TaxTMI 
TaxTMI 
2003 (3) TMI 785
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.... Considering the matter to be involving important questions of law, likely to arise in large number of cases and involving large chunk of land, the Hon'ble Division, Bench, then seized of the matter, vide orders dated June 1, 1993, ordered the papers of the case to be placed before Hon'ble the Chief Justice for constituting a Full Bench for determination of vires of the Act and explanation, referred to above. Vide a detailed judgment dated January 18, 1995, Hon'ble Full Bench of this court, allowed the bunch of writ petitions, main judgment having been recorded in CWP No. 5877 of 1992 [Reported as Jai Singh v. State of Haryana ........ Editor]. Operative part of the judgment, dealing with vires of Sub-clause (6) of Section 2(f) and the explanation, appended thereto as also some other sections, which were under challenge, reads thus:- "(i) Section 2 of the Punjab Village Common Lands (Regulations) Haryana Amendment Act, 1992, Haryana Act No. 9 of 1992 vide which addition has been made to the definition contained in Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the principal Act) is ultra vires the Constitution o....
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....ertain essentials of Article 31-A of the Constitution of India were over-looked. Relevant part of Article 31-A was then reproduced and it was held:- "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 ceiling 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 31-A 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 o....
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....er demonstrate that the land is not shamlat deh, is further the strain of the pleadings:- "2(g) 'Shamlat Deh includes':- (1) land described in the revenue record as Shamlat deh excluding abadi deh; (2) Shamlat Tikkas. (3) Land described in the revenue records as shamlat, Tarafs, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of village, (4) lands used or reserved for the benefit of the village community including streets, lanes, play-grounds, school, drinking wells, or ponds within abadi deh or gora deh and. (4a) vacant land situated in abdi deh or gora deh not owned by any person - In Haryana only; (5) lands in any village described as banjar qadim and used for common purpose of the village according to revenue records. (Provided that shamlat deh at least to the extent of twenty five per centum of the total area of the village does not exist in the village; - in Haryana only) but does not include land which - i) becomes or has become shamlat deh due to river action or has been reserved as shamlat....
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....visions of the Act aforesaid, proviso to Sub-section (5) of Clause (g) of Section 2 of the Act of 1961, was omitted and after Sub-clause (5), following Sub-clause (6) has been inserted: - "2(g)(6) Lands reserved for the common purposes of a village under 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 vests in the Gram Panchayat under Section 23-A of the aforesaid Act. Explanation:- Lands entered in the column of ownership of record of rights as 'Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad', shall be shamlat deh within the meaning of this section". 10. It is the case of the petitioners that in view of insertion of Clause 2(g)(6) with explanation, as reproduced above, the lands entered in the column of ownership as 'Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad', 'Jumla Malkan' or 'Mushtarka Malkan' shall be shamlat deh within the meaning of this section. The explanation has, thus, widened the definition of 'shamlat deh'. It is further the case of petitioners that there is basic difference between th....
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.... d) such other documents as the Financial Commissioner may with the previous sanction of the State Government prescribe". 12. Under Section 33 of the said Act, the Collector shall cause to be prepared by the Patwari of each estate yearly or at such other intervals as the Financial Commissioner may prescribe, an addition of the records of rights amended in accordance with the provisions of this chapter. The said addition of record of rights shall be called the annual record for the estate and shall comprise of the statements mentioned in Sub-section (2), Clause (a) of Section 31 and such other documents, if any, as the Financial Commissioner may with the previous sanction of the State Government, prescribe. For the purpose of the preparation of annual records, the Collector shall cause to be kept by the Patwari of each estate, a register of mutations and such other registers as the Financial Commissioner may prescribe. Keeping in view the aforesaid mandatory provisions of the Land Revenue Act, it is further the case of petitioners that record of rights for every estate shall be prepared by the Collector and Patwari concerned for determining the ownership, rights and liabili....
