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2024 (5) TMI 1667
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....eby allowing the Civil Appeal No. 6990 of 2014 filed by the State of Haryana against the judgement and order passed by the Full Bench of the High Court of Punjab and Haryana at Chandigarh (hereinafter referred to as "Full Bench of the High Court") in Civil Writ Petition No. 5877 of 1992 dated 13th March 2003 2. The bare necessary facts giving rise to the present review petition are thus: 2.1 The State of Haryana, by way of Government Gazette Notification dated 11th February 1992 (hereinafter referred to as "Haryana Act No. 9 of 1992") inserted sub-clause (6) to Section 2(g) of the Haryana [For the word "Punjab" deemed to have been substituted w.e.f. 01.11.1966 vide Haryana Act No. 15 of 2021, the Haryana Short Titles Amendment Act 2021 dated 05.04.2021] Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as "the 1961 Act") along with an explanation to the said sub-clause which received the assent of the President on 14th January 1992. The sub-clause (6) to Section 2(g) of the 1961 Act reads thus: "2. In this Act, unless the context otherwise requires - XXX XXX XXX (g) "shamilat deh" includes- XXX XXX XXX (6) lands ....
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....s (Consolidation and Prevention of Fragmentation) Act, 1948. (ii) the un-amended provisions of the Act of 1961 and, in particular, 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; (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 Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession 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 cons....
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.... this Court in the case of Ajit Singh vs. State of Punjab & another [(1967) 2 SCR 143: AIR 1967 SC 856] (hereinafter referred to as "Ajit Singh"). 5. Shri Hooda submits that after considering the provisions of Section 23-A and Section 24 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as "the Consolidation Act"), this Court in Bhagat Ram has clearly held that, till possession has changed under Section 24, the management and control does not vest in the Panchayat under Section 23-A. It has also been held that the rights of the holders are not modified or extinguished till persons have changed possession and entered into the possession of the holdings allotted to them under the scheme. He therefore submits that the Full Bench of the High Court in the case of Jai Singh & others vs. State of Haryana [2003 SCC OnLine P&H 409] (hereinafter referred to as "Jai Singh Il') has correctly relying on Bhagat Ram held that the land which is reserved, but not earmarked for any common purpose, would not come under the purview of Section 2(g)(6) of the 1961 Act, as inserted by Haryana Act No. 9 of 1992. 6. Shri Hooda submits t....
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....the column of possession with the proprietors, also known as Bachat lands, would not vest in the Gram Panchayat or the State Government. Shri Hooda submits that based on such judgments, thousands of transactions have been entered into between the parties. It is submitted that, though invoking the doctrine of stare decisis was not necessary, this Court in the JUR has not even touched that aspect of the matter. All the judgments which have been holding the field for decades and thousands of transactions which have been entered into between the parties, have been set at naught at the stroke of a pen by the JUR. 9. Shri Hooda further submits that in view of the JUR, the rights of the parties which were crystalized by the judgments of the High Court and which was affirmed by this Court by judgment dated 27th August, 2001 [2001 SCC OnLine SC 1488 [State of Punjab vs. Gurjant Singh and others (CA Nos.5709-5714 of 2001 @ SLP(C) Nos.16173-16178 of 2000)] have also been adversely affected without such parties having been heard. He therefore submits that the JUR needs to be recalled and the appeals filed by the State deserve to be dismissed. 10. Per contra, Shri Pradeep Kant, learned Se....
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....icient reason. (iii) Any other sufficient reason. The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275] 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. ....
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....Section 2(g) of the 1961 Act and the explanation appended thereto is only an elucidation of the existing provisions of the said Act read with the provisions contained in the Consolidation Act. By clause (ii), it held that the unamended provisions of the 1961 Act and, in particular, Section 2(g)(1) read with Sections 17 and 23-A of the Consolidation Act and Rule 16(ii) of the Consolidation Rules 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. By clause (iv), the Full Bench of the High Court held that, all such lands in the consolidation scheme which were reserved for common purposes, whether utilized 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. 18. The grievance of the State was only with regard to clause (iii), wherein it has been held that the lands which had been contributed by the proprietors ....
