THE STATE OF HARYANA THROUGH SECRETARY TO GOVERNMENT OF HARYANA v. JAI SINGH & ORS.

The Judgment of the Court was delivered by A HEMANT GUPTA, J. CIVIL APPEAL NO. 6990 OF 2014; CIVIL APPEAL NOS. 6610-6612 OF 2016; CIVIL APPEAL NO. 6992 OF 2014; CIVIL APPEAL NO. 6991 OF 2014; CIVIL APPEAL NO. 6997 OF 2014; B CIVIL APPEAL NO. 7001 OF 2014; CIVIL APPEAL NO. 4435 OF 2015; CIVIL APPEAL NO. 1675 OF 2022 AND CIVIL APPEAL NO. 1677 OF 2022

1Copy pinpoint1. The subject matter of challenge in the present appeals is the amendments in the Punjab Village Common Lands (Regulation) Act, C 19611, as inserted by Haryana Act No. 9/19922, published on 11.2.1992 after the assent of the President of India.

2Copy pinpoint2. The amendments carried out by the Amending Act came up for consideration before the Full Bench of Punjab and Haryana High Court in a judgment reported as Jai Singh & Ors. v. State of Haryana3. D The High Court struck down the amendments introduced and held as under: “In view of the observations cited above, Sections 2(g)(4) and 2(g)(6) of the Act of 1961 describes the land reserved for common purposes under Consolidation of Holdings Act, 1948 by application or pro rata cut to the holdings of the land owners within their ceiling limits as Shamlat Deh under the Act of 1961 and since these lands have been vested in the Panchayat the action is in violation of Article 31-A. Since definitions by Section 2(g)(4) and 2(g)(6) are so intermingled that no part can be segregated and held ultravires and these sections having categorically transgressed the powers of the State for acquisition of land without compensation, these provisions can not stand the test of constitutionality. It is immaterial that the transgression is open, direct or overt, disguised covert and indirect. It is a piece of colourable legislation. Violation of Article 31-A is so manifest that it leaves no manner of doubt. I am of the considered view that G Sections 2(g)(4) and 2(g)(6) are void being violative of Article 31- A of the Constitution of India. Writ of mandamus is, therefore, 1 For short, the ‘1961 Act’ 2 Amending Act 3 AIR 1995 P&H 243 (Jai Singh I) H

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A issued restraining the State of Haryana from enforcing the provisions of Sections 2(g)(4) and 2(g)(6) of the Act of 1992.”

3Copy pinpoint3. Civil Appeal No. 5480 of 1995 titled as State of Haryana v. Jai Singh before this Court against the said judgment was accepted on 6.8.1998 and the following order was passed: B “We have made a through search in the judgment under appeal in order to discover whether any finding was recorded by the High Court that the land sought to be affected by the legislative measure under challenge was within the celling limit of each of the respective proprietors and was in each’s personal cultivation, be it factually or legally. That there is no such finding is conceded to by the learned counsel for the parties. Unless such finding was recorded, in clear terms, the legislative measure could not have been struck down on the anvil of Article 31A of the Constitution. In this view of the matter, we would rather have a complete decision from the High Court on the subject and, therefore, necessarily, have to effect a remand to it; other questions not being adverted to and leaving those questions to the High Court to be re-affirmed or otherwise”. As a result, we allow this appeal, set aside the impugned judgment of the High Court and remit the matter back to it for re-decision of the question focussed as also others as indicated above”.

4Copy pinpoint4. It is thereafter, the Full Bench of Punjab and Haryana High Court in Jai Singh and Ors. v. State of Haryana4 examined the legality of sub-section 6 of Section 2(g) of the 1961 Act. The above-mentioned appeals are directed against such order and the order dated 08.11.2013 F passed by the Full Bench dismissing the review application against the said order in the case of State of Haryana v. Vir Singh & Ors.5.

5Copy pinpoint5. The impugned provisions of the Amending Act read thus: “2. In this Act, unless the context otherwise requires- G xxx xxx xxx (g) shamilat deh” includes xxx xxx xxx 4 2003 SCC Online P&H 409 (For short, ‘Jai Singh II’) 5 H RA -CW No. 350 of 1999 decided on 8.11.2013

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 917 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

(6) lands reserved for the common purposes of a village under A 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 vest in the Gram Panchayat under Section 23-A of the aforesaid Act. Explanation- Lands entered in the column of ownership of record B of rights as ‘Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad, ‘Jumla Malkan’ or ‘Mushtarka Malkan’ shall be Shamilat Deh within the meaning of this Section.”

6Copy pinpoint6. The Statement of Objects and Reasons for the Bill introduced on 5.3.1991 containing the above impugned provisions is as follows: C “To make the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 more effective, practical, deterrent and beneficial to the interests of the Gram Panchayats it is necessary to amend the Punjab Village Common Lands (Regulation) Act, 1961.” D

7Copy pinpoint7. Customary Law by Sir W.H. Rattigan (Sixteenth Edition revised by Dr. Hari Dev Kohli) was first published in the year 1880. It is a celebrated reference book, which explained the origin of Shamilat law in Punjab in Chapter X of the book that the land is the true basis of unity in villages, supplying the ultimate real bond of union between the members E who constitute the aggregate proprietary body generally called the “village community”. It was elaborated as under:- “That land is the true basis of unity in village groupings, supplying the ultimate real bond of union between the members who constitute the aggregate proprietary body generally called the F “village community”, is a fact which may be verified by the most superficial observer of the organization which underlies those communities in the Punjab. Thus, whatever may be the type to which a particular village may belong, and to whatever extent individualistic notions of property may have superseded the earlier ideas of jointness and common holdings, there will be found still G surviving very distinct evidence of the fact that in its origin the village association was bound together by the acquisition of a definite space of land, which, as Sir Henry Maine has so abundantly demonstrated, began at once to become the basis of its capacity instead of kinship, ever more and more vaguely conceived. This H

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A evidence is to be found in the reservation within the territorial limits of every village of some portions of the uncultivated waste for purposes of common pasture, for assemblies of the people, for the tethering of the village cattle, and for the possible extension of the village dwellings. Lands so reserved are jealously guarded as the common property of the original body of settlers who founded the village or of their descendants, and occasionally also those who assisted the settlers in clearing the waste and bringing it under cultivation are recognised as having a share in these reserved plots. xxxx xxxx and Finally, a modified and consolidated Punjab Village Common Land Regulation Act, 1961 came in the statute book which vests the village common land in the Gram Panchayats without putting any constraints on the rights of the village folks to use the village common land. It is only the ownership which is vested in the Gram Panchayats along with its management and power of alienation and thus superseding the village proprietary body….” D