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....and 18 the Act of 1948 and Rule 16(2) of the rules framed thereunder. If any person is or has been in possession of such lands, his possession, if any, is illegal, in the eyes of law and can not confer any right, title or interest at all upon such lands since their rights stood extinguished as per provisions of the Act of 1948. It is only to make management and control of the Grain Panchayat more effective that the amendment has been brought about which is nothing but a measure of agrarian reforms to make such management and control more effective. It is then pleaded that the question as to whether the land is covered under Section 18 of the Act of 1948 is a matter to be decided at lower level and the petitioners have no locus standi to invoke extra ordinary jurisdiction of this Court. 14. Petitioners filed replication to the written statement filed on behalf of the respondent-State and pleaded therein that the management and control of the land had never vested in Gram Panchayat under Section 23-A, 18 of the Act of 1948 and Rule 16(2) of the Rules frames thereunder and further that Act No. 9 of 1992 is not a measure of any agrarian reform in any manner. The land in question whi....
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.... petitioners are also claiming, right, title and possession of the land which had been reserved under Sections 23-A, 18 read with Rule 16(2) of the Act of 1948 but the same had not been utilised for common purposes and had remained unutilised being much more than the requirement for common purposes. The consolidation scheme of village Sadiqpur has been annexed with the replication as Annexure P-4. To make it more explicit, the petitioners have further pleaded that they are only claiming such lands as have now been mutated in favour of the Gram Panchayat by virtue of provisions of the Act No. 9 of 1992. The stand of the respondent-State that such lands vested in the State or Gram Panchayat by virtue of Section 23-A, 18 read with Rule 16(2) of the Act of 1948 has been refuted on the ground that if that was so, there was no necessity to mutate the lands as vesting in the Gram Panchayat by virtue of Act No. 9 of 1992. 15. This matter came up before us after remand on October, 24, 2002 when, after hearing arguments, matter was adjourned to October 25, 2002. On the adjourned date, i.e., October 25, 2002, learned Advocate General, Haryana sought adjournment to have further instructions....
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....f the Act of 1948 and the rules framed thereunder. The petitioners are claiming the lands which have not been utilised for any common purposes and which have been defined under Section 2(bb) of the Act of 1948. The petitioners further specifically state that the land which has not been "utilised does not fall within the ambit of shamlat deh as defined under Section 2(g) of the Act of 1961. The State Legislature enacted Act No. 9 of 1992 and by the operation of the said amendment, the lands entered in the revenue records of rights as 'Jumla Malkan Wa Digar Haqdaran Araji Hasab Rasad', 'Jumla Malkan or Mustarka Malkan' had been included in the definition of shamlat deh as envisaged under Section 2(g) of the Act of 1961 by way of adding explanation in Section 2(g)(6). In view of the aforesaid amendment, mutation No. 1711 dated May 18, 1992 was sanctioned in favour of the Gram Panchayat Sadiqpur by the Assistant Collector IInd Grade. The petitioners, who are owners in possession of the land in question have been divested of their ownership rights without paying compensation. It is then pleaded that the land in question was never reserved under Section 18 of the Act of 1....
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....orded as shamlat deh had already vested in Gram Panchayat not on account of Act No. 9 of 1992, rather by virtue of Act of 1961 and approximately 25% of total land re corded as Jumla Malkan Wa Digar Haqdaran Hasab Rasad Raqba, would vest with the Gram Panchayat by virtue of provisions contained in Sections 18, 23-A read with Rule 16(ii) of the said Act. It is then pleaded that Act No. 9 of 1992 has vested into "shamlat deh" only those lands which were reserved under Section 18(c) by the Consolidation Officer in consolidation scheme and no other lands. 20. On December 4, 2002, petitioners filed reply in the form of affidavit to the additional affidavit dated November 16, 2002 controverting the stand of the State that various particulars of land, as mentioned in the affidavit of Amit Jha, would be covered under the definition of shamlat deh, in view of the provisions contained in Section 2(g)(1) of the Act of 1961 and Sections 18, 23-A read with Rule 16(ii) of the Act of 1948. 21. Having taken into consideration the pleadings of the parties, as reflected in the petition, written statement, replication, additional affidavits filed on behalf of the respective parties and replies t....
