TaxTMI 
TaxTMI 
1966 (12) TMI 70
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....ification was issued under section 14(1) of the Act, which provided for a declaration of the intention of the State Government to make a scheme for the consolidation of holdings in the estates. Section 14(2) of the Act provides for the appointment of a Consolidation Officer and the preparation of a scheme by him. One Gurkirpal Singh, purporting to act as the Consolidation Officer, prepared a draft scheme and published it on November 8, 1961, under 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 respec....
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....t seems to us clear that before a person can start acting as a Consolidation Officer he must be appointed as such. Before he is appointed he has no authority to exercise any of the functions of a 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....
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....en; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate. (2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a 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 ....
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.... ([1958] S.C.R. 1122). In these cases this Court had given a wide meaning to the word "acquisition". In Dwarkadas Shrinivas of Bombay 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 'deprivat....
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.... upon the rightholders on pro-rata basis. It does not appear that any land, apart from what was already owned by the Panchayat, was reserved for providing income to the Panchayat. Therefore, in this case we are not concerned with the validity of acquisition for such a purpose. Rule 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, provides "In an estate or estates where during consolidation 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 ....
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....s the real beneficiary ? Is it the Panchayat ? It is clear that the title remains in the proprietary body and in the revenue records the land would be shown as belonging to "all the owners and other right holders in proportion to their areas". The Panchayat will manage it on behalf of the proprietors and use it for common purposes; it cannot use it for any other purpose. The proprietors enjoy the benefits derived from the use of land for common purposes. It is true that the non-proprietors also derive benefit but their satisfaction and advancement enures in the end to the advantage of the proprietors in the form of a more efficient agricultural community. The Panchayat as such does not enjoy any benefit. On the facts of this case it seems to us that the beneficiary of the modification of rights is not the State, and therefore there is no acquisition by the State within the second proviso. 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 rega....
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....bvious that Gurkirpal Singh would not act as Consolidation Officer unless appointed to act as such by Harcharan Singh. The affidavit of the State does not 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 consolidat....
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....y area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose. Section 46 of the Consolidation Act empowers the State Government to make rules for carrying out the purposes of the Act and in particular to provide for "(e) the manner in which the area is to be reserved under section 18 and the manner in which it is to be dealt with and also the manner in 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 ....
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....urposes of the village under section 18 - (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be 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 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 Punja....
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....hayat which is to deal with the shamlat deh and to look after the social needs of a village, yet giving security to the tenants and allowing for consolidation of holdings, with a view to preventing fragmentation. The operation of these Acts is visible in the facts 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 authori....
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....t for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans; (b) the expression 'rights', in relation to any estate, shall include any rights vesting 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 i....
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....compensation or specifies the principles on which and the manner in which, the compensation is to be determined and given. The words of the article refer to acquisition and requisition of property. Clause 2(A), which was added by the Fourth Amendment, uses different phraseology. This clause says that where a law does not provide for the transfer 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 requisitionin....
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.... second proviso. It is that land under the personal cultivation of any estate holder of any kind which is within the ceiling limit applicable to such person, shall not be acquired, unless at least market value of the land is given as compensation. Such land can be acquired but only on compensation which is not less than the market value. The 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 '....