T.U. Metha, Acting, C.J.@mdashIn all these writ petition the Petitioners have challenged the vires of Sections 3 and 8 of the enactment called The Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Act 18 of 1974),which is hereinafter referred to as the impugned Act. According to the Petitioners, Sections 3 and 8 of this Act are violatory of the Constitutional provisions and beyond the competence and authority of Himachal Pradesh State Legislature. They have also challenged the vesting of certain lands under this Act as violating Articles 19 and 31 of the Constitution.
2. In order to understand the nature of the pleas raised by the parties, it would be necessary to state shortly the relevant provisions of the impugned Act.
3. This Act is passed with a view to provide for vesting and utilisation of village common lands in the State of Himachal Pradesh. The object of the Act as is apparent from Section 8 thereof, is that the common lands which vest in the Government u/s 3 of the impugned Act should be utilized for grazing and other common purposes for the inhabitants of the State as well as for allotment to a landless person or a person whose holding is less than one acre. This Act is put on the statute book in the year 1974 and it extends to the whole of the State of Himachal Pradesh. Vesting of the lands in question is provided by Section 3 as under:
"3. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests including the contingent interests, if any, of the landowner in the lands in any estate-
(a) vested in a Panchayat u/s 4 of the Punjab Village Common Lands (Regulation) Act, 1961 as in force in the areas added to Himachal Pradesh u/s 5 of the Punjab Re-organisation Act, 1966 except lands used or reserved for the benefit of village community including streets, lands, playgrounds, schools, drinking wells or ponds within abadi deh or gorah deh;
(b) described in the revenue records as shamilat Karaf, pattis, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh u/s 5 of the Punjab Re-organisation Act, 1966; and
(c) described in revenue records as shamilat, shamilat deh, shamilat taraf, shamilat chak and pattiin the areas comprised in Himachal Pradesh, immediately before first November, 1966; shall stand extinguished and all such rights, title and interests shall vest in the State Government free from all encumbrances.
(2) The provisions of Sub-section (1) of this section shall not apply to lands described in Clauses (b) and (c) of that Sub-section if, before the date of commencement of this Act-
(a) partition of such lands is made by the individual co-sharers through a process of law by a competent court or authority,
(b) transfer of such lands is made by the landowner by way of sale, gift or exchange,
(c) such lands built upon by an inhabitant by raising a residential house or cow-shed.
From this vesting provision it is evident that lands in any estate vested in the Panchayat u/s 4 of the Punjab Village Common Lands (Regulation) Act, 1961 or the lands described in revenue record as Shamilat Karaf, etc. or described in revenue records of the old area of Himachal Pradesh as Shamilat, Shamilat Deh etc. are expected to vest in the State Government free from all encumbrances. Sub-section (2) of Section 3 further says that this vesting would not operate in case of certain lands which are described in Clause (a), (b) and (c) thereof.
4. Point to be noted at this stage is that u/s 3 above quoted estates themselves did not vest in the Government but what vests in the Government is "lands" in the estate, and, therefore, it would be necessary to consider what is meant by the word "land" under the provisions of this impugned Act. For this we have to go to the definition clauses contained in Section 2 of the Act. Clause (h) of Section 2 provides that the words "land" and "private forest" have the same meanings assigned to them in the Himachal Pradesh Ceiling on Land Holdings Act, 1972. The expression "landowner" is defined in clause (d) as meaning a person having a share in the shamilat land as recorded in the lard records and includes a Panchayat. From these two clauses of Section 2, it is apparent that the Act borrows the definition of the words "land" and "private forest" given in the Himachal Pradesh Ceiling on Land Holdings Act, 1972, which is hereinafter shortly referred to as the Ceiling Act. If a reference is made to Section 3(f) of the Ceiling Act, we shall find the definition of the word "land" as under:
(f) ''Land'' means land which is not occupied as a site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes-
(i) the site of buildings and other structures on such land;
(ii) orchards;
(iii) ghasni;
(iv) banjar land; and
(v) private forest.
This definition shows that it consists of two parts. The first part contemplates those parcels of land which are occupied or have been let for agricultural purposes or for purposes subservient to agriculture or for pasture. The second part consists of five clauses of inclusion, out of which first is with regard to sites of buildings other than structure on "such land". The expression "such land" clearly connotes the land referred to in the first part of the definition, namely, the land which is occupied or has been let for agricultural purpose or for purposes subservient to agriculture or for pasture. It follows, therefore, that sites of buildings and other structures would be falling within the definition of the word "land" provided they are in the land described as occupied or has been let for agricultural purpose or for purposes subservient to agriculture or for pasture. In other words, sites of buildings and structures wherever found would not fall within the first category of inclusive clause. They would nonetheless fall within that category if they are found in the lands occupied or let for agricultural purpose or for purposes subservient to it or for pasture. Other items of the inclusive clause, namely, orchards, ghasni, banjar land and private forest are not governed by any qualification. We shall subsequently state the contentions raised by the learned Advocates of the parties with regard to these items of the inclusive clause. For the present, it would be sufficient to note that the definition, as it stands, does not contain any qualifying words with regard to these items.