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....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. 23. There are no averments pertaining to ceiling limit in the original pleadings, i.e., before remand by the Hon'ble Supreme Court. There is no mention with regard to lands, subject matter of legislative measure under challenge to be within or beyond the ceiling limits of each of the respective proprietors but in reply that came to be filed in opposition to the additional affidavit dated November 16, 2002 filed by Amit Jha, IAS, Joint Secretary, it has been averred that the land in question is within the ceiling limits, of the petitioners and other proprietors of the village, the same being neither surplus nor beyond their permissible limit under any law. The personal land holdings of the proprietors of the villages in the State of Haryana had already been determined for the purposes of surplus, firstly, at the time when the Act (referred to as the 'Act of 1953') came into operation and thereafter in the year 1971 when the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter called as the 'Act....
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....ndowner in the state of Punjab. Section 5-A enjoins upon every landowner and tenant, who owns or holds land in excess of the permissible area and where land is situated in more than one Patwari circle, to furnish within a period of six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act, 1957, a declaration supported by an affidavit in respect of the land owned or held by him in such form and manner and to such authority as may be prescribed. A landowner, who might have not exercised his right to reservation under the Act, could select his permissible area and intimate the selection to the prescribed authority within the period specified in Section 5-A and in such form and, manner as may be prescribed and intimate his selection alongwith declaration. If, however, he was to fail in making the selection of his permissible area, the prescribed authority was necessarily to select the parcel or parcels of land which such person might have been entitled under the provisions of the Act, after giving due opportunity to the landowner to be heard in the matter, as would be clear from the provisions of Section 5-B of the Act of 1953. A penalty for failure to fu....
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....ef reference whereof has been given in the preceding paragraphs, would manifest that the holding of each individual proprietor in the State of Haryana has been subject matter of determination of the permissible area with regard to land both, owned and held by him. Concededly, the land, subject matter of dispute, has been in possession of the proprietors and is, thus, owned and/or held by them. If the concerned proprietor had not made the declaration himself, the said exercise has been done by the Prescribed Authority constituted under the Acts aforesaid. In light of the pleadings as made by the petitioners, to which there is no rebuttal whatsoever, as also in view of the various provisions of the two Acts aforesaid, learned Advocate General, Haryana, was unable to urge and indeed did not even touch this issue, In fact, no endeavour at all was made by him to show that the land, subject matter of legislative measure, under challenge, would be beyond the permissible limits of any of the petitioners/proprietors. However, as mentioned above, since the controversy, as culled out above, is in a very narrow compass and has nothing at all to do with the land in dispute being within or beyon....
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....hich remained unutilised and was contributed by the proprietors on the basis of pro-rata cut imposed on their holdings during consolidation proceedings. As against this, the stand of the State, as reflected in the additional affidavit of Amt Jha, Joint Secretary to Government of Haryana, Development and Panchayats Departments that without disputing the entries as recorded in the record of rights and as pleaded by the petitioners, even such lands shall be shamilar deh in terms of Clause (1) of Section 2(g) and would, thus, vest in the Gram Panchayat. As mentioned above, some effort has been made to take up different parcels of land and then to show that the same would vest with the Gram Panchayat. It is, however, significant to mention- here that the assertion made by the petitioners that there was pro-rata cut of their holdings and it is out of the land contributed by the petitioners themselves that a common pool of land for common purpose was formed, has not been denied. The scheme prepared during the consolidation proceedings has also not been denied. There is further no rebuttal to the averments made in the petition that the land in question is the one which became surplus after....
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.... 43/26 45/26 49/28 2-6 0-6 12. Public Latrine 42/27 33/23 32/19 6-2 1-4 13. Primary School and Play Ground 41/13/214-17 18-19/1 26-11 21-8 14. Grave Yard general 85 8-16 0-11 15. Grave Yard for Harijan 86 8-0 0-10 16. Kanrisatan 84 JO-10 2-14 17. Panchayat Cihar 41/26 1-19 1-7 18. Charand As shown in the list 19. Dharmshala and Maudir Chamaran 32/22 within Phirini 1-0 1-0 20. Balmikiyan Dharamshala 32/14 within phirini 1-0 1-0 21. Area Gram Panchayat As per list 22. Baithak Mavisiyan 32/26 42/26 8-14 1-1 23. Matarani 33/27 1-10 0-12 24. Basanti Mata 33/28 2-15 0-14 25. Mandir Gugamari 26. furbat Shahnoor 49/29 0-5 0-2 27. Area for Barajats proprietors with in and out of Phirini 18-10 18-10 28. Maxinre Pits Proprietors and non proprietors 14-0 14-0 29. Area for path at the time of repartition. - 100-0 ....