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....reas, other portions had been reserved either for non-proprietors or for the common purposes of the villages. In the said case, in the village Virk Kalan, 270 kanals and 13 marlas had been given to the village Panchayat for management and realization of income, even though the ownership was still shown in village papers as Shamilat Deh in the names of the proprietors; 10 kanals and 3 marlas had been reserved for abadi to be distributed among persons entitled thereto, and 3 kanals and 7 marlas had been reserved for manure pits. Similarly, in village Sewana, certain lands were set apart for the village Panchayat for extension of the abadi and to enable grants of certain land to be made to each family of non- proprietors and certain lands had been reserved for a primary school and some more for a phirni. Similarly, in village Mehnd, land had been reserved for the village Panchayat, a school, tanning ground, hospital, cremation ground and for non- proprietors. The proprietors were not paid compensation for the lands and as such, taking away and allotment of the lands was the subject matter of challenge in those appeals in the said case. 24. The appeals before this Court were heard a....
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....Singh: "6. Coming now to the third point raised by Mr Iyenger, we may first mention that it was held by this Court in Ranjit Singh v. State of Punjab [(1965) 1 SCR 82] that the Act was protected from challenge by Article 31-A. It is necessary to set out the relevant constitutional provisions. The relevant portion of Article 31-A reads as under: "31-A. (1) Notwithstanding anything contained in Article 13, no law providing for- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights......... shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31: Provided that * * * Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standin....
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....nt is the transference of all the rights in an estate to the State, it would properly fall within the expression "acquisition by the State of an estate". Similarly, in the case of an acquisition by the State of a right in an estate it could also be said that the rights of the owner have been modified since one of the rights of the owner has been acquired. 8. It seems to us that there is this essential difference between "acquisition by the State" on the one hand and "modification or extinguishment of rights" on the other that in the first case the beneficiary is the State while in the latter case the beneficiary of the modification or the extinguishment is not the State. For example, suppose the State is the landlord of an estate and there is a lease of that property, and a law provides for the extinguishment of leases held in an estate. In sense would one it be an extinguishment of the rights of a lessee, but it would properly fall under the category of acquisition by the State because the beneficiary of the extinguishment would be the State. 9. Coming now to the second proviso to Article 31-A, it would be noticed that only one category is mentioned in the provis....
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....;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 substantial deprivation, then clause (2) is, in my judgment, attracted. By substantial deprivation I mean the sort of deprivation that substantially robs a man of those attributes of enjoyment which normally accompany rights to, or an interest in, property. The form is unessential. It is the substance that we must seek." 10. Let us now see whether the other part of the second proviso throws any light on this question. It would be noticed that it refers to ceiling limits. It is well known that under various laws dealing with land reforms, no person apart from certain exceptions can hold land beyond a ceiling fixed under the law. Secondly, the proviso says that not only the land exempted from acquisition should be within the ceiling limit but it also must be under personal cultivation. The underlying idea of this proviso seems to be that a person who is cultivating land personally, which is his source of livelihood, should not be deprived of that land under any law pr....
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....ll the rights of the holder of the estate have been extinguished. It further held that, 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 State of an estate". It further held that, in the case of an acquisition by the State of a right in an estate it could also be said that the rights of the owner have been modified since one of the rights of the owner has been acquired. 31. In paragraph 8, the Constitution Bench carved out the difference between "acquisition by the State" on the one hand and "modification or extinguishment of rights" on the other. It held that in the first case, the beneficiary is the State while in the latter case the beneficiary of the modification or the extinguishment is not the State. 32. In paragraph 9, this Court recorded that in the second proviso to Article 31-A, only one category is mentioned i.e., "acquisition by the State of an estate". It observed that the law must make a provision for the acquisition by the State of an estate. It went on to analyze the true meaning of the expression "acquisition by the State of an esta....
