The provisions of Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and the Punjab Common Lands (Regulation) Act, 1954 are intra vires the Constitution.

Khosla, J.

1. This petition under Article 226 of the Constitution came up in the original instance before Harnam Singh J., sitting singly. Since the application sought to challenge the vires of Section 18, East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 50 of 1948, the matter was referred by him to a Division Bench. A reference to the petition, shows that the vires of the Punjab Common Lands (Regulation) Act, 1 of 1954, was also challenged although Harna Singh J. did not make any reference to it in his order.

2. A scheme of consolidation in respect of the lands of village Halalpur was sanctioned by the Consolidation Officer. In pursuance of this scheme it was proposed that:

"(a) 1006 bighas and 5 biswas of shamilat land belonging to the petitioners and the other proprietors or biswadars of the village be set apart and vested in the Gram Panchayat for the common use of the villagers;

(b) 11 acres of agricultural land belonging to the biswadars should be used for providing housing accommodation for non-biswadars; and

(c) 30 acres of agricultural land should also be handed over to the Gram Panchayat for the common use of the villagers."

3. The Consolidation Officer purported to act under the provisions of Section 18 of Act 50 of 1948 and also under the provisions of Punjab Act 1 of 1954. This action of the Consolidation Officer was challenged on the ground that private property was being taken possession of without paying adequate compensation to the owners and the conversion of village proprietary land to the use of non-proprietors was a violation of Article 31 of the Constitution.

4. The provisions of Act 50 of 1948 were considered by a Division Bench of this Court in --S. Gursaran Singh V/s. Punjab State, (S) AIR 1955 Punj 161 (A). This Court came to the conclusion that Sections 15(1) and 34 of the Act were intra vires the Constitution and valid in every respect. The provisions of Section 18 were, however, not considered in that case. There is, however, no doubt that the provisions of the Act as a whole do not violate the Constitution and the Act makes provisions for the payment of adequate compensation in every case. Kapur J. observed in that case :

"As I read Section 15 (1) it does make a provision for the payment of compensation to any owner who is allowed a holding of lesser market value than that of his original holding and also provides that the scheme should have a provision for the recovery of compensation from one owner for payment to another. Although the amount of compensation is not fixed -- as indeed it could not be -- the principles on which and the manner in which the compensation is to be determined and given has been provided in Section 34 (1) of the impugned Act which provides that compensation shall be assessed by the Consolidation Officer as far as practicable in accordance with the provisions of Section 23 (1) of the Land Acquisition Act, which section provides for what is to be taken into consideration for determining the compensation."

5. When the holdings in a village are consolidated the entire land is thrown into one hotch-potch and is then parcelled out to the various owners in proportion to their original holdings. If any land is needed for the common use of the villagers every proprietor makes a proportionate contribution and his final holdings are therefore decreased by the extent of his share in the land so set apart. There is no difficulty about a case in which the entire land is parcelled out to the various proprietors. If a proprietor is assigned a smaller area than he held originally he is paid compensation and if anyone is allotted a larger area he has to pay compensation. But the difficulty arises where a deduction is made on account of land reserved for common use and question here arises whether the proprietors should be paid compensation in accordance with the terms of Section 34 of the Act.

6. Now, if village land is taken from the proprietors and set a