<NAME>, J.

1. Leave granted.

2. Heard.

3. This appeal impugns the judgment and order of <ORG> dismissing the writ petition filed by the appellants.

4. The appellants were the owners of land admeasuring approximately 29 bighas situated in Patti Baru, Baraut in Meerut district in the State of Uttar Pradesh. A notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act") in respect of the said land was issued on 29th July, 1986. The acquisition was proposed for the planned development and construction of the Mandi of <ORG>, Baraut. The notification stated that, in view of the urgency of the public purpose, Section 17(4) of the said Act was applied and the provisions of Section 5-A were dispensed with. On 24th October, 1986 the Section 6 declaration was issued which applied to the said land the provisions of Section 17(1) . It stated that the Collector of Meerut could, though no award under Section 11 had been made, on the expiration of fifteen days from the date of publication of the notice under Section 9(1) , take possession of the said land. The Section 9(1) notice was published on 2nd December, 1986. The appellants impugned the acquisition proceedings by filing a writ petition in <ORG> (being Writ Petition No. 1841 of 1986). The same was dismissed by a Division Bench on 19th January, 1987. The judgment upheld the acquisition proceedings. It found that there was urgency in the public purpose for which the said land was acquired and that <ORG> (the third respondent before us) had the means to construct the market yard and godowns. On 27th February, 1987 the possession of the land was taken by the first and second respondents from the appellants and handed over to the third respondent. A Special Leave Petition filed before this Court by the appellants against the aforementioned judgment and order of <ORG> was dismissed on 19th April, 1987.

5. On 13th January, 1989 the third respondent resolved to exclude from acquisition the land at Patti Baru, including the said land. The resolution stated that this was because of shortage of funds and because the proposed Mandi site was far away from Baraut.

6. On 10th August, 1989 the appellants filed the writ petition whereon the impugned judgment and order was made. The writ petition prayed that the respondents, namely, the State of Uttar Pradesh (the first respondents), the Collector, Meerut, (the second respondent) and <ORG> (the third respondent) be directed by a writ of mandamus to make and publish an award in respect of the said land.

7. On 27th June, 1990 the Special Land Acquisition Officer, Meerut wrote to the third respondent recording that compensation for the purpose of making an award in respect of the lands at Baru Patti had been claimed from the third respondent but that the third respondent had not made the monies available. As a result, after adjusting the time taken in the writ proceedings before <ORG>, the period of two years had expired on 18th January, 1989. There was a clear order of the first respondent that in case the award was not declared within two years from the date of publication of the notification under Section 6 the acquisition proceedings would lapse.

8. On 8th February, 1991 the writ petition was dismissed by <ORG>. <ORG> noted that it was the appellants' own case that more than two years had elapsed since the date of issue of the notification under Section 4 . In view of this and by reason of the provisions of Section 11A , the entire proceedings for acquisition of the said land had lapsed. <ORG> noted that counsel on behalf of the appellants had relied upon the fact that even in the absence of an award possession of the said land had been taken. <ORG> held that by the mere fact that possession had been taken in pursuance of Section 17(1) , the necessity of giving an award, as mandated by Section 11A , within a period of two years from the date of publication of the notification under Section 4 could not be dispensed with.

9. Learned Counsel for the appellants submitted that upon the taking of possession of the said land under the provisions of Section 17(1) the land vested absolutely in the first respondent and the first respondent had become its owner. It had been held by this Court that where possession had been taken the <ORG> was not at liberty to withdraw from the acquisition either under the provisions of Section 48 or by utilising the provisions of the General Clauses Act . Section 11-A had to be interpreted harmoniously with the other provisions of the said Act and could not apply where the proceedings for acquisition of the land had already come to an end by reason of the land having vested in the <ORG>.

10. Learned Counsel for the first and second respondents fairly stated that an award would be made within such time as the court considered reasonable.

11. Learned Counsel for the third respondent supported the reasoning of the judgment under appeal. He also submitted that the requirements of Section 17(3A) , namely, the tender of 80 per cent of the estimated compensation for the said land not having been complied with, the taking of possession of the said land from the appellants was illegal and there was, therefore, no vesting thereof in the first respondent. He submitted that for being kept out of possession of the said land the payment of compensation to the appellants under Section 5 would adequately recompense them.

12. Section 4 of the said Act requires the publication of a notification that it appears to the appropriate <ORG> that certain land is needed or is likely to be needed for a public purpose. Thereupon an officer authorised by the <ORG> may enter upon the land to survey it and do all other acts necessary to ascertain whether the land is suitable for the public purpose. Section 5 requires the payment of estimated compensation to the owner for damage done in entering upon the land and doing such acts as are necessary to ascertain whether it can be used for the public purpose. Under the provisions of Section 5-A any person interested in the land may raise objections to the proposed acquisition. Upon considering the report of the Collector who hears such objections, if the <ORG> is satisfied that the land is needed for the public purpose, a declaration to that effect shall be made under the provisions of Section 6 . Section 9(1) contemplates the issue of a notice that the <ORG> intends to take possession of the land and it must invite claims for compensation for all interests in the land. The Collector must inquire into the claims under the provisions of Section 11 and make an award of compensation in favour of the persons found interested in the land. Section 16 states that the Collector may, after he has made an award under Section 11 , "take possession of the land which shall thereupon vest absolutely in the <ORG> free form all encumbrances." Section 11-A was inserted in the said Act by Act 68 of 1984 and it reads thus:

11-A. Period within which an award shall be made. The Collector shall made an award under Section 11 within a period of two years from the dale of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse :

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act , 1984, the award shall be made within a period of two years from such commencement.

The provisions of Section 48(1) may also be noted. It states that "the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

13. Section 17 provides from cases where there is urgency. The relevant provisions for our purposes read thus :

17. Special powers in cases of urgency - (1) In cases of urgency, whenever the appropriate <ORG> so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 , Sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

(3-A) Before taking possession of any land under Sub-section (1) or Sub-section (2), the Collector shall, without prejudice to the provisions of Sub-section (3),.

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto,

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31 , Sub-section (2), and where the Collector is so prevented, the provisions of Section 31 , Sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section, (3-B) The amount paid or deposited under Sub-section (3-A) shall be taken into account for determining the amount of compensation required to be tendered under Section 31 , and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section 11 , the excess may, unless refunded within three months from the date of the Collector's award, be recovered as an arrear of land revenue.

(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4 , Sub-section (1).

14. There are two judgments of this Court which we must note. <CITATION> . , it was held that <ORG> could not withdraw from acquisition under Section 48 once it had taken possession of the land. <CITATION> , it was held that "after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the <ORG> and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State <ORG> to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1) , the land vests in the <ORG>. There is no provision by which land statutorily vested in the <ORG> reverts to the original owner by mere cancellation of the notification."

15. Ordinarily, the <ORG> can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11 . Upon the taking of possession the land vests in the <ORG> that is to say, the owner of the land loses to the <ORG> the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of Section 6 declaration. In the ordinary case, therefore, when <ORG> fails to make an award within two years of the declaration under Section 6 , the land has still not vested in the <ORG> and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A , lapse. When Section 17(1) is applied by reason of urgency, <ORG> takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the <ORG>. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisition under Section 17 because the lands have already vested in the <ORG> and there is no provision in the said Act by which land statutorily vested in the <ORG> can revert to the owner.

16. Further, Section 17 (3-A) postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated compensation for the land before the <ORG> takes possession of it under Section 17(1) . Section 11-A cannot be so construed as to leave the <ORG> holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation.