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....t 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 estates concerned." It will be noticed that the title still vests in the property body, the management of the land is done on behalf of the proprietary body, and the land is used for the common needs and benefits of the estate or estates concerned. In other words a fraction of each proprietor's land is taken and formed into a common pool so that the whole may be used for the common needs and benefits of the estate, mentioned above. The proprietors naturally would also share in the benefits along with others. 13. In Attar Singh v. State of U.P. [(1959) Supp 1 SCR 928 at p 938] Wanchoo J., speaking for the Co....
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.... the beneficiary of the modification of rights is not the State, and therefore there is no acquisition by the State within the second proviso. 15. 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." 36. In paragraph 12, after reproducing Rule 16(ii) of the Consolidation Rules, this Court observed that the title still vests in the proprietary body. However, the management of the land is done on behalf of the proprietary body, and the land is used for the common needs and benefits of the estate or estates concerned. It further held that a fraction of each proprietor's land is taken and formed into a common pool so that the whole area may be used for the common needs and benefits of the estate, mentioned above. It further held that the proprietors naturally would also share in the benefits along with others. 37. In paragraph 14, this Court held that it was clear that the title r....
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....n Bench of this Court is in the case of Bhagat Ram, which would be the most relevant for the present purpose. 43. It will be relevant to note that judgments in both Ajit Singh and Bhagat Ram were delivered on the very same day. 44. In the said case (i.e. Bhagat Ram), the Court was considering the question, as to whether the reservation of land for income of the Panchayat is acquisition of land by the State within the ambit of the second proviso to Article 31-A? 45. It will be relevant to refer to the following observations of the Constitution Bench of this Court in Bhagat Ram in the judgment delivered by Hon. S.M. Sikri, J (as his Lordship then was): "2. The first question that arises is whether the scheme insofar as it makes reservations of land for income of the Panchayat is hit by the second proviso to Article 31-A. The scheme reserves lands for phirni, paths, agricultural paths, manure pits, cremation grounds, etc., and also reserves an area of 100 kanals 2 marlas (standard kanals) for income of the Panchayat. We have already held in Ajit Singh case [(1967) 2 SCR 143] that acquisition for the common purposes such as phirnis, paths, etc., is not acquisition by ....
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.... the Panchayat, it would defeat the whole object of the second proviso. This Court held that 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. 47. The second argument which was advanced before this Court in Bhagat Ram was that acquisition had already taken place before the Constitution (Seventeenth Amendment) Act, 1964 came into force and therefore the scheme was not hit by the second proviso to Article 31-A. It was sought to be argued that the requirements as contemplated under Sections 23, 24 and 21(2) of the Consolidation Act were already complete and as such, the acquisition had already taken place before the Constitution (Seventeenth Amendment) Act, 1964. 48. It will be relevant to refer to the following observations of this Court in the majority judgment in Bhagat Ram while rejecting the aforesaid submissions: "4. It is clear from this affidavit that possession has not been transferred in pursuance of the repartition. The learned Counsel for the petitioners relies on this fact and says....
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....y the scheme to bring it into accord with the second proviso as interpreted by us, proceed according to law. There would be an order as to costs." 49. It can thus clearly be seen that the Constitution Bench of this Court in Bhagat Ram held that, upon reading of Sections 23-A and 24 of the Consolidation Act it was clear that, till possession has changed under Section 24, the management and control does not vest in the Panchayat under Section 23-A of the Consolidation Act. It further held that not only does the management and control not vest but the rights of the holders are not modified or extinguished till persons have changed possession and entered into the possession of the holdings allotted to them under the scheme. Though the counsel for the State tried to urge that, by virtue of repartition under Section 21, the rights to possession of the new holdings were finalized and could be enforced, this Court held that this cannot be equivalent to "acquisition" within the second proviso to Article 31-A of the Constitution of India. 50. The Full Bench of the High Court in the case of Jai Singh II has drawn a fine distinction between the land reserved for common purposes under Sec....
