# JOHRIMAL v. DIRECTOR OF CONSOLIDATION. OF HOLDINGS, PUNJAB

- **Citation:** [1967] 3 S.C.R. 286
- **Court:** Supreme Court of India
- **Decided:** 1967-03-28
- **Case number:** Civil Appeal No. 153 of 1964
- **Bench:** K. N. Wanchoo, R. S. Bachawat, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/johrimal-v-director-of-consolidation-of-holdings-punjab-4047
- **Pages:** 12

## Headnote

B
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948) S.<. 18, 36 and 42 and
Rules 16(ii)-Sclie111e confirmed-If can be varied
by
State-Procedure-Proprietors' Gher land taken and
formed illfo common poolLegality.
A scheme was prepared and confirmed under s. 20 of the East Punjab
Holdings (Consolidation and Pre.vention of Fragmentation) Act, 1948.
providing that the owners of permanent ghers or enclosure• would be permitted to retain them in their possession.· The respondent, under s. 42
of the Act, reconsidered this matter and ordered that the
plot of the
appellant, who had. made a gher, should be kept for non-proprietors and
consolidation records should be changed to that effect. The appellant successfully challenged the respondent's order in a writ petition,
which
in
appeal was reversed.
Jn appeal to this Court, the appellant contended
that (i) the power of the State Government under s. 42 was controlled
by the procedure prescribed under s. 36 if it involved a variation of the
r.onfirmed scheme and the order of the respondent wa• ultm vires since
the procedure contemplated by s. 36 had not been followed, and (ii) the
respondent's order was illegal as it violated s. 18(c) and
Rule
16(ii)
beca11se under Rule 16(ii) only a fraction of each proprietors' land could
be taken and formed into a common pool so that the whole may be used
for the common needs and benefits of the. estate and there was no such
reason mentioned in the impugned order as required by s. 18.
HELD : (i) The power conferred on the
State
Government
by
s. 42 is not controlled by s. 36 and the procedu·re of publication and
hearing objections contemplated by ss. 19 and 20 of the
Act is
not
necessary.
Sections 36 and 42 envisage two different situations and the
inten:ion of the Act is to give powers rcspectiv·oly to the
Confirming
Authority and to the State Government
to act under these sections in
their discretion in any particula·r case.
The reason for
two
different
provisions in ss. 36 and 42 of the Act is also clear for if a scheme is varied or revoketl by the authority confirming it, then the new scheme has to
be published so that interested parties may object and their
objection
decided by competent authorities se.t up under the Act those decisions
being finally appealable to the State Government.
But when a scheme
is to be varied by the State Government itself under s. 42 of the Act,
there is no requirement of the statute that the varied scheme should be
published.
The State Government is only required to give notice and
to give an opportunity to the interested parties to be heard before the
variation is made.
[293G-294Bl
·
(ii) The respondent's order was illegal.
In view of the decision in
Ajit Singh v. Tile State of P1111j11h, [1967] 2 S.C.R. 143 the wide interpretation of " 18(c) would make the operation of the section unconstitutional.
It is a well c•'.ablishcd rule that a slu:ulc has to he so read
ns to make it valid., it has to
he
construccl
11t res n1agi.\' valeat quani
pareat.
Applying the principle to the present e•i.c, it is manifest that
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JOHRIMAL v. DIR. CONSOLIDATION (Ramaswami, I.)
287
s. !S(c) must be read in a restricted sense and the authority of the
Consolidation Officer to reserve
land for the common purpose
under
s. 18(c) of the Act must be restricted and it must be held that the
Consolidation Officer has power under the section to take the land out of
the comlr\on pool of the village only according to the rateable sh~re fn;m
the propnetors and oth~r right-holders for any common purpose mcludmg
the extension of the village ahadi. It is also clear that the power of the
State Government to make reservation of land for common
purposes
under s. 42 is co-terminus with the power of the Consolidation Officer
under s. !S(c). [296G-297D]

## Text

JOHRIMAL
v.
