Ramaswami, J. - (1.) This appeal is brought, by certificate, from the judgment of the Punjab High Court dated November 8, l96O in Letters Patent Appeal No. 284 of 1956.
(2.) For the consolidation of land holdings in village Kheowara, a scheme was prepared by the Consolidation Officer under S. 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 (Act L of 1948) hereinafter called the 'Act' and the scheme was confirmed by the Settlement Officer acting under S. 20 of the Act. The scheme, among other things, provided that the owners of permanent ghers or enclosures will be permitted to retain them in their possession. One of the proprietors, Johrimal had made a gher in khasra No. 3942 and, under the scheme, this was to remain with him. Para 7 of the Scheme which was finalised under S. 20 of the Act provided as follows: "The existing houses and permanent enclosures shall be kept in the ownership and possession of those proprietors who were owners in possession prior to the consolidation and in addition if these persons so desire they shall he entitled to be given additional area upto one bigha for extension of the abadi. In the case of such persons of right-holders who have constructed houses or enclosures etc., within the Shamlat area they would keep them, in their possession but adjustment would be made out of their Khewat land......." Later on the Director of Consolidation, to whom the powers of the State Government under S. 42 of the Act had been delegated reconsidered this matter and ordered that this particular piece of land i.e., khasra No.3942 should be reserved for the extension of abadi for non-proprietors. The Director of Consolidation accordingly ordered that instead of being reserved for Johrimal, the plot should be kept for the non-proprietors and the Consolidation records should be changed to that extent. The order of the Director of Consolidation was dated March 8 1957. Aggrieved with this order, Johrimal applied to the High Court for grant of a writ under Art.226 of the Constitution. The petition was heard by Grover. J. who allowed the petition holding that the Director of Consolidation had no authority to make any order contrary to the scheme without amending the scheme itself, and all amendment of the scheme could be made only under S.36 of the Act and not under S. 42 of the Act. It was accordingly held that the order of the Director of Consolidation was ultra vires and must be quashed by grant of a writ the nature of certiorari. Against this order the Director of Consolidiation of Holdings appealed under Cl. 10 of the Letters Patent. The appeal was heard by a Full Bench which by its Judgment dated November 8, 1960, allowed the appeal and reversed the order of the learned Single Judge and ordered that the writ petition should be dismissed. The view taken by the majority of the Judges of the Full Bench was that the impugned order amounted to an alteration of the Consolidation scheme and the State Government had power under S. 42 of the Act as amended by the East Punjab Holdings (Consolidation and Prevention of Fragmentation) (Second Amendment and Validation) Act (Punjab Act 27 of 1960), to make any change in the Consolidation scheme subject to the requirements of that section. The present appeal is brought by Johrimal against the judgment of the Full Bench of the Punjab High Court.
(3.) The Act was passed to provide for the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of Punjab. Chapter III. of the Act deals with consolidation of holdings and it is provided by S. 14 that the Government may either suo motu, or on application made, declare its intention by notification to make a scheme for consolidation of holdings in an estate or estates or part thereof as may be specified. The Consolidation Officer is required to obtain the advice of the land owners and of the non-proprietors and of the Gram Panchayat and he is thereafter directed to prepare a Scheme for the consolidation of holdings. Section 15 requires the Consolidation Officer to provide for the payment of compensation to any owner who is allotted a holding of less market value than his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. Under S. l9, the Consolidation Officer shall cause to he published the draft scheme of consolidation, and within 30 days of such publication any person likely to be affected by such scheme may communicate in writing to the Consolidation Officer, any objection relating to it. The Consolidation Officer shall then consider the objections, if any and submit the scheme with such amendments as he may consider to be necessary together with his remarks on the objection to the Settlement Officer (Consolidation).The scheme as amended shall then be published. Section 20 provides that if no objections are received to the draft scheme, the Settlement Officer (Consolidation) shall confirm the scheme. If objections are received, then the Settlement Officer (Consolidation) may either confirm the scheme, with or without modifications, or refuse to confirm it. If the scheme is confirmed it should he published. Section 21 relates to repartition to be carried out by the Consolidation Officer in accordance with the scheme as confirmed under S. 20 and the boundaries of the holdings as demarcated are required to be shown on the shajra which shall be published in the prescribed manner the estate