- (1.) IN order to decide the validity and constitutionality of the Punjab Consolidation of Land proceedings (Validation) Act, 1957, which has been referred for decision to the Full Bench it is unnecessary to restate the facts which have already been set out in the Referring Order. It would suffice to mention the three classes of properties which are likely to be affected by the Act- (a) Property of an evacuee which vests in the Custodian who has allotted it to displaced persons; (b) Property which was once evacuee property but has ceased to be so owing to acquisition by the Central Government under Act 44 of 1954; and (c) Properly once evacuee property which had been acquired but in which the title has now passed to displaced persons by conferment of proprietary rights under Act 44 of 1954.
(2.) THE first main question that requires consideration is whether the Punjab Legislature was competent to enact the impugned Act. According to the contentions canvassed by the parties this wilt require examination under 3 sub-heads : (i) Whether the impugned Act is legislation with respect to Item 18 of List II read with Items 27 and 41 of List III, Seventh Schedule (Constitution of India), or whether it falls under Entry 32 of list I of the Schedule? (ii) Can the Punjab Legislature by law extinguish As rights in favour of 15, or confiscate A's property and give it to B? (iii) Is the impugned Act a piece of colourable legislation?
(3.) THE contention raised on behalf of the owners and. allottees of the lands in question with regard to Sub-head (i) is this. Property mentioned as class (a) does not exist any more by virtue of the enactment of the Displaced Persons (Compensation and Rehabilitation) Act (Act 44 of 1954 ). Class (b) vests in the Central Government and only the Union Parliament can legislate with regard to it under Entry 32 of List I. As regards (c) the Union Parliament alone is competent to enact legislation. The learned Advocate-General on the other hand relies on Entry 18 of List II and on Entries 27 and 41 of List III, the assent of the President having been obtained. Entry 18 of list II is in the following terms : "land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. " It is submitted on behalf of owners and allottees with regard to property which has been allotted to displaced persons either under the Administration of Evacuee Property Act 1950 or Act 44 of 1954, that the allottees cannot be said to have any rights in or over land. Reliance is placed on a decision of the Supreme Court in Amar Singh v. Custodian Evacuee Property, (S) AIR 1957 SC 599 (B), where the position of quasi-permanent allottees vis-a-vis their legal rights was examined, it being held that the sum total of the various incidents of a quasi-permanent allotment did not in any sense constitute even qualified ownership of the land allotted. It is then said that the provisions of the impugned legislation could not be covered by Entry 27 of List III, which is as follows : "relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan. " It is pointed out that Section 3 of the Act validates all consolidation schemes published between 31-12-1951 and 1-1-1956 in respect of land of an evacuee and all subsequent proceedings taken in relation thereto and Section 4 deals with the extinguishment and modification of allottees' rights in an estate. These provisions do not relate to relief and rehabilitation of displaced persons provided for by Entry 27. The object and purpose of the Act is not rehabilitation but validation of consolidation proceedings taken between certain specified dates. It is argued that the matter cannot be covered by Entry 41 of List III as the impugned legislation docs not relate to the custody, management and disposal of property (including agricultural land)declared by law to be evacuee property. It is, firstly necessary to examine whether the provisions of the Act can be said to he covered by Entry 18 of List II. As regards the rights of the allottees on whom proprietary rights have not yet been conferred under Act 44 of 1954 (class a) it is true that they cannot be regarded to be "property" within the concept of that word so as to attract the protection of fundamental rights as has been held by the Supreme Court in AIR 1957 SC 599 (B ). Nevertheless, even their Lordships were of the view that the incidents of a quasi-permanent allotment constituted some kind of interest in land analogous to what is jus in re aliena in Roman law. It cannot, therefore, be said that the allottee has no rights in the land in the general sense as seems to be contemplated by the language of Entry 18 of List II. In Megh Raj v. Allah Rakhia, air 1947 PC 72 (C), while interpreting Item 21 of List II, Schedule VII, Government of India act 1935, the Privy Council held that the aforesaid item should on ordinary principles receive the widest construction, unless by some reason it was cut down either by terms of the item itself or by other parts of the Constitution which had to be read as a whole. The observations of Lord wright contained in para 16 are pertinent" 'land' the governing word is followed by the rest of the item which goes on to say 'that is to say', these words introduce the most general concept. . . . 'rights in or over land'. 'rights in land' must include general rights like full ownership or leasehold or all such, rights. " in United Provinces v. Atiqa Begum, AIR 1941 FC 16 (D), Item 21 came up for consideration and it was laid down that none of the items in the list were to he road in a narrow or restricted sense. Each general word should he held to extend to all ancillary or subsidiary matters which could fairly or reasonably be said to be comprehended in it. As has already been pointed out, the supreme Court in Amar Singh's case (B) considered that the right of the allottee was analogous to what is called jus in re aliena in Roman Law. That is certainly some kind of a right which may not be property in the strict sense of that word, but which can fall within the meaning of the words "rights in land" occurring in Item 18 of List II of our Constitution. Now the pith and substance of the impugned legislation is to validate consolidation proceedings taken with regard to lands between certain specified dates. In testing the validity of an enactment with reference to the entries or heads under which the legislation has been enacted the pith and substance rule has been accepted vide Prafulla Kumar v. Bank of Commerce, Khulna, AIR 1947 PC 60 (E), Lefroy's Canada's Federal System, P. 200, jennings' Constitutional Laws of Commonwealth at P. 200. In Amar Singhji v. State of rajasthan, (S) AIR 1955 SC 504 (F ). the Supreme Court held that the heads of legislation mentioned in the entries should receive liberal construction. In this view of the matter the Punjab legislature was competent to enact the impugned Act under Entry 18 of List II of the Seventh schedule (Constitution of India ). 3a. The contention that with regard to the property classified as (b) Entry 32 of List I would cover the impugned legislation seems to be without substance. Entry 32 is in the following terms : "32. Property of the Union and the revenue therefrom, but as regards property situated in a State specified in Part A or Part B of the First Schedule subject to legislation by the State, save in so far as Parliament by law otherwise provides. " It is said that as the Union Legislature has already provided with regard to the aforesaid property by Act 44 of 1954, it would not be open to the State Legislature to legislate in the same field. In the first place the rights of the Union Government in the properties in question are not affected by the impugned Act and it is only the rights of allottees of land or of transferees of proprietary rights that are touched. Secondly, the State Legislature is competent to legislate with regard to properties situate in the State unless Parliament by law expressly or by necessary implication provides to the contrary. There being no such provision the State Legislature would be perfectly competent to legislate under Entry 18 of List II.;