DIRECTOR OF CONSOLIDATION. OF HOLDINGS, PUNJAB
March 28, 1967
A
[K. N. WANCHOO, R. S. BACHAWAT AND V. RAMASWAMI, JJ.J
B
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948) S.<. 18, 36 and 42 and
Rules 16(ii)-Sclie111e confirmed-If can be varied
by
State-Procedure-Proprietors' Gher land taken and
formed illfo common poolLegality.
A scheme was prepared and confirmed under s. 20 of the East Punjab
Holdings (Consolidation and Pre.vention of Fragmentation) Act, 1948.
providing that the owners of permanent ghers or enclosure• would be permitted to retain them in their possession.· The respondent, under s. 42
of the Act, reconsidered this matter and ordered that the
plot of the
appellant, who had. made a gher, should be kept for non-proprietors and
consolidation records should be changed to that effect. The appellant successfully challenged the respondent's order in a writ petition,
which
in
appeal was reversed.
Jn appeal to this Court, the appellant contended
that (i) the power of the State Government under s. 42 was controlled
by the procedure prescribed under s. 36 if it involved a variation of the
r.onfirmed scheme and the order of the respondent wa• ultm vires since
the procedure contemplated by s. 36 had not been followed, and (ii) the
respondent's order was illegal as it violated s. 18(c) and
Rule
16(ii)
beca11se under Rule 16(ii) only a fraction of each proprietors' land could
be taken and formed into a common pool so that the whole may be used
for the common needs and benefits of the. estate and there was no such
reason mentioned in the impugned order as required by s. 18.
HELD : (i) The power conferred on the
State
Government
by
s. 42 is not controlled by s. 36 and the procedu·re of publication and
hearing objections contemplated by ss. 19 and 20 of the
Act is
not
necessary.
Sections 36 and 42 envisage two different situations and the
inten:ion of the Act is to give powers rcspectiv·oly to the
Confirming
Authority and to the State Government
to act under these sections in
their discretion in any particula·r case.
The reason for
two
different
provisions in ss. 36 and 42 of the Act is also clear for if a scheme is varied or revoketl by the authority confirming it, then the new scheme has to
be published so that interested parties may object and their
objection
decided by competent authorities se.t up under the Act those decisions
being finally appealable to the State Government.
But when a scheme
is to be varied by the State Government itself under s. 42 of the Act,
there is no requirement of the statute that the varied scheme should be
published.
The State Government is only required to give notice and
to give an opportunity to the interested parties to be heard before the
variation is made.
[293G-294Bl
·
(ii) The respondent's order was illegal.
In view of the decision in
Ajit Singh v. Tile State of P1111j11h, [1967] 2 S.C.R. 143 the wide interpretation of " 18(c) would make the operation of the section unconstitutional.
It is a well c•'.ablishcd rule that a slu:ulc has to he so read
ns to make it valid., it has to
he
construccl
11t res n1agi.\' valeat quani
pareat.
Applying the principle to the present e•i.c, it is manifest that
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JOHRIMAL v. DIR. CONSOLIDATION (Ramaswami, I.)
287
s. !S(c) must be read in a restricted sense and the authority of the
Consolidation Officer to reserve
land for the common purpose
under
s. 18(c) of the Act must be restricted and it must be held that the
Consolidation Officer has power under the section to take the land out of
the comlr\on pool of the village only according to the rateable sh~re fn;m
the propnetors and oth~r right-holders for any common purpose mcludmg
the extension of the village ahadi. It is also clear that the power of the
State Government to make reservation of land for common
purposes
under s. 42 is co-terminus with the power of the Consolidation Officer
under s. !S(c). [296G-297D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 153 of
1964.
Appeal from the judgment and order dated November 8, 19.60
of the Punjab High Court in L. P.A. No. 284 of 1958.
Bishan NaraiTJ, B.R.L. Iyengar, S. K. Mehta and K. L. Mehta,
for the appellant.
Gopa/ Singh, S. P. Nayyar for R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by certificate, from
the judgment of the Punjab High Court dated Novem·
ber 8, 1960 in Lett~rs Patent Appeal No. 284 of 1956.