17. In the instant case, even that 80 per cent of the estimated compensation was not paid to the appellants although Section 17 (3-A) required that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the Ist respondent. It is, at any rate, not open to the third respondent, who, as the letter of the Special Land Acquisition Officer dated 27th June, 1990 shows, failed to make the necessary monies available and who has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has not vested in the first respondent and the first respondent is under no obligation to make an award.

18. There is no merit whatsoever in the submission that compensation can be awarded to the appellants under Section 5 . Section 5 postulates payment of compensation for damage done to land during the course of surveying it and doing all other acts necessary to ascertain whether it is capable of being adapted for a public purpose. Section 5 has no applicable to the instance case.

19. In the result, the appeal is allowed. The judgment and order under appeal is set aside. The Rule is made absolute and the first and second respondents are directed by a writ of mandamus to make and publish an award in respect of the said land within twelve weeks from today.

20. The third respondent shall pay to the appellants the costs of the appeal quantified in the sum of Rs. 10,000.


JUDGMENT <NAME>, J.

1. This case was referred to a larger.Bench in pursuance o£ my order dated March 18, 1963 and the question which arises for determination is whether the trial Magistrate could pass an order for summoning the petitioners as accused persona even though the police challaned some other persons and not the petitioners.

2. The facts of the case are given in my referring order and are briefly as follows: --

3. <NAME> made a report at police station Butana on December 10, 1961 that he and his son <NAME> had been attacked by six persons, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, while <NAME> and his son were on the way to the police station as a result of which they received a number of injuries some of which were grievous. The police after investigation challaned <NAME>, <NAME> and <NAME> under Sections 325 and 324 read with Section 34 of the Indian Penal Code. <NAME>, <NAME> and <NAME>, who are all brothers, were not challaned and their names were mentioned in column No. 2 of the challan. The Magistrate 1st Class <NAME>, in whose Court the challan had been filed, recorded the statements of <NAME> (P. W. 1) and his son <NAME> (P. W. 2) and they both supported the allegation that they had been attacked and given injuries by the six assailants including <NAME>, <NAME> and <NAME> petitioners. <NAME> (P. W. 3) and <NAME> (P.W. 4) were also examined as eye-witnesses and they corroborated the evidence of <NAME> and <NAME>.

Dr. <NAME> (P. W. 5) deposed with regard to the presence of eight injuries on the person of <NAME> and one injury on the person of <NAME> when he examined them on December, 9, 1961. An application was then filed by <NAME> before the learned Magistrate that <NAME>, <NAME> and <NAME> had also joined in the assault and they too should be proceeded against along with <NAME>, <NAME> and <NAME>. The learned Magistrate, after hearing the counsel for the parties, passed an order on June 25, 1962 to the effect that <NAME>, <NAME> and <NAME> be summoned as accused persons to stand trial along with other three accused for causing injuries to <NAME> and <NAME>. Revision petition against the aforesaid order was dismissed by learned Additional Sessions Judge, <NAME>. <NAME>, <NAME> and <NAME> thereupon came up in revision to this Court.

4. When the case came up for hearing before me on March 18, 1963 it was pointed out that there was some conflict of view. To ensure an authoritative pronouncement on the subject I then directed that the papers might be laid before my Lord, the Chief Justice, for decision of the point by a larger Bench.

5. We have heard Mr. <NAME> on behalf of the petitioners, Mr. <NAME> on behalf of the <NAME> and Mr. <NAME> on behalf of the complainant, and are of the view that the trial Magistrate could pass the impugned order and the same is not vitiated by any illegality. Sub-Section(1) of Section 190 of the Code of Criminal Procedure reads as under:

190. (1) Except as hereinafter provided any Presidency Magistrate, District Magistrate, or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf may take cognizance of any offence .

(a) upon receiving a complaint of facts which constitute such offence:

(b) upon a report in writing of such facts made by any police-officer.

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

Perusal of the above sub-section goes to show that when a Magistrate acts under any of the clauses of the above Sub-Section he takes cognizance of an offence. The expression "takes cognizance of an offence" cannot be equated to take cognizance of an offender and the normal rule is that when a Magistrate takes cognizance of an offence he takes cognizance of the case as a whole. As such he gets seized of the whole case and in the circumstances there appears to be no bar to his issuing process against all persons who appear to be involved in the offence. The contention that when a Magistrate takes cognizance under Clause (b) of the above Sub-Section upon a report made by a police-officer he is restricted to issuing process only to the persons challaned by the police is not warranted by the language of the sub-section. The matter has been dealt with on page 915 of Sohoni's Code of Criminal Procedure, 15th Edition, and the passage, which is based upon a number of authorities, reads as under:

Generally when a Magistrate has taken cognizance of an offence and proceeds with the trial of the case, it is his duty to proceed to deal with the evidence brought before him and to see that justice is done in regard to any person who might be proved by the evidence to be concerned in that offence. He is entitled to proceed against persons other than those against whom the complaint was filed if they appear to be involved in the offence. The ordinary rule is that when a Magistrate takes cognizance of an offence he takes cognizance of the case as a whole, and is empowered to summon all persons against whom there appears to be any reason for their prosecution even though their names are not mentioned for this purpose in the petition of complaint. But when he takes proceedings against other persons or in respect of offences not mentioned in the report if he is to be deemed as taking cognizance under Clause (c), then he must comply with the provisions of Section 191 and failure to do so would invalidate the conviction. It is to be noted that the expression "cognizance of an offence" in this Section is not equivalent of the cognizance of an offender, for the definition of complaint includes a complaint that some person unknown has committed an offence.

In a Full _Bench case <NAME> v. The Crown AIR 1924 Sind 71, a question similar to the one involved in the present case arose and it was ob- served by <NAME>, A. J. C., as under Now it is important to observe that under Section 190 , Criminal Procedure Code , a Magistrate takes cognizance of an offence and not of the offender and though the expression "to take cognizance" is not defined in the Code , it is as interpreted in the case of <CITATION> 37 Cal 412 as soon as a Magistrate applies his mind to the suspected commission of an offence" When therefore the police report in the present case under Section 173 . Criminal Procedure Code , was sent up to the Magistrate he took cognizance of the offence of theft of six buffaloes under Section 190 , Clause (b), and when he proceeded to deal with the evidence brought before him, it was certainly his duty to see that justice was done with regard to any other person that may be suspected of being concerned in the offence. The initiative was taken on the police report of the offence of theft and though the police may choose to place before the Magistrate for trial only one of the suspects, yet as the Magistrate was seized of the whole case as soon as he takes cognizance of it, he would be perfectly justified in issuing process against any other persons who he has reasons to believe, are implicated in the offence which he has taken cognizance of and his action against them would fall under Section 190 , Clause (b) and not under Clause (c).

The fact that the police in a report submitted under Section 173 have not mentioned all the parties concerned in an offence which have been sent up for inquiry does not debar a Magistrate from taking action against persons other than those mentioned in the police report and he would tail in the discharge of one of the principal functions of his office were he to abstain from doing so.

The above dictum was followed by <ORG> of Calcutta High Court in <CITATION> , .

6. Mr. <NAME> has relied upon an unreported case Oajjan Singh v. The State, Criminal Revn. No. 962 of 1961 decided by <NAME> on September 11, 1961 (Punj). In that case a report was lodged with the police against tour persons. The police after investigation challaned two of them and reported that no case has been proved against the other two. When the challan was presented in Court the trial Magistrate ordered that the two persons who had not been challaned should be summoned as accused in the case. Those two persons then came up in revision and it was held that the proceedings against the two persons who had not been challaned by the police were liable to be quashed. Perusal of the facts of that case goes to show that it was conceded that the trial Magistrate, who was a Magistrate of the First Class, did not enjoy special powers as envisaged in Sub-Section(1) of Section 190 of the Code of Criminal Procedure.

