Judgment

CHANDRACHUD, CJI.:- Eight writ petitions were filed in the High Court of Punjab and Haryana, involving a common question of law as to the alleged repugnancy between the Administration of Evacuee Property Act of 1950 and, the Punjab village Common Lands (Regulation) Act of 1953 (referred to herein as the Punjab Act of 1953). Four, out of the eight writ petitions, relate to lands situated in the State of Haryana, while the remaining four relate to lands situated in the State of Punjab.

2. The controversy in the writ petitions is between the right of the Gram Panchayats to the Shamlat-deh lands situated in these 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 Panchayats.

3. Prior to the partition of India on August 15, 1947 the shamlat-deh lands in Punjab were owned by the proprietors of the other lands in the village, "Hasab Rasad Khewat", that is to say, in the same proportion in which they owned the other lands. Therefore, a person who did not own any other land in the village could have no proprietary right or interest in the shamlat-deh lands. But, though the interest of the proprietors of the other lands, in shamlat-deh lands, was incidental to their proprietary interest in those other lands, such interest in the shamilat was not a mere appendage to their interest in the other lands. Our learned Brother, Chinnappa Reddy, has referred in his judgment to a leading decision of the Lahore High Court (Rahaman v. Sai ILR 9 Lah 501 in which it was held that, if a proprietor alienated his land, the alienee would not acquire any interest in the Shamilat by mere virtue of the alienation. That was but consequential to the well-established legal position in Punjab that the Shamlat-deh lands were intended for the common use of all sharers.

4. There were some villages in Punjab which were mostly inhabited by Muslims, with the result that almost all the lands in those villages were owned by Muslim proprietors who, as a result of their proprietary interest in those lands, had a proportionate undivided share in the shamlat-deh lands. They had only an undivided share in the Shamlat-deh lands because such lands were not liable to be partitioned, they could not be alienated and, they were intended to be used and were in fact used, without exception, as undivided property of the proprietors of the other lands. Indeed, our learned Brother has cited a passage from Rattigans Digest of the Customary Law in the Punjab, which shows that Shamlat-deh lands were treated as reserved for common village purposes. Some of the villages in Punjab and, many in Haryana, were inhabited partly by Muslims and partly by non-Muslims. Most of the Muslim proprietors migrated to Pakistan whereas, the non-Muslims continued to live in their villages.

5. The question as to the management and preservation of the property left by Muslim evacuees led to the passing of the East Punjab Evacuees (Administration of Property) Act, 14 of 1947. That was an Act o