Hidayatullah, J. - (1.) This judgment will dispose of Civil Appeal No. 743 of 1963 and Civil Appeals Nos. 553 and 554 of 1962. The appellants in Civil Appeal No. 743 of 1963 are owners of lands in village Virk Kalan, Tehsil and District Bhatinda. The appellants in the other appeals are owners of lands in villages Sewana and Mehnd of Tehsil Hansi in District Hissar. Proceedings for the consolidation of holdings are going on in these villages under the East Punjab Holdings (Conservation and Prevention of Fragmentation) Act 1948 (Act 30 of 1948). This Act was amended on many occasions but we are concerned with it as amended by the East Punjab Holdings (Consolidation and Prevention of Fragmentation) (2nd Amendment and Validation) Act 1960 (27 of 1960). In the present consolidation proceedings portions of lands from those commonly owned by the appellants as proprietors, have been reserved for the village Panchayat and given over to it for diverse purposes, and other portions have been reserved either for non-proprietors or for the common purposes of the villages. Without going into too much detail it is sufficient to indicate that in village Virk Kalan 270 kanals and 13 marlas have been given to the village Panchayat for management and realisation of income, although the ownership is still shown in village papers as Shamlat Deh in the names of the proprietors and 10 kanals and 3 marlas have been reserved for abadi to be distributed among persons entitled thereto and 3 kanals and 7 marlas have-been reserved for manure pits. Similarly, in village Sewana 400 kanals and 4 marlas have been set apart for the village Panchayat for extension of the abadi and to enable grants of 8 marlas of land to be made to each family of non-proprietors and 16 kanals have been reserved for a primary school and some more for a phirni. Similarly, in village Mehnda, land has 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 it is the taking away and allotment of these lands which are the subject of challenge in these appeals on grounds about to be stated. Before, however, we do so we will set down some of the legislative measures which have relevance and mention some of the cases decided under them one of which led to the second amendment Act.
(2.) The Consolidation Act 50 of 1948 was passed to provide for the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings. S. 18 of the Act provided that notwithstanding anything contained in any law for the time being in force,it shall be lawful for any Consolidation Officer to direct: inter alia "(a) that any land specifically- assigned for any common purpose shall cease to be so assigned and to assign any other land in its place; (b) ********** (c) that if in any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose." Section 46 of the Consolidation Act conferred powers on the State Government to make rules for carrying out the purpose 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: "On March 3., 1956 the Punjab Government, by a notification, added R.16 to the Rules for reservation of the Abadi for the proprietors as well as the non-proprietors and it read as follows: "The area to be reserved for the common purpose of extension of abadi for proprietors and non-proprietores u/S.18(c) of the Act shall be reserved after scrutinizing the demand of proprietors desirous of building houses and of nonproprietors including Harijan families working as agrarian labourers who are in need of a site for house. The land reserved for extension of abadi shall be divided into plots of suitable sizes. For the plots allotted to proprietors area of equal value shall be deducted from their holdings but in the case of non-proprietors including Harijan families these shall be allotted without payment of compensation and they shall be deemed to be full owners of the plots allotted to them" On April 9,1957 the Punjab Government added R.16 (ii) which provided for reservation of lands for the Gram Panchayat:.It read: "16(ii) In an estate or estates where during consolidation proceedings there is no shamlat deh laid or such land is considered inadequate, land shall be reserved for the village Panchayat, under S. 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 the estate or estates concerned, and it shall be entered in the column of ownership of record of rights as (jumla malikan 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 utilize the income derived from the land so reserved for the common needs and benefits of the estate or estates concerned." Rule 16 (ii) was declared ultra vires on November 5, 1959 by the Punjab High Court in Munsha Singh vs. State of Punjab, ILR (1960) 1 Punj 589. After Munsha Singh's case, (supra) the second amending Act (27 of 1960) was passed. It gave legal cover to Rule 16(ii) by including in S. 2 of the Consolidation Act (50 of 1948) the following:- "2(bb) "Common purpose" means any purpose in relation to any common need, convenience or benefit of the Village and include the following purposes:- (i) extension of the village Abadi; (ii) provide income for the Panchayat of the village concerned for the benefit of the village community; (iii) village roads and paths; village drains; village wells, ponds or tanks; village watercourses 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 playgrounds, dispensaries, hospitals and institutions of like nature, waterworks or tube-wells, whether such schools, playgrounds, dispensaries , hospitals, institutions, waterworks or tube-wells may be managed and controlled by the State Government or not." It also added a new section (S.23-A) in the Consolidation Act as follows: "23A. As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under S. 18: (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of S. 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." It also amended the preamble suitably. All the amendments were with retrospective effect.
(3.) Before we follow up the result of this amendments we may say something about three other Act of the Punjab Legislature to which some reference will be necessary in the sequel. The Punjab Gram Panchayat Act, 1953 (4 of 1953) was passed to provide for better administration in the' rural areas of Punjab by Panchayats. Section 19 of the Panchayat Act laid multifarious administrative duties on the Panchayat like sanitation, drainage, supply of water, looking after burial and cremation grounds, public health, providing schools, hospitals etc, and also emphasized - "(f) pounds for animals; ********** (n) the development of agriculture and village industries, and the destruction of weeds and pests; (o) starting and maintaining a grain fund for the cultivators and lending them seed for sowing purposes on such conditions as the Gram Panchayat may approve. ********** (q) allotment of places for preparation and conservation of manure; ********** (t) framing and carrying out schemes for the improved methods of cultivation and management of land to increase production." The last was added in 1954. In the same year the legislature enacted the Punjab Village Common Lands (Regulation) Act 1953 (Act I of 1954) with the object of regulating the rights in shamlat deh and abadi deh. The provisions of the Common Lands Regulation Act resulted in the vesting of all rights of management in the shamlat deh in the village Panchayat and in the land in the abadi deh under a house owned by a non-proprietor in the non-proprietor (S. 3). S. 4 provided: "4. All lands vested in a panchayat by virtue of the provisions of this Act shall be utilised or disposed of by the Panchayat for the benefit of the inhabitants of the village concerned, in the manner prescribed." Section 6 provided: "6. Any income accruing from the use and occupation of the lands vested in a panchayat shall be credited to the panchayat fund and shall be utilised in the manner prescribed." Finally, Section 7, provided: "7. No person shall be entitled to any compensation for any loss suffered or alleged to have been suffered as a result of the coming into form of this Act." The Common Lands Regulation Act was challenged in Hukam Singh vs. State of Punjab, ILR (195) Punj 1334 but was upheld. The High Court, however, observed that Art. 31(2) would have rendered the Act void but for the enactment of Art. 31-A.;