8Copy pinpoint8. The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 19486 was enacted to provide for compulsory consolidation of agricultural holdings and for preventing their fragmentation. The expression “common purpose” defined under Section 2(bb) to mean “any purpose in relation to any common need, convenience or benefit of village” was inserted by Punjab Act No. 22 of 1954 with retrospective effect. The scope of such expression came up for consideration before the Full Bench of Punjab and Haryana High Court in a judgment reported as Munsha Singh & Ors. v. The State of Punjab & Ors.7. It was held that the individual proprietors of the land were not left with even a single right which may be included among the attributes of ownership and that it was a case of total expropriation of the right- holders. The Full Bench held that neither the language of the preamble, nor that of section 18(c) could be extended so as to include within its ambit wider programme, with a view to bring about social equality by taking away from individual proprietors their lands and giving them to non-proprietors, or handing them over to the Panchayat for purposes of management for any ‘common purpose’. The amendment carried out was thus set aside. It was thereafter, the expression “common purpose” was amended by Punjab Act No. 27 of 1960. Such amendment was 6 For short, the ‘1948 Act’7 AIR 1960 P&H 317 (FB) 8 H AIR 1961 P&H 1

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 919 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

upheld by the Full Bench of Punjab High Court in a judgment reported as Kishan Singh & Anr. v. The State of Punjab & Ors.8.

9Copy pinpoint9. The correctness of the decision of Full Bench in Kishan Singh was doubted in view of the judgment reported as Kavalappara Kottarathil Kochuni v. States of Madras and Kerala9. The matter was considered by a larger Full Bench of five judges in a judgment reported as Jagat Singh & Ors. v. The State of Punjab & Ors.10 The question examined therein was as to whether it was permissible to keep aside land owned by private individuals for providing income to the Gram Panchayat. It was held that the 1948 Act was a measure designed to promote agrarian reforms and therefore, not ultra vires the Constitution. The judgment in Jagat Singh came up for consideration in Ranjit Singh C v. State of Punjab11 wherein the judgment of the High Court was not interfered with.

10Copy pinpoint10. In Ajit Singh v. State of Punjab12, an argument was raised before the Division Bench that the proprietor (land owner) was a small landholder within the meaning of the Punjab Security of Land Tenures D Act, 1953, and that, therefore, no part of his holding could be acquired without payment of compensation at the market value. The High Court dismissed the petition. Such judgment came up for consideration before a Constitution Bench of this Court in a judgment reported as Ajit Singh v. State of Punjab & Anr.13. The Court considered Rule 16(ii) of the E Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 194914 to hold that the title vests in the proprietary body, the management of the land is done on behalf of the proprietary body by the Panchayat for common needs and purposes and for the benefit of estate or estates concerned. Hence, the beneficiary of the modification of rights was not the State. F

11Copy pinpoint11. At this stage, it may be noted that a Full Bench of Punjab in a judgment reported as Jit Singh v. The State of Punjab & Ors.15, considered the Punjab Act No. 39 of 1963 amending the 1948 Act. It was held that reservation of land for income of the Gram Panchayat 9 AIR 1960 SC 1080 G 10 AIR 1962 P&H 221 (FB) 11 AIR 1965 SC 632 12 ILR (1966) 1 Punjab 828 13 AIR 1967 SC 856 14 1949 Rules 15 AIR 1964 P&H 419 (FB) H

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A under the 1948 Act and for extension of the abadi of the non-proprietors including Harijans, for Panchayat Ghar and for manure pits was valid, as covered by Article 31A(1)(a) of the Constitution. In Bhagat Ram & Ors. v. State of Punjab & Ors.16, the Constitution Bench of this Court held that reservation of land for the income of panchayat is not permissible, being hit by second proviso to Article 31A of the Constitution. B The question considered in the context of said clause (ii) of Section 2 (bb) was as to whether the reservation of land for income of the Panchayat was an acquisition of land by the State within the second proviso to Article 31A of the Constitution. It was held by the majority judgment that the said provision was hit by the second proviso to Article C 31A of the Constitution. The State was accordingly directed to modify the consolidation scheme and bring it into accord with the majority judgment. There is no dispute about the said proposition in the present appeals.

12Copy pinpoint12. In Atma Ram v. State of Punjab17, the constitutionality of the D Punjab Security of Land Tenure Act, 1953 as amended by Punjab Act No. 11 of 1955 was in question. The Constitution Bench examined Article 31A. It was held that in Punjab there are very few estates as defined in Section 3(1) of the Punjab Land Revenue Act, 1887 in the sense that one single landowner is seized and possessed of an entire estate which is equated with a whole village. In Punjab, an estate and a village are E inter-changeable terms, and almost all villages are owned in parcels, as holdings by co-sharers, most likely, descendants of the holder of a whole village which came to be divided amongst the co-sharers, as a result of devolution of interest. This Court also noticed that holdings in Punjab are vertical divisions of an estate whereas in Eastern India, they represent a F horizontal division. The writ petitions were dismissed holding that the provisions of Article 31A save the Act from any attack based on the provisions of Articles 14,19 and 31 of the Constitution.

13Copy pinpoint13. The Five Judges Full Bench in Suraj Bhan & Ors. v. State of Haryana & Anr.18 has given the historical background of the shamilat G deh lands in the State of Punjab, including the present-day State of Haryana. The history of shamilat law as delineated in the said judgment is quoted hereinunder for better understanding of the subject in the present 16 AIR 1967 SC 927 17 AIR 1959 SC 519 18 MANU/PH/3354/2016; (2017) 2 Punjab Law Reporter 605 H

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 921 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

appeals. The words commonly used in this judgment are not common in use, therefore, the Glossary of the words with their meaning is appended at the foot of this judgment.

14Copy pinpoint14. The shamilat deh lands in Punjab and Haryana are the common lands in the villages reserved and utilized for common purposes by inhabitants of the villages. These were kept as such at the time when the villages were formed or consolidated and the land was colonized. In many cases, land was contributed by the landowners or the village proprietary body from their own landholdings for common purposes. Villages were formed by cultivating the barren, uncultivated, waste, or fallow land, which are known as ‘banjar qadim’ or ‘banjar jadid’ (barren land since long or recent). The agricultural tribes which cultivated such land and made it cultivable were the original landowners. Agricultural land owned by a proprietor in his own right was a ‘holding’ of the land and was recorded as such in the revenue records as ‘khewat’ and the owners were known and recorded as ‘khewatdars’. A khewatdar or landowner may hold the entire khewat or have a share in it. The D khewatdars were collectively treated as owners of the land in a village (‘malkan deh’). The shamilat lands were enjoyed collectively by the khewatdars and also by the other inhabitants of the village. These rights find mention in the Village Land Administration Papers known as ‘Sharat Wajib-ul Arz’. E

15Copy pinpoint15. The proprietors of land in an estate had a right of ownership in the shamilat deh lands, mostly to the extent of the share of their holdings in the revenue estate. Various revenue terms were used for describing and indicating the extent of ownership rights and share of the proprietors. The non-proprietors including labourers, artisans, etc., as also those responsible for collecting the land revenue (‘mal guzars’) were entitled to the use of the common lands of the village i.e., shamilat deh lands.