This concession was not well founded because reference to Sohoni's Code of Criminal Procedure, 15th Edition, page 920, goes to show that according to <ORG> notification of 1883, all Magistrates in the Punjab of the first and second class are invested with power to take cognizance of offences upon complaint and upon information, but not on their own knowledge or suspicion. Mention too is made of <ORG> notification of 1878, according to which Magistrates of the first class have also power, subject to the control of the District Magistrate, to entertain cases without complaint. There is also reference to the above notification of 1883 in <CITATION> , 20 Pun Re 1901 ( <CITATION> 7 Pun Re 1918 (Cri) : AIR 1918 Lab 196.

It would thus appear that the case Criminal Revn. No. 962 of 1961 (Punj) was decided upon a wrong assumption of facts. Reference in that case was also made to two cases, <CITATION> . AIR 1952 <NAME> 29, and Mst. <NAME>, <NAME>, AIR 1952 <NAME> 38, and Mr. <NAME> too has placed reliance upon those cases. Both those were cases in which the police had made recommendation under Section 173 of the Code of Criminal Procedure for cancellation of the cases. It was held that it was open to the Magistrate to accept the police recommendation or not. If he accepted the recommendation he was to cancel the case, but if he did not, all that he could do was to make a note that he did not agree with the police and did not accept their recommendation. It was also observed that it was open to the aggrieved party, if it so chose to put in a complaint in Court. In none of the above two <NAME> cases, in the circumstances, could it be said that the Magistrate had taken cognizance of the offence, while in the present case, as stated above, the trial Magistrate did take cognizance of the offence.

The present is also not a case in which the police had made a recommendation under Section 173 of the Code for the cancellation of the case. The above-mentioned two <ORG> cases are consequently clearly distinguishable and the petitioners, in our opinion, can derive no benefit from those cases.

7. As a result of the above, we hold that there was no legal impediment in the way of the trial Magistrate passing order for summoning the petitioners as accused persons even though the police had challaned some other persons and not the petitioners. The order has also not been shown to be incorrect or improper on merits. The revision petition, accordingly, fails and is dismissed.

<NAME>, J.

8. I agree.


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF PUNJAB & ANR. DATE OF JUDGMENT: 02/12/1966 BENCH: <NAME>, S.M. BENCH: <NAME>, S.M. RAO, <NAME> (CJ) <NAME>, M. <NAME>, <NAME>, <NAME> CITATION: 1967 AIR 856 1967 SCR (2) 143 CITATOR INFO : RF 1967 SC 927 (1,2) F 1967 SC1568 (6) RF 1972 SC 486 (17) R 1978 SC 803 (37) D 1980 SC1682 (67,68) RF 1989 SC1629 (23) ACT: Retrospectivity-Public Officer-Retrospective appointment by Notification-Acts done before date of Notification, if valid. Constitution of India, 1950, Art. 31A(1 ), Second proviso- "Acquisition by <ORG>", meaning of. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act -Scheme under-Small portion of land taken from proprietor holding land within ceiling limit-Proprietor, if entitled to compensation. HEADNOTE: Between May 1961, and May 1962, consolidation proceedings were taken under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, in an estate in which the appellant was a small proprietor holding land within the ceiling limit. The scheme for consolidation provided for taking of a fraction of each proprietor's land and throwing into a common pool which was added to the land already in the possession of <ORG>. But no portion of the common pool apart from what was already owned by the <ORG>, was reserved for providing income to the <ORG>. The ownership of the common pool was to vest in the proprietary body consisting of the several proprietors, and <ORG> was to manage and use it for the common needs and benefits of the estate, under r. 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, so that, the proprietors and non-proprietors would share in the benefits. The appellant filed a writ petition in 1965, contending that : (1) The Consolidation Officer was not appointed till after the repartition was concluded, that he could not be appointed retrospectively, that he had no legal authority when he commenced the proceedings, and therefore, the scheme was invalid; and-(2) the scheme amounted to "acquisition by the <ORG>" within the meaning of the second proviso to Art. 31A(1) of the Constitution, with the result that compensation to the proprietor at the market rate was payable. <ORG> dismissed the petition. On appeal, HELD: (Per <NAME>, <NAME>, <NAME> and <NAME>.) (1) The Consolidation Officer had no authority to act as such before he was appointed and what he did, purporting to act as such officer, had no binding effect on the owners. Further, <ORG> could not appoint him and clothe him with authority retrospectively. But, as the appellant was guilty of laches and no manifest injustice was done to him, <ORG> was right in rejecting the contention. [147 B-D] (Per <NAME> and <NAME>, <NAME>.) : As the petition was filed more than three years after the completion of the repartition of holdings. the contention should not be entertained in the face of the presumption under s. 114, Indian Evidence Act , namely, that the Officer must have been appointed to act is such, as Without Such appointment he would not have acted. [154 B] 144 (2) (Per <NAME>, <NAME> <NAME> and <NAME>, <NAME>.). The words acquisition by the <ORG>" in the second proviso to Art. 31A(1) do not have any technical meaning. In the context of Art. 31A the expression must have the same meaning as it has in Art. 3 1A(1) (a). The essential difference between "acquisition by the <ORG>" on the one hand and "Modification or extinguishment of rights" on the other, is that in the first case the beneficiary is the <ORG> while in the second the beneficiary is not the <ORG>. Therefore, if the <ORG> has in substance acquired all the rights in the land for its own purposes, even if the title -remains with the owner, it cannot be said that it is not acquisition within the proviso. [149 B-D; 150 <CITATION>  S.C.R. 587, <CITATION> ., 11954] S.C.R. 674, <CITATION> .  1 S.C.R. 707 and <CITATION> ,  S.C.R. 1122, followed. But on the facts of this case, the beneficiary of the modification of rights was neither the <ORG> nor the <ORG>; and therefore, there was no acquisition by the <ORG> within the second proviso. As a result of the scheme the title to the small fraction of land which was taken away for forming the common pool remained in the proprietary body of the holders in the estate and in the revenue records, the land would be shown as belonging to all the owners in proportion to their areas. The Gram <ORG> would manage it on behalf of the proprietary body and use it for common purposes,and the proprietors would enjoy the benefits. Even the satisfaction and advancement of the non-proprietors who derived benefits from the common pool would enure to the advantage of the proprieters who would from a more efficient agricultural community. [152 E-G] Altar Singh v. <ORG> of U.P.  Supp. 1 S.C.R. 928, followed. Per <NAME> and <NAME>, <NAME>. (dissenting) : Article 31A deals with the special subject of "estates" and its intention is to give protection to <ORG> action against Arts. 14, 19 and 31 so long as the acquisition is by the <ORG> of any estate, or of any rights therein or the extinguishment or modification of any -such rights. To this protection there is an exception, namely, the second proviso, under which land under the personal cultivation of any estate-holder of any kind, which is within the ceiling limit applicable to him, shall not be acquired unless the market value of the land is given as compensation. The word "acquisition" used in the proviso must take its colour from the same word used earlier in the same Article, and not from the word as used in an earlier article in juxtaposition with the word "requisition". It denotes not only the acquisition of ownership, that is, the entire bundle of rights, but also acquisition of some rights which leaves the owner, an owner in name only [162 E-163 Al In the present case the 'result of the scheme would be that (i) the proprietor was deprived of his property though only of a small portion; (ii) though the ownership was vested in the proprietary body ill rights with 'regard to the management and income therefrom were vested in <ORG> established under Punjab Gram <ORG> Act, 1953; (iii) the ownership was therefore transferred to another body, <ORG>, which is an entity different from the Proprietor. It is a local authority included within the definition of "<ORG>" in Art. 12 , and (iv) the benefit of the income of such lands goes not to the proprietor only, but to all proprietors and non-proprietors in the <ORG> area. Therefore, although the property is not actually vested in <ORG> or the <ORG>, the <ORG> acquires almost the entire bundle 145 of rights. Hence, it is "acquisition" by the <ORG> within the meaning of the second proviso and compensation at market value must be given. [163 D-H; 164 A] Moreover, the fact that what was acquired was a small bit has no significance. What is small is vague and uncertain, and the safer rule is, that, if the land of the tenant cultivating it is below the ceiling fixed by law, and if a portion of it is acquired, no matter for what purpose the acquisition takes place, compensation at -a 'rate not lower than the market value must be paid to him. When the Constitution speaks of market value, it is not possible to find compensation in advantages which might accrue indirectly. [164 B-C] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1018 of 1966.

