TMI Blog1966 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, which provided for a declaration of the intention of the State Government to make a scheme for the consolidation of holdings in the estates. Section 14(2) of the Act provides for the appointment of a Consolidation Officer and the preparation of a scheme by him. One Gurkirpal Singh, purporting to act as the Consolidation Officer, prepared a draft scheme and published it on November 8, 1961, under section 19(1) of the Act. On January 6, 1962, or January 16, 1962, the scheme was confirmed by the Settlement Officer under section 20(3) of the Act. After the confirmation, the Consolidation Officer after obtaining the advice of the landowners of the estate carried out repartition under section 21(1) and the boundaries of the holdings as demarcated were published in the prescribed manner in the estate on February 21, 1962. It appears that the Punjab High Court granted a stay order and no further proceedings under the Art could be taken. No possession has been transferred pursuant to the re-partition. On May 11, 1962, a notification was published in the Gazette, purporting to appoint Shri Gurkirpal Singh as Consolidation Officer in respect of the estate Ropalon with effect from Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer he must be appointed as such. Before he is appointed he has no authority to exercise any of the functions of a Consolidation Officer. What he does purporting to act as a Consolidation Officer has no binding force on the owners and other persons affected in the estate. The Government cannot by appointing him retrospectively clothe him with authority retrospectively. This can be done only by the Legislature subject to the provisions of the Constitution. But the appellant cannot succeed on these grounds because the High Court, in its discretion, has held that the appellant is not entitled to rely on these objections because of laches. We cannot say that the discretion has been exercised wrongly. After the notification was published on May 11, 1962, appointing Gurkirpal Singh retrospectively with effect from November 4, 1961, it must have been clear to the appellant that Gurkirpal Singh had not been appointed Consolidation Officer before he started preparing consolidation proceedings. No adequate explanation has been given for the delay. Further it has not been shown that there has been any manifest injustice. Coming now to the third point raised by Mr. Iyengar, we may first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. (2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property . It would be noticed that art. 31A(1)(a) mentions four categories; first acquisition by the State of an estate; second, acquisition by the State of rights in an estate; third, the extinguishment of rights in an estate, and, fourthly, the modification of rights in an estate. These four categories are mentioned separately and are different. In the first two categories the State acquires either an estate or rights in an estate. In other words, there is a transference of an estate or the rights in an estate to the State. When there is a transference of an estate to the State, it could be said that all the rights of the holder of the estate have been extinguished. But if the result in the case of the extinguishment is the transference of all the rights in an estate to the State, it would properly fall within the expression acquisition by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. The Sholapur Spinning Weaving Co Ltd. ([1954] S.C.R. 674) Mahajan, J., observed at page 704 as follows The word 'acquisition' has quite a wide concept, meaning the procuring of property or the taking of it permanently or temporarily. It does not necessarily imply the acquisition of legal title by the State in the property taken possession of . He further observed at p. 705 I prefer to follow the view of the majority of the Court, because it seems to me that it is more in consonance with juridical principle that possession after all is nine-tenths of ownership, and once possession is taken away, practically everything is taken away, and that in construing the Constitution it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect . Bose J., observed at p. 734 as follows In my opinion, the possession and acquisition referred to in clause (2) mean the sort of 'possession' and 'acquisition' that amounts to 'deprivation' within the meaning of clause (1). No hard and fast rule can be laid down. Each case must depend on its own facts. But if there is substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviding income to the Panchayat. Therefore, in this case we are not concerned with the validity of acquisition for such a purpose. Rule 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, provides In an estate or estates where during consolidation 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 at a scale prescribed by Government from time to time. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of proprietors and non-proprietors) shall vest in the proprietary body of estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan wa Digar Haqdaran Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the panchayat shall have the right to utilise the income derived from the land so reserved for the common needs and benefits of the estate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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. In the context of the 2nd proviso, which is trying to preserve the rights of a person holding land under his personal cultivation, it is impossible to conceive that such adjustment of the rights of persons holding land under their personal cultivation in the interest of village economy was regarded as something to be compensated for in cash. In this view of the matter it is not necessary to deal with the fourth point raised by the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot state that an order was passed and relies on the notification. No doubt a notification was issued by Harcharan Singh as late as May 3, 1962, appointing Gurkirpal Singh as Consolidation Officer with effect from November 4, 1961, but section 14(2) only speaks of appointment of a Consolidation Officer and does not lay down that it shall be by notification. In this respect it differs from some other sections such as section 20 of the Act under which Settlement Officers (Consolidation) are to be appointed by notification. It is true that the original order appointing Gurkirpal Singh was not produced but there is a presumption that he must have been so appointed because he would not act without a proper appointment. The notification which is produced would itself be redundant if an order appointing Gurkirpal Singh before he began to