16Copy pinpoint16. The shamilat lands are recorded in the revenue records by various nomenclatures such as shamilat deh, as also shamilat tikkas, besides shamilat tarrafs, pattis, pannas and tholas. The said lands are recorded as such in the revenue records for the common use of the inhabitants of the village or for the common use of a particular subdivided class of the village like ‘tikkas’, ‘tarrafs’, ‘pattis’, ‘pannas’ and ‘tholas’ etc. These types of lands, however, were not without ownership or proprietary rights of the owner or ‘khewatdar’. Such ownership was and had been collective in nature and not exclusive. The lands recorded H

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A and described with different aforementioned nomenclatures would vest accordingly in the ‘tarraf’, ‘patti’, ‘panna’ or ‘thola’ etc. which is in the form of a unit or a class in the village. The proprietary body of the village managed the day-to-day affairs of the inhabitants of the village and also generated income for common use and kept lands for common use for its inhabitants. B

17Copy pinpoint17. The British Government in India had undertaken the task of land settlements. The most important aspect of land settlement was to formulate a ‘record of rights’ commonly known as ‘fard’, which is a detailed register of land in the form in which they were believed to have been in existence at the time of annexation of Punjab by the British in

C 1849. These settlements were carried out by Settlement Officers whose duty was to prepare the ‘record of rights’. The records were prepared primarily for fiscal purposes; however, these assume a judicial character, specifically with reference to the proprietorship or ownership. The records prepared in the past during settlements play an important role in D determining the rights of owners and cultivators even as on date.

18Copy pinpoint18. The Punjab Settlement Manual by Sir James M. Douie, KCSI, ICS, 4th Edition, (3rd Reprint 2013)19 delineated the Development of Settlement Policy in Punjab, which then included the State of Haryana as well. In these settlements, various areas and regions of the States E were demarcated. The Punjab Land Revenue Act, 1887 was enacted and is now applicable in the States of Punjab and Haryana with modifications by the respective States. The Settlement Manual by Sir Douie makes a mention of the ‘village community’ as a body of proprietors who then or formerly owned part of the village lands in common, and who were jointly responsible for the payment of revenue.20 As time passed by, it has been mentioned that the tendency was for the area held in severalty to increase, but it was rare indeed to find a village which was one of the communal types in which there was no common property remaining. Joint responsibility had been made a permanent feature of village tenure by the British Government. Under the native rule, it did not exist when the State realized its dues by division of crops or by appraisement. Even when a cash assessment was made, only a few leading members of the community became responsible and they generally occupied the position of revenue farmers in their dealings with 19 For short, ‘Settlement Manual’ printed by the Controller of Printing & Stationery Department, Haryana, 2013. 20 H Para 126 of the Settlement Manual

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 923 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

the rest of the brotherhood. But joint responsibility occupied a far more A prominent position in the codes than in practice. There was reluctance of the village proprietary body to admit strangers. The admission of strangers into the brotherhood was always in theory at least, a thing to be guarded against, and village customs in the matter of inheritance and preemption were founded on this feeling.21 But under the native rule, the repugnance to admit strangers often yielded to the pressure of the B Government demand, and outsiders were allowed to share in rights that had become burdens. The almost complete freedom of transfer for long enjoyed in practice under the British Rule had a still more disintegrating effect on village communities.

19Copy pinpoint19. The Settlement Manual also makes a mention to the sub- C divisions of villages into ‘Pattis’ etc.22 It has been stated that villages often consisted of several divisions known by various names such as ‘tarraf’, ‘patti’ (where the term ‘tarraf’ is used for main divisions, the sub-divisions are sometimes called ‘pattis’) or ‘panna’ and these again sometimes divided into smaller sections like ‘thoks’, ‘thulas’ etc. The D lands of two ‘pattis’ may be separated (‘chakbat’ i.e., applicable to a ‘patti’ or sub-division of an estate which has all its land in one block) or intermixed (‘khetbat’ i.e., applicable to a ‘patti’ or subdivision of an estate, the land of which do not lie in a single block) and the proprietors of a ‘patti’ may have common lands of their own and also a share in the general village common land. E

20Copy pinpoint20. The Settlement Manual deals with the residents in the village community who were not proprietors.23 The village community of the communal type was to a considerable extent self-sufficing. The landowners included “a nearly complete establishment of occupations and trades for enabling them to continue to their collective life without F assistance from any person or body external to them.”24

21Copy pinpoint21. The constitutional validity of certain provisions of the Punjab Village Common Lands (Regulation) Act, 1953 25 came up for consideration before the Punjab and Haryana High Court in a judgment reported as Hukam Singh v. State of Punjab 26. The High Court G 21 Para 127 of the Settlement Manual 22 Para 128 of the Settlement Manual 23 Para 129 of the Settlement Manual 24 Maine’s Village Communities in the East and West, 5th Edition, Page 125. 25 Punjab Act 26 AIR 1955 P&H 220 H

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A examined Article 31(2) and Article 31A, keeping in view the fact that the Punjab Act was reserved for consideration of the President and had received his assent, it was held that the term “extinguishment” appearing in Article 31 of the Constitution does not mean total abolition of rights known to law. Further argument was that the Act does not provide for extinguishment or modification of any right in any estate, therefore, the shamilat deh in a village would not be an estate and the extinguishment or modification of any right in such part of an estate would not be covered by Article 31A of the Constitution. The Court held as under: “ …The argument is interesting but not in my opinion substantial. According to Mr. Tek Chand a law which provides for the total abolition of the rights of ownership of landed property, for instance, would be constitutional as it would, according to him, fall under Article 31-A, but if the right of ownership of a person or a group of persons is merely extinguished qua those persons and the same right is vested in some other person that would not fall within the D Article. I find it impossible to agree that the expression “extinguishment” has been used in Article 31-A of the Constitution in the special sense suggested by the learned counsel. It is significant that Article 31-A speaks of acquisition by the State of any estate or of any rights in an estate and then speaks of the extinguishment or modification of any rights in an estate and I can find no ground for thinking that if a person’s rights in an estate have been taken away from him and given to another person this would not be extinguishing those rights. In my opinion, therefore, the impugned Act does fall within the meaning of Article 31-A of the Constitution as it provides for the extinguishment of certain rights in certain property belonging to the village proprietors and also for the modification of those rights. …Once again, I am unable to agree. There are in an estate several kinds of rights owned by various persons and one of such rights is the right of proprietorship in the village shamilat and when, therefore, the impugned Act provides for the extinguishment of such ownership rights it clearly provides for the extinguishment or modification of certain rights in an estate. Mr. Tek Chand’s argument that a part of an estate is not an estate appears to have been raised before a Full Bench of this Court in connection with the validity of another statute and it was on that occasion repelled H

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 925 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

by the Full Bench. Khosla, J. who delivered the main judgment in that case, Bhagirath Ram Chand v. State of Punjab and others [ A.I.R. 1954 Punj. 167] , observed in connection with this argument— “It is clear that the whole includes the part and where an Act provides for rights in an estate it provides for rights in part of an estate.” We are, in my opinion, bound by the view of the Full Bench so clearly expressed in this respect.”