For the consolidation of land holdings in village Kheowara, a
scheme was prepared by the Consolidation Officer under s. 14 of
the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (Act L of 1948), hereinafter called the 'Act',
and the scheme was confirmed by the Settlement Officer acting
under s. 20 of the Act. The scheme, among other things, provided
that the owners of permanent ghers or enclosures will be permitted
to retain them in their possession. One of the proprietors, Johrimal
had made a gher in khasra No. 3942 and, under the scheme, this
was to remain with him. Para 7 of the Scheme which was finalised
under s. 20 of the Act provided as follows :
"The existing houses and permanent enclosures shall
be kept in the ownership and possession of those proprietors who were owners in possession prior to the consolidation and in addition if these persons so desire, they
shall be entitled to be given additional area upto one
bigha for extension of the abadi. In the case of such persons of right holders who have constructed houses or enclosures etc. within the Shamlat area they would keep
them in t~eir possession but adjustment would be made
out of then· Khewat land ...... , .... ·,. ,."
Later on the Director of Consolidation, to whom the powers of
the State Government under s. 42 of the Act had been delegated
:288
SUPREME COURT REPORTS
[1967] 3 S.C.R.
J:econsidered this matter and ordered that this particular piece of
-land i.e., khasra No. 3942 should be reserved for the extension of
abadi for non-proprietors. The Director of Consolidation accordingly ordered that instead of bein$ reserved for Johrimal, the plot
'Should be kept for the non-propnetors and the Consolidation re'
·Cords should be changed to that extent. The order of the Director
of ConsolidatiQft was dated March 8, 1957. Aggrieved with this
order, Johrimal applied to the High Court for grant of a writ
under Art. 226 of the Constitution. The petition was heard by
Grover, J. who allowed the petition holding that the Director of
Consolidation had no authority to make any order contrary to the
scheme without amending the scheme itself, and an amendment of
the scheme could be made· only under s. 36 of the Act and not
•Under s. 42 of the Act. It was accordingly held that the order of
the Director of Consolidation was ultra vires and must be quashed
by grant of a writ in the nature of certiorari. Against this order
the Director of Consolidation of Holdings appealed under cl. 10 of
the Letters Patent. The appeal wa5 heard by a Full Benclt which,
by its Judgment dated November 8, 1960, allowed the appeal and
reversed the order of the learned Single Judge and ordered that
the writ petition should be dismissed.
The view taken by the
majority of the Judges of the Full Bench was that the impugned
order amounted to an alteration of the Consolidation scheme and
the State Government had power, under s. 42 of the Act as amend-
. ed by the East Punjab Holdings (Consolidation and Prevention of
Fragmentation) (Second Amendment and Validation) Act (Punjab
Act 27 of 1960), to make any change in the Consolidation schem"
subject to the requirements of that section. The present appeal is
brought by Johrimal against the judgment of the Full Bench of the
Punjab High Court.
The Act was passed to provide for the compulsory consolidation
·of agricultural holdings and for preventing the fragmentation of
a~icultural holdings in the State of Punjab. Chapter III of the
Act deals with Consolidation of Holdings and it is provided by s.
14 that the Government may either suo motu, or on application
made, declare its intention by notification to make a scheme for
consolidation· of holdings in an estate or estates or part thereof as
may be specified. The Consolidation Officer is required to obtain
the advice of the land owners and of the non-proprietors and of
the Gram Panchayat and he is thereafter directed to prepare a
Scheme for the consolidation of holdings. Section 15 requires the
Consolidation Officer to provide for the payment of compensation
to any owner who is allotted a holding of less market value than
his original holding and for the recovery of compensation from
any owner who is allotted a holding of greater market value than
·that of his original holding. Under s. 19, the Consolidation Officer
·shall cause to be published the draft scheme of consolidation, and
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JOHRIMAL v. DIR. CONSOLIDATION (Ramaswami, J.)
289
within 30 days of such publication any person likely to be affected
by such scheme may communicate in writing to the Consolidation
Officer, any objection relating ~o it. The Consolidation Officer
shall then consider the objections, if any and submit the scheme
with such amendments as he may consider to be necessary together
with his remarks on the objection to the Settlement Officer (Con·
solidation). The scheme as amended shall then be published. Sec·
tion 20 provides that if no objections are received to the draft
scheme, the Settlement Officer (Consolidation) shall confirm the
scheme. If objections are received, then the Settlement Officer
(Consolidation) may either confirm the scheme, with or without
modifications, or refuse to confirm it. If the scheme is confirmed
it should be published. Section 21 relates to repartition to be
carried out by the Consolidation Officer in accordance with the
scheme as confirmed under s. 20 and the boundaries of the holdings
as demarcated are required to be shown on the shajra which shall
be published in the prescribed manner in the estate or estates con·
cemed. Any person aggrieved by the repartition may file written
objections before the Consolidation Officer who shall after hearing
the appellant pass such order as he considers proper. An appeal
is provided from the order of the Consolidation Officer to the
Settlement Officer (Consolidation).
