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TMI Blog1985 (7) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... yats to the Shamlat-deh lands situated in those villages which fall within their jurisdiction and, on the other hand, the right of the Rehabilitation Department of the Central Government to allot lands of that description, to the extent of the evacuee interest therein, to persons who migrated from Pakistan to India after the partition of the country. The contention of the Central Government and, of persons to whom its Rehabilitation Department has allotted the Shamlat-deh lands on their migration to India, is that the interest, in such lands, of the Muslims who migrated to Pakistan is evacuee property which the Central Government has the right to allot under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act of 1954. On the other hand, the contention of the Government of Punjab and of the Gram Panchayats in Punjab and Haryana is that, by reason of the provisions of the Punjab Act of 1953, the interest of all persons, whether Hindus, Sikhs or Muslims, in the Shamlat- deh lands stood extinguished and those lands were placed by the said Act under the control and power of the respective Gram Panchayat. Prior to the partition of India on August 15, 1947 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Custodian appointed by the State Government. That Act, like similar Acts passed by the other State Legislatures, was repealed and replaced by an Act passed by the Parliament, viz; the Administration of Evacuee Property Act, 1950, to which we will refer as the 'Central Act of 1950'. That Act came into force on April 17, 1950. Section 8(2) thereof provided that, if any property in the State had vested immediately before the commencement of the Act as evacuee property in any Custodian under any law repealed by the Act, that property shall, on the commencement of the Act, be deemed to be evacuee property and shall vest in the Custodian appointed for the State under the Act. As a result of this provision, the interest of all evacuees which had vested in the Custodian under the Punjab Act 14 of 1947, came to be vested in the Custodian appointed under the Central Act of 1950. In the villages which were wholly inhabited by Muslims and from which almost the entire population migrated to Pakistan, all the Shamlat-deh lands together with the other proprietary lands were declared evacuee property and came to be vested in the Custodian. In the villages which were inhabited both by Musl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame vested in the Custodian appointed under the Central Act. Thereafter came the Punjab Act of 1953 under which, Notwithstanding anything to the contrary contained in any other law for the time being in force , all rights, title and interest whatsoever in the Shamlat-deh lands of any village, came to be vested in the Panchayat having jurisdiction over the particular village. It is quite clear that as a result of this provision, the Custodian appointed under the Central Act of 1950 was divested of the Shamlat- deh lands, to the extent of the interest therein of the Muslim proprietors who had migrated to Pakistan. If the Punjab Legislature had not passed the Act of 1953, the Custodian appointed or deemed to be appointed under the Central Act of 1950 could have dealt with the interest of the Muslim evacuees in the Shamlat-deh lands as evacuee property, though consistently with the limitations which operated upon that interest. He forfeited that power because, the Punjab Act of 1953 extinguished the interests of all persons, whether Hindus, Sikhs or Muslims, in the Shamlat-deh lands and vested all rights, title and interest in such lands in the respective Panchayats having juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the Shamlat-deh lands vest in the Panchayats under the provisions of the State Act. The consequences of this repugnancy are self-evident. Under the Central Act of 1950, the Custodian is entitled to preserve and manage the interests of evacuees in all evacuee properties, which would include the Shamlat-deh lands. Under the Punjab Act of 1953, the Shamlat-deh lands vest in the Panchayats, which carries with it the right of preservation and management of such Lands. In brief, by reason of the State Act, the Custodian appointed under the Central Act of 1950 is divested of his control over the evacuee interest in the Shamlat-deh lands. The most significant impact of this divestment, though somewhat of an academic nature, is that the Rehabilitation Department of the Central Government loses its power to allot such lands, to the extent of the evacuee interest therein, to displaced persons in order to satisfy their claims under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Such properties, therefore, cannot form part of the Compensation pool. Nor can these properties, to the extent of the surplus remaining after allotment to displaced persons, be transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in clause (1) of Article 254 is subject to the provisions of clause(2) of that Article. Clause (2) reads thus: (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. The Punjab Act of 1953 was reserved for consideration of the President and received his assent on December 26, 1953. Prima facie, by reason of the assent of the President, the Punjab Act would prevail in the State of Punjab over the Act of the Parliament and the Panchayats would be at liberty to deal with the Shamlat-deh lands according to the relevant Rules or Bye-laws governing the matter, inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the efficacy of the assent would be limited to that purpose and cannot be extended beyond it. Not only was the President not apprised in the instant case that his assent was sought because of the repugnancy between the State Act and the pre-existing Central Act on the vesting of evacuee properties but, his assent was sought for a different, specific purpose altogether. Therefore, that assent cannot avail the State Government for the purpose of according precedence to the law made by the State Legislature, namely, the Punjab Act of 1953, over the law made by the Parliament, even