1. The sole question that arises for determination in this letters patent appeal relates to the interpretation of the expression 'prescribed' as used in Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, referred to hereinafter as the Rules, framed under the rule-making power conferred by Section 46 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter called the Act.
2. A scheme of consolidation of holdings for village Bahlba, Tehsil Gohana, District Rohtak, was prepared by the consolidation authorities and an area measuring 3220 Kanals 4 Marlas was reserved for common purposes allegedly under Section 18 of the Act. Sixty-six right-holders filed a writ petition in this Court under Articles 226 and 227 of the Constitution of India challenging the scheme and the attack was directed mainly on the ground that the said reservation was in contravention of Section 18 read with Rule 16 (ii). These provisions have been reproduced by the learned Single Judge in his judgment but for facility of reference they may be quoted again in extenso:--
'Lands reserved for common purposes.--Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the Consolidation Officer to direct-
(a) that any land specifically assigned for any common purpose shall cease to be so assigned and to assign any other land in its place;
(b) that any land under the bed of a stream or torrent flowing through or from the Siwalik mountain range within the State shall be assigned for any common purpose;
(c) that if in any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose.'
'In an estate or estates where during consolidation proceedings there is no shamlat deh land or such land is considered inadequate, land shall be reserved for the village Panchayat and for other common purposes, under Section 18(c) of the Act, out of the common pool of the village at a scale prescribed by Government from time to time. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi proprietors and non-proprietors) shall vest in the proprietary body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan W Digar Haqdaran Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilize the income derived from the land so reserved for the common needs and the benefits of the estate concerned.'
It will also be useful to refer at this stage to Section 46(2)(c) which gives the rule-making power. This provision reads as under:--
'46 (2). In particular and without prejudice to the generality of the foregoing power, the State Government may make rules providing for-
* * * * (e) the manner in which the area is to be reserved under Section 18 and the manner in which it is to be dealt with and also the manner in which the village abadi is to be given to proprietors and non-proprietors (including scheduled castes, Sikh, backward classes, artisans and laborers) on payment of compensation or otherwise.'
Section 2 (g) defined the expression 'prescribed' as follows:--
' 'prescribed' means prescribed by rules made under this Act;'
Section 18 admittedly empowers the Consolidation Officer to reserve land for common purpose in certain contingencies but the manner in which reservation is to be made is guided and controlled by Rule 16 (ii). A plain reading of this rule indicates that in an estate or estates where during the consolidation proceedings there is no shamlat deh land or such land is considered inadequate, land has to be reserved for the village Panchayat, and for other common purposes, out of the common pool of the village, and the of such reservation is to be prescribed by the Government from time to time.
3. It is a common ground before us that a scale has been fixed by executive instructions issued by the State Government but not prescribed under the Rules. The contention on behalf of the State is that the word 'prescribed' as used in Rule 16(ii) must not be given the meaning as assigned to it by Section 2(g) of the Act and all that is necessary under the rules is that some scale must be fixed. The contention, in other words, is that it could not be intended by the rule-making authority that every time a scale is to be fixed or changed, the rules be amended. We are afraid there is no substance in this contention. A meaning has been given to the word 'prescribed' by the Act and if the same expression is used in the rules, it cannot be given a different meaning unless the context points to the contrary or it leads to any repugnancy. The State Government has the power to make rules under Section 46(2)(e) is regard to the manner in which area is to be reserved under Section 18 and the matter of fixation of scale beyond doubt relates to the manner of such reservation. It could not possibly be intended that scales could be fixed by executive instructions when, as a matter of fact, the fixation of such scales is of great value and significance to the landowners in regard to reservation of land for common purposes. Executive instructions cannot take the place of rules and any interpretation permitting executive instructions to change the scales from time to time will be contrary to the scheme of the Act which provides for rules to be made for the manner in which an area is to be reserved for common purposes. Reference to Section 18 of the Punjab General Clauses Act is not out of place in this connection and it reads as under:--
'Where, by any Punjab Act, a power to issue any notification, order, scheme, rule, form, or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form or bye-law, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act, conferring the power.'
This provision again shows that an expression used in any Act or the rules made thereunder has to be given the same meaning.
4. Narula, J. in Ganda Singh v. State of Punjab, 1966-68 Pun LR (Supp) 640, had an occasion to consider Section 18(c) and Rule 16(ii). A controversy was raised before the learned Judge as to whether a scale of reservation as contemplated by Rule 16(ii) had been prescribed or not. On a reference to the averments of the parties, the learned Judge reached the conclusion that though reservation had been made for common purposes out of the common pool, no such scale had been prescribed by the Government, as urged by the counsel for the State. This authority does not directly cover the point in the instant case.
5. Again, the judgment of B. R. Tuli, J. in Puran v. The State of Haryana, 1969 Pun LJ 47, obliquely lends support to the proposition that reservation must be prescribed under Rule 16(ii) but there is no discussion on the subject.
6. The point in question has been dealt with only by R. S. Sarkaria, J. in Bool Singh v. State of Punjab, 1968 Cur LJ 911 (Punj. and Har.), where it is observed that 'prescription of a scale by a mere executive order, as distinguished from a statutory rule, is not valid prescription of the scale within the contemplation of Rule 16(ii), and has, therefore, to be ignored.
7. We are in respectful agreement with the view of Sarkaria, J. in the aforesaid case and must hold that the scale for reservation has to be prescribed in the rules itself and not that the same can be fixed by executive instructions.
8. For the foregoing reasons, there is no merit in the appeal which stands dismissed with no order as to costs.
9. Appeal dismissed