22Copy pinpoint22. In State of Haryana v. Karnal Co-op. Farmers’ Society Limited27, it was held that the Punjab Act and the Pepsu Village Common C Lands (Regulation) Act, 195428 are two legislative measures enacted by the respective States of Punjab and Pepsu to vest the common lands of villages in their Panchayats for the common benefit and advantage of the whole community of the village. It was held as under: “3. Villages in pre-independent rural India having village common or communal lands meant for use by the whole village community was their common redeeming feature, in that, the inhabitants of the villages whose occupation was predominantly agriculture dependent on their live-stock needed to give manure to their lands, to cart manure to their lands, to plough their lands to carry on several other incidental agricultural operations, required common lands for using as pasturages, pools, ponds, thrashing-floors, cowdung pits, hay stack areas, tethering areas and the like. Villages in the States of Punjab and Pepsu were of no exception. With the dawn of independence and rise in land value even in villages, powerful and greedy inhabitants in villages became grabbers of F Village common lands depriving their use to the village community. Some of the States which were enabled by the Constitution of India to organise village Panchayats as units of Self Government and encourage growth of agriculture and animal husbandry in villages by suitable legislative measures took prompt steps to G legislate on common lands of the village, so as to restore such lands for communal use and common benefit of all the inhabitants of the villages by vesting them in their respective Panchayats. 27 (1993) 2 SCC 363. 28 Pepsu Act (Patiala and East Punjab States Union). H

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A Punjab Village Common Lands (Regulation) Act, 1953 and Pepsu Village Common Lands (Regulation) Act, 1954 are two legislative measures enacted by the respective States of Punjab and Pepsu to vest the common lands of villages in their Panchayats for common benefit and advantage of the whole community of the village concerned. When under the States Reorganisation Act, B 1956 Pepsu State merged in Punjab State, the said Pepsu Act continued to operate in the area of erstwhile Pepsu. When the operation of two legislative measures in the new Punjab State, which were in some respects not common, was found to be undesirable, the State of Punjab enacted the Village Common C Lands (Regulation) Act, 1961 referred to by us already as ‘principal Act’ and made it operative in the whole territory of Punjab State, with effect from 4th day of May, 1961. By the principal Act the two earlier Acts which had covered the field till then were repealed, as well. The principal Act, as stated in its preamble, sought by its provisions to consolidate and amend the law regulating the rights D in village common lands popularly and colloquially known as ‘shamilat deh’ and ‘abadi-deh’. As ‘shamilat deh’ was not defined in the repealed Acts adverted to and there prevailed uncertainty as to its nature, the principal Act defined ‘shamilat deh’ in Section 2(g) thereof in an endeavour to achieve certainty, …..”

23Copy pinpoint23. The nature of shamilat deh lands or village common lands was examined by a Constitution Bench in Gram Panchayat of Village Jamalpur v. Malwinder Singh,29. It was observed that prior to the partition of India, shamilat deh lands in Punjab were owned by proprietors of other lands in the village, “Hasab Rasad Khewat”, that is to say, in the same proportion in which they owned other lands. Therefore, a person who did not own any land in the village could have no proprietary rights or interest in the shamilat deh lands. But since the interest of the proprietors of other lands in shamilat deh lands was incidental to their proprietary interests in those other lands, such interest in the shamilat was not a mere appendage to their interest in the other lands. A reference was made to Chapter X (Village Common Land) of Rattigan’s Digest, which is to the effect that within the territorial limits of every village, some portion of the uncultivated wastelands was reserved ‘for purposes of common pasture, assemblies of people, the tethering of the village cattle, and the possible extension of the village dwellings’. The lands so 29 H (1985) 3 SCC 661

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 927 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

reserved were zealously guarded as the common property of the original body of settlers who founded the village or their descendants, and occasionally also those who assisted the settlers in clearing the waste and bringing it under cultivation were recognized as having a share in these reserved plots. It was further noticed, ‘even in villages which have adopted separate ownership as to the cultivated area, some of such plots are usually reserved as village common, and in pattidar villages, it is not unusual to find certain portions of the waste reserved for the common use of the proprietors of each patti, and other portions for common village purposes. The former is designated as Shamlat-patti and the latter Shamlat deh’. It was said, ‘as a general rule, only proprietors of the village (malikan-deh) as distinguished from proprietors of their own holdings (malikan makbuza khud) are entitled to share in the “shamilat deh”’. This Court held that Punjab Act was a measure of agrarian reforms protected by Article 31A of the Constitution, holding as under: “12. The Punjab Act of 1953 was reserved for consideration of the President and received his assent on December 26, 1953. Prima facie, by reason of the assent of the President the Punjab Act would prevail in the State of Punjab over the Act of the Parliament and the Panchayats would be at liberty to deal with the Shamlat-deh lands according to the relevant Rules or Bye- laws governing the matter, including the evacuee interest therein. E But, there is a complication of some nicety arising out of the fact that the Punjab Act was reserved for the assent of the President, though for the specific and limited purpose of Articles 31 and 31A of the Constitution. Article 31, which was deleted by the Constitution (forty-fourth Amendment) Act, 1978 provided for compulsory acquisition of property. Clause (3) of that Article provided that, no law referred to in clause (2), made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent. Article 31-A confers protection upon laws falling within clauses (a) to (e) of that Article, provided that such laws, if made by a State Legislature, have received the assent of the President. Clause (a) of Article 31-A comprehends laws of agrarian reform. Since the Punjab Act of 1953 extinguished all private interests in Shamlat-deh lands and vested those lands in the Village H

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A Panchayats and since, the Act was a measure of agrarian reform, it was reserved for the consideration of the President………….”

24Copy pinpoint24. The shamilat land in terms of Section 4 of the 1961 Act vested in the Gram Panchayat of the village. The vesting of shamilat land in a village panchayat brought about a paradigm shift in the ownership of rights in ‘shamilat deh’. The proprietary rights of the proprietary body of the village in shamilat land were extinguished by a statutory declaration. The proprietary and possessory rights of proprietors and non-proprietors in shamilat deh were to henceforth vest in a Gram Panchayat and used for common purposes of the entire village community, under the aegis of the Gram Panchayat. The shamilat deh lands as defined under Section 2 (g) of the 1961 Act now vest completely, that is, with ownership and title, in the Panchayat of the village concerned. The vesting of the shamilat deh lands or the village common lands in the Panchayat has been for agrarian reforms and such vesting is protected by Article 31A of the Constitution.