act as Consolidation Officer had, in fact, been passed. The only defect is that the original order is not available but as the petition was filed more than three years after the completion of the consolidation the objection can hardly be entertained in the face of the presumption under section 114 of the Indian Evidence Act. We would, therefore, not entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther land for such purpose. Section 46 of the Consolidation Act empowers the State Government to make rules for carrying out the purposes of the Act and in particular to provide for (e) the manner in which the area is to be reserved under section 18 and the manner in which it is to be dealt with and also the manner in which the village abadi is to be given to proprietors and non-proprietors (including scheduled castes, Sikh backward classes, artisans and labourers) on payment of compensation or otherwise; In furtherance of this power two rules have been framed which are numbered 16(i) and 16(ii). These rules provide for the reservation of the abadi for the proprietors as well as the non-proprietors and for reservation of land for the Gram Panchayat. On the present occasion we are concerned with sub-rule (ii), which was added on April 9, 1957 by the Punjab Government to the rules framed under the Act. It reads 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, under section 18(c) of the Act, out of the common pool of the villag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the State Government, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in the panchayat of that village; and the State Government or the Panchayat, as the case may be, shall 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 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 and non-proprietors to whom it is given under the scheme of consolidation . The preamble of the Consolidation Act was also amended suitably. All these amendments were with retrospective effect. The Punjab Gram Panchayat Act, 1953 (4 of 1953) has been passed to provide for better administration in the rural areas of the Punjab by Panchayats. By section 19 of the Panchayat Act various administrative duties are assigned to the panchayat which is to look after matters like sanitation, drainage, supply of water, burial and cremation grounds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of this case, because the shamlat deh is altered and more land is granted in the consolidation to the village Panchayat ostensibly for the purpose of construction of Panchayat Ghar and a school and for various other common purposes. No compensation is paid for the lands which have been taken away from the landholders even though they claim that their case is taken out of Arts. 31 and 31A and is covered by the second proviso to Art. 31-A(1) of the Constitution as framed by the Seventeenth Amendment. These articles were amended by the First, the Fourth and the Seventeenth Amendments, but reference is made here to the articles (omitting portions not relevant to our purpose) as they stand after the Seventeenth Amendment 31. (1) No person shall be deprived of his property save by authority of law. (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation for the property so acquired or requisitioned and either fixed the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in a proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue . The case of the appellant is that under the 2nd proviso to Art. 31-A(1), he is entitled to compensation because land under his personal cultivation is an estate, and land within the ceiling limit cannot be acquired without payment of compensation which is less than the market value of his land, notwithstanding any law enabling acquisition of land for the Panchayat. The State contends that no land has been acquired because all lands continue to be recorded in the names of the owners in proportion to the area originally held by them as provided by rule 16(ii) and the lands are to be used for the benefit of the proprietors. The appellant contends that this is acquisition all the same. A question thus arises what is meant by 'acquisition' and 'to acquire' in the second proviso ? To determine the correct meaning it is necessary to view Articles 31 and 31-A together. The State seeks to establish a contrast between acquisition and requisition and contends that acquisition means a total deprivation of the property for all time and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer of ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. This means that property shall not be considered to be compulsorily acquired or requisitioned unless the law provides for the transfer of the ownership or right to possession to the State or to a corporation owned or controlled by the State. The Gram Panchayat is a local authority and by virtue of the definition of State in Art. 12 stands included in that term. Therefore, a law providing for the transfer of ownership or right to possession to the Gram Panchayat is for the purposes of Art. 31-A(1) and (2), a law providing for the compulsory acquisition or requisitioning of the property. The contention of the State is that in Art. 31(2A) we get the clue to the meanings of the words acquisition and requisition and that the former indicates the transfer of ownership and the latter the transfer of the right to possession. It is, therefore, submitted that the transfer of the use of the land to Gram Panch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word acquisition used in the proviso must take its colour from the same word used earlier and not from the word as used in the earlier article in juxtaposition with the word requisition. The word must denote not only the acquisition of ownership, that is to say, the entire bundle of rights, but also acquisition of some rights particularly an acquisition which leaves the person an owner in name only. Article 31-A, it is submitted by the State, introduces two further concepts, viz., extinguishment of rights and modification of rights. In the case of extinguishment, if all the rights in the property are extinguished, the result would be nothing else than acquisition. For, no property can remain in suspense without the rights therein being vested in someone or the other. In this case the property goes to the Panchayat which is included in 'State'. In the case of modification of rights all the rights of ownership remain in the owner except that they would be modified by some statutory provisions. In such a case the conception either of acquisition or requisition may not apply. In the present case bits of properties are being taken from the lands belonging to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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