5. Since the impugned Act does not give any independent definition of the word "land", and refers to the definition which is given in the Ceiling Act, it is also necessary to note what meaning is attached by the Ceiling Act to the words appearing in the definition Clause (f) of Section 3 thereof. Word "orchard" is defined by Clause (k) of Section 3 of this Act as under:
"Orchard" means a compact area of land having fruit bearing trees grown thereon in such number that they preclude, or when fully grown would preclude, a substantial part of such land from being used for any agricultural purpose, but shall not include land under banana or guava gardens or vine-yards.
The word''''Ghasni''''is not defined but the expression "Banjar" is defined in Clause (c) of Section 3 of that Act as under:
'' Banjat land'' means land which has remained un-cultivated for a continuous period of not less than two years immediately preceding the appointed day and includes culturable waste land recorded as banjar in the revenue records.
The expression "private forest", which is also one of the items of the inclusive clause of the definition of the word "land", as given above, is defined by Clause (p) of Section 3 of the Ceiling Act as under:
"Private forest" means a forest which is not the property of the Government or over which the State has no proprietary rights or to the whole or any part of the forest produce of which the State is not entitled.
It is obvious that when all these definitions are read together, we can have the correct idea of the meaning of the word "land" as used in the impugned Act. It may be stated at the cost of repetition at this stage that u/s 3 of the impugned Act what vests in the State is the "lands" in the estate and not the whole of the estate.
(6) Sub-section (3) of Section 3 of the impugned Act provides for compensation of an amount in lieu of the extinguishment of all rights, title and interests in the lands of an estate. Sub-sections (5) and (6) of Section 3 make provision for taking over the possession of the lands which have vested in the State under Sub-section (1) of Section 3.
7. It is not necessary at this stage to make any reference to Sections 4 and 5 of the Act. Section 6 of the Act authorises the Collector to determine the amount payable to the land owners as compensation.
8. Section 8, which is relevant, provides for the utilization of the land vested in the State Government. This section is in the following terms:
"8. (1) All lands vested in the State Government under this Act shall be utilised for the following purposes:
(a) an area not less than fifty per cent of the total area vested in the State Government u/s 3 of this Act for grazing and other common purposes of the inhabitants of an estate; and
(b) the remaining land for allotment to a landless person or a person whose holding is less than one acre to make his holding one acre under a scheme to be framed by the State Government by notification in the Official Gazette. The allottee shall pay an amount at the rate of forty-eight times the land revenue and rates and cesses chargeable on the land allotted to him under the said scheme, either in lump-sum or in six monthly instalments not exceeding four.
For carrying out the purposes of the Act, the impugned Act authorises the State Government to make rules. This is provided in Section 13. Pursuant to this, rules have been framed. These rules are called the Himachal Pradesh Village Common Lands Vesting and Utilization Rules, 1975. At a proper stage we shall make reference to the relevant rules. Pursuant to Section 8, which is quoted above, a scheme is framed called the Himachal Pradesh Village Common Lands Vesting and Utilization Scheme, 1975. This scheme is principally framed with a view to allot the land which is vested in the Government under the Act for different purpoess.
9. The above, in short, is the summary of the relevant provisions relating to the impugned Act.
10. Now, the case of the Petitioners is that the provisions of the Act do not apply to certain types of lands such as, for example, quarry lands, mines, forests, temples, gair mumkin land etc. According to the Petitioners, therefore, authorities acting under the Act are not entitled to take possession of these lands. It was pointed out that the possession of all these lands is sought to be taken without any enquiry as to whether these lands fall within the definition of the word "land" and, therefore, vest in the Government u/s 3 or not.
11. The Petitioners have contended that the compensation which is provided under the impugned Act is quite illusory and makes no distinction between a simple agricultural land, an orchard, or a forest. According to the Petitioners, this method of compensation at the same rate for all types of land irrespective of its intrinsic value is nothing but an attempt to grab the land under the garb of an agrarian reform.
12. According to the Petitioners, therefore, Section 3 of the impugned Act, under which the lands in question vest in the Government and Section 8 of this Act, under which the land is expected to be utilised, according to the scheme, are ultra vires as they are infringing the provisions of Articles 19 and 31 of the Constitution. They have further pleaded that even Sections 4, 5, 6 and 7 of the Act should be declared as un-enforceable because they are not severable from the impugned Sections 3 and 8. It is an admitted position that the impugned Act finds its place in the Ninth Schedule and, therefore, it is governed by Article 31B of the Constitution.
13. In view of the above position, the State has contended that the impugned Act is protected from any challenge on the ground of infringement of Articles 14, 19 and 31 of the Constitution.
