JAIN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner challenged the provisions of Sections 2, 3 and 5(1) of the Punjab Village Common Lands (Regulations) Haryana Amendment Act, 1991 (Act No. 9 of 1992) hereinafter referred to as Act of 1992, as ultra vires of the Constitution of India.

(2.) Succinctly, the grounds of the challenge put forth by various counsel for the petitioners in the writ petitions run as under:- (i) There is no assent of the President of India for the Act of 1992; (ii) Under the East Punjab Consolidation of Holdings Act, 1948 (Hereinafter referred to as the 'Consolidation Act' lands were reserved for common purposes by imposing a proportional cut in the holdings of the proprietors from their lands within the ceiling limits and the management of such land vested in the Gram Panchayats or the State under the Consolidation Act. Now by virtue of the Act of 1992, title, interest, vests in the Gram Panchayat. It divests the petitioners of their proprietary rights i.e. title and interest, without any compensation either paid or provided for under the Act of 1992. Holding of land up to the ceiling limits has been rendered illusory. Thus, the Act of 1992 is ultra vires Art. 31A of the Constitution of India. (iii) Provisions of Act of 1992 are unjust unfair arbitrary, capricious and discriminatory as similar land i.e. lands not used for common purposes which had been partitioned were kept out of the purview of definition of Shamlat Deh. Resultantly, the Act of 1992 violates the mandate of Arts. 14, 16 and 19 of the Constitution of India. (iv) Explanation appended to Section 2(g)(6) of the Punjab Village Common Lands Act 1961 by the Act of 1992 read with Section 4 of the Act of 1961 cannot override the substantive provisions of the Act. (v) In view of the provisions of Section 13 of the Act of 1961; deletion of Section 13A of the Act of 1961 by the Act of 1992 has alluded the judicial review. (vi) No alternative remedy to the common law remedy is provided to the affected persons. An embargo has been imposed on getting the title cleared till proceedings for ejectment are initiated under Section 7 of the Act of 1992. (vii) Section 7 of the Act of 1992 does not authorise the authorities to decide the question of title. (viii) The right of appeal has been rendered illusory, non est, ineffective and irrational by imposing a condition of depositing the amount of penalty for entertainment of appeal. Recovery of penalty as arrears of land revenue and deposit of penalty before the appeal is entertained are two different concepts. (ix) Provisions for imposition of penalty retrospectively without providing guidelines as to the date from which it is to be reckoned and imposition of penalty without hearing the affected persons are arbitrary and violative of Arts. 14 and 20 of the Constitution of India. (x) Imprisonment for unauthorised occupation of the land for the period when it was not an offence as well as recovery of damages as penalty for the unauthorised occupation would amount to double jeopardy, apart from being retrospective punishment. Thus provisions providing for imprisonment and recovery of damages as penalty are violative of Art. 20 of the Constitution of India.

(3.) Contentions of the petitioners were refuted. It was contended on behalf of the State that President's assent to the Act is there. It was further contended that management of the lands reserved during consolidation vested either in the State or Gram Panchayats under Sections 18 and 23A of the Consolidation Act, though the title remained vested in the proprietors. No proprietors had a right to use the land under custom. It was in fact common lands as envisaged by the Act of 1961 even before the Act of 1992 came into force. Thus, the impugned provisions do not provide for acquisition of rights of the petitioners. The right of management and control already vesting in the Gram Panchayats or State is only modified by the Act of 1992. Proprietors had only an illusory title, which still continues with them. Proprietorship does not vest in Panchayats who are still not complete owners. There was no personal cultivation, therefore, neither there is any extinguishment of proprietors' right nor there is any acquisition under the impugned Act. Properietors were the beneficiaries of the lands under the Consolidation Act, the Act of 1961 and they still continue to be so under the impugned Act. A Panchayat can use the land only for the benefit of the villagers. The object of the Act is to provide for more effective management and control over the village common lands. Vires of the Consolidation Act under which the management vested in the Panchayats have been upheld.