A person aggrieved by the
order of the Settlement Officer (Consolidation) may appeal to the
State Government. Section 22 provides for the preparation of a
new record-of-rights by the Consolidation Officer in accordance
with the provisions contained in Ch. IV of the Punjab Land
Revenue Act: .1887 for !he area under ~onsoli~tion, giving effect
to the repart1t1on. Section 23 deals with the nghts to possession
of new holdings. Section 36 provides for the power to vary or
revoke the scheme and reads as follows :
"A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any
order of the State Government that may be made in relation thereto and a subsequent scheme may be prepared
published and confirmed in accordance with the provi:
sions of this Act."
Section 42 of the Act, as it originally stood, was to the following
effect :
"The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of
any order passed by any officer under this Act call for
and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit :
29Q
SUPREME COURT REPORTS
[1967]3 S.C.R.
Provided that no order shall be varied or reversed
without giving the parties interested notice to appear and
opportunity to be heard except in cases where the State
Government is satisfied that the proceedings have been
vitiated by unlawful consideration."
Section 18 of the Act is important and provides as follows :
"Notwithstanding anything contained in any law for
the time being in force, it shall be lawful for the Consolidation Officer to direct-
(a) that any land specifically assigned for any common purpose shall cease to .be so assigned and to assign
any other land in its place;
(b) that any land ·under the bed of a.stream or torrent
flowing through or from the Siwalik mountain range
within the State shall be assigned for any common purpose;
(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 Act confers powers on 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 s. 18 and the manner in which it is to be dealt with
and also the manner in which the village abadi is to be
given to proprietors and non-proprietors (including sche·
duled castes, Sikh backward classes, artisans and labourers) on payment of compensation or otherwise;"
On March 3, 1956 the Punjab Government, by a notification, add·
ed rule 16 to the Rules for reservation of the abadi for the pro·
._prietors as well as the non-proprietors and it read as follows :
"The area to be reserved for the common p1i1rpose of
extension of abadi for proprietors and non-proprietors
under section 18(c) of the Act shall be reserved after
scrutinizing the demand of proprietors desirous of build·
ing houses and of non-proprietors including Harijan
families working as agrarian labourers who are in need
of a site for house.
The land reserved for extension
of abadi shall be divided into plots of suitable sizes. For
the plots allotted to proprietors area of equal value shall
be deducted from their holdings but in the case of non·
proprietors including Harijan families these shall be allotted without payment of compensation and they shalJ
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JOHRIMAL v. DIR. CONSOLIDATION (Ramaswami, J.)
291
be deemed to be fUll owners of the plots allotted to
them."
On April 9, 1957 the Punjab Government added rule 16(ii) which
provided for reservation of lands for the Gram Panchayat. It
read as follows :
•
"In an estate or estates where during consolidation
proceedings there is no shamlat deb land or such land is
considered inadequate, land shall be reserved for the village Panchayat, under section 1 S(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
nspect of land, so reserved (except the area reserved for
the extension of abadi of proprietors and non-proprietors)
shall vest in the proprietary body of the estate or estates
concerned, and it shall be entered in the column of
ownership of record of rights as (jumla malikan wa digar
haqdaran arazi hasab rasad raqba).
The management
~ of such land shall be done by the Panchayat of the
estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to
utilize the income derived from the land so reserved for
the common needs and benefits of the estate or estates
concerned."