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....ership 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 purposes as per the scheme. We might have gone into this issue in all its details but in as much as the point in issue is not res-integra and in fact stands clinched by string of judicial pronouncements of this Court as well as Hon'ble Supreme Court, there is no necessity at all to interpret the provisions of the Act and the rules any further on this issue. The Hon'ble Supreme Court in Bhagat Ram and ors. Vs. State of Punjab and ors. AIR 1967 Supreme Court 927, dealt with reservation of certain area in the consolidation scheme for income of the Panchayat. Brief facts of the case aforesaid would reveal that a scheme made in respect of consolidation of village Dolike Sunderpur was questioned on the ground that in as much as it makes reservation of land for income of the Gram Panchayat, it is hit by second proviso to Article 31-A of the Constitution of India. The scheme in question reserved lands for phirni, paths, agricultural paths, manure pits, cremation grounds etc. and also reserved an area of 10....
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....sion and entered into the possession of the holdings allotted to them under the scheme. Construing this, the Full Bench of the High Court in Jai Singh II held that, if the land which has not been reserved for common purposes under the scheme and is Bachat or surplus land, i.e., the land which is still left out after providing the land under the scheme for common purposes; if it is to vest with the State or Gram Panchayat, the same would be nothing but compulsory acquisition of land within the ceiling limit of an individual without payment of compensation and would offend the second proviso to Article 31- A of the Constitution of India. 52. It can thus be seen that the judgment of the Full Bench of the High Court in Jai Singh II is based basically on the Constitution Bench judgment of this Court in the case of Bhagat Ram, which clearly held that, until possession has changed under Section 24, the management and control does not vest in the Panchayat under Section 23-A of the Consolidation Act. It further held that, not only does the management and control not vest but the rights of the holders are not modified or extinguished till persons have changed possession and entered into ....
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....tution Bench of this Court in paragraph 5 in Bhagat Ram. No law is required to state that a judgment of the Constitution Bench would be binding on the Benches of a lesser strength. Bhagat Ram has been decided by a strength of Five Learned Judges, this Court having a bench strength of two Learned Judges could not have ignored the law laid down by the Constitution Bench in paragraph 5 in Bhagat Ram. 58. We find that ignoring the law laid down by the Constitution Bench of this Court in Bhagat Ram and taking a view totally contrary to the same itself would amount to a material error, manifest on the face of the order. Ignoring the judgment of the Constitution Bench, in our view, would undermine its soundness. The review could have been allowed on this short ground alone. However, the matter does not rest at that. VI. CONSIDERATION OF THE JUDGMENT OF THE FULL BENCH OF THE HIGH COURT IN JAI SINGH II REFERRING ITS EARLIER JUDGMENT IN GURJANT SINGH AND SEVERAL OTHER JUDGMENTS 59. It will be relevant to refer to the following observations of the Full Bench of the High Court in Jai Singh II: "Division Bench of this Court, in which one of us (V.K. Bali, J.) was a member, aft....
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....ision for doing that. 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 they had no objection in deleting the aforesaid portions from the impugned judgment. We allow these appeals to be extent of deleting of the above said passage from the impugned judgment. These appeals are disposed of accordingly." 60. It is thus clear that the Full Bench of the High Court has referred to the judgment of the Division Bench of the said Court in the case of Gurjant Singh. 61. It is pertinent to note that in the case of Gurjant Singh, the Division Bench of the High Court had noted a series of judgments delivered by the said High Court relying on the law laid down by the Constitution Bench of this Court in Bhagat Ram. All these decisions had held that the land which remains unutilized after utilizing the land for the common purposes so provided under the consolidation scheme vests with the proprietors and not with the Gram Panchayat. It was further held that the ....