1967 (3) TMI 113 - SC - Indian Laws

Summary

Issues Involved:
1. Authority of the Director of Consolidation under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
2. Legality of the Director's order dated March 8, 1957.
3. Interpretation of Section 18(c) of the Act and Rule 16(ii).
4. Authority of the State Government under Section 42 versus Section 36 of the Act.
5. Constitutional validity of the reservation of land for common purposes.

Detailed Analysis:

1. Authority of the Director of Consolidation under Section 42 of the Act:
The core issue was whether the Director of Consolidation had the authority under Section 42 of the Act to alter the confirmed consolidation scheme without following the procedure laid down under Section 36. The Full Bench of the Punjab High Court held that the State Government had the power under Section 42, as amended by the East Punjab Holdings (Consolidation and Prevention of Fragmentation) (Second Amendment and Validation) Act (Punjab Act 27 of 1960), to make any changes to the consolidation scheme. The Supreme Court, however, clarified that the power conferred on the State Government under Section 42 is separate and independent of Section 36, which deals with the authority confirming the scheme. Therefore, the Director's power under Section 42 is not controlled by Section 36.

2. Legality of the Director's Order Dated March 8, 1957:
The Supreme Court examined whether the Director's order, which reserved khasra No. 3942 for the extension of abadi for non-proprietors, was legal. The Court found that the Director's order was ultra vires because it did not follow the procedure required under Section 36 of the Act, which involves publication and hearing objections. The order was deemed illegal and was quashed by a writ in the nature of certiorari.

3. Interpretation of Section 18(c) of the Act and Rule 16(ii):
The appellant argued that the Director's order violated Section 18(c) of the Act and Rule 16(ii), which require land to be taken from proprietors according to their rateable share for common purposes. The Supreme Court agreed, stating that the language of Section 18(c) should be interpreted reasonably. The legislature intended that all proprietors should contribute rateably for common purposes, as clarified by Rule 16(ii). The Court held that the Director's order did not indicate that the area taken from the appellant was in proportion to the rateable share, making it illegal.

4. Authority of the State Government under Section 42 versus Section 36 of the Act:
The Supreme Court clarified that Sections 36 and 42 of the Act envisage two different situations. Section 36 deals with the power of the authority confirming the scheme to alter or revoke it, requiring publication and hearing objections. In contrast, Section 42 gives the State Government the power to interfere with the scheme of consolidation or repartition without the need for publication, as long as notice and an opportunity to be heard are given to interested parties. Therefore, the power under Section 42 is not controlled by Section 36.

5. Constitutional Validity of the Reservation of Land for Common Purposes:
The Court referred to its earlier decision in Ajit Singh v. The State of Punjab, which held that Section 18(c) must be construed reasonably to avoid making the operation of the section unconstitutional. The principle is that if two constructions of a statute are possible, one making it intra vires and the other ultra vires, the Court must lean towards the construction that makes the statute intra vires. Applying this principle, the Court held that Section 18(c) must be read in a restricted sense, allowing the Consolidation Officer to take land for common purposes according to the rateable share from proprietors and other right-holders.

Conclusion:
The Supreme Court set aside the order of the Punjab High Court dated November 8, 1960, and directed that a writ in the nature of certiorari be issued to quash the Director of Consolidation's order dated March 8, 1957, regarding khasra No. 3942. The appeal was accordingly allowed, with no order as to costs.