or estates concerned. Any person aggrieved by the repartition may file written objections before the Consolidation Officer who shall after hearing the appellant pass such order as he considers proper. An appeal is provided from the order of the Consolidation Officer to the Settlement Officer (Consolidation). A person aggrieved by the order of the Settlement Officer (Consolidation) may appeal to the State Government. Section 22 provides for the preparation of a new record-of-rights by the Consolidation Officer in accordance with the provisions contained in Ch. IV of the Punjab Land Revenue Act, 1887 for the area under consolidation, giving effect to the repartition. Section 23 deals with the rights to possession of new holdings. Section36 provides for the power to vary or revoke the scheme and reads as follows: "A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority, which confirms it subject to any order of the State Government that may be made in relation thereto and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act." Section 42 of the Act as it originally stood, was to the following effect: "The State Government may at any time for the purpose of satisfying itself as to the legalilty or propriety of any order passed by any officer under this Act call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit: Provided that no order shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration." Section 18 of the Act is important and provides as follows: "Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the Consolidation Officer to direct- (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) that any land under the bed of a stream or torrent flowing through or from the Siwalik mountain range within the State shall be assigned for any common purpose; (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 Act confers powers on 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 S. 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 Governmnent, by a notification, added Rule 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-proprietors under S. 18 (c) of the Act shall be reserved after scrutinizing the demand of proprietors desirous of building houses and of non-proprietors 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 Rule 16 (ii) which provided for reservation of lands for the Gram Panchayat. It read as follows: "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 S. 18 (c) of the Act, out of the common pool of the village at a scale prescribed by Governmnent 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 he 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." In Munsha Singh v State of Punjab, ILR (1960) 1 Punj 589. the Punjab High Court declared R. 16 (ii) as ultra vires. After the decision of that case the second amending Act (27 of 1960) was passed. It gave a legal cover to R. 16 (ii) by including in S. 2 of the Act the following: "2 (bb). 'Common purpose' means any purpose in relation to any common need, convenience or benefit of the village and includes 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, play grounds, dispensaries, hospitals, institutions-waterworks or tube-wells may be managed and controlled by the State Government or not." Section 2 of the amending Act ( Act 27 of l960) amended the preamble and read as follows: "Amendment of long title of East Punjab Act L of 1948-In the long title of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Principal Act) the words 'and for the assignment or reservation of land for common purposes of the village shall be,and shall be deemed always to have been added at the end." Section 4 added a new S. 23-A which was to the following effect: "Management and control of lands for common purposes to vest in Panchayats- 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 shall vest in the Panchayat of that village which shall also 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." Section 5 amended S. 42 of the Act and was to the following effect: "Amendment of S. 42 of East Punjab Act L of 1948.-In S. 42 of the Principal Act, for the words 'any order passed by any officer under this Act', the words 'any order passed, scheme prepared or confirmed or repartition made by any officer under this Act', and for the words 'no order shall be varied' the words 'no order, scheme or repartition shall be varied' shall be, and shall be deemed always to have been, substituted." Section 6 provides for vaildation and reads as follows: "Notwithstanding anything to the contrary contained in any judgment, decree or order of any Court,- (a) where in any scheme, made before the commencement of this Act, land has been reserved for the Panchayat of the village concerned for utilising the income thereof, or (b) where before such commencement the State Government or any authority to whom it has delegated its powers has passed an order under S.42 of the Principal Act revising or rescinding a scheme prepared or confirmed or repartition made by any officer under that Act, such reservation of land or such order, as the case may be, shall be deemed to be valid, and any such scheme or order shall not be questioned on the ground that such reservation of land could not be made or, as the case may be, that under S. 42 of the Principal Act, the State Government or such authority had no power to pass such order,";