Appeal by special leave from the judgment and order dated October 5, 1965 of <ORG> in Civil Writ No. 663 of 1965.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, <NAME> and <NAME>, for the respondents.

The Judgment Of <NAME> and <NAME> and <NAME> was delivered by <NAME>, <NAME> The dissenting Opinion of <NAME> and <NAME>, <NAME>. was delivered by <NAME>, <NAME> <NAME>, <NAME> This appeal by special leave is directed against the judgment of <ORG> dismissing a petition filed by the appellant under art. 226 of the Constitution, praying that the scheme of consolidation of village Ropalon, Tahsil Samrola, District Ludhiana, be quashed. The scheme which was sought to be quashed was made under the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, hereinafter referred to as the Act. On May 2, 1961, a notification ",as issued under s. 14(1) of the Act, which provided for a declaration of the intention of the State Government to make a scheme for the con- solidation of holdings in the estates. Section 14(2) of the Act provides for the appointment of a Consolidation Officer and the preparation of a scheme by him. One <NAME>, purporting to act as the Consolidation Officer, prepared a draft scheme and published it on November 8, 1961, under s. 19(1) of the Act. On January 6, 1962, or January 16, 1962, the scheme was confirmed by the Settlement Officer under S. 20(3) of the Act. After the confirmation, the Consolidation Officer after obtaining the advice of the landowners of the estate carried out repartition under s. 21(1) and the boundaries of the holdings as demarcated were published in the prescribed manner in the estate on February 21, 1962. It appears that <ORG> granted a stay order and no further proceedings under the Act could be taken. No possession has been transferred pursuant to the re-partition. On May 11, 1962, a notification was published in the <ORG>, purporting to appoint Shri <NAME> as Consolidation Officer in respect of the estate Ropalon with effect from November 4, 1961. On March 10, 1965, <NAME>, appellant before us, filed the petition under art. 226 of the Constitution. In <ORG>, as before us, it was urged on behalf of the appellant that :

(1) there could be no retrospective appointment of a Consolidation Officer; and (2) Compensation must be I-),,lid to the appellant for the land reserved in the scheme for various purposes in accordance with the second proviso to art. 3 1 A(1) inserted by the Seventeenth Amendment.

We need not mention the other grounds raised before <ORG> as they have not been raised before us. <ORG> held that although there could be no retrospective appointment of a Consolidation Officer, the objection could not be sustained because of laches of the appellant. On the second point, <ORG> held that the second proviso to art. 3 1 A(1) was prospective and not retrospective and did not affect the scheme in question as the rights under the scheme became vested as soon as the scheme was sanctioned by the Settlement Officer. <ORG> also expressed a tentative view that the reservation of lands for common purposes in accordance with the scheme and the Act did not amount to "acquisition" within the contemplation of the second proviso to art. 31A(1). <ORG> accordingly dismissed the petition.

Mr. <NAME>, the learned counsel for the appellant, has urged the following points before us;

(1) <NAME>, when he commenced consolidation proceedings and prepared and published the draft scheme of consolidation did not have legal authority to do so. The scheme being invalid could not be made valid by being enforced by the Settlement Officer. (2) The notification appointing <NAME> Consolidation Officer retrospectively with effect from November 4, 1961, was invalid,. as neither the <ORG> nor its delegate, <NAME>, <ORG>, Officer on Special Duty, could appoint a Consolidation Officer retrospectively.

(3) In the second proviso to art. 31 (A)(1 ), the expression "acquisition" means substantial taking over the benefits of property and conferring it on the <ORG>.

(4) Acquisition means the entire process terminating with possession and extinction of the title of the individual. There seems to be substance in the first two points. It seems to us clear that before a person can start acting as a Consolidation Officer lie must be appointed a,, such. Before he is appointed he has no authority to exercise any of the functions of a Consolidation Officer. What he does purporting to act as a Consolidation Officer has no binding force on the owners and other persons affected in the estate. The Government cannot by appointing him retrospectively clothe him with authority retrospectively. This can be done only by the <ORG> Subject to the provisions of the Constitution.

But the appellant cannot succeed on these grounds because <ORG>, in its discretion, has held that the appellant is not entitled to rely on these objections because of laches. We cannot say that the discretion has been exercised wrongly. After the notification was published on May 11, 1962, appointing <NAME> retrospectively with effect from November 4, 1961, it must have been clear to the appellant that <NAME> had not been appointed Consolidation Officer before lie started preparing consolidation proceedings. No adequate explanation has been given for the delay. Further it has not been shown that there has been any manifest injustice. Coming now to the third point raised by Mr. <NAME> we may first mention that it was held by this <ORG> in <CITATION> (1) that the Act was protected from challenge by art. 3 IA. It is necessary to set out the relevant constitutional provisions The relevant portion of art. 3 1 A reads as under :

"31A. (1) Notwithstanding anything contained in article 13 , no law providing for-

(a) the acquisition by the <ORG> of any estate or of any rights therein or the extinguishment or modification of any such rights..........

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 , article 19 or article 31 Provided that....................

Provided further that where any law makes any provision for the acquisition by the <ORG> of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the <ORG> to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2)(b) the expression 'rights' in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, under- proprietor, tenure-holder, raiyat, under- raiyat or other intermediary and any rights or privileges in respect of land revenue."

Relevant portions of articles 19 and 31 may also be set out because the learned counsel have laid stress on the language employed therein.

"19. (1) All citizens shall have the right--

(f) to acquire, hold and dispose of property.

31. (1) No person shall be deprived of his property save by authority of law. (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.

(2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the <ORG> or to a corporation owned or controlled by the <ORG>, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property."

It would be noticed that art. 31 A(1)(a) mentions four categories; first acquisition by the <ORG> of an estate; second, acquisition by the <ORG> of rights in an estate; third, the extinguishment of rights in an estate, and, fourthly, the modification of rights in an estate. These four categories are mentioned separately and are different. In the first two categories the <ORG> "acquires" either an estate or rights in an estate. In other words, there is a transference of an estate or the rights in an estate to the <ORG>. When there is a transference of an estate to the <ORG>, it could be said that all the rights of the holder of the estate have been extinguished. But if the result in the case of the extinguishment is the transference of all the rights in an estate ,to the <ORG>, it would properly fall within the expression "acquisition by the <ORG> of an estate". Similarly, in the case of an acquisition by the <ORG> of a right in an estate it could also be said that the rights of the owner have been modified since one of the rights of the owner has been acquired. It seems to us that there is this essential difference between "acquisition by the <ORG>" on the one hand and "modification or extinguishment of rights" on the other that in the first case the beneficiary is the <ORG> while in the latter case the beneficiary of the modification or the extinguishment is not the <ORG>. For example, suppose the <ORG> is the landlord of an estate and there is a lease of that property, and a law provides for the extinguishment of leases held in an estate. In one sense it would be an extinguishment of the rights of a lessee, but it would properly fall under the category of acquisition by the <ORG> because the beneficiary of the extinguishment would be the <ORG>.