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.... the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of Punjab, as Section 1 dealing with title, extent and commencement of the Act would reveal. Even though, the object was to provide for compulsory consolidation, yet when the provision with regard to carving out common pool from the proprietary land of the landowners was made, the Act and in particular, Rule 16(ii) of the Rules of 1949, came to be challenged primarily on two grounds, namely. Rule 16(ii) was beyond the scope of Act under which it was framed and, therefore, was completely unauthorised. On the second place, it was urged that the Act itself was ultra-vires the Constitution as it authorised the deprivation of property without payment of any compensation. The vires of the Act and Rule 16(ii) of the Rules of 1949 came for adjudication before a Full Bench of this Court in Kishan Singh v. State of Punjab 1960 62 P.L.R 840 . The Hon'ble Judges of the Full Bench allowed the petition on the first ground and held that the rule was beyond the scope of the Act inasmuch as Act 50 of 1948 was intended merely "to provide for the compulsory consolidati....
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....courses or water channels, village 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 play grounds, dispensaries, hospitals and institutions of like nature, water works or tubewells whether such schools play grounds, dispensaries, hospitals, institutions, water works or tubewells may be managed and controlled by the State Government or not". 36. Chapter III, dealing with consolidation of holdings, which, as mentioned above, is relevant for discussion on the issue in hand, starts with Section 14, which in turn, deals with declaration of intention of the Government of its own or on application to make scheme for consolidation of holdings. The same reads thus: "14. Government may of its own accord or on application declare its intention to make scheme for consolidation of holdings.- (1) With the object of consolidating holdings in any estates or group of estates or any part thereof for the group of estates or any part thereof for the purpose of better cultivation of lands ....
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....the management and control of all lands assigned or reserved for common purposes 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 tc 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)." 38. A combined reading of Sections 14, 18 and 23-A of the Act of 1948 would reveal no definite parameters for providing the land meant for common purposes in the scheme that is ....
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.... confirmed under Section 20 and shall prepare the following repartition papers:- (i) a map of village showing all the existing field numbers, recognized roads, and irrigation channels and areas assigned for public purposes, such as burial grounds, disposal of animal carcasses, ponds or grazing areas, etc., with new field numbers superimposed upon it in red lines or other marking; (ii) another similar village map exhibiting the position emerging as a result of repartition; (iii) a statement showing the names of the owners of holdings, with particulars of field numbers, shares, class of land, tenure, area assessment and encumbrances, if any, after getting the record of rights up-to-date; (iv) a statement showing the names of owners with particulars of all different rights possessed by each individual; (v) a statement showing the compensation payable by or to an owner in order to adjust differences in the value of land exchanged under Section 15 of the Act or due to the existence of wells trees etc., under Sub-section (4) of Section 17; (vi) a. statement showing the names of occupants or holders to whom the new consolidated holding....
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.... or if any written or oral objections are received by the settlement Officer, Consolidation before the confirmation of the draft scheme by him, the Settlement Officer (Consolidation) may after taking the objection into consideration together with the remarks thereon of the Consolidation Officer and also after considering the written or oral objections, either confirm the scheme with or without modifications, or refuse to confirm it. In case of such refusal, the Settlement Officer (Consolidation) shall return the draft scheme, with such direction as may be necessary, to the Consolidation Officer, for reconsideration and re-submission. (4) Upon the confirmation of the scheme under Sub-section (2) or (3). the scheme as confirmed shall be published in the prescribed manner in the estate or estates concerned. 21. Repartition.- (1) The Consolidation Officer shall, after obtaining the advice of the landowners of the estate or estates concerned, carry out repartition in accordance with the scheme of consolidation of holdings confirmed under Section 20, and the boundaries of the holdings as demarcated shall be shown on the shajra which shall be published in the prescribed ....