14. According to the contentions raised by the learned Advocate-General on behalf of the State, the different kinds of lands which are involved in all these writ petitions, including the lands in which quarrying and mining operations are going on, fall within the definition of the word "land". In this connection, so far as the lands, on which quarrying and mining operations are going on, are concerned, the argument advanced by the learned Advocate-General was two-fold, namely, (1) that these lands are banjar lands and (2) they are also covered by the definition of the word "forest". Therefore, according to the learned Advocate-General, these quarries and mines are covered by the inclusive clause of the definition of the word "land" given in Ceiling Act u/s 3(f) thereof.
15. Before proceeding with the different categories of lands which are involved in these writ petitions, we would like to consider what is the correct interpretation of the definition of the word "land" given in Section 3(f) be divided into two parts. The first part has special reference to those lands which are occupied or have been left for agricultural purpose or for purposes subservient to agriculture or for pasture. This part of the definition excludes from its operation the site of any building in a town or village. But it covers within its ambit those lands which are occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture. Since the vesting under the Act takes place on the date on which the Act came into force, so far as this first part of the definition is concerned, only that land vests in the State which is found occupied or let for agricultural purpose or for purposes subservient to agriculture or for pasture on the date on which the Act came into force. If such occupation or letting, as is contemplated by the first part, has taken place after the Act has come into force, then it would obviously not fall within the mischief of the definition contemplated by this first part.
16. So far as the second part is concerned, it contains five items which are included with in the main definition clause. Now, the contention of the learned Advocates of the Petitioners was that these five items of the inclusive clause should be read with the requirement of the main definition clause which contemplates occupation or letting for agricultural purpose or for purposes subservient to agriculture. It was contended, therefore, that orchards would fall within the definition of the word "land" only if they are occupied or let for agricultural purpose or for purposes subservient to agriculture or for pasture. Similarly, ghasni, banjar land and private forests would fall with the definition of the word ''land'' only if they are either occupied or let for agricultural purposes or for purposes subservient to agriculture, or for pasture.
17. We find ourselves unable to accept this contention for the simple reason that this interpretation is against the plain reading of the definition given in Clause (f) of Section 3 of the Ceiling Act. If the contention of the learned Advocates of the Petitioners in this regard is accepted, it would amount to reading some more words which are not found in the definition clause. As a matter of fact, such a reading would go against the accepted norms of interpretation. When certain items are put in the definition clause as being included in the main definition, the normal presumption would be that they were so included because the Legislature wanted to get rid of the contention that the main definition clause would not otherwise include these items within its ambit. As held by the High Court of Madras in Madras Central Urban Bank Ltd. v. Corporation of Madras (AIR 1932 Mad. 474), when it is mentioned that a particular definition "includes" certain things, it should be taken that the Legislature either intended to settle a difference of opinion on the point or wanted to bring in other matters that would not properly come within the ordinary connotation of the word or expression or phrase in question. In Mellows v. Low [(1923) 1 K.B. 522, 526, Mc. Cardie, J. observed: "In my view the word ''includes'' used in para (g) is not a term of limitation or precise definition; it means what it says... that it includes the matters thereafter mentioned; in other words, it is a word of enlargement rather than of restriction". In Bishwanath Sao v. Official Receiver Fazl Ali, J. has observed that when in an interpretation clause it is stated that a certain term includes so and so, it is implied that the term retains its ordinary meaning whatever else it may mean. In view of this it is not possible to restrict the ordinary meaning of the word "include" which is used in the above quoted definition of the word "land" given in Section 3 of the Ceiling Act. Apart from the fact that the expressions "orchard", "banjar land" and "private forest" are statutorily defined in the different clauses of the Ceiling Act, we are of the opinion that even if these statutory definitions were not given, these words could not have carried any meaning more than what could be attributed to them in ordinary parlance. In other words, words of restriction or qualification which are sought to be applied to these items of the inclusive part of the definition cannot be read along with these words.
18. Another well established rule of interpretation is that the Legislature uses the word "means" where it wants to exhaust the significance of the term defined, and the word "includes", where it intends that while the term defined should retain its ordinary meaning, its scope should be widened by the specific enumeration of certain matters which its ordinary meaning may or may not comprise so as to make the definition enumerative but not exhaustive. Thus, the words which are included seek to expand the meaning given in the main definition clause. In this connection following, observations found from Mazwell on THE INTERPRETATION (p. 270 Twelfth Edition) can be quoted with advantage:
"Sometimes, however, the word ''include'' is used in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall ''include''. In other words, the word in respect of which ''includes'' is used bears both its extended statutory meaning and its ordinary, popular, and natural sense whenever that would be properly applicable.
Now, looking to the main definition of the word "''land'' given in Clause (f) of Section 3 of the Ceiling Act it is apparent that, but for the inclusive items, the word ''land'' would have meant only that land which was occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture. In ordinary course, this would have created doubt whether orchards ghasnis, banjar lands and private forests would fall within this definition. Since the Legislature, however, wanted to remove any doubt it provided for the inclusive clause by virtue of which'' these four items, namely, orchards, ghasni, banjar land and private forest, were included in the definition clause.
