within !he proviso. [149 B-D;
150 G]
Start of Wtst Btngal v. Subodh Gopal
Bose
[1954]
S.C.R.
581,
Dwarkadas Shriniwas v. TM Sho/apur Spinning and
Weaving Co. Ltd.,
(1954] S.C.R. 674, Sagh/r Ahmad v. State of U.P. [1955] I S.C.R.
707
and Bombay Dyeing and Mfg. Co. Ltd. v. Statt of Bombay, [1958] S.C.R.
1122, followed.
But on the facts of this case, the beneficiary of the modification ol
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 scbe11Je the tille to the small fraction of land wLich was taken away
for forming lhe common pool ren.ained in !he proprielary body of the
holders in the- estate and in !he revenue records, the land would be shown
as belonging to all the owners in proportion to their areas. The Oram
Panchayat would manage it on behalf of the proprielary body and use it
for common purposes, and the proprietors would enjcy the benefits. Bveo
the satisfaction and advancement
of the non:propri~tors who
<!erived
benefit from the common pool would enure to the advantage of the proprietors who "-'Ould form a more efficient agricullural community. [152
B-G]
Attar Singh v. State of U.P. [1959] Supp. I ~.C.R. 928, followed.
Per Hidayalullah 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 acquisilion is by
the Slate of any estale, or of any righls !herein or the 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 wi1hin the ceiling limit
applicable to him, shall not be acquired unless the
market value of the
land i-; given as compensation. The \\'Ord "acquisition" used in the proviso
must take its colour from the same
word
used
earlier
in
the same
Article. and not from tho word as used in an earlier article in juxtaposition with the '"ord "requisition".
lt denotes not only the acquisition ot
ownership, that is, the entire bundle of rig~ts.
but also acquisition of
some rights which leaves. the o\l.'ne.r, an o'vner in name only [162 E-163 Al
In the present case the result of the scheme
would be that (i) the
proprielor was deprived of his property though only of a small portion:
(ii) though the O\\'nership v.·as vested in the proprietary body
all
right~
with regard to the management and income therefrom were vested in the
Gram Panchayat established under Punjab Gram Panchayat Acl, 1953;
(iii) !he owner.;hip was therefore tran•fcrrcd to another body, the Oram
Panchayat. which is an entity different from the Proprietor.
lt i'i a local
authority included wilhin the <icfinition of "Stale" in Arr. 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
i~ not actually vested
in the State Govern·
ment or the Panchayat, the Panchayat acq\Jires almost rhe
entire bundle
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AJIT SINGH V. PUNJAB (Sikri, /.)
145
of rights.
Hence, it is "acquisition" by the State within the meaning of
the secoo.d proviso and compensation at market value must be given. (163
D-H; 164 Al
Moreover, the fact that what was acquired was a small bit has J?-O
significance. What is small is vague and uncertain. and the safer rul& 11,
that, if the land· of the tenant cultivating it is be:aw the ceiling fixed by
law, and if a ponion 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]
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, 0. P. Malhotra and R. N. Sachthey, for the
respondents.
The Judgment of SuBBA RAu C.J. and S!KRI and BACHA WAT
JJ. was delivered by SIKRI, J. The dissenting Opinion ofHIDAYATULLAH 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, he quashed. The scheme which was sought to be quashed
was mad~ under the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter
referred to as the Act. On May 2, 1961, a notification was 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 consolidation 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 confirmatio·
the Consolidation Officer after obtaining the advice of the
landowners of the estate carried out repartition under s: 21 (I) and
the boundaries of the holdings as demarcated were published in the
prescribed manner in the estate on February 2 I, I 962. It appears
that the Punjab High Court granted a stay order and no further
proceedings under the Act could be taken. No possession has been
146
SUPllBMB COURT REPORTS
II 967] 2 S.C.R.
transferred pursuant to the re-partition. On May 11, 1962, a notification was published ir. the Gazette, purporting to appoint Shri
Gurkirpal Singh as Consolidation Officer in respect of the estate
Ropalon with effect from No\·ember 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 :
(I) there could be no retrospective appointment of a
Consolidation Officer; and
(2) Compensation must be paid l0 the appellant for the
land reserved in the scheme for various purposes in
accordance with the second proviso to art. 31 A(l)
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 !aches of the appellant. On the second
point, the High Court helJ that the second proviso to art.
31A(I) was prospectiv~ and not retrospective and did not affect the
scheme in question as the rights under :he 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 oflands
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(I). 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;
( l) 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 ConsoPdauon Officer retrospectively.
(3) In
the second proviso to arc. 3l(A)(I), the
expression "acquisition" means substantial taking over
•he benefits ,,f property and conferring it on the State.