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.... the Punjab Land Revenue Act. 1887. 24. Coming into farce of scheme.- (1) As soon as the person entitled to possession of holdings under this Act have entered into possession of the holdings, respectively allotted to them the scheme shall be deemed to have come into force and the possession of the allottee affected by the scheme of consolidation, or as the case may be. by repartition, shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of Sub-sections (2), (3) and (4) of Section 21 or an order passed under Section 36 or 42 of this Act. (2) A Consolidation Officer shall be competent to exercise all or any of the powers of a Revenue Officer under the Punjab Land Revenue Act. 1887 (Act XVII of 1887). for purposes of compliance with the provisions of Sub-section (1)". 40. Section 23-A that stood substituted by Section 3 of the Punjab Act No. 39 of 1963. dealing with management and control of land for common purposes, reads thus:- "23A. Management and Control of lands for common purport's to veal in Panchayats or State Government.- As soon as a scheme comes into force the management and c....
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.... made in this behalf, may declare by notification and by publication, in the prescribed manner, in the estate or estates, its intention to make a scheme of consolidation of holdings. After the scheme is published, the State Government is to appoint Consolidation Officer in the estate, who has to after obtaining in the prescribed manner the advice of the landowners, non-proprietors and Gram Panchayat of the estates concerned, prepare scheme for consolidation of holdings. It may be true that Sub-section (1) of Section 14 deals with the scheme pertaining to consolidation of holdings and that the second object of the act, i.e., assignment of land for common, purposes, has not been specifically mentioned therein. Rule 5, however, specifically mentions that such scheme of consolidation shall contain a brief statement as to the action taken in pursuance of Section 17 and 18 of the Act. Sub-section (c) of Section 18 deals with lands reserved for common purposes, be it lands that were used for common purposes before introduction of Act of 1948 or so reserved or assigned after that. The scheme framed under Section 14 providing for the land meant for common purposes as reserved under Section ....
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....scheme. What we have said is fortified from Sub-rule (3) of Rule 5, by virtue of which alone a scheme of consolidation has to contain a brief statement as to action, if any, taken in pursuance of the scheme under Sections 17 and 18 of the Act. Section 23-A, other section pertaining to management and control of lands for common purposes, specifically refers to word 'scheme'. It is on coming into force of a scheme that management and control of all lands, assigned or reserved for common purposes, vests in the manner prescribed, under the aforesaid section. Repartition, which takes place after the scheme is prepared, also refers to the word 'scheme'. 44. The provisions of Rule 7 pertaining to repartition, which scheme comes into existence only when possession is taken on the dint of provisions of Section 24 of the Act, would further show that the Consolidation Officer shall prepare a map of the village showing all the existing field numbers, recognised roads and irrigation channels and areas assigned for public purposes, such as burial grounds, disposal of animal carcasses, ponds or grazing areas etc. with new field numbers superimposed upon it in red lines or other....
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....d 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 envisage 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, this, further fortify that reference is to land reserved or assigned for common use, whether utilised or not. 47. What we have observed above is perhaps best illustrated by the facts of the case in hand itself. The scheme, as pertains to the present case, as mentioned earlier, came into being by virtue of notification dated November 13, 1957 issued under Section 14(1) of the Act of 1948. Under item No. 4, details regarding the area, reserved for common purposes with Khasra numbers, measurement thereof in simple and standard kanals, have been given. It is further clear from reading of scheme Annexure R1/T(E) itself that the proprietors had contributed land on pro-rata ....
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....s, manure pits, cremation grounds etc. and also reserved an area of 100 kanals 2 marlas (standard kanals) for income of the Panchayat. It was held as under:- "The income derived by the Panchayat is in no way different from its any other income. It is true that Section 2(bb) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 defines 'common purpose' to include the following purposes. ".....providing income for the panchayat of the village concerned for the benefit of the village community". Therefore, the income can only be used for the benefit of the village community. But so is any other income of the Panchayat of a village to be used. The income is the income of the Panchayat and it would defeat the whole object of the second proviso if we were to give any other construction. The Consolidation Officer could easily defeat the object of the second proviso to Article 31-A by reserving for the income of the Panchayat a major portion of the land belonging to a person holding land within the ceiling limit. Therefore, in our opinion, reservation of 100 kanals 2 marlas for the income of the panchayat in the scheme is c....
