STATE OF HARYANA Vs. HARI SINGH

JUDGEMENT

(1.) THE sole question that arises for determination in this letters patent appeal relates to the interpretation of the expression "prescribed" as used in Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, referred to hereinafter as the Rules, framed under the rule-making power conferred by Section 46 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter called the Act.

(2.) A scheme of consolidation of holdings for village Bahlba, Tehsil Gohana, District rohtak, was prepared by the consolidation authorities and an area measuring 3220 Kanals 4 Marlas was reserved for common purposes allegedly under Section 18 of the Act. Sixty-six right-holders filed a writ petition in this Court under articles 226 and 227 of the Constitution of India challenging the scheme and the attack was directed mainly on the ground that the said reservation was in contravention of Section 18 read with Rule 16 (ii ). These provisions have been reproduced by the learned Single Judge in his judgment but for facility of reference they may be quoted again in extenso:-Section 18.

(3.) IT is a common ground before us that a scale has been fixed by executive instructions issued by the State Government but not prescribed under the Rules. The contention on behalf of the State is that the word "prescribed" as used in Rule 16 (ii) must not be given the meaning as assigned to it by Section 2 (g) of the Act and all that is necessary under the rules is that some scale must be fixed. The contention, in other words, is that it could not be intended by the rule-making authority that every time a scale is to be fixed or changed, the rules be amended. We are afraid there is no substance in this contention. A meaning has been given to the word "prescribed" by the Act and if the same expression is used in the rules, it cannot be given a different meaning unless the context points to the contrary or it leads to any repugnancy. The State Government has the power to make rules under Section 46 (2) (e) is regard to the manner in which area is to be reserved under Section 18 and the matter of fixation of scale beyond doubt relates to the manner of such reservation. It could not possibly be intended that scales could be fixed by executive instructions when, as a matter of fact, the fixation of such scales is of great value and significance to the landowners in regard to reservation of land for common purposes. Executive instructions cannot take the place of rules and any interpretation permitting executive instructions to change the scales from time to time will be contrary to the scheme of the Act which provides for rules to be made for the manner in which an area is to be reserved for common purposes. Reference to Section 18 of the Punjab General Clauses Act is not out of place in this connection and it reads as under:-