within the jurisdiction of the State. This situation creates a conundrum. The Central Act of 1950 prevails over the Punjab Act of 1953 by virtue of Article 254 (1) of the Constitution read with Entry No. 41 of the Concurrent List; and, Article 254(2) cannot afford assistance to reverse that position since the President's assent, which was obtained for a specific purpose, cannot be utilised for according priority to the Punjab Act. Though the law made by the Parliament prevails over the law made by the State Legislature, the interest of the evacuees in the Shamlat-deh lands cannot be dealt with effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no order as to costs. Civil Appeal Nos. 2044 of 1974 and 1963-65 of 1975 which were heard along with this appeal and which involve the same points are also allowed, with no order as to costs. Special Leave is granted in Special Leave Petition No. 7984 of 1981. The appeal is allowed, with no order as to costs. Civil Appeal Nos. 2125 of 1978, 470 of 1969, 1832 of 1969, 1088 of 1969, 1726 of 1974 and 1728 of 1974 were delinked from the above group of matters as they involve questions relating to the 'package deal' of 1961. Those matters may be listed for hearing at an early date. CHINNAPPA REDDY, J. I agree with the conclusion of my lord the Chief Justice and I reiterate the proposition that the assent accorded by the President for the express purpose of Article 31-A is not capable of automatic transformation into assent for the purpose of Article 254(2) of the Constitution. In my view the question that really requires determination is not one of repugnancy between the Punjab Act and the Central Act but what is the product of the two Acts, each operating in its own assigned field? What is the effect of the Punjab Act of 1953 on the Central Act of 1950? Is it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietor plant or cut trees on the common land, nor sink a well, nor appropriate houses built for common purposes except with such consent (Article 226). Nor in the absence of custom can the will of the majority of a village community prevail against that of the minority when the question is one as to the disposal of the common property in such a way as to preclude all use of it by the owners. (Article 227). Thus it is seen that Shamilat Deh or Village Common Land has certain distinctive and characteristic features of its own and even a majority of the co-sharers cannot destroy its character. In 1947, at the time of the partition of India under the British into Independent India and Independent Pakistan, there was a terrible holocaust and an unprecedented movement of population, millions of Hindus and Sikhs moving from West Punjab to East Punjab and millions of Muslims moving from East Punjab and present Haryana to West Punjab. Multidimensional, interlinked problems of administration of the properties of those who had left the country and rehabilitation of those that had poured into the country soon arose. It was noticed by this Court in Indira Sohanlal v. Custodian of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the mean in of this Act, and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act and shall continue to so vest. The effect of the operation of the Provincial and Central Acts relating to Evacuee Property was that Evacuee Property became vested in the Custodian but it must be noted that what became vested in the Custodian was that property left behind by the evacuee, no more and no less. If the evacuee had left behind him Khewat land it became vested in the Custodian. If the evacuee had left behind him the right to a share in Shamlat-deh lands, that too became vested in the Custodian. The vesting, however, did not divest Shamilat-deh lands of their character as Shamlat- deh lands and convert them into Khewat land. Shamilat-deh lands could only continue and did continue to be Shamilat-deh even after they became vested in the Custodian and the Custodian could only deal with them as a Shamilat-deh lands in the same manner in which the Muslim proprietors could have dealt with them had t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be an essential part of the redistribution of holdings and open lands to which no objections apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. Further, the village Panchayat is an authority for purposes of Part III as was conceded before us and it has the protection of Article 31-A because of this character even if the taking over of Shamilat-deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case. With respect to abadi-deh the same reasoning must apply. The setting of a body of agricultural artisans (such as the village carpenter the village blacksmith, the village tanner, farrier wheelwright, barber, washer man etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regard ed as part of the larger reforms which cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame vested in the Custodian. Similarly lands in an erstwhile Zamindar set apart for pasture, as grazing grounds etc. did not lose their character as such on the migration of the Zamindar to Pakistan. When the Parliament and the State Legislature, each of them legislate in their own field with respect to different subjects in this case Evacuee Property and Shamilat-deh we do not find any reason to conclude that there was necessarily a conflict between the two legislations. The question in the present case is not whether there was any conflict between the Central and the State Legislations but whether the legislature of the State could make a law relating to agrarian reform in respect of property which included property which by a process of law had become vested in the Central Government or the Custodian. We do not see any reason why the State Legislature should be considered incompetent to make a law relating to agrarian reform, if indeed it is a law relating to agrarian reforms as it has been found to be so, in the present case, even it affects land vested in the Central Government or the Custodian. In this view of the matter, I agree with the order proposed by my lord the Chief J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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