In Munsha Singh v. State of Punjab('), the Punjab High Court
declared n1le 16(ii) as ultra vires. After the decision of that case
the second amending Act (27 of 1960) was passed. It gave a legal
cover to rule 16(ii) by including in s. 2 of the Act the following :
"2(bb) 'Common purpose' means any purpose in relation to any common need, convenience or benefit of the
village and includes the following purposes :-
(i) extension of the village abadi;
(ii) provide income for the Panchayat of the village
concerned for the benefit of the village community;
(iii) village roads and paths; village drains; village
wells, ponds or tanks; village water-courses or water
channels; village bus stands and waiting places; manure
pits; hada rori; public latrines; cremation and burial
grou!lds; Panchayat Ghar; Janj Ghar; grazing grounds;
tanmng places; mela grounds; public places, of religious
or charitable nature; and
(iv) schools and playgrounds, dispensaries, hospitals
and institutions of like nature, waterworks or tube-wells,
whether such schools, play grounds, dispensaries, hospi-
<ll l.L.R. [19601 1 Punjab, 589.
L5Sup, Cl/67-Q
SUPREME COURT REPORTS
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tals, institutions, water-works or tube-wells may be managed and controlled by the State Government or not."
Section 2 of the amending Act (Act 27 of 1960) amended the
preamble and read as follows :
"Amendment of long title of East Punjab Act L of
1948.-In the long title of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act,
1948 (hereinafter referred to as the principal Act), the
words 'and for the assignment or reservation of land for
common purposes of the village' shall be, and shall be
deemed always to have been, added at the end."
Section 4 added a new section 23-A which was to the following
effect :
"Management and control of lands for common purposes to vest in Panchayats.-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 income accruing therefrom for the benefit of the village
community, and the rights and interests of the owners
of such lands shall stand modified and extinguished accordingly."
Section 5 amended s. 42 of the Act and was to the following effect :
"Amendment of section 42 of East Punjab Act L
of 1948.-In section 42 of the principal Act, for the
words 'any order passed by any officer under this Act',
the words 'any order passed, scheme prepared or confirmed or repartition made by any officer under this Act',
and for the words 'no order shall be varied' the words 'no
order, scheme or repartition shall be varied' shall be,
and shall be deemed always to have been, substituted."
Section 6 provides for validation and reads as follows :
"Notwithstanding anything to the contrary contained
in any judgment, decree or order of any court,-
(a) where in any scheme, made before the commencement of this Act, land has been reserved for the Panchayat of the village concerned for utilising the income
thereof, or
(b) where before such commencement the State Govvernment or any authority to whom it has delegated its
powers has passed an order under section 42 of the principal Act revising or rescinding a scheme prepared or
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JOHRIMAL v. DIR. CONSOLIDATION (Ramaswami, /.)
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confirmed or repartition made by any officer under that
Act.
such reservation of land or such order, as the case
may be, shall be deemed to be valid, and any such
scheme or order shall not be questioned on the ground
that such reservation of land could not be made or, as
the case may be, that under section 42 of the principal
Act, the State Government or such authority had no
power to pass such order."
On behalf of the appellant Mr. Bishen Narain put forward the
argument that the order of the Director of Consolidation dated
March 8, 19 5 7 was an order varying para 7 of the confirmed
scheme and no such variation could be made without following
the procedure laid down under s. 36 of the Act, viz., the requirement with regard to the publication and hearing of objections contemplated in ss. 19 and 20 of the Act. To put it differently, the
contention of the appellant was that the power of the State Government under s. 42 was controlled by the procedure prescribed
under s. 36 if it involved a variation of the confirmed scheme and
the order of the Director dated March 8, 1957 was ultra vire~
since the procedure contemplated by s. 36 of the Act has not been
followed.
In our opinion, there is no justification for this argument.
Section 42 of the Act as amended by Act 27 of 1960
authorised the State Government to interfere with the scheme of
consolidation or repartition made under the Act.