Coming now to the second proviso to art. 31A , it would be noticed that only one category is mentioned in the proviso, the category being "acquisition by the <ORG> of an estate." It means that the law must make a provision for the acquisition by the <ORG> of an estate. But what is the true meaning of the expression " acquisition by the <ORG> of an estate". In the context of art. 31A , the expression "acquisition by the <ORG> of an estate" in the second proviso to art. 31A(1) must have the same meaning as it has in cl. (1)(a) to art. 3 1 A. It is urged on behalf of the respondents before us that the expression "acquisition by the <ORG> of any estate" in art. 31A(1)(a) has the same meaning as it has in art. 31(2A). In other words, it is urged that the expression "acquisition by the <ORG> of any estate" means transfer of the ownership or right to possession of an estate to the <ORG> Mr. <NAME> on the other hand urges that the expression "acquisition by the <ORG>" has a very wide meaning and it would bear the same meaning as was given by this Court in <CITATION> ,(1) <CITATION> .(2) <CITATION> .(3) and <CITATION> (4). In these cases this Court had given a wide meaning to the word "acquisition". <CITATION> .(2) <NAME>, J., observed at page 704 as follows :

"The word 'acquisition' has quite a -wide concept, meaning the procuring of property or the taking of it permanently or temporarily. It does not necessarily imply the acquisition of legal title by the <ORG> in the property taken possession of."

(1) [1964]S.C.R. 587.

(3) [1955] 1 S.C.R. 7 7.

(2) [1954] S.C.R. 674.

(4) [1958] S.C.R. 1122..

He further observed at p. 705 :

"I prefer to follow the view of the majority of the <ORG>, because it seems to me that it is more in consonance with juridical principle that possession after all is nine-tenths of ownership, and once possession is taken away, practically everything is taken away, and that in construing the Constitution it is the substance and the practical result of the act of the <ORG> that should be considered rather than its purely legal aspect."

<NAME>, observed at p. 734 as follows:

"In my opinion, the possession and acquisition referred to in clause (2) mean the sort of 'possession' and ' acquisition' that amounts to 'deprivation' within the meaning of clause (1). No hard and fast rule can be laid down. Each case must depend on its own facts. But if there is substantial deprivation, then clause (2) is, in my judgment, attracted. By substantial deprivation I mean the sort of deprivation that substantially robs a man of those attributes of enjoyment which normally accompany rights to, or an interest in, property. The form is unessential. It is the the substance that we must seek."

Let us now see whether the other part of the second proviso throws any light on this question. It would be noticed that it refers to ceiling limits. It is well-known that under various laws dealing with land reforms, no person apart from certain exceptions can hold land beyond a ceiling fixed under the law. Secondly, the proviso says that not only the land exempted from acquisition should be within the ceiling limit but it also must be under personal cultivation. The underlying idea of this proviso seems to be that a person who is cultivating land personally, which is his source of livelihood, should not be deprived of that land under any law protected by art. 31A unless at least compensation at the market rate is given. In various <ORG>s most of the persons have already been deprived of land beyond the ceiling limit on compensation which was less than the market value. It seems to us that in the light of all the considerations mentioned above the words "acquisition by the <ORG>" in the second proviso do not have a technical meaning, as contended by the learned counsel for the respondent. If the <ORG> has in substance acquired all the rights in the land for its own purposes, even if the title remains with the owner, it cannot be said that it is not acquisition within the second proviso to art. 31A. But the question still remains whether even if a wider meaning is given to the word "acquisition" what has been done by the scheme and the. Act is acquisition or not within the meaning of the second proviso,. In other words, does the scheme only modify rights or does it amount to acquisition of land? The scheme is not part of the record, but it appears that 89B- 18B- 11 B (Pukhta) of land was owned by <ORG> prior to consolidation, which was used for common purposes. Some further area was reserved for common purposes as khals, paths, khurrahs, <ORG> ghars and schools, etc., after applying cut upon the rightholders on pro-rata basis. It does not appear that any land, apart from what was already owned by the <ORG>, was reserved for providing income to the <ORG>. Therefore, in this case we are not concerned with the validity of acquisition for such a purpose. Rule 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, provides :

"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 <ORG> and for other common purposes, under section 18(c) of the Act, out of the common pool of the village at a scale prescribed by Government 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 estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan wa Digar Haqdaran Arazi Hasab Rasad Raqba). The management of such land shall be done by the <ORG> of the estate or estates concerned on behalf of the village proprietary body and the panchayat shall have the right to utilise the income derived from the land so reserved for the common needs and benefits of the estate or estates concerned."

It will be noticed that the title still vest in the property body, the management of the land is done on behalf of the proprietary body, and the land is used for the common needs and benefits of the estate or estates concerned. In other words a fraction of each proprietor's land is taken and formed into a common pool so that the whole may be used for the common needs and benefits of the estate, mentioned above. The proprietors naturally would also share in the benefits along with others.

<CITATION> .(1) Wanchoo J., speaking for the <ORG>, said this of the similar proviso in a similar Act, -namely the U.P. Consolidation of Holdings Act (U.P. Act V of 1954) as amended by the U.P. Act XVI of 1957 :

"Thus the land which is taken over is a small bit, which sold by itself would hardly fetch anything. These (1) [1959]supp. S.C.R. 928 at p.938.

small bits of land are collected from various tenureholders and consolidated in one place and added to the land which might be lying vacant so that it may be used for the purposes of s. 14(1)(ee) . A compact area is thus created and it is used for the purposes of the tenure-holders themselves and other villagers. Form CH-21 framed under r. 41(a) shows the purposes to which this land would be applied, namely, (1) plantation of trees, (2) pasture land, (3) manure pits, (4) threshing floor, (5) cremation ground, (6) graveyards, (7) primary or other school, (8) playground, (9) Panchayatghar, and (10) such other objects. These small bits of land thus acquired from tenure-holders are consolidated and used for these purposes, which are directly for the benefit of the tenure-holders. They are deprived of a small bit and in place of it they are given ad- vantages in a much larger area of land made up of these small bits and also of vacant land."

In other words, a proprietor gets advantages which he could never have got apart from the scheme. For example, if he wanted a threshing floor, a manure pit, land for pasture, khal, etc., he would not have been able to have them on the fraction of his land reserved for common purposes. Does such taking away of property then amount to acquisition by the <ORG> of any land ? Who is the real beneficiary ? Is it the <ORG> ? It is clear that the title remains in the proprietary body and in the revenue records the land would be shown as belonging to "all the owners and other right holders in proportion to their areas." The <ORG> will manage it on behalf of the proprietors and use it for common purposes; it cannot use it for any other purpose. The proprietors enjoy the benefits derived from the use of land for common purposes. It is true that the non-proprietors also derive benefit but their satisfaction and advancement inures in the end to the advantage of the proprietors in the form of a more efficient agricultural community. The <ORG> as such does not enjoy any benefit. On the facts of this case it seems to us that the beneficiary of the modification of rights is not the <ORG>, and therefore there is no acquisition by the <ORG> within the second proviso. In the context of the 2nd proviso, which is trying to preserve the rights of A person holding land under his personal cultivation, it is impossible to conceive that such adjustment of the rights of persons holding land under their personal cultivation in the interest of village economy was regarded as something to be compensated for in cash. In this view of the matter it is not necessary to deal with the fourth point raised by the learned counsel for the appellant because it does not matter whether the acquisition is complete or not, as even if we hold that the acquisition is not complete and it has yet to be completed, the second proviso to art. 31A(1) would not prevent the <ORG> from proceeding with the acquisition.

in the result the appeal fails and is dismissed, but there would be no order as to costs.