25Copy pinpoint25. The other form of common land in the village is the land described as ‘jumla mustarka malkan wa digar haqdaran arzi hasab rasad raqba’,referring to joint holding of the proprietary body and other right holders as per the share in the land according to their holdings. These had come into effect with the enactment of the 1948 Act, which E was an act to provide for compulsory consolidation of agricultural holdings, preventing fragmentation of agricultural holdings and for assignment or reservation of land for common purposes in the villages.

26Copy pinpoint26. The ‘common purpose’ is defined in Section 2 (bb), Section 18 and Section 23A of the 1948 Act as follows: F “(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; 30[-]. [(ii) providing income for the Panchayat of the village concerned G for the benefit of the village community]. 31 [(iii) village roads and paths; village drains, village wells; ponds or tanks; village watercourses or water channels; village 30 The word “and” omitted by Punjab Act 39 of 1963 and shall be deemed always to have been omitted. H 31 Inserted by Punjab Act 39 of 1963.

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 929 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

bus stands and waiting places; manure pits; hada rori; public latrines; cremation and burial grounds, Panchayat Ghar; Janj Ghar; grazing grounds; tanning places; mela grounds; public places of religious or charitable nature; and (iv) schools and playgrounds, dispensaries, hospitals and institutions of like nature, water-works or tube-wells whether such schools, playgrounds, dispensaries, hospitals institutions, water-works or tube-wells may be managed and controlled by the State Government or not.]

18. Land reserved for common purposes. - Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the Consolidation Officer to direct - C (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 Shiwalik mountain range within the D [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. E 32 [23A Management and control of lands for common purposes to vest in Panchayats or State Government. – As soon as a scheme comes into force the management and control of all lands assigned or reserved for common purposes of the villages under Section 18, - F (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in the G Panchayat of that village; and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests 32 Substituted by Punjab Act 39 of 1963. H

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A of the owners of such lands shall stand modified and extinguished accordingly: Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors B and non-proprietors to whom it is given under the scheme of Consolidation.]”

27Copy pinpoint27. The consolidation operations are carried out in terms of the 1949 Rules. A consolidation scheme is prepared under Rule 4 and area for the common purpose is to be provided for under Rule 16(ii) of the C 1949 Rules, which reads as under: - “Rule 16(i) XX XX XX 16(ii) In an estate or estates where during Consolidation proceedings there is no Shamlat Deh land or such land is considered inadequate, “land shall be reserved for the village Panchayat and for other common purposes”, under section 18(c) of the Act, out of the common pool of the village 3 [at the scale given in the schedule to these rules]. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of the 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 records rights as (Jumla Malkan wa Digar Haqdarana 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 benefit of the estate or estates concerned.]”

28Copy pinpoint28. The two enactments – Punjab Act and the Pepsu Act referred to above were enacted with the assent of the President of India to meet the immediate requirement during the consolidation operations as the holding of proprietors to the extent of their share was being added to the share of the proprietors. Thereafter, the 1961 Act was enacted with the assent of the President of India to grant inclusive definition to shamilat deh. The Act as wasoriginally enacted reads as under: “2. In this Act, unless the context otherwise requires- H

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 931 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

xxx xxx xxx A (g) ‘shamilat deh’ includes- (1) lands described in the revenue records as shamilat deh excluding abadi deh; (2) shamilat tikkas; B (3) lands described in the revenue records as shamilat, tarafs, patties, pannas and tholas and used accordingly to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) lands used or reserved for the benefit of village community C including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or gorah deh; and (5) lands in any village described as banjar Qadim and used for common purposes of the village according to revenue records; D Provided that shamilat deh at least to the extent of twenty-five per centum of the total area of the village does not exist in the village; but does not include land which- (i) xxx xxx xxx E

3. (1) This Act shall apply, and before the commencement of this Act, the shamilat law shall be deemed always to have applied, to all lands which are shamilat deh as defined in clause (g) of section 2. (2) Notwithstanding anything contained in sub-section (1) or section F 4, where any land has vested in a panchayat under the shamilat law but such land has been excluded from shamilat deh as defined in clause (g) of section 2, all rights, title and interest of the Panchayat in such land shall, as from the commencement of this Act, cease and such rights, title and interest shall be revested in G the person or persons in whom they vested immediately before the commencement of the shamilat law and the panchayat shall deliver possession of such land to such person or persons: Provided that where a panchayat is unable to deliver possession of any such land on account of its having been sold or H

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A utilised for any of its purposes, the rights, title and interest of the panchayat in such land shall not so cease but the panchayat shall, notwithstanding anything contained in section 10, pay to the person or persons entitled to such land compensation to be determined in accordance with such principles and in such manner as may be prescribed. B

4. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land,- C (a) which is included in the shamilat deh of any village and which has not vested in a panchayat under the shamilat law shall, at the commencement of this Act, vest in a panchayat constituted for such village, and, where no such panchayat has been constituted for such village, vest the panchayat on such date as a panchayat having jurisdiction over that village is constituted; (b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non- proprietor, shall on the commencement of the shamilat law, be deemed to have been vested in such non-proprietor. (2) Any land which is vested in a panchayat under the shamilat law shall be deemed to have been vested in the panchayat under this Act. (3) Nothing contained in clause (a) of sub-section (1) and in sub- F section (2) shall affect or shall be deemed ever to have affected the- (i) existing rights, title or interest of persons who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as G Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqararidars; (ii) rights of persons in cultivating possession of shamilat deh for more than twelve years without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 933 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.

5. (1) All lands vested or deemed to have been vested in a Panchayat under this Act shall be utilized or disposed of by the Panchayat for the benefit of the inhabitants of the village concerned in the manner prescribed; B Provided that where two or more villages have a common Panchayat in the shamilat deh or each village shall be utilised and disposed of by the Panchayat for the benefit of the inhabitants of that village: Provided further that where there are two or more shamilat tikkas C in a village the shamilat tikka shall be utilised and disposed of by the panchayat for the benefit of the inhabitants of that tikka: Provided further that where the area of land in shamilat deh of any village so vested or deemed to have been vested in a Panchayat is in excess of twenty-five per cent of the total area of that village D (excluding abadi deh), then twenty-five per cent of such total area shall be left to the Panchayat and out of the remaining area of shamilat deh an area up to the extent of twenty-five per cent of such total area shall be utilized for the settlement of landless tenants and other tenants ejected or to be ejected of that village and the remaining area of shamilat deh, if any, shall be utilised for distribution to the small landowners of that village subject to the provisions relating to permissible area and permissible limit of the Punjab Security of Land Tenures Act, 1953, and the Pepsu Tenancy and Agricultural Lands Act, 1955, as the case may be by the Collector in consultation with the Panchayat in such manner as may be prescribed. xxx xxx xxx

11. Notwithstanding anything contained in the Punjab Pre-emption Act, 1913, no sale of land in shamilat deh made by a Panchayat G shall be pre-emptible and no decree of pre-emption in respect of any such sale shall be executed after the commencement of this Act.”

