Ignoring Precedent A material Error in Common Lands Ownership dispute: Supreme court Recalls Its verdict For Not Considering Constitution Bench Judgment
Case title: KARNAIL SINGH VS STATE OF HARYANA & ORS.
Case no.: REVIEW PETITION (CIVIL) NO.526 OF 2023
Dated on: 16TH May 2024
Quorum: Hon’ble Mr. Justice B.R. GAVAI And Hon’ble Mr. SANDEEP MEHTA
FACTS OF THE CASE
The present review petition has been filed by the original respondent No.28 in the Appeal, seeking review of the judgment of this Court passed on 7th April 2022, thereby allowing the Civil Appeal No. 6990 of 2014 filed by the State of Haryana against the judgement and order passed by the Full Bench of the High Court of Punjab and Haryana at Chandigarh (hereinafter referred to as “Full Bench of the High Court”) in Civil Writ Petition No. 5877 of 1992 dated 13th March 2003. The State of Haryana, by way of Government Gazette Notification dated 11th February 1992 (hereinafter referred to as “Haryana Act No. 9 of 1992”) inserted sub-clause (6) to Section 2(g) of the Haryana1 Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the 1961 Act”) along with an explanation to the said sub-clause which received the assent of the President on 14th January 1992. Being aggrieved by the said amendment, the present review petitioner along with similarly situated landowners, holding land in villages, who contribute a share of their holdings to form a common pool of land called ‘Shamil at deh’, meant exclusively for the common purposes of the village inhabitants filed a batch of Writ Petitions before the High Court. The State of Haryana challenged the decision of the Full Bench of the High Court before this Court vide Civil Appeal No. 5480 of 1995; wherein this Court held that certain essentials of Article 31-A of the Constitution of India were overlooked and remanded the matter back to the High Court for re-consideration of the issues in light of Article 31A of the Constitution of India. The Full Bench of the High Court also issued certain consequential directions with regard to certain mutation entries made by the Revenue Authorities. Being aggrieved thus, the State of Haryana filed a Civil Appeal No. 6990 before this Court, which came to be allowed by judgement and order under review dated 07th April 2022 (hereinafter referred to as “JUR”); and the Writ Petition of the Original Writ Petitioners was consequently dismissed. Seeking review, the present Review Petition has been filed by the review petitioner. This Court on 31st January 2023.
CONTENTIONS OF THE APPELLANT
Shri Narender Hooda submits that the JUR is totally contrary to the law laid down by the Constitution Bench of this Court in the case of Bhagat Ram & others vs. State of Punjab & others2 (hereinafter referred to as “Bhagat Ram”). It is submitted that the JUR also does not correctly consider the law laid down by the Constitution Bench of this Court in the case of Ranjit Singh and others vs. State of Punjab and others3 (hereinafter referred to as “Ranjit Singh”) so also another Constitution Bench judgment of this Court in the case of Ajit Singh vs. State of Punjab & another4 (hereinafter referred to as “Ajit Singh”). Shri Hooda submits that after considering the provisions of Section 23-A and Section 24 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as “the Consolidation Act”), this Court in Bhagat Ram has clearly held that, till possession has changed under Section 24, the management and control does not vest in the Panchayat under Section 23-A. It has also been held that the rights of the holders are not modified or extinguished till persons have changed possession and entered into the possession of the holdings allotted to them under the scheme. Shri Hooda submits that the Constitution Bench of this Court in Ajit Singh was dealing with the lands which were reserved for common purposes such as khals, paths, khurrahs, panchayat ghars and schools etc. It was held that in view of Rule 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as “the Consolidation Rules”), the title still vests in the proprietary body, and the management of the said lands is done on behalf of the proprietary body. It was further held that the land was used for the common needs and benefits of the estate or estates concerned.
Shri Hooda further submits that even in Ranjit Singh, the Consolidation Scheme earmarked lands reserved under Section 18(c) of the Consolidation Act for various common purposes. The Constitution Bench of this Court held that the provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. ensures for the benefit of rural population and it must be considered to be an essential part of the redistribution of holdings and open lands. Shri Hooda further submitted that in a catena of judgments, this Court has held that the lands, though reserved but not earmarked and put for any common purpose under the Consolidation Scheme prepared under Section 14 of the Consolidation Act read with Rules 5 and 7 of the Consolidation Rules and entered in the column of ownership as ‘Jumla Mus tarka Malkan Wa Digger Haq Daran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, also known as Bachata lands, would not vest in the Gram Panchayat or the State Government. Shri Hooda submits that based on such judgments; thousands of transactions have been entered into between the parties. It is submitted that, though invoking the doctrine of stare decisis was not necessary, this Court in the JUR has not even touched that aspect of the matter. All the judgments which have been holding the field for decades and thousands of transactions which have been entered into between the parties, have been set at naught at the stroke of a pen by the JUR. Shri Hooda further submits that in view of the JUR, the rights of the parties which were crystalized by the judgments of the High Court and which was affirmed by this Court by judgment dated 27th August, 20016 have also been adversely affected without such parties having been heard. He therefore submits that the JUR needs to be recalled and the appeals filed by the State deserve to be dismissed.
