JOHRIMAL versus DIRECTOR OF CONSOLIDATION OF HOLDINGS, PUNJAB

Citation: [1967] 3 S.C.R. 286 · Decided: 28-03-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

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Judgment (excerpt)

JOHRIMAL 
v. 
DIRECTOR OF CONSOLIDATION. OF HOLDINGS, PUNJAB 
March 28, 1967 
A 
[K. N. WANCHOO, R. S. BACHAWAT AND V. RAMASWAMI, JJ.J 
B 
East Punjab Holdings (Consolidation and Prevention of Fragmenta-
tion) Act, 1948 (East Punjab Act 50 of 1948) S.<. 18, 36 and 42 and 
Rules 16(ii)-Sclie111e confirmed-If can be varied 
by 
State-Proce-
dure-Proprietors' Gher land taken and 
formed illfo common pool-
Legality. 
A scheme was prepared and confirmed under s. 20 of the East Punjab 
Holdings (Consolidation and Pre.vention of Fragmentation) Act, 1948. 
providing that the owners of permanent ghers or enclosure• would be per-
mitted to retain them in their possession.· The respondent, under s. 42 
of the Act, reconsidered this matter and ordered that the 
plot of the 
appellant, who had. made a gher, should be kept for non-proprietors and 
consolidation records should be changed to that effect. The appellant suc-
cessfully challenged the respondent's order in a writ petition, 
which 
in 
appeal was reversed. 
Jn appeal to this Court, the appellant contended 
that (i) the power of the State Government under s. 42 was controlled 
by the procedure prescribed under s. 36 if it involved a variation of the 
r.onfirmed scheme and the order of the respondent wa• ultm vires since 
the procedure contemplated by s. 36 had not been followed, and (ii) the 
respondent's order was illegal as it violated s. 18(c) and 
Rule 
16(ii) 
beca11se under Rule 16(ii) only a fraction of each proprietors' land could 
be taken and formed into a common pool so that the whole may be used 
for the common needs and benefits of the. estate and there was no such 
reason mentioned in the impugned order as required by s. 18. 
HELD : (i) The power conferred on the 
State 
Government 
by 
s. 42 is not controlled by s. 36 and the procedu·re of publication and 
hearing objections contemplated by ss. 19 and 20 of the 
Act is 
not 
necessary. 
Sections 36 and 42 envisage two different situations and the 
inten:ion of the Act is to give powers rcspectiv·oly to the 
Confirming 
Authority and to the State Government 
to act under these sections in 
their discretion in any particula·r case. 
The reason for 
two 
different 
provisions in ss. 36 and 42 of the Act is also clear for if a scheme is vari-
ed or revoketl by the authority confirming it, then the new scheme has to 
be published so that interested parties may object and their 
objection 
decided by competent authorities se.t up under the Act those decisions 
being finally appealable to the State Government. 
But when a scheme 
is to be varied by the State Government itself under s. 42 of the Act, 
there is no requirement of the statute that the varied scheme should be 
published. 
The State Government is only required to give notice and 
to give an opportunity to the interested parties to be heard before the 
variation is made. 
[293G-294Bl 
· 
(ii) The respondent's order was illegal. 
In view of the decision in 
Ajit Singh v. Tile State of P1111j11h, [1967] 2 S.C.R. 143 the wide inter-
pretation of " 18(c) would make the operation of the section unconsti-
tutional. 
It is a well c•'.ablishcd rule that a slu:ulc has to he so read 
ns to make it valid., it has to 
he 
construccl 
11t res n1agi.\' valeat quani 
pareat. 
Applying the principle to the present e•i.c, it is manifest that 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
JOHRIMAL v. DIR. CONSOLIDATION (Ramaswami, I.) 
287 
s. !S(c) must be read in a restricted sense and the authority of the 
Consolidation Officer to reserve 
land for the common purpose 
under 
s. 18(c) of the Act must be restricted and it must be held that the 
Consolidation Officer has power under the section to take the land out of 
the comlr\on pool of the village only according to the rateable sh~re fn;m 
the propnetors and oth~r right-holders for any common purpose mcludmg 
the extension of the village ahadi. It is also clear that the power of the 
State Government to make reservation of land for common 
purposes 
under s. 42 is co-terminus with the power of the Consolidation Officer 
under s. !S(c). [296G-297D] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 153 of 
1964. 
Appeal from the judgment and order dated November 8, 19.60 
of the Punjab High Court in L. P.A. No. 284 of 1958. 
Bishan NaraiTJ, B.R.L. Iyengar, S. K. Mehta and K. L. Mehta, 
for the appellant. 
Gopa/ Singh, S. P. Nayyar for R. N. Sachthey, for the respon-
dents. 
The Judgment of the Court was delivered by 
Ramaswa

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