19. In support of the contention as regards the interpretation of the inclusive clause of the above referred definition of the word ''land'', the learned Advocates of the Petitioners put heavy reliance upon the interpretation given by the Supreme Court to Clause (iii) of Article 31A(2)(a) of the Constitution in State of U.P. v. Raja Anand Brahma Shah reported in AIR 1967 S.C. 661. According to Article 31A(2)(a), the expression "estate" shall, inter-alia, include "any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture, or sites of building and other structures occupied by cultivators of land, agricultural labourers and village artisans". Referring to this Clause (iii), it was contended on behalf of the State before the Supreme Court that any waste land or forest land would fall within this clause without any further qualification. In other words, it was contended that it was not necessary that these waste lands and forest lands should be held or let for purposes of agriculture or for purposes ancillary thereto. This contention of the State was rejected by the Supreme Court on proper construction of the said Clause (iii). The Supreme Court observed that construction which was canvassed would amount to rewriting the said clause as follows:
"Clause (a)(iii)
(A) any land held or let for the purposes of agriculture of for purposes ancillary thereto,
(B) any waste land, forest land, land for pasture,
(c) sites of building and other structures occupied by cultivators of land, agricultural labourers and village artisans.
The Supreme Court further observed that it was not possible to read Clause (iii) in the manner stated above. Sikri, J. (as he then Was), then observed with regard to this contention as under:
"It seems to us that if this was the intention, Clause (a)(iii) would have been split up and waste land, forest land and land for pasture would have figured separately in a separate clause. There are vast areas of forest land and waste land in India and it is not to be expected that these would be included in the definition indirectly by expanding the word ''land''. If this was the intention at least the word ''including'' would have been omitted and substituted by ''any''. Further, the whole object of Article 31A is to carry out agrarian reforms and it is difficult to see how agrarian reforms can be furthered by the acquisition of every parcel of forest land or waste land.
In our opinion the word ''including'' is intended to clarify or explain the concept of land held or let for purposes ancillary to agriculture. The idea seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture.
These observations make it clear that the species of waste land and forest land, which are mentioned in the inclusive clause, were held to clarify the nature of land mentioned in the first part of the definition of Clause (iii). The above observations also make it clear that had the Legislature split up the different clauses, the qualification of these species of land, namely, waste land and forest land, would not have carried with them the qualification of being held or let for purposes of agriculture, etc. It was on account of the peculiar drafting of Clause (iii) that the Supreme Court rejected the contention advanced on behalf of the State. But the Supreme Court has made it clear that had the three clauses been clearly separated then it would have been open to the State to argue that the clauses so separated did not carry with them any qualification, and the species so separately mentioned would have extended the definition on account of the inclusive clause. So far as the definition of land found in the cases before us is concerned, it is very clear and admits of no other interpretation except that the different items mentioned in the inclusive clause are independent of each other and do not carry with them the qualifications mentioned in the main clause of the definition. Under the circumstances, we are of the opinion that the above referred case of State of U.P. v. Raja Anand Brahma Shah (supra) cannot be of any help to the Petitioners in this case.
20. Reliance was also placed on certain observations of the Supreme Court in
21. Some rulings were also cited during the course of the arguments to show what is meant by the expressions "agricultural land" and "agricultural produce", when considered in the context of Income Tax Act and Wealth Tax Act. In our opinion, these rulings are not relevant as there is no such question involved in any of these writ petitions.
22. As already noted above, the question which is involved in these petitions is whether the items "orchard", "gahsni", "banjar land" and "private forest" found in the inclusive part of the definition given in Clause (f) of Section 3 of the Ceiling Act should be construed as being controlled by the words "is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture", which are found in the main portion of the definition. We have already shown by these words cannot be read along with these items of inclusion. We find that this Court, in Rajkumar Rajinder Singh v. State of Himachal Pradesh [ILR 1973 (Him) 469], while construing a similar definition of the word ''land'' given in Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, has held that the word "ghasni" found in the inclusive part of the definition of land should be construed in its ordinary meaning as included in the definition of the word ''land''. The definition which was considered in that case was quite similar to the one that we are considering. It was as under:
"Land" means land which is not occupied as a site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes-
(a) the sites of buildings and other structures on such land,
(b) orchards,
(c) ghasnis.
The contention which was raised before the court in that case was that certain categories of land, such as, banjar, abadi, gharat, kohlu and gair mumkin, did not fall within the definition of the word "land". Considering this contention this Court has observed that the definition quoted above enlarged the scope by including in it pastures, sites of buildings and other structures on such land, orchards and ghasnis. It was then observed in paragraph 16 of the reported judgment that pasture and ghasni are included as such in the definition and, therefore, would fall within the extended meaning of the definition. In another case arising out of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, the question arose whether ghasni and orchard were included as such within the definition of the word "land". Himachal Bench of Delhi High Court considered this aspect of the matter in Maharani Ram Sundari v. The State of Himachal Pradesh [1971 (7) DLT 64] and came to the conclusion that since orchards and ghasnis were specifically and separately mentioned in the definition as included in it, they would fall within the definition of the word "land" given in the statute. We find ourselves in agreement with both these decisions on this point.
