MAHATAM SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) By this one order we propose to dispose of a bunch of 53 writ petitions challenging the vires of The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Act, 2007 (Punjab Act No. 6 of 2007) and the consequential instructions, orders and letters issued by the Authorities under The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.

(2.) CWP Nos. 15509 of 2007, 9161 of 2010, 18510 of 2007, 14342 of 2010, 13998 of 2010, 10826 of 2010, 19255 of 2007, 16542 of 2007, 3928 of 2008, 2073 of 2008, 4300 of 2008, 10190 of 2008, 868 of 2008, 4538 of 2008, 8116 of 2008, 21101 of 2008, 878 of 2008, 4402 of 2008, 15196 of 2008, 8117 of 2008, 4212 of 2009, 19544 of 2007, 14567, 4537, 14483 and 14961 of 2010, 2176 and 5826 of 2008 are cases where only the vires of The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Amendment Act, 2007 (hereinafter referred to as 'the Consolidation Act, 2007) (Punjab Act No. 6 of 2007) vide which Section 42-A stands inserted after Section 42 and before Section 43 in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as 'the Consolidation Act, 1948') have been challenged being illegal, arbitrary, unconstitutional and in colorable exercise of the powers by the State. In CWP Nos. 14481 of 2010, 15858 of 2010, 12307 of 2009, 15926 of 2010, 12322 of 2010, 19201 of 2008, 7110 of 2009, 11163 of 2009 and 11960 of 2009 apart from challenging the vires, challenge has been posed to instructions dated 14.11.2007 and letter dated 14.07.2009. In CWP Nos. 15689 of 2008, 840 of 2008, 5517 of 2008, 3492 of 2009, 18494 of 2010, 4547 of 2010, 13157 of 2008, 19265 of 2007, 7410 of 2008, 5947 of 2008, 4574 of 2010, 5166 of 2009, 8051 of 2008, 4659 of 2010, 5413 of 2008 and 16874 of 2007 not only the vires but challenge has also been made to the orders passed by the Director, Consolidation rejecting the claim of the Petitioners in the light of the amendment under challenge in these writ petitions.

(3.) It is the contention of the Petitioners that the above impugned Act, which came into force on 23.07.2007, is ultra vires to the Constitution being not protected under Article 31-A(i)(a) of the Constitution of India as the same is not agrarian and non-beneficial to the villagers as also the proprietors of the village. By this amendment, proprietary rights of the land owners in the village stand extinguished and it amounts to acquisition of land without paying any compensation. This is in violation of Article 31-A of the Constitution of India and contrary to the judgment of the Supreme Court in the case of Bhagat Ram v. State of Punjab and Ors., 1967 AIR(SC) 927. It takes away the fundamental rights enshrined under Articles 14, 19 and 21 and 31-A of the Constitution of India. Section 42-A as introduced by the amendment is in direct conflict with Section 42 of the Consolidation Act, 1948. The amendment, which has been brought about by the Consolidation Act, 2007, is an act of colorable exercise of power by the Executive through the Legislature so as to perpetuate the illegality committed during the consolidation operations as contemplated under Section 21 of the Consolidation Act, 1948 read with Rule 7 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as 'Consolidation Rules, 1949) was not given effect to and by this amendment, Section 21 has been virtually obliterated. The purpose as enumerated for bringing about the amendment in the Consolidation Act, 1948 is totally alien to the concept of the Parent Act as the scope of definition 'common purpose' as provided under Section 2(bb) has been enlarged thereby making it unlimited, unbridled, absolute and non-agrarian. Although the definition has not been amended but the intent is apparent from the objects and reasons spelt out for bringing about the amendment which amounts to colorable exercise of powers. The amendment has also been challenged on the ground that it nullifies the directions given by this Court in its judgment in the case of Gurjant Singh v. Commissioner Ferozepur Division,2000 2 PunLR 347 wherein the Court directed that the authorities under the Consolidation Act, 1948 should redistribute the Bachat land amongst the proprietors according to their shares throughout the States of Punjab, Haryana and villages forming part of Union Territory, Chandigarh, who had contributed their land for common purposes. This judgment was challenged before the Hon'ble Supreme Court by the State of Punjab wherein the objections only with regard to certain observations, where time was specified for completing this exercise was fixed, were raised. The same were deleted from the passage of the impugned judgment by the Supreme Court, rest of the directions issued by this Court were accepted by the State of Punjab and, therefore, by this impugned amendment, the effect of the directions has not only been nullified rather the same have been violated, which is not permissible in law. The amendment is so worded so as to make it retrospective in operation which has the effect of taking away the vested rights of the land owners. Even the rights created and settled by any judgment, decree, order or decision of any Court, authority or officer has been taken away, which is illegal and violates the principle of separation of powers as provided under the Constitution.