29Copy pinpoint29. The 1961 Act has undergone many changes in both States of Punjab and Haryana. In the present appeals, the 1961 Act as is applicable H

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A in the State of Haryana after reorganization of States w.e.f. 1.11.1966 is under consideration. The noticeable amendments carried out in the 1961 Act are by Haryana Act No. 18 of 1971, and Haryana Act No. 2 of 1981 enacted after the assent of the President of India on 31.1.1981. Sections 13C and 13D were inserted by such amendment which read thus: B “5 xxx xxx 33 [(5) Notwithstanding anything contained in this section, if in the opinion of the State Government, it is necessary to take over, to secure proper management for better utilization for the benefit of the inhabitants of the village concerned any shamilat deh the Government may by notification take over the management of such shamilat deh, for a period not exceeding twenty years.] 34 [13C. Finality of orders. – Save as otherwise expressly provided in this Act, every order made by the Assistant Collector of the first grade, the collector or the Commissioner shall be final and shall not be called in question in any manner in any court. 13D. Provisions of this Act to be over-riding. – The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any law, agreement, instrument, custom, usage, decree or order of any court or other authority”.]

30Copy pinpoint30. Some other amendments have been carried out during the pendency of these proceedings. Certain arguments have been addressed on the basis of such amendments as well. The said amendments read as thus: F “35[5A(1)(1) A panchayat may, gift, sell, exchange or lease the land in shamilat deh vested in it under this Act to such persons including members of Scheduled Castes and Backward Classes on such terms and conditions, as may be prescribed. 5B(1) Any transfer of land, gifted sold, exchanged or leased before G or after the commencement of this Act, made in contravention of the prescribed terms and conditions, shall be void and the gifted, sold, exchanged or leased land so transferred shall revert to, and revert in, the panchayat free from all encumbrances. 33 Added by Haryana Act 18 of 1971, Section 2 34 Added by Haryana Act No. 2 of 1981 H 35 Substitution of Section 5A and 5B by Act 8 of 2007 and thereafter by Act 23 of 2013

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 935 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

(2) The Government or any officer authorized by it may, either suo motu or on application made to him by a panchayat or an inhabitant of the village or the Block Development and Panchayat Officer, examine the record for the purpose of satisfying himself as to the legality or propriety of any sale, lease, gift, exchange, contract or agreement executed before or after commencement of this Act, if such sale, lease, gift, exchange, contract or agreement is found detrimental to the interest of the villagers and is no longer required in the interest of the panchayat, the Government may, after making such enquiry as it may deem fit, cancel the same and no separate proceedings under any law shall be required to cancel the sale, lease, gift or exchange. The panchayat shall be competent to take over the possession of such premises including the construction thereon. If any, for which no compensation shall be payable.]”

31Copy pinpoint31. It was thereafter, considering the respective arguments of the learned counsel for the parties, the Full Bench in Jai Singh II held as under: “22. The petitioners, in view of the stand now taken by the State join issues only with regard to unutilised lands, as according to them, the said lands shall also not fall within the ambit of shamlat deh as defined under Section 2(g)(1) of the Act of 1961 nor the management and control whereof can vest with the Gram Panchayat under the provisions of Sections 18, 23-A and Rule 16(2) of the Act of 1948. They further clearly and candidly plead and so urge in the Court that the petitioners are not claiming the lands which have been reserved under Section 2(bb) read with Sections 18, 23-A and Rule 16(2) of the Act of 1948 and the rules framed thereunder. In view of the limited controversy between the parties, as now exists, it appears, there shall be no need whatsoever, to test the constitutionality of clause (6) of Section 2(g) of the Act of 1961 and the explanation appended thereto on the anvil of either Article 31-A or Article 300-A of the Constitution G of India. We may, however, briefly state the pleadings of the parties on the issue limited to land, subject matter of legislative measure, being within or otherwise the ceiling limit of petitioner-proprietors. xxx xxx xxx H

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A 46. 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 the judgment, there is even slightest inkling that the scheme envisages only such lands which have been utilised. 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 utilised or not. xxx xxx xxx

49. 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 contributed 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 difference 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 pupose as per the scheme. xxx xxx xxx

62. In view of the discussion made above, we hold that:- H

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 937 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

(i) sub-section (6) of Section 2(g) of the Punjab Village Common A 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 Prevention of Fragmentation) Act, 1948; (ii) the un-amended provisions of the Act of 1961 and, in particular, B 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; C

(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 Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest 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 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 consolidations scheme, reserved for common purposes, whether utilised 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.”

32Copy pinpoint32. The Five Judge Bench in Suraj Bhan held that the observations in Jai Singh II and Vir Singh conferring right, title and ownership in respect of Jumla Mustarka Malkan lands on the Gram Panchayat would be improper and invalid. The Court held as under: “218. In view of the above discussion, the legal position that emerges is as follows:- xxx xxx H

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A (k) Any observation in Jai Singh’s case (supra) and Veer Singh’s case (supra) to the extent it is taken as conferring a right, title and ownership in respect of ‘Jumla Mushtarka Malkan’ lands on the Gram Panchayat would be improper and invalid notwithstanding Section 4 of the VCL Act 1961 in view of Section 2 (bb) and Section 23A of the Consolidation Act 1948; besides, Rule 16(ii) of B the Consolidation Rules 1949 and the judgment of the Five Judge Bench of Hon’ble the Supreme Court in Ajit Singh’s case (supra).”

33Copy pinpoint33. The above findings are subject matter of challenge by the State as well as by the proprietors. The State is aggrieved against finding no. (iii) of Jai Singh II and conclusion in para 218 (k) of Suraj Bhan, C whereas the proprietors are aggrieved against finding nos. (i) and (ii) of Jai Singh II.

34Copy pinpoint34. Mr. Pradeep Kant, learned Senior Advocate appearing for the State contended that the land reserved for common purposes in a Scheme under Section 18(c) read with section 23-A and Rule 16 (ii) of the 1949 Rules is for the present and future needs. If a particular piece of land so reserved for common purposes is not put to use as conceived in the Scheme, it does not mean the land would revest with the proprietors. There is no time limit within which the land reserved for common purposes is to be used. Therefore, once the land has been reserved for common purposes, the Panchayat can put it to use for common purposes at any point of time. It was contended that if the land is not put to common use, the Panchayat can lease out such land, such leasing out would not be for the income of the Panchayat but for optimum utilization of land reserved for common purposes. It was also contended that if the land is reserved for a particular common purpose, it can be used for any other common purpose as well for the benefit of village community, including proprietors and non-proprietors.