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AJIT SINGH V. PUNJAB (Sikri, ].)
(4) Acquisition means the entire process terminating
with possession and extinction of the title of the individual.
147
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 he must be appointed as such.
Before he is appointed he
has no authority to exercise any of the functions of a C0nsolidation
Officer. What he does purporting to act as a Consolidation Officer·
has no bindingforce on the owners and other persons affocted 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 !aches. We cannot
say that the discretion has
been exercised wrongly. After the
notification was published on May 11, 1962, appointing Gurkirpal
Singh rettospect;vely with effect from November 4, t 96:, it must
have been clear to the appellant th:1t Gurkirpal Singh had not been
appointed Consolidation Officer before he 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 Punjah( 1) that the Act . was protected from challenge by art.
3 l A. It is nec~ssary to set out the relevant constitutional provisions.
The relevant portion of art. 31A reads as under :
"31A. (1) Notwith&tanding 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 prevision for the acquioition by the State of any ~state 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 inforce or any building or structure standing thereon
(l} (19651 1 S.C.R. 82.
14 8
SUPREME COURT REPORTS
[ 1967] 2 S.C.R
or appurtenant thereto, unless the law relating to the
acquisition of such land, building or structure, provides
for payment of compem•1tion 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 resp~ct
of land revenue."
·
Relevani portions of articles 19 and 31 may also be set out because
the learned counsel have laid stress on the language employed
therein.
"19. (I) All citi~ens shall have the right-
(f) to acquire, hold and dispose of property,
31. (I) No person shall be deprived of his. property
save by authority of law.
(2) No property .shall be compulsorily acquired or
requisitioneJ
~ave for a public purpose and save by
authority of a kw 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 corporntion owned or controlled by the State,
it shall not be deemea 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. 31A(l)(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 i!I
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
-0f 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
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AJIT SINGH V. PUNJAB (Sikri, J.)
149
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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.
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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 Jaw 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.
Coming now to the second proviso to art. 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 Jaw 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. 3IA,
the expression "acquisition by the State of an estate" in the second
proviso to art. 31A(I) must have the same meaning as it has in cl.
(I)(a) to art. 31A. It is urged on behalf of the respondents before us
that the expression "acquisition by the State of any estate" in art.
31A(l)(a) has the same meaning as it has in art. 31(2A). Jn 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 Gopa/ Bose,(1) Dwarkadas
Shrinivas of Bombay•v. The Sholapur Spinning & Weaving Co, Ltd.('}
Saghir Ahmad v. State of U.P.(3) and Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay(<).
In these cases this
Court had given a wide meaning to the word "acquisition", Jn
Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd.(') Mahajan, J., observed at page 704 as follows :
".The word 'ac_c1uisitirn' has quite a . ":ide concept,
meamng the procunng of property or the takmg of it permanently or temporarily. It does not necessarily imply
the acquisition of legal title by the State in the property
taken possession of."
(I) [19641 S.C.R. 587.
(3) [1955] 1 S.C.R. 7oJ1.
(2) [1954] S.C.R. 674.
(4) [1958] S.C.R. 112!.
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SUPREME COUkT REPORTS
(1967] 2 S.C.R.
He further observed al p. 705 :
A
"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
B
practical result of the act of the State that shou:d be considered rather than its purely legal aspect."
Bose J., observed at p. 734 as follows:
"In my opinion, the possessionnnd acquisition referreil
lo 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
throws any light on this question.
It would be noticed that it
refers to ceiling limits. It is W( '.I-known that under various Jaws
dealing with land reforms, no pcrsor. 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 al the market rate is given.
Jn
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. 3 IA.
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 ~ot within the meaning of the
second proviso. In other words, does the scheme only modify rights
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AJIT SINGH v. PUNJAB (Sikri, J.)
151
or does it amount to acquisition of land? The scheme is not part
of the record, but it appears that 89B-18B-l 1B (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 pro-
. ceedings there is no sham/at 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 Ma/kan 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 (or the common needs and benefits of the estate
or estates concerned."
It will be noticed that the title still vests in the proprietary 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 tha. the whole
may be used for the common needs and benefits of the estate,
mentioned above. The prnnrietors naturally would also share in
the benefits along with others.
In Attar Singh v. The State of U.P.(') 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
(I) [19591 Supp. I s.c.R. 928 at p. 938.
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SUPREME COURT REPORTS
[ 1967] 2 S.C.R.
small bits of land are collected from various tel1ureholders 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" 14(l)(ee). A compact area is thus created and
it is used for the purposes cf the tenure-holders themselves
and other villagers.