23. Under these circumstances, we are of the opinion that the interpretation canvassed on behalf of the Petitioners regarding the inclusive clause of the definition of the word "land'' is not acceptable.
24. We shall now proceed to consider whether the different categories of land involved in these writ petitions fall within the definition given in Clause (f) of Section 3 of the Ceiling Act.
25. With regard to this contention, the learned Advocate-General contended that as per the Vesting clause of Section 3 of the impugned Act all the estates covering all the categories of lands vest in the State Government. In support of this contention he relied upon the following wordings found in Sub-section (1) of Section 3 of the Act:
"3.(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreemen, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests including the contingent interests, if any, of the landowner in the lands in any estate...
It was pointed out that according to this portion of Sub-section (1) of Section 3 what vests in the State Government is the whole estate and not a particular category of land situated in that estate. This contention is unacceptable for the obvious reason that on plain reading of Sub-section (1) of Section 3 it is apparent that what vests in the State Government is "land" in any estate, and not the estates themselves. An estate may consist of even the lands which are not covered by the definition of that word as given in Clause (f) of Section 3 of the Ceiling Act. When a statutory definition of a particular word is given, that word carries the meaning given by the Act and not the meaning attached to it by a layman or by dictionaries. Therefore, if a particular category of land does not fall within the statutory definition of the word ''land'' then it cannot be said that that land vests in the State u/s 3. Under the circumstances, the pertinent question to be considered with regard to each case is whether the land involved therein falls within the statutory definition accepted by the impugned Act. In this view of the matter, we are not able to accept this contention of the learned Advocate-General and, therefore, it would be necessary to consider on principle whether the different categories of lands which are involved in these writ petitions fall within the definition of the word ''land'' given in Clause (f) of Section 3 of the Ceiling Act.
26. In some of the writ petitions before us, the land which is said to have vested in the State Government u/s 3(1) of the impugned Act is the quarry land on which extensive mining and quarrying operations are going on. Civil Writ Petition No. 271 of 1974 is an instance of this kind. The contention of the Petitioners with regard to these quarry mines is that quarries and mines do not fall within the definition of the word ''land'' as they are not covered either by the main definition clause or by the clause of inclusion found in Clause (f) of Section 3 of the Ceiling Act. It is pointed out that the mines from which slate and other quarry products are extracted are admittedly not the lands occupied or let for agricultural purposes or for purposes subservient to agriculture, nor do they fall within any of the five items of inclusion mentioned in the definition of the word ''land'' and, therefore, to such quarries and mines, the impugned Act does not apply. It is pointed out that if this Act does not apply to such lands, their possession cannot be taken under the provisions of the Act.
27. As against this, the contention of the learned Advocate-General is that such quarry and mine lands would fall within the category of banjar lands as well as the category of private forests.
28. We shall first consider whether these quarry and mine lands would fall within the category called banjar land. Sir. James M. Douie in his PUNJAB SETTLEMENT MANUAL has explained the classification of uncultivated lands in paragraph 267 at page 141 of his book as under:
"Uncultivated land is classed as banjar jadid, banjar kadim, and ghair mumkir. If for four successive harvests land which onee was cultivated has not been shown it is classed in the last of the series as jadid or new fallow. If it continues to be uncultivated this entry should be maintained for the next four harvests, after which the land will pass into the category of kadim or old fallow. But kadim also includes all culturable waste whether it has ever been under the plough or not and it is proper to class all grazing land of fair quality as kadim, even though existing conditions of rainfall and sub-soil water level preclude its cultivation unless canal irrigation can be, and is, introduced. The term ghairmumkinis reserved for barren land. It is necessary to instruct patwaris carefully as to the distinction between kadim and ghairmumkin, otherwise they are apt to record land which is useless either for tillage or pasture as kadim because it yields for a brief period in the rains a scanty supply of poor grass. Lands under buildidgs, roads, streams, canals, tanks, etc., and barren and (ret) or kalar should be entered as ghairmumkin any further description which seems necessary being added, e.g., ghairmumkin, abadi ghairmumkin sarak, ghairmumkin ret.
These observations show that even though a particular piece of land is not cultivated for a number of years, for whatever reason, it should be shown as banjar kadim if it carries with it the potentialities of being cultivated. But if such potentialities do not exist, then that piece of land should be classified as ghairmumkin, In other words, a banjar land is that land which is capable of being cultivated, and a ghairmumkin land is that land which cannot be cultivated at all.
29. Apart from this general definition of the expression ''banjar land'', we find that Ceiling Act itself defines this expression in Clause (c) of Section 3 as under:
''banjar land'' means land which has remained uncultivated for a continuous period of not less than two years immediately preceding the appointed day and includes culturable waste land recorded as banjar in the revenue records.
