ORIGINAL JURISDICTION : Writ Petition No. 125 of 1966.
Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. Hardev Singh and S. S. Khanduja, for the petitioners. K. L. Gossain, O. P. Malhotra and R. N. Sachthey, for the
respondents. The Judgment of SUBBA RAO C. J. and SIKRI and BACHAWAT JJ. was delivered by SIKRI, J. The separate Judgment of HIDAYATULLAHH and SHELAT, JJ. was delivered by HIDAYATULLAH. Sikri, J. This is a petition under art. 32 of the Constitution challenging the scheme made in respect of the consolidation of village Dolike Sunderpur. We have today delivered judgment in Ajit Singh v. State of Punjab(1) and most of the points in this appeal are covered by the decision in that case. Two points remain to be dealt with in this case. The first question that arises is whether the scheme ill so far as it makes reservations of land for income of the Panchayat is hit by the second proviso to art. 3 1 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’s(1) case that acquisition for the common purposes such as phirnis, paths, etc., is not acquisition by the State within the second proviso to art. 31A. 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 art. 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 art. 12 of the Constitution. The income derived by the Panchayat is in no way different from its any other income. It is true that s. 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 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 art. 3 1 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. (1) [1967]2 S.C.R. 143 This takes us to the second question raised by the State, in the. alternative. On behalf of the State it has been argued that acquisition had already taken place before the Seventeenth Amendment came into force, and, therefore, the scheme is not bit by the second proviso to art. 31A. The relevant facts are contained in the affidavit of Jaswant Singh Bhutani, Officer on Special Duty, and are as follows :
"The village was notified for consolidation
vide Punjab Government Notification No.
57/G/t7O4l-A dated 1-9-1956 which was duly
published and a proper notice under rule 4 of
the Consolidation Rules was issued which was
also published in the village in the
prescribed manner. The Scheme was prepared by
the Consolidation Officer under the Act in
consultation with the rightholders and
Advisory Committee of the village on 15-1-1959
and the rightholders were invited to file
objections under section 19(1) of the Act
against the draft scheme as required within 30
days of the said publication. The objections
were tendered which were duly considered and
after consideration of the same the scheme was
confirmed under section 20(3) of the Act by
the Settlement Officer, Consolidation of
Holdings, on 11-3-1959. The confirmed scheme
was also published in the village under
section 20(4) of the Act on 25-3-1959. That
an area meassuring 100 kanals 2 marlas
(standard) was reserved for the income of the
Panchayat according to the requirements of the
village. So far as the reservation for the
common purposes of the village was concerned,
neither the petitioner nor any rightholders of
the village filed any objections against the
said reservation. In pursuance of the same,
the repartition of the land was effected on
30-4-59 and the plots of land were allocated
to the rightholders as required under the Act.
There were 90 objections against repartition
under section 21(2) of the Act and all of them
have been disposed of. In the meantime, some
of the rightholders in village Dolike
Sunderpur went to the High Court and filed a
writ petition No. 531/1959 and the Hon’ble
High Court by its judgment and order dated 25-
11-1959 quashed the scheme but upon a Letters
Patent Appeal filed by the respondents herein,
the High Court restored the scheme. The
possessions were not transferred in view of
the stay orders obtained by the rightholders
of that village from the High Court."
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 s. 23A and
s. 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 23A and 24 read as follows :
"23A. 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 interest of the
owners of such lands shall stand modified -and
extinguished accordingly.
24.(1) As soon as the persons entitled to
possession of
’holdingsunder 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 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 XVII of 1887), for
purposes of compliance with the provisions of
sub-section (1)." It seems to us clear from these provisions that till possession has changed under s. 24, the management and control does not vest in the Panchayat under s. 23A. 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 s. 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 "acquisition" within the second proviso to art. 31A. In the result we hold that the scheme is hit by the second proviso to art. 31 A in so far 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. Hidayatullah, J. This is a petition under Art. 32 of the Constitution challenging the scheme made in respect of the consolidation of the village Dolike Sunderpur. We have in our judgment, in the companion case, dealt with the second proviso to Art. 31A(1) (a). Here too land is reserved for the Panchayat. We have indicated in our judgment in the companion case that no matter for what purpose the acquisition takes place, if the land of a tenant cultivating the land is reduced to something below the ceiling fixed by law compensation at a rate which is not lower than the market rate must be paid to him. We have also indicated how this compensation must be worked out. When the Constitution speaks of market value, it is not possible to find compensation in advantages which might accrue indirectly. Our brethren have held that the reservation of 100 kanals 2 marlas to enable the Panchayat to raise an income is contrary to the second proviso and that the scheme must be modified accordingly. Our approach to the problem is different. We have shown in the judgment in the companion case that the test is the deprivation of land which makes the land of a cultivating tenant go below the ceiling fixed for such land by law. If this happens then compensation for the acquisition of land which brings down the holding to something below the ceiling must be paid at rates which are not below the market rate. We would accordingly have made the. declaration and left the party concerned to demand compensation for land by which his ceiling is reduced. There is no question of looking to the end to which the income may be used and to differentiate between deprivation of one kind and deprivation of another kind. According to us the ceiling fixed by law is not to be reduced by acquisition by the State unless compensation at market rate is paid. No other compensatory factor can be taken note of under the proviso. Nor can it avail that the land of which the tenant is deprived is to be put to some other use by the Panchayat thereafter. Such acquisition with out compensation is unconstitutional and we cannot add a proviso of our own to the proviso enacted in the Constitution. We would accordingly allow the petition making a declaration on the lines indicated and leaving the party to demand compensation if his land is reduced below the ceiling. In the circumstances we would award no costs.
ORDER The scheme made in respect of the consolidation of village Dolike Sunderpur is hit by the second proviso to Art. 31A of the Constitution in so far as it reserves 100 kanals 2 marlas for the income of the Panchayat. The State is directed to modify the scheme to bring it into accord with the second proviso as interpreted in the majority judgment(1) in Civil Appeal No. 1018 of 1966 and to proceed V.P.S. (1) [1967]2 S.C.R.143. M19Sup CI/66-12