35Copy pinpoint35. It was further contended that Section 2(g)(6) in 1961 Act is not a new provision but is only a clarificatory and declaratory amendment of the existing law. Shamilat Deh is the land owned by Gram Panchayat G to be used for common purposes under Section 2(g)(1) of 1961 Act before consolidation. This Court in a judgment reported as Sukhdev Singh v. Gram Sabha Bari khad36 held that land recorded in the revenue record as shamilat deh in the year 1914-15 could not detract from the nature of the land as it was merely recorded to be in possession of the 36 H (1977) 2 SCC 518

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 939 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

owners as per respective shares in khewat in a pre-consolidation shamilat land. The Court held as under: “2……………. Firstly, the entry in ‘jamabandi’ of 1914-15 which recorded that the land was in possession of the owners was quite innocuous, because it was made for the reason that it was in nobody else’s possession. The fact that even then it was recorded in the ‘Jamabandhi’ as “shamlat deh” shows that the particular character of the land was recognised even as far back as 1914- 15, and it could not detract from that nature of the land merely because it was further stated in the ‘jamabandi’ that it was in the possession of the owners “as per respective shares in khewat.” ………” C

36Copy pinpoint36. On the other hand, the Jumla Mustarka Malkan land is reserved for common purposes during consolidation. The reservation of land for common purposes after consolidation is not different from the shamilat deh land existing prior to the consolidation as both are reserved for common purposes. The two nomenclatures are on account of D difference of time as shamilat lands were carved out prior to commencement of shamilat law whereas JumlaMustarka Malkan lands were carved out after the commencement of shamilat law. Therefore, once land is reserved for common purposes, what was implicit in the definition of shamilat deh as defined in Section 2(g)(6) of 1961 E Act has been made explicit by virtue of the Amending Act. It was further contended that explanation of Section 2(g)(6) again uses the expressions used in Rule 16(ii) of the 1949 Rules. Hence, the amendment is not vesting of land reserved for common purposes during consolidation for the benefit of village community for the first time but is merely a clarificatory amendment. F

37Copy pinpoint37. Alternatively, it was argued that even if it was a new provision leading to acquisition of land, it was not a case of acquisition without compensation but acquisition with “Nil” compensation as the proprietors have been conferred right to use larger tract of common land in lieu of small portions deducted by applying pro-rata cut from their shares of G holding. Such ultimate use of land by the Panchayat confers benefit to the entire village community including proprietors and non-proprietors. Therefore, while introducing Section 2(g)(6), no compensation was required to be paid in cash as the benefit in lieu of compensation was already conferred to the proprietors in the consolidation scheme. H

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38Copy pinpoint38. Mr. Manoj Swarup, learned Senior Counsel appearing for the proprietors argued that the effect of the Amending Act is that the land stands vested with the Panchayat and, therefore, there is no embargo on the Panchayat to sell or alienate the land so vested. He draws support from Section 11 of the 1961 Act which curtails the right of pre-emption in respect of sale of land of the Panchayat. It was argued that the vesting of land with the Panchayat leads to conferment of all the rights and interests in the land so vested, therefore, the Panchayat is competent to sell the land which is not in tune with the judgment of this Court in Ajit Singh.

39Copy pinpoint39. Ms. Anubha Agarwal, counsel for the proprietors, submitted that the amendments carried out in the 1961 Act when Sections 13C and 13D were inserted not only grant finality to the order passed by the Authority under the Act but also give over-riding effect to any law, agreement, instrument, custom, usage, decree or order of any court or other authority. Therefore, the land, though at one point of time was earmarked for common purposes and the management and control vested with the Panchayat, but such provision will have preference over any other provisions of any other law including the 1948 Act. The provision read with Sections 5A and 5B of the 1961 Act inserted in the year 2007 shows that the Panchayat is exercising right, title and interest over the land vesting with the Panchayat in terms of the 1948 Act, though only vesting of control and Management to the Panchayat was upheld by this court in Ajit Singh. Such statutory intervention is illegal and in the teeth of the judgment of this Court in mentioned judgment.

40Copy pinpoint40. It was also argued on behalf of the proprietors that the 1948 Act does not contemplate divesting their ownership rights, but the vesting of land by the Amending Act read with Section 4 of 1961 Act divests the owners of their title over the land without compensation. Such action violates the mandate of Article 300A of the Constitution as the landowners are being deprived of land without authority of law i.e., adequate compensation in lieu of the land so acquired.

41Copy pinpoint41. Learned Counsel for some of the proprietors further argued that the land reserved for common purposes was in fact never used for such common purpose and that it has always been in possession of the proprietors of the village. Thus, the proprietors are the owners in possession of the land in question. The proprietors could thus not be deprived of their title, possession or propriety rights in any manner without

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 941 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

following the due process of law i.e., after payment of market value of such land.

42Copy pinpoint42. It was argued that the land reserved for common purposes during the consolidation which was more than the land specifically assigned for common purposes in the consolidation scheme was in fact a surplus land or a Bachat land. It was thus contended that the unutilized land i.e., Bachat land has to be revested with the proprietors as such land does not fall within the ambit of shamilat deh, nor the management and control of the same could vest with Gram Panchayat under the provisions of Sections 18, 23A and Rule 16(ii) of 1948 Act. It was hence argued that though the land has been reserved for common purposes in the consolidation scheme under the 1948 Act, but such land which is neither utilized nor reserved for any specific common purpose would revest with the proprietors.

43Copy pinpoint43. A reading of the aforementioned judgments and the history of the shamilat deh (common land) in the State of Punjab, including State of Haryana, shows that the common land for the purposes of the present appeals falling in Section 2(g)(1) and (6) of the 1961 Act as amended by the Amending Act can be broadly classified into three categories: (i) shamilet deh recorded in the ownership of the Gram Panchayat prior to consolidation which vests unequivocally with the commencement of the Punjab and PEPSU Act. E

(ii) land for common purposes reserved during the process of consolidation by applying pro-rata cut from the holdings of the proprietors, not necessarily falling within the permissible ceiling limits under the land ceiling laws. F (iii) common purposes land reserved by pro-rata cut within the permissible limits as per the land ceiling laws, the management and control of which vests with the panchayat.

44Copy pinpoint44. There is no dispute about the land falling in the first category as held by the High Court in Hukam Singh and subsequently affirmed G by this Court in Malwinder Singhas being part of the agrarian reforms.

45Copy pinpoint45. The 1948 Act is a pre-constitution law which has received the assent of Governor General of India on 07.12.1948 and published in East Punjab Government Gazette (Extraordinary) dated 14.12.1948. The two subsequent amendments in the 1948 Act by Punjab Act No. 27 of H

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A 1960 and Punjab Act No. 39 of 1963 were enacted and published after the assent of the President of India. Both the amendments were upheld by the High Court in Kishan Singh and Jagat Singh relating to Punjab Act No. 27 of 1960 and Jit Singh relating to Punjab Act No. 39 of 1963.