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....b, in Civil Appeal Nos. 5709-5714 of 2001. Only, the general directions given in the judgment recorded in Gurjant Singh's case (supra) for distribution of land to the proprietors were set aside and that too on the concession of learned counsel, who represented the respondents in the case aforesaid. Order passed by the Hon'ble Supreme Court on August 27, 2001, reads thus:- "Leave granted. Mr. Harsh N. Salve, learned Solicitor General, submitted that the State of Punjab takes objection only in regard to the following observations made in the impugned judgment:- "This exercise, it appears, has not been done throughout the State of Punjab and Haryana and villages forming part of Union Territory, Chandigarh, even though there is a specific provision for doing that. xxxx This exercise be done as expeditiously as possible and preferably within six months proceedings for repartition must commence. Liberty to apply in the event of non-compliance of directions referred to above." Learned counsel for the respondent submits that he had no objection in deleting the aforesaid portions from the impugned judgment. We allow these appeals....
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....s. 15 has held that; "so far as the question is concerned about the reversal of the previous view of this Court, such reversal should be resorted to only in specified contingencies. It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience". In Maman Rao v. Union of India, it was observed by the Hon'ble Supreme Court that : "It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the deci....
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....der as he deems fit; Provided that no such appeal shall lie unless the amount of penalty, if any, imposed under Sub-section (2) of Section 7, is deposited with the Collector" 60. While challenging the proviso, reproduced above, learned counsel contends that the remedy of appeal against an order of eviction, that may be passed under Section 7 of the Act of 1961, has been made absolutely illusory inasmuch as same is incompetent till such time the penalty imposed under Section 7(2) is deposited. This argument has to be stated to be rejected inasmuch as the very filing of an appeal is creation of a statute and if no meaningful argument can be raised if the statute may not provide any appeal as such, the conditions attached in filing the appeal can not be successfully challenged. The Hon'ble Supreme Court in Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr., upheld the vires of Section 170(b) of the Delhi Municipal Corporation Act, 1957, dealing with the condition of deposit of tax amount as a condition precedent for hearing or determination of the appeal. A Full Bench of this Court in Emerald International Ltd v. The State of Punjab held that "the legisl....
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....nment, 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 consolidation 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. 63. Before we may part with this judgment, we would like to mention that the revenue authorities; totally unmindful of even the exiting law sans amendment under challenge, have changed, by way of mutation, ownership of lands in favour of the State or Gram Panchayat, as the case may be, irrespective of as to whether the said lands were used for common purposes as per consolidation scheme and so shown in the revenue records or the same were shown in the column of possession with proprietors, land having not been reserved in a scheme for common purposes, wherever the entries were Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi etc. To illustrate, we may mention th....
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.... The records of the case would clearly reveal that the land is not owned by the proprietors, having always been used for common purposes, as mentioned above". 64. Even though, therefore, land in the aforesaid case may have been shown in the column of ownership as if vesting with the proprietors, inasmuch as it was being used for common purposes, pursuant to a scheme prepared under the Act of 1948, it was held to be belonging to Gram Panchayat. For the kind of land, as mentioned above, it is too apparent that there was no, necessity at all to sanction mutation in favour of the Gram Panchayat and change the entries recorded in the column of ownership from proprietors to that of Gram Panchayat, Further, as mentioned above, irrespective of provisions contained in Rule 16(ii) that such lands shall be shown to be vesting in the proprietors, the fact remains that the proprietors are divested of their ownership on the basis of Section 23-A as also Section 3 of the Act of 1961 as also in view of the Full Bench decision of this Court in Kishan Singh's case (supra). 65. Coming now as to what relief can be given in the present bunch of cases, we may first mention that we had ask....