CONTENTIONS OF THE RESPONDENTS
Shri Pradeep Kant, learned Senior Counsel appearing on behalf of the respondent-State of Haryana submits that the present review petition itself is not maintainable. It is submitted that the review applicant was a party respondent to the appeal and the JUR has been delivered after hearing the learned counsel for the parties. It is submitted that the scope of review is very limited. It is also submitted that under the guise of a review, a party cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. With the assistance of the learned counsel for the parties, we have scrutinized the material on record. He placed reliance on the following judgments of this Court in support of his submissions. The scope of review jurisdiction has been delineated by this Court in a catena of judgments. We would not like to burden the present judgment by reproducing all those judgments. It is thus settled that the review would be permissible only if there is a mistake or error apparent on the face of the record or any other sufficient reason is made out. We are also equally aware of the fact that the review proceedings cannot be equated with the original hearing of the case. The review of the judgment would be permissible only if a material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. We are also aware that such an error should be an error apparent on the face of the record and should not be an error which has to be fished out and searched. the High Court had held the provisions of Section 2(g)(6) of the 1961 Act to be unconstitutional being violative of second proviso to Article 31-A of the Constitution of India. This Court in the first round has set aside the judgment of the Full Bench of the High Court and remanded the matter for deciding the factual aspect as to whether the lands in question were within the ceiling limit or not.
LEGAL PROVISIONS
- Haryana Village Common Lands (Regulation) Act, 1961 (the 1961 Act):
Section 2(g) (sub-clause 6): This section was amended by Haryana Act No. 9 of 1992, which is central to the dispute.
- Article 31-A of the Constitution of India:
This article protects laws providing for the acquisition of estates and extinguishment or modification of rights in estates from being challenged on the ground of inconsistency with the fundamental rights conferred by Part III of the Constitution. The case involves the interpretation and application of this article.
- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (the Consolidation Act)
- Section 23-A: Deals with the management and control of lands after consolidation.
- Section 24: Pertains to the change of possession during consolidation.
- Section 18(c): Pertains to the earmarking of lands for common purposes during consolidation.
- Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (the Consolidation Rules)
- Rule 16(ii): Discusses the ownership and management of lands reserved for common purposes.
COURT’S ANALYSIS AND JUDGEMENT
At the outset, we must reiterate that the scope of review by this Court is very limited. The scope of review jurisdiction has been delineated by this Court in a catena of judgments. We would not like to burden the present judgment by reproducing all those judgments. It is thus settled that the review would be permissible only if there is a mistake or error apparent on the face of the record or any other sufficient reason is made out. We are also equally aware of the fact that the review proceedings cannot be equated with the original hearing of the case. The review of the judgment would be permissible only if a material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. We are also aware that such an error should be an error apparent on the face of the record and should not be an error which has to be fished out and searched. A perusal of the aforesaid paragraphs would reveal that in paragraph 6, this Court reproduced the provisions of Article 31 A, as amended. Analysing the said provision, the Constitution Bench held that, in the first two categories, the State “acquires” either an estate or rights in an estate i.e., there is a transference of an estate or the rights in an estate to the State. The Constitution Bench held that when there is a transference of an estate to the State, it could be said that all the rights of the holder of the estate have been extinguished. an estate to the State, it would properly fall within the expression “acquisition by the State of an estate”. It further held that, in the case of an acquisition by the State 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. The Constitution Bench carved out the difference between “acquisition by the State” on the one hand and “modification or extinguishment of rights” on the other. It held that in the first case, the beneficiary is the State while in the latter case the beneficiary of the modification or the extinguishment is not the State. this Court recorded the facts in the said case. It recorded that some of the lands were owned by the Gram Panchayat prior to consolidation, which was used for common purposes. It further held that a fraction of each proprietor’s land is taken and formed into a common pool so that the whole area may be used for the common needs and benefits of the estate, mentioned above. It further held that the proprietors naturally would also share in the benefits along with others. this Court held that it was 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”. This Court held that the Panchayat would manage it on behalf of the proprietors and use it for common purposes and that it cannot use it for any other purpose. This Court held that the proprietors also enjoy the benefits derived from the use of land for common purposes. this Court, referring to second proviso, held that 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. this Court held that there was an essential difference between “acquisition by the State” on the one hand and “modification or extinguishment of rights” on the other hand. It was held that in the first case, the beneficiary was the State while in the latter case, the beneficiary of the modification or the extinguishment was not the State. This Court held that since the Panchayat would fall within the definition of the word “State” under Article 12 of the Constitution, if the acquisition is for the purposes of providing income to the Panchayat, it would defeat the whole object of the second proviso. This court held that the Consolidation Officer could easily defeat the object of the second proviso to Article 31-A by reserving for the income of the Panchayat a major portion of the land belonging to a person holding land within the ceiling limit. In that view of the matter, we are of the considered view that the JUR needs to be recalled on the aforesaid grounds mentioned by us. The Review Petition is allowed. The judgment and order of this Court dated 7th April 2022 in Civil Appeal No. 6990 of 2014 is recalled and the appeal is restored to file.
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Judgement Reviewed by – HARIRAGHAVA JP
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