Hidayatullah, J. This is an appeal against the judgment and order of <ORG>, October 5, 1965, dismissing a petition under Arts. 226 and 227 or the Constitution filed by the appellant to quash the consolidation of village Ropalon, Tehsil Sarmrala, District Ludhiana. He challenged the consolidation mainly on two grounds which alone were pressed before us in this appeal. The first was that the Consolidation Officer (<NAME>) was not appointed under the Fast Punjab Holdings ( Consolidation and Prevention of Fragmentation) Act, 1948, till after the repartition was concluded. The consolidation work done by him was, accordingly said to be without jurisdiction and a nullity. The second ground was that there were 89 bighas, 18 biswas and 18 biswanis of pukhta lands with <ORG> prior to the consolidation proceedings but under the consolidation an additional 123 kanals and 14 marlas were taken from the common pool and were given to the <ORG> and a pro rat a cut was applied to the land of all the landholders. The appellant contended that, as he was a small landholder and his land had also been taken without the payment of compensation, as required under Art. 31-A(l ), 2nd proviso, the acquisition was illegal and confiscato1ry. The opposite party joined issue on both the points and also submitted that on fresh measurements 123 kanals and 14 marlas land was found to be in excess. <ORG> rejected the first contention on the ground of laches on the part of the appellant and also on merits. We see no reason to differ. <ORG> acting under s. 41 delegated its powers under ss. 14(1) and (2) of the Consolidation Act to one <NAME>. Section 14(2) gives powers to appoint a Consolidation Officer. <NAME> was, there it is fairly fore, competent to appoint a Consolidation Officer. obvious that <NAME> would not act as Consolidation Officer unless appointed to act as such by <NAME>. The affidavit of the State does not state that an order was passed and relies on the notification. No doubt a notification was issued by <NAME> as late as May 3, 1962, appointing <NAME> as Consolidation Officer with effect from November 4, 1961, but s. 14(2) only speaks of appointment of a Consolidation Officer and does not lay down that it shall be by notification. In this respect it differs from some other sections such as s. 20 of the Act M19 Sup.CI/66-10 under which Settlement Officers (Consolidation) are to be appointed by notification. It is true that the original order appointing <NAME> was not produced but there is a presumption that he must have been so appointed because he would not act without a proper appointment. The notification which is produced would itself be redundant if an order appointing <NAME> before he began to act as Consolidation Officer had, in fact, been passed. The only defect is that the original order is not available but as the petition was filed more than three years after the completion of the consolidation the objection can hardly be entertained in the face of the presumption under s. 114 of the Indian Evidence Act. We would, therefore, not entertain the objection. It is a moot point, however, whether <NAME> could make up his lapse (if any) by a subsequent and a retrospective notification. As we do not entertain the objection we do not consider that question. As regards the second point it may be pointed out that on an earlier occasion the Consolidation Act was challenged as ultra vires the Constitution inasmuch as it sought to deprive the landholders of their property and Art. 31 was invoked. Before the judgment of this <ORG> could be delivered the Seventeenth Amendment of the Constitution came into force. Counsel in that case were invited to reopen the argument if they desired but declined. The <ORG>, therefore, considered the validity of the Consolidation Act and upheld it on the ground that it was a measure of agrarian reform and was protected even before Art. 31-A was amended by the Seventeenth Amendment Act. The judgment of this <ORG> is reported in <CITATION> () and it expressly refrained from making any allusion to the Seventeenth Amendment. At the hearing of this appeal no attempt was made to question the Consolidation Act and it must, therefore, be assumed to be validly enacted and to be constitutional. The question that remains is whether the appellant, who is a small landholder holding land within the ceiling and has lost some of it, is entitled to compensation at market rate as required by the second proviso to Art. 31-A as now incorporated in the Constitution. To understand this we shall refer first to what is being done under the Consolidation Act and then consider whether the Act is unsupportable in view of the second proviso to Article 31- A(1) as contended. The Consolidation Act is passed to provide for the compulsory consolidation of agricultural holdings and to prevent their fragmentation. Section 18 of the Act provides that notwithstanding anything contained in any law for the time being in force it shall be lawful for any Consolidation Officer to direct inter alia: (1)  1 S.C.R. 82.

(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)

(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 Consolidation Act empowers <ORG> 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 section 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;"

In furtherance of this power two rules have been framed which are numbered 16(i) and 16(ii). These rules provide for the reservation of the abadi for the proprietors as well as the non-proprietors and for reservation of land for the Gram Panchayat. On the present occasion we are concerned with sub-rule (ii), which was added on April 9, 1957 by <ORG> to the rules framed under the Act. It reads :

"16(ii) 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 <ORG>, under section18(c) of the out of the common pool of the village at a scale prescribed by Government 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 basab rasad raqba). The management of such land shall be done by the <ORG> of the estate or estates concerned on behalf of the village proprietary body and the <ORG> 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."

The rule was declared ultra vires by <ORG> in <CITATION> .(1) The sub-rule was, however, saved by the second amending Act  which gave legal cover to the sub-rule by including a definition of "common purpose" to the following effect "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 water- courses 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, water works or tube-wells, whether such schools, play grounds, dispensaries, hospitals, institutions, waterworks or tube- wells may be managed and controlled by <ORG> or not."

Simultaneously a new section (s. 23-A) was inserted in the Consolidation Act to the following effect :-

"23-A. 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 section 18 -

(a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by <ORG> , shall vest in <ORG>; and

(b) in the case of any other common purpose, shall vest in the panchayat of that village; and the State Government or the <ORG>, as the case may be, shall be entitled to appro-

(1) I.L.R. [1960] 1 Punjab 589.

priate 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 :

Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-pro- prietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation."

The preamble of the Consolidation Act was also amended suitably All these amendments were with retrospective effect.

The Punjab Gram Panchayat Act, 1953 (4 of 1953) has been passed to provide for better administration in the rural areas of the Punjab by Panchayats. By s. 19 of the Panchayat Act various administrative duties are assigned to the panchayat which is to look after matters like sanitation, drainage, supply of water, burial and cremation grounds, public health, schools and hospitals etc. and in particular it provides :

"(f) pounds for animals;

(n) the development of agriculture and village industries, and the destruction of weeds and pests;

(o) starting and maintaining a grain fund for the cultivators and lending them seed for sowing purposes on such conditions as the Gram Panchayat may approve;

(q) allotment of places for preparation and conservation of manure;

(t) framing and carrying out schemes for the improved methods of cultivation and management of land to increase production."