What the
amending Act has done is to substitute for the words 'any order
passed by any officer under this Act', the words 'any order passed,
scheme prepared or confirmed or repartition made by any officer
under this Act'. Section 3 6 of the Act, on the other hand, authorises the authority confirming a scheme to alter or revoke it and
in that case the new scheme must be published, objections heard
and decided and the scheme has to be confirmed once again in accordance with the procedure under ss. 19 and 20 of the Act. In
our opinion the power conferred on the State Government under
s. 42 is.a separate power independent of s. 36 of the Act which
deals with the power of the authority confirming the scheme. There
is hence no force in the contention that the scheme of consolidation cannot be varied by the State Government under s. 42 of
the Act except in accordance with s. 36 of the Act. The reason
for the two different provisions in ss. 3 6 and 4 2 of the Act is also
clear for if a scheme is varied or revoked by the authority confirming it, then the new scheme has to be published so that interested parties may object and their objection decided by competent
authorities set up under the Act, those decisions being finally appealable to the State Government. But when a scheme is to be
varied by the State Government itself under s. 42 of the Act, there
294
SUPREME COURT REPORTS
(1967) 3 S.C.R.
is no requirement of the statute that the varied scheme shollld be
published, for the State Government is required to give notice and
to give an opportunity to the interested parties to be heard before
the variation is made.
We are therefore of the opinion that the
power conferred on the State Government by s. 42 is not oontrolled by s. 36 and the procedure of publication and hearing objections contemplated by ss. 19 and 20 of the Act is not necessary.
Sections 3 6 and 42 envisage two different situations and the intention of the Act is to give powers respectively to the Confirming
Authority and to the State Government to act under these sections
in their discretion in any particular case. We accordingly hold
that Mr. Bishen Narain is unable to make good his argument on
this aspect of the case.
We proceed to consider the next question arising in this appeal,
viz., whether the order of the Director dated March 8, 1957 is
illegal because it violates s. l 8(c) of the Act read with Rule 16(ii).
It was contended for the appellant that under Rule 16(ii) only a
fraction of each proprietor's land is taken and formed into a
common pool so that the whole may be used for .the common needs
and benefits of the estate. The argument was stressed that Rule
l 6(ii) contemplates that all the proprietors and other right holders
of the land are entered in the column of ownership of the record of
rights according to the rateable share and therefore the land taken
by each proprietor should be according to the rateable share of
·the land possessed by him in the total area of the village. It was
pointed out that the order of the Director dated March 8, 1957
does not indicate that the area taken from the appellant was in
proportion to the rateable share. It was also stated that s. 18(c)
requires that before the Consolidation Officer directs reservation
of any land for the village abadi, no land should have been reserved for a common purpose in the area under consolidation or the
lands so reserved should have been inadequate. It was pointed out
that in the order of the Director there is no mention that no land
had been reserved for the common purpose in the village or that
the land so reserved in the scheme was inadequate. The opposite
view-point was presented by Mr. Gopal Singh on behalf of the
respondents. It was contended that s. 18(c) gives a wide power to
the Consolidation Officer to reserve any land for the common purpose including extension of the village abadi and there is no requirement imposed in the section that the land reserved should be
taken from the proprietors and other right-holders in accordance
with their rateable share. It was contended by the respondents that
no limitation should be placed on the plain language of the section.
In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. It is true
thats. 18(c) confers a power on the Consolidation Officer to reserve.
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JOHRIMAL v. DIR. CONSOLIDATION (Rama.swami, J.)
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the land of the proprietors for any common purpose including the
extension of the village abadi and there is no express limitation in
the language of the section to the effect that the land to be taken
from the proprietors and other right-holders should be according
to the rateable share. But the language of s. 18(c) should be interpreted in a reasonable manner. The legislature could not have intended that land should be taken from one proprietor only for
common purposes.
The intention must be that all proprietors
should contribute rateably for such purposes.
This intention is ·
brought out by Rule l 6(ii)' and this is what s. l 8(c) must be held
to mean. In this context reference should be made to the decision
of this Court in Ajz't Singh v. The State of Punjab('). The question
at issue in that case was whether the reservation of land for a common purpose under s. 18(c) of the Act amounted to "acquisition by
the State of any estate or rights therein" within the contemplation
of the second proviso to Art. 3 lA(l) of the Constitution, and if so,
whether compensation should be paid to the proprietors for the
land reserved in the scheme for varions purposes in accordance
with the second proviso to Art. 31A(l) inserted by the Seventeenth
Amendment of the Constitution. It was held by the majority judgment of_ this Court that s. 18(c) must be construed reasonably and
that only 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 village. It was pointed out that
the title will vest in the proprietaty body, the management of the
land was done by the Panchayat of the estate on behalf of the proprietary body and the land was used for the common needs and
benefits of the estates concerned. It was therefore held that Rule
16(ii) only provides for adjustment of rights of persons holding
!and ~°. ~eserved in ~he !nt~rest of villa~e economy and there was no
acqu!Sitlon of land w1thm the meanmg of the second proviso to
;\ft. 31-A(l) and th:re was no question of paying compensation
m cash to !h: proprietor~ f?r such adjustment of rights. In the
course of his judgment, S1kn, J., speaking for the Court, observed
as follows :
•
"In Attar Singh v. The State of U.P. (1959 Supp.