Even this definition shows that only that land can be classified as banjar which carries with it the potentialities of being put under cultivation, provided suitable conditions are found. If we analyse the above statutory definition given to this expression in the Ceiling Act, it would be evident that the first part of the definition which contemplates non-cultivation for a continuous period of not less than two years uses the word "remained". This world unmistakably connotes the idea that the land which is contemplated therein is the land which is capable of being cultivated, but for some reason, has ''remained'' uncultivated. The second part of this definition refers to "culturable waste land".
Even this expression conveys the idea that though a particular piece of land is a waste land it should be ''culturable''. Thus, the whole of this definition clearly conveys the idea that only that land can be classified as banjar land which is capable of cultivation provided suitable conditions are found. In other words, the land which is not at all capable of cultivation under any condition, cannot be classified as banjar land.
30. In this connection, we would like to make it clear that this would be so even if the revenue record classifies a certain piece of land as banjar land. It need not be emphasised that the entries in the revenue record supply only a prima facie proof about the classification of lands. But this prima facie presumption as regards the classification is a rebuttable one and, therefore, it is the intrinsic character of the land in question which should determine its category, and the classification mentioned in the revenue record should not always he taken as final.
31. Now, if these tests are supplied to the lands which are covered by quarries and mines, the question which arises to be considered is whether these lands are "lands" or not. Applying the above tests we find that the question is of easy solution. We would answer this question by stating that those lands of mines and quarries which are capable of being cultivated can be classified as banjar lands, but those lands of quarries and mines which are not capable of being cultivated cannot be classified as banjar lands. Whether a particular piece of land covered by mines and quarries is capable of being cultivated or not is purely a question of fact which should be decided with reference to its own peculiar qualities. Under the circumstances, the contention of the learned Advocate-General that all lands covered by quarries and mines must be treated as banjar lands, and must, therefore, be treated as falling within the definition of the word ''land'' is not acceptable.
32. With regard to quarries and mines the learned Advocate-General contended that they fall within the category of private forests'' mentioned in the inclusive clause of the definition of the word "land''. The expression ''private forest'' is defined in Clause (p) of Section 3 of the Ceiling Act. Even Clause (A) of Section 2 of the impugned Act says that the expression ''private forest'' has the same meaning as assigned to it in the Ceiling Act. This expression is denned in the Ceiling Act as under:
(P) ''private forest'' means a forest which is not the property of the Government or over which the State has no proprietary rights or to the whole or any part of the forest produce of which the State is not entitled".
The learned Advocate-General pointed out that according to this definition even a forest produce to which the State is not entitled should be considered as "private forest". According to him, therefore, the produce extracted from quarries and mines situated in a private forest should be treated as private forest within the meaning of the definition of the word ''land'' and, therefore, all quarries and mines should be treated as falling within this definition. In this connection, he has also relied very heavily on the decision given by a Full Bench of the Bombey High Court in
33. We further find that Section 2(iv) of the Indian Forest Act, 1927, specifically provides that the expression "forest produce" includes "peat, surface soil, rock, and minerals (including limestone, laterite, mineral oils, and all products of mines or quarries)".
34. Considering the above definition of the expression "forest produce" given in the Forest Act, along with the definition of the expression ''private forest'' given in Clause (p) of Section 3 of the Ceiling Act, we find that quarries, mines and the materials extracted out of them must be considered as "private forest" within the definition of the word ''land'' given in Clause (f) of Section 3 of the Ceiling Act, provided these quarries and mines are found to be existing in a private forest. However, they cannot be so considered if they do not form part of a private forest.
In other words, if the lands on which quarries and mines are situated are found to be outside a private forest then they are not covered by the definition of the word ''land'' given in Clause (f) of Section 3 of the Ceiling Act.
35. It should be clarified that the above discussion is with reference to the question whether lands on which quarries and mines are situated are covered by the inclusive clause of the definition of the word "land". It, however, need not be emphasised that the main clause of the definition of "land" would come into operation if such land is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture.
36. To summarise, our findings with regard to the lands covered by mines and quarries are as under:
(1) Lands on which quarries and mines are situated fall within the definition of the word "land" if they are occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and the provisions of the impugned Act would apply to such lands.
(2) Lands covered by mines and quarries are not banjar lands if they are found to be not capable of being put under cultivation and are, therefore, gair-mumkin lands. So far as such lands are concerned, the impugned Act has no application at all.
(3) However, if such lands were capable of being put to cultivation on the date on which the impugned Act applied, they would fall within the category of banjar lands and, therefore, the provisions of the Act would apply to such lands.
(4) If the lands on which these quarries and mines are situated are found to be parts of a private forest then they fall within the category of private forest given in the definition of the word ''land''.
(5) If they are not part of a private forest and are situated outside a private forest, then they do not fall within the definition of the word ''land'' and the Act does not apply to them.