46Copy pinpoint46. The land falling in the second category was held to be a part of the agrarian reforms protected by Article 31A of the Constitution by the Full Bench of the Punjab and Haryana High Court in Kishan Singh and Jagat Singh. A reading of the judgment of the High Court in Jagat Singh shows that the challenge therein was to 20 acres of land for the purpose of income of Gram Panchayat.The High Court upheld the land carved out for income of the Gram Panchayat since the 1948 Act was found to be part of agrarian reforms as per its object. Though the members of the Bench gave different opinions, the conclusion was that the 1948 Act is an Act having object of agrarian reforms, protected by Article 31A(1) of the Constitution. The Civil Appeal No. 743 of 1963 in Ranjit Singh against such judgment was dismissed by the Constitution Bench D of this Court. The appeals before this Court were heard and closed for judgment on April 27, 1964 but before the judgment could be delivered, the Constitution (Seventeenth Amendment) Act, 1964, received the assent of the President on June 20, 1964. That amendment inter alia substituted retrospectively from January 26, 1950, a new sub-clause (a) in clause (2) of Article 31A and added a proviso to clause (1). The High Court E had decided the issues raised before it considering the Article 31A as it was then existing. The short point examined by this Court was, without referring to the Seventeenth Amendment, whether the transfer of shamilat deh owned by the proprietors to the village Panchayat for the purposes of management in the manner described above and the conferral F of proprietary rights on non-proprietors in respect of lands in abadi deh is illegal and if the several provisions of law allowing this to be done are ultra vires Article 31 inasmuch as no compensation is payable or whether the law and the action taken are protected by Article 31A? The appeals were dismissed with an observation that the question examined was the correctness of the decisions under appeal, particularly the Full Bench G decision in Jagat Singh,without expressing any opinion on the Seventeenth Amendment.

47Copy pinpoint47. As per the facts noticed by this Court, 270 kanals, 13 marlas of land in village Virk Kalan was given to village panchayat for management and realization of income, apart from some land reserved H

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 943 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

for abadi, manure pits, although the ownership was shown in the revenue A record as Shamilet Deh in the name of the proprietors. In village Sewana, 400 kanals and 4 marlas were set apart for the village panchayat for extension of the abadi and to grant 8 marlas of land to each family of non-proprietors and 6 kanals being reserved for a primary school and some more land for a phirni (Village Pathway around village). In village B Mehnd, the land was reserved for a school, tanning ground, hospital, cremation ground and for non-proprietors. The proprietors were not paid compensation for the lands. This Court noticed that Punjab Act was upheld by the High Court in Hukam Singh but observed that Article 31(2) of the Constitution would have rendered the Act as void but for the enactment of Article 31A. This Court also made reference to Punjab C Security of Land Tenures Act, 1953 providing for fixing the areas for self-cultivation and conferring rights on the tenants to purchase land under their cultivation from the landholders. Before this Court, the challenge was to the correctness of a decision in Jagat Singh as also validity of Punjab Act No. 27 of 1960 which was said to be in breach of D Article 19(1)(f) and Article 31 of the Constitution. Before the judgment could be delivered, 17th Amendment to the Constitution came into force and the judgment was delivered without considering the insertion of second proviso in Article 31A(1). This Court held that village panchayat is an authority for the purpose of Part III of the Constitution and it has the protection of Article 31A. Because of this character, even if the taking over of shamilat deh amounts to acquisition, the High Court was right in deciding as it did in this case. A reading of the judgment of Ranjit Singh would show that the land reserved for income of the panchayat in village Virk Kalan was not found to be unconstitutional, and further, the carving of shamilat deh and giving it to Gram Panchayat was found to be an act of agrarian reform, protected by Article 31A of the Constitution, even if it amounts to acquisition. This Court held as under: “12. From a review of these authorities it follows that when the Punjab High Court decided these cases on the authority of Jagat Singh’s case, the view taken in this Court was in favour of giving a large and liberal meaning to the terms ‘estate’’rights in an estate’ G and ‘extinguishment and modification’ of such rights in Article 31-A. No doubt Kochuni’s case, considered a bare transfer of the rights of the sthanee to the tarwad without alteration of the tenure and without any pretence of agrarian reform, as not one contemplated by Article 31-A however liberally construed. But H

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A that was a special case and we cannot apply it to cases where the general scheme of legislation is definitely agrarian reform and under its provisions something ancillary thereto in the interests of rural economy, has to be undertaken to give full effect to the reforms. In our judgment the High Court was right in not applying the strict rule in Kochuni’s case, to the facts here. B

13. The High Court was also right in its view that the proposed changes in the shamlat deh and abadi deh were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands. The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few, on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. 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. enure for the benefit of rural population and must be considered to be essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. Further, the village Panchayat is an authority for purposes of Part III as was conceded before us and it has the protection of Article 31-A because of this character even if the taking over of shamlat deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case.

14. With respect to abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc. etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages selfsufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceilings H

THE STATE OF HARYANA THROUGH SECRETARY TO GOVT. OF 945 HARYANA v. JAI SINGH & ORS. [HEMANT GUPTA, J.]

on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate. The four Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the Security of Tenure Act are a part of a general scheme of reforms and any modification of rights such as the present has the protection of Article 31-A. The High Court was thus right in its conclusion on this part of the case also.”

48Copy pinpoint48. Thus, the property was held to be acquired as a part of the agrarian reform under Article 31A and no compensation was payable as provided under Article 31. Therefore, the acquisition was complete in respect of the land reserved for common purposes by applying pro-rata cut on the land holdings of the proprietors. Further, it is pertinent to mention that the question of payment of compensation was specifically negated in Ranjit Singh. Therefore, the land stood vested with the Panchayat under the scheme in view of the said judgment of this Court. In the present appeals, there is no dispute that the land by applying pro- rata cut has not been reserved for the income of the panchayat. Thus, D we find that the land falling in second category i.e., land reserved for common purposes, not falling within the ceiling limit of the proprietor would vest with Panchayat. The Amending Act does not acquire land or deprive the proprietors of their ownership as such ownership stood already divested in view of consolidation scheme reserving land for common purposes. The Amending Act is only a clarificatory or a E declaratory amendment as the land stood vested in the panchayat on the strength of Ranjit Singh. Hence, Section 2(g)(6) read with Section 4 of the 1961 Act vests the land reserved for common purposes by applying pro-rata cut in the village Panchayat.

49Copy pinpoint49. The Amending Act was enacted and published after obtaining assent of the President of India, thus such Act is part of the agrarian reform. In the year 1992, when the Amending Act was enacted, Article 31 stood omitted by virtue of 44th Constitutional Amendment Act, 1978 with effect from 30.04.1979. Therefore, the provision of payment of compensation contemplated under Article 31(2) was not available on the day when the Amending Act was published. Article 300A was inserted by the same amendment i.e., 44 th Amendment with effect from 30.04.1979. Such Article contemplated that no person shall be deprived of his property save by the authority of law. Since the land was already vested with Gram Panchayat, therefore, there was no question of payment of compensation in the year 1992. H