<ORG> also passed the Punjab Village Common Lands (Regulation) Act (I of 1954) with the object of regulating the rights in shamlat deh and abadi deh. The Regulation Act vests all rights of management in. the shamlat deh in the village Panchayat and in the land in the abadi deh under a house owned by a non-proprietor. Section 4 lays down how the Panchayat is to deal with the matters and provides as follows "All lands vested in a panchayat by virtue of the provisions of this Act shall be utilised or disposed of by the panchayat for the benefit of the inhabitants of the village concerned, in the manner prescribed." Section 6 provides:

"Any income accruing from the use and occupa- tion of the lands vested in a panchayat shall be credited to the panchayat fund and shall be utilised in the manner prescribed."

Section 7 finally provides as follows "No person shall be entitled to any compensation for any loss suffered or alleged to have been suffered as a result of coming into force of this Act."

There is, however, on the statute book in the Punjab yet another Act which is intituled Punjab Security of Land Tenures Act, (10 of 1953) as amended by Act 57 of 1953 and Act I I of 1955. By that Act security of land tenures, fixing of areas for 'self-cultivation' is provided and there is conferment of rights on tenants to purchase lands under their cultivation from landholders.

These Act s between them, therefore, provide for the establishment of <ORG> which is to deal with the shamlat deh and to look after the social needs of a village, yet giving security to the tenants and allowing for consolidation of holdings, with a view to preventing fragmentation. The operation of these Acts is visible in the facts of this case, because the shamlat deh is altered and more land is granted in the consolidation to the village Panchayat ostensibly for the purpose of construction of <ORG> and a school and for various other common purposes. No compensation is paid for the lands which have been taken away from the landholders even though they claim that their case is taken out of Arts. 31 and 31A and is covered by the second proviso to Art. 31-A(1) of the Constitution as framed by the Seventeenth Amendment. These articles were amended by the First, the Fourth and the Seventeenth Amendments, but reference is made here to the articles (omitting portions not relevant to our purpose) as they stand after the Seventeenth Amendment :

"31. (1) No person shall be deprived of his property save by authority of law. (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation for the property so acquired or requisitioned and either fixed the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.

31A. Saving of laws providing for acquisition of estates, etc. (1) Notwithstanding anything contained in article 13 , no law providing for---

(a) the acquisition by the <ORG> of any estate or of any rights therein or the extinguishment or modification of any such rights, or shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 , article 19 or article 31 Provided further that where any law makes any provision for the acquisition by the <ORG> of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the <ORG> to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensa- tion at a rate which shall not be less than the market value thereof.

(2) In this article,-

(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-

(i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right;

(ii) any land held under ryotwari settlement;

(iii) any ].and held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;

(b) the expression 'rights', in relation to any estate, shall include any rights vesting in a proprietor, tenure-holder, raiyat, under- raiyat or other intermediary and any rights or privileges in respect of land revenue."

The case of the appellant is that under the 2nd proviso to Art. 31-A(1 ), he is entitled to compensation because land under his personal cultivation is an estate, and land within the ceiling limit cannot be acquired without payment of compensation which is less than the market value of his land, notwithstanding any law enabling acquisition of land for the <ORG>. The <ORG> contends that no land has been acquired because all lands continue to be recorded in the names of the owners in proportion to the area originally held by them as provided by rule 16(ii) and the lands are to be used for the benefit of the proprietors. The appellant contends that this is acquisition all the same. A question thus arises : what is meant by 'acquisition' and 'to acquire' in the second proviso?

To determine the correct meaning it is necessary to view Articles 31 and 31-A together. The <ORG> seeks to establish a contrast between acquisition and requisition and contends that "acquisition" means a total deprivation of the property for all time and "requisition" means either a partial deprivation or deprivation for a time. It submits that by the former there is a change of ownership and by the latter a change in possession or enjoyment without a change in ownership. This contrast the <ORG> seeks to establish from the way in which the words "acquisition" and "requisition" and "acquired" and "requisitioned" are used in juxtaposition in the two Articles. We have, therefore, to examine the scheme of the two Articles to see if they throw any light upon the matter.

Before this is done it may be admitted that the distinction between "acquisition" and "requisition" is a real one and legislative practice in the past has clearly provided separately for acquisition and requisition in Acts which were even named acquisition and requisition Acts. The distinction was also made by the Government of India Act, 1935. Legislative practice, however, uniform is not always conclusive. We must discover from the Constitution itself, how the words are to be understood. What then are the indications in the Constitution?

The first indication is in the legislative entry No. 42 in List 3 (Seventh Schedule) which was added by the Constitution Seventh Amendment. Before the Amendment the entry read :

"42. Principles on which compensation for property acquired or requisitioned for the purposes of the <ORG> or of a <ORG> or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given."

The entry now reads "Acquisition and requisitioning of property". These entries give an indication that the Constitution continues to make a distinction between the two terms. Next Art. 31 begins by laying down in clause (1) that no person shall be deprived of his property save by authority of law and goes on to say in cl. (2) that no property shall be compulsorily acquired or requisitioned save for public purpose and save by authority of law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principles on which and the manner in which, the compensation is to be determined and given. The words of the article refer to acquisition and requisition of property. Clause 2(A), which was added by the Fourth Amendment, uses different phraseology. This clause says that where a law does not provide for the transfer of ownership or right to possession of any property to the <ORG> or to a corporation owned or controlled by the <ORG>, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. This means that property shall not be considered to be compulsorily acquired or requisitioned unless the law provides for the transfer of the ownership or right to possession to the <ORG> or to a corporation owned or controlled by the <ORG>. <ORG> is a local authority and by virtue of the definition of "<ORG>" in Art. 12 stands included in that term. Therefore, a law providing for the transfer of ownership or right to possession to <ORG> is for the purposes of Art. 31-A(1) and (2 ), a law providing for the compulsory acquisition or requisitioning of the property.

The contention of the <ORG> is that in Art. 31(2A) we get the :clue to the meanings of the words "acquisition" and "requisition" and that the former indicates the transfer of ownership and the latter the transfer of the right to possession. It is, therefore, submitted that the transfer of the use of the land to <NAME> with the ownership still in the cultivators (as is shown by the entry of their names as owners of shamlat deh) and use of the land for their benefit indicate a requisitioning of the lands, that is to 'Say, a transfer of the right to possession merely and not acquisition, that is to say, transfer of ownership. The conclusion is thus drawn that inasmuch as the second proviso speaks of acquisition and not requisition, it cannot apply to the case of the appellant and persons like him who are still regarded as owners of the lands although they may be deprived of the immediate right to possession by the handing ,over of land to the <ORG> for management. It is urged that such persons are not entitled to the advantage of the second proviso since their land is not acquired as contemplated therein. We ,cannot accept this argument. Article 31-A deals with a special subject, namely, the saving of laws providing for acquisition of 'estates'. This article saves any law from an attack under Arts. 14, 19 and 31 provided it is for the acquisition by the <ORG> of an estate or of any rights therein or the extinguishment or modification of any such rights. It will be noticed that here the article does not refer to property as such, but speaks of an estate as defined in the Article and also of rights in the estate. Estate is defined to include, among other things, " any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans". Applying the definition, the lands under cultivation must be regarded as 'estates'. Now the intention underlying Art. 31-A is to give protection to <ORG> action against Arts. 14, 19 and 31 so long as the acquisition is by the <ORG> of any estate or of any rights therein or the extinguishment or modification of any such rights. To this protection there is only one exception and that is to be found in the second proviso. It is that land under the personal cultivation of any estate holder of any kind which is within the ceiling limit applicable to such person, shall not be acquired, unless at least market value of the land is given as compensation. Such land can be acquired but only on compensation which is not less than the market value. The word "acquisition" used in the proviso must take its colour from the same word used earlier and not from the word as used in the earlier article in juxtaposition with the 1 6 3 word requisition. The word must denote not only the acquisition of ownership, that is to say, the entire bundle of rights, but also acquisition of some rights particularly an acquisition which leaves the person an owner in name only.