So far as the last category, namely, the lands on which mines and quarries are situated but do not form part of a private forest, is concerned, it would be necessary to consider the definition of the word ''mine'' given in Clause (j) of Section 2 of Mines Act, 1952. This definition would be helpful in determining the extent of the land covered by a mine. The definition, if perused, is found to be very extensive and cover all the different types of lands pertaining to mine. This definition is as under:
"mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes-
(i) all borings, bore holes and oil wells,
(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not,
(iii) all levels and inclined planes in the course of being driven;
(iv) all open cast workings;
(v) all conveyors or aerial ropeways provided for the brining into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;
(vi) all adits, levels, planes, machinery works, railways, tramways and sidings, in or adjacent to and belonging to a mine;
(vii) all workshops situated within the precincts of a mine and under the same management and used solely for purposes connected with that mine or a number of mines under the same management;
(viii) all power stations for supplying electricity solely for the purpose of working the mine or a number of mines under the same management;
(ix) any premises for the time being used for depositing refuse from a mine, or in which any operation in connection with such refuse is being carried on, being premises exclusively occupied by the owner of the mine;
(x) unless exempted by the Central Government by notification in the Official Gazette, any premises or part thereof, in or adjacent to and belonging to a mine, on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on".
37. It was contended on behalf of the Petitioners in Civil writ Petition No. 271 of 1974 by their learned Advocate Shri Sethi that so far as the mines situated in the forest land are concerned, it is always open to the Government to acquire them u/s 37 of the Indian Forest Act, 1927. He further contended that in view of this power of acquisition it was not open to the Legislature to provide for any acquisition under the impugned Act. This contention is not acceptable because there is nothing to prevent the Legislature from legislating on a subject which falls within its legislative powers even though provisions similar to those contemplated by the special Act, which is under consideration, are made in any other legislation. The legislative powers of a State Legislature are plenary with regard to the subjects which are State Subjects and, therefore, we see no force in this contention.
38. It was further contended by Shri Sethi, on behalf of the above referred Petitioners, that a civil litigation is pendidg between the Petitioners and the State Government with regard to the disputed quarries, and the District Court has given its findings in favour of the Petitioners in this litigation. It is an admitted position that an appeal over the decision of the District Judge is pending in the High Court. The contention of Shri Sethi was that since a dispute in the civil court is pending with regard to these quarries, the vesting contemplated by Section 3 of the impugned Act cannot take place. We see no force in this contention in view of the provisions contained in Section 3 of the impugned Act which say that the said vesting would take place notwithstanding any decree or order of any court or other authority.
39. We shall now proceed to consider other categories of lands involved in these writ petitions. These other categories of lands are orchards, ghasni, banjar land and private forests. These categories are clearly mentioned in the inclusive clause of the definition of the word ''land'' and, therefore, we see no difficulty in concluding that these categories of lands vest in the Government if they are found in the estate concerned.
40. In some writ petitions, the question has arisen whether roads, nadi-nallah and other gairmumkin lands fall within the definition of the word ''land''. We find that so far as roads are concerned, they would fall within the definition of the expression ''land'' if their purpose is subservient to agriculture, but not otherwise. So far as nadi-nallahs are concerned, the same can be said because if their purpose is found to be subservient to agriculture they would fall within the main clause of the definition of the word ''land'', but if they do not serve any such purpose then they would fall outside the scope of the word ''lard''. So far as other types of gairmumkin lands are concerned, unless it is shown that they are serving the purposes subservient to agriculture they would not fall within the definition of land. Gairmumkin lands by themselves and without being shown that they are serving the purpose subservient to agriculture would not generally fall within the definition of the word ''land'', as held by a Full Bench of Punjab High Court in Rajinder Parshad v. The Punjab State reported in AIR 1966 Pb. 185.
41. In one writ petition the question has arisen whether temples (mandirs) fall within the definition of the word "land". So far as these temples are concerned, they are obviously structures on land. The inclusive item No. 1 of the definition clauses says that sites of buildings and other structures "on such" land would be included within the definition of the word ''land''. The use of the word "such" signifies the type of the land which is mentioned in the foregoing portion of the definition, and the foregoing definition shows that the land which is contemplated is the land which is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture. It would, therefore, follow that if a temple is found to be on the land which is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture then such a temple would fall within the definition of the word ''land'' but not otherwise. The same can be said about other structures provided they are not occupied as site of any building in a town or village and also provided that they are not covered by Clause (c) of Sub-section (2) of Section 3 of the impugned Act.
42. So far toda land is concerned, the same would fall within the definition of the word ''land'' if it is found to be banjar land as described above or if it is found to have been occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture.