Form CH-21 framed under r. 41(a)
shows the purposes to which this land would he applied,
namely, (') 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 (IO) 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 hit 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 gels advantages which he could
never have got apart from the scheme.
For example, if he
wanted a threshing ftcor, a manure pit, land for pasture, khal,
etc., he would not have been able to have them on the
fraction of his land restrved 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
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 beneticiary 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 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 d~al with the
fourth point raised by the learned counsel for the appellant because
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I 53
it does not matter whether the acquisition is complete or not, as
even jf we hold that the acquisition is not complete and it has yet
to be completed, the second proviso to art. 31A(l) would not prevent the State from proceeding with the acquisition.
In the result the appeal fails and is dismissed, but there would
be no o.rder 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 of the Constitution filed by' the
appellant to quash the consolidation of village Ropalon, Tehsil
Sarmr~Ja, 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 East 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 bi.nras and
18 biswar.is of pukhta lands with the Gram Panchayat prior to
the consolidation proceedings btit under the consolidation an
additional 123 kanals and 14 mar/as were taken from the common
pool and were given to the Panchayat and a pro rata cut was applied
to the land of ~II 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 confiscatory.
The opposite party joined issue on both the points and also submitted that on fresh measurements 123 kanals and 14 mar/as land
was found to be in excess.
The High Court rejected the first contention on the ground
of ]aches 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 rowers 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, therefore, competent to appoint a Consolidation Officer. It is fairly
obvious that Gurkirpal Singh would not act as Consolidation
Officer unless appointe~ to act as such by Harcharan Singh. The
affidavit of the State does not state that an order was passed an
relies on the notification. No doubt a notification was is~ued
by Harcharan 5ingh 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
Ml9 Sup.CI/66-10
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SUPREME COURT REPORTS
(I 967] 2 S.C.R.
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 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 th~ 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 sough~ 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 bnt declined.
The Courl, therefore, cons;dered 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. 3 I-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 assumea 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
O>nstitution. To understand this we shall refer first to what is
being done und~r the Consolidation Act and then consider whether the Act is unsupportable in view 'of the second proviso to
Article 31-A(l) 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:
(I) (19~5] I S.C.R. 82.
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"(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;
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(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 w!1ich the village abadi is
to be given to proprietors and non-proprietors (including
scheduled castes, Sikh backward classes, artisans and
labourers) on payment of compensation or otherwise;"
In furtherance of this power two rules have been framed which
are numbered l 6(i) and l 6(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 :
"l 6(ii) Jn an estate or estates where during consolidation proceedings there is no sham/at deh land or such
land is considered inadequate, land shall be reserved
for the village Panchayat, 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
the estate or estates concerned, and it shall be entered
'n the column of ownershir of record of rights. as (jumla
malikan wa digar haqdaran arazi basab rasad raqba).
Th<: 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."
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SUPREME COURT REPORTS
[ 196 7] 2 S.C.R.
1be rule was declared ultra vires by the Punjab High Court in
MU113/ia Singh v. State of Punjab.(') The sub-rule was, however,
saved by the second amendins; Act (27 of 1960) which gave legal
cover to the sub-rule by including a definition of "common pur;-ose"
to the following effect :-
"2(bh) 'Common purpose' means any purpose in
relation to any common need, cori,enience or benefit of
the village and includes the following !'Urposes :-
(i) extension of the village obodi:
(ii) provide income for the Panciiayat of the
village concerned for the benefit of the village
community;
(iii) village roads and paths; village drains;
village wells, ponds or tanks; village watercourses or water channels; village bus stands and
waiting places; manure pits; hada rori; publi~
latrines; cremation and burial grounds; Panchayat Ghar; Janj Ghar; grazing grounds; tan11inf places; mela grounds; public places, of religious er charitable nature; and
(iv) schools and playgrounds, dispensaries,
hospitals and institutions of like nature, waterworks 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 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 exerc!sed 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, sha:I be entitled to appro-
(1) I.L.R. [1961] 1 Punjab 589.
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AJIT SINGH v. PUNJAB (Hidayat.ullah, J.)
1·57
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 accord;ngly :
Provided that in the case of land as.signed
or reserved for the extension of village abadi or
manure pits for the proprietors and non-proprietors of the village, such land shall vest in
the proprietors and non-proprietors to whom
it is given under the scheme of consolidation.'"
The preamble of the Consolidation Act was also a mended suitably
All these amendments were with retrospective e !feet.
"The Punjab Gram Panchayat Act, 1953 (4of1953) 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 niay
approve;
( q) allotment of places for preparation and
co'lservation of manure;
(t) framing and carrying vut 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 sham/at deh and abadi deh.