Article 31-A , it is submitted by the <ORG>, introduces two further concepts, viz., extinguishment of rights and modification of rights. In the case of extinguishment, if all the rights in the property are extinguished, the result would be nothing else than acquisition. For, no property can remain in suspense without the rights therein being vested in someone or the other. In this case the property goes to the <ORG> which is included in '<ORG>'. In the case of modification of rights all the rights of ownership remain in the owner except that they would be modified by some statutory provisions. In such a case the conception either of acquisition orrequisition may not apply. In the present case bits of properties are being taken from the lands belonging to the appellants and others and are thrown in a common lot. The ownership is supposed to be vested in a proprietary body consisting of several proprietors. The statute provides that though ownership is vested in the said proprietary body the management of the land would be with the <ORG>. The only obligation thrown on the <ORG> is that the income arising from such land should be utilized for the common benefit not only of the proprietors but also of non- proprietors in the <ORG> area. The result of these provisions is (1) that a proprietor is undoubtedly deprived of his property howsoever small a proportion it may be thereof; (2) the ownership in such a property is transferred to another body which under the statute is an entity different from the proprietor himself; (3) though the ownership is vested in such a proprietary body all rights withregard to the management and income thereof are vested in a<ORG>; and (4) the benefit of the income from such lands goes not to the proprietor but to all the proprietors as well as non-proprietors in the <ORG> area. Although the property is not actually vested either in the <ORG> Government or the <ORG> a device is being made in the Act to escape the concept or ,acquisition' to avoid the payment of compensation required under the second proviso to Art. 31A. In substance and in effect this is nothing but a colourable use of the provisions of Art. 31-A bymaking out a case of modification of rights when there is in realityan acquisition, mainly for the sake of avoiding compensation.

Therefore, when the <ORG> acquires almost the entire bundle of rights, it is acquisition within the second proviso and compensation at market rates must be given. It is not at all difficult to determine this compensation. The total land of the holder must be assessed at market value and the value of the dimunition of the area determined proportionately. The appellant is thus entitled to compensation and he cannot be deprived of land within his ceiling without payment of compensation calculated in the manner indicated. It is admitted that his land has been reduced to something less than the ceiling applicable to him.

It is contended that what is acquired is a small bit from each landholder and that is not of much significance. We do not know what rule is in contemplation. If it is the de minimis rule, we can only say that it would be a most unsatisfactory mode of avoidance of the constitutional provision. What is a small bit is a very vague and uncertain expression. The safe rule is that the Constitution means what it says, that is, land within the ceiling is not to be touched unless compensation at market rate is given. We would, therefore, reject the plea that we should ignore these small bits of land especially as they will be used for the general good and will confer some benefit also upon those who will lose them. We would accordingly allow the appeal with costs.

ORDER In accordance with the Opinion of the majority Civil Appeal No. 1018 of 1966 is dismissed without costs. V. P. S.


JUDGMENT

1. It is argued that the finding that the plaintiff's family had an hereditary right to the office ought not be accepted, and our attention is drawn to Exhibits I, II, F, III, IV and V, and also to Exhibits 0, VI to XVIII. Nothing is urged to show that they have been misconstrued, or not duly considered by the Court below. Exhibit I only shows that the award A was not thought to favour the claim set up by the then plaintiff. The words in exhibit II "you should act with consent, &c," are not inconsistent with the plaintiff's case. They only imply that in the conduct of the puja, the son was to act subject to the direction and control of the mooktessors. As regards Exhibits F and III, the ground on which the suit to which they refer was dismissed was that there had been a prior partition- Though the District Munsif dealing with the review petition remarks that "the office is dependent on the pleasure of the dharmakartas," we cannot say that the <ORG> were wrong in not attaching weight to the remark in the face of the other evidence in the case. As to Exhibits IV, V and N, the Subordinate Judge is not in error in saying that the finding in Exhibit N was not set aside by <ORG>. As to the security-bonds, we agree with the observation of the Subordinate Judge. On the whole we are satisfied that there are no grounds for questioning the finding as to the matter of hereditary right.

2. The next question argued is that the office was not alienable, and that no effect ought to be given to Exhibit A.

3. It has no doubt been established by a series of decisions that the sale of a religious office is illegal--Rajah Vurmah Valia v. <NAME> 1 Mad., 235 and <NAME> v. Dorasami I.L.R. 6 Mad., 76 But it is urged that the plaintiff's father, the grantee under Exhibit A, was the nearest heir of <NAME>, who is now dead, and that the transfer in his favour was in the nature of a relinquishment by way of anticipating his legal right. The District <NAME> found that the plaintiff's father was nearer in the line of descent than defendant No. 15, who was appointed by the mooktessors. On this point the Subordinate Judge recorded no opinion, though the <NAME>'s finding was objected to. Before determining whether the instrument A is or is not valid, we shall ask the Subordinate Judge to find whether at the date of exhibit A the plaintiff's father was the sole heir next in succession of <NAME>. Finding is to be returned within six weeks from the date of receipt of this order, when seven days, after the posting of the finding in this <ORG>, will be allowed for filing memorandum of objections.

4. Fresh evidence may be taken by the Subordinate Judge by consent.

5. The Subordinate Judge returned a finding to the effect that the plaintiff's father had three brothers.

6. This second appeal having come on for final hearing, the <ORG> delivered Judgment as follows:

7. We have already decided that the office in question is an hereditary one. The question now is whether the transfer of it by the last holder to the plaintiff's father was a valid one. According to general principles, a religious office cannot, prima facie, lie made the subject of alienation. The succession to such an office is governed, in the first instance, by the will of the founder, and, in the absence of direct evidence on that point, by usage of the particular institution from which the founder's will may be inferred. A religious office appears to us to stand with reference to alienability on a different footing from private property. It was argued at the last hearing on the authority of the case of <NAME> v. <ORG> 6 Bom., 298 that the holder of a religious office may transfer it to one who is in the line of descent, whether he be the next heir or a possible future heir, and that the plaintiff's father was, in the present instance, the next heir. The finding, however, returned by the Subordinate Judge shows that he was not the sole next heir, because he had three brothers. In <NAME> v. <ORG> 6 Mad., 76 it is observed by the learned Judge, with reference to a contention that the alienee was of the same caste and sect as the alienor: "To hold so would tend to public mischief in inducing needy incumbents of hereditary religious offices, who desired to sell them to give a dishonest recognition, to qualifications which, in fact, were not the qualifications demanded by the nature of the office." Unless the alienee is the sole heir, the alienor might be under the temptation to make the office the subject of bargain and thereby defeat the intention of the founder. It was in this view that we called for a finding at the former hearing. We are not prepared to dissent from the dictum above quoted, and to hold that in the absence of special usage an alienation would be valid if made in favour of any person other than the sole immediate heir.

8. It was then argued that in the case before us the brothers of the plaintiff's father consented to the alienation in his favour, and that there is evidence to that effect on the record.

9. On looking at the evidence of <NAME>, one of the brothers, we find no distinct admission regarding the office. Moreover this point was not taken at the last hearing, nor were we asked to call for a finding as to the alleged consent. We cannot at this stage allow this point to be raised and order a new trial regarding it. Of course it is not intended that those who may have a claim by hereditary right as the legal heir should be in any wise prejudiced by this judgment. We must reverse the decree of the Courts below and dismiss the suit. Under the circumstances we direct each party to bear his own costs throughout.