43. The learned Advocates of the Petitioners contended that the authorities concerned seek to take possession of the lands without considering whether a particular piece of land falls within the definition of the word "land" and also without considering whether the said land falls within the purview of Sub-section (2) of Section 3 of the impugned Act. This Sub-section (2) of Section 3 of the impugned Act specifically exempts certain types of lands from being vested in the State Government. The provisions of this Section are already quoted above. It will be evident from these provisions that certain types of lands covered by partition, transfer, and the lands on which residential house or cow-shed are built are exempted from being vested in the State Government under Sub-section (1) of Section 3. The grievance made by the Petitioners is that though some of their lands are covered by Sub-section (2) of Section 3 they are treated as vested in the State by the concerned authorities. It is found that in none of the petitions which are before us any enquiry is made as to the question whether a particular piece of land is exempted from vestment or is not governed by the definition of the word ''land''. According to the Petitioners, neither the provisions of the Act nor the Rules framed there under contemplate any such enquiry. It is ture that the provisions contained in the impugned Act do not specifically refer to any such enquiry, because the only enquiry which is contemplated by the Act is the enquiry relating to the amount of compensation. Section 6 of the impugned Act is with regard to such an enquiry. However, the learned Advocate-General has drawn our attention to Rule 9 of the Rules framed u/s 13 of the Act. This Rule 9 is in the following terms:
"If a dispute arises regarding entry of the land vested in the State Government, the Collector shall be competent to decide the same after a summary enquiry".
Rule 10 prescribes the procedure of such summary enquiry as under:
"The procedure for Revenue Officers prescribed in rules made under The Punjab Land Revenue Act, 1887, shall be applicable to all inquiries under the Act.
It was pointed out on behalf of the State Government that an inquiry as regards the dispute on the question whether a particular piece of land vests in the State Government or not can be conducted under Rule 9 by the Collector and, therefore, it was for the Petitioners to approach the Collector for making such an inquiry under this rule.
44. We are of the opinion that all inquiries with regard to vesting of a particular piece of land in the State Government can be conducted by the Collector under Rule 9 quoted above. The scheme which is envisaged is that vestment contemplated by the impugned Act is immediate u/s 3. Under Rule 8, Form ''C, which prescribes the Form of Tehsil Register of demarcation of Shamilat land, entries are required to be made in the said Register. Under Sub-section (5) of Section 3 it is provided that the Collector may, by order in writing, at any time after the land has vested in the State Government, direct the landowners to deliver possession thereof within ten days from the service of the order to such person as may be specified in the order. Now, before the Collector proceeds under Sub-section (5) of Section 3, there is a scope of dispute arising regarding entry of land having been vested in the State Government. Therefore, it is clear that the enquiry contemplated by Rule 9 should be started before action under Sub-section (5) of Section 3 is taken. The result, therefore, is that after vesting contemplated by Section 3 of the Act is presumed to have taken place, the Collector is bound to enquire into and consider the disputes relating to this vestment. This enquiry is of a summary nature and is required to be conducted by the Collector in accordance with the procedure prescribed in rules made under the Punjab Land Revenue Act, 1887. Section 9 of the impugned Act provides for an appeal against the order passed by the Collector in such an enquiry. This appeal lies to the State Government. It would be only after the matter is finally settled, through appeal or otherwise, that proceedings contemplated by Sub-section (5) of Section 3 with regard to taking of the possession can be undertaken, because till then it would not be clear whether a particular piece of land has legally vested in the State Government or not.
45. We may revert to the provisions of Sub-section (2) of Section 3, which is already referred to above. So far as this Sub-section (2) is concerned, the Collector shall have to ascertain whether a particular case falls within any of its three Clause (a), (b) and (c). It would be only thereafter that it can be ascertained whether the land which is said to be covered by the provisions of Sub-section (2) legally vests in the State Government or not. It need not be emphasised that if as a result of the enquiry, conducted by the Collector under Rule 9, it is found that a particular piece of land does not fall within the definition of the word ''land'', as given in Clause (f) of Section 3, as explained by us in this judgment, or that provisions of Sub-section (2) of Section 3 apply to such land, the Collector will have to arrive at a conclusion that that land does not legally vest in the State Government.
46. In view of what we have stated above with regard to the enquiry by the Collector, the learned Advocates of the Petitioners do not press any other point involved in any of these writ petitions at this stage. Therefore, none of these points requires to be considered here.
47. In view of these findings, the Petitioners'' prayers for declaring Sections 3 and 8 as well as Sections 4, 5, 6 and 7 as void and ultra vires are rejected.
48. We, however, direct the concerned Collectors to enquire into the claims of the Petitioners as regards vesting of their respective lands provided they raise any objection thereto. At the time of deciding these claims, the said Collectors shall bear in mind the observations made by us in the foregoing portion of this judgment with regard to the categories of lands which fall within the definition of the word ''land'' given in Clause (f) for Section 3 of the Ceiling Act.
49. Stay orders passed in these matters shall stand vacated, and as already noted above, possession of the lands in question shall not be taken, if it is not still taken, till the enquiry contemplated by Rule 9 is finalised in cases where objection s are raised by the Petitioners.
50. These writ petitions are accordingly disposed of without any order as to costs.