S.C.R. 9~8 a~ 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 (Up'
~9~7~ of 1954) as amended by the U.P. Act XVI "0 {
. 'Thus the land which is taken over is a small bit
which s?ld by itself would hardly fetch anything.
Thes~
small bits of lands are collected from various tenure-holders and consolidated in one place and added to the land
(1) [1967] 2 S.C.R. 143.
296
SUPREME COURT P.BPOllTS
[1967) 3 S.C.R.
which might be lying vacant so that it may be used for
the purposes of s. 14(1) (ee), A compact area is thus
created and it is used for the purposes of the tenure-holders themselves and other villagers. Form CH-21 framed
under r. 4l(a) shows the purposes to which this land
would be applied, namely, (1) plantation of trees, (2)
pasture land, (3) manure pits, (4) threshing floor, (5)
cremation ground, (6) graveyards, (7) primary or other
school, (8) playground, (9) Panchayat ghar, 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 examA
B
c
ple, if he wanted a threshing floor, a manure pit, land for
D
pasture, khal, etc., he would not have been able to have
them on the fraction of his land reserved for common
purposes.
Does such taking away of property then amount to
acquisition by the State of any land ? Who is the real
beneficiary ? Is it the Panchayat ? It is clear that the
title remains in the proprietary body and in the revenue
records the land would be shown as belonging to 'all the
owners and other right holders in proportion to their
areas'. The Panchayat will manage it on behalf of the
proprietors and use it for common purposes; it cannot
use it for any other purpose. The proprietors enjoy the
benefits derived from the use of land for common purposes. It is true that the non-proprietors also derive
benefit but their satisfaction and advancement 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."
F
G
In view of this decision the wider interpretation of s .. 1 S(c) for
which Mr. Gopal Singh contends would make the operation. of .the
section unconstitutional. In a situation of this kind the prmc.1ple
H
to be applied is clear. The princip~e is that if two ~o~strucli?ns
of a statute are possible, one of which would make 1t zntra v~res
and the other ultra vires, the Court must lean to that construction
,
-
A
B
c
D
E
JOHRIMAL v. DIR. CONSOLIDATION (Ramaswami, !.)
297
which would make the operation of the section intra vires.
The
reason is that no intention can be imputed to the Legislature that
it would exceed its own jurisdiction. It is a well-established rule
that a statute has to be so read so as to make it valid; it has to be
construed ut res magis va/eat quam pareat. Applying the principle
to the present case, it is manifest that s. l 8(c) must be read in a
restricted sense and the authority of the Consolidation Officer to
reserve land for the common purpose under s. 18(c) of the Act
must be restricted in the manner indicated above, and it must be
held that the Consolidation Officer has power under the section to
take the land out of the common pool of the village only according
to the rateable share from the proprietors and other right-holders
for any common purpose including the extension of the village
abadi. It is also clear that the power of the State Government to
make reservation of land for common purposes under s. 42 is coterminus with the power of the Consolidation Officer under s.
18(c) and it follows therefore that the order of the Director dated
March 8, 1957 is illegal and ultra vires and must be quashed by
grant of a writ in the nature of certiorari under Art. 226 of the
Constitution.
For these reasons we set aside the order of the Punjab High
Court dated November 8,. 1960 and direct that a writ in the nature
of certiorari should be issued to quash the order of the Director of
Consolidation of Holdings, Punjab dated March 8, 1957 with
regard to khasra No. 3942 reserving it for extension of abadi for
non-proprietors. The appeal is accordingly allowed, but there will
be no order as to costs.
Y.P.
Appeal allowed.