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Govindsingh Ramsinghbhai Vaghela Vs. C. Subbarav and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 977 and 1532 of 1968 and 630, 218 and 220 to 222 of 1969
Judge
Reported inAIR1971Guj131; (1970)GLR897
ActsTenancy Law; Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 - Sections 9(3), 31 and 37(2); Constitution of India - Article 31-A; C.R. Bombay Land Revenue Code, 1879 - Sections 10
AppellantGovindsingh Ramsinghbhai Vaghela
RespondentC. Subbarav and ors.
Cases ReferredSonu v. Arjun
Excerpt:
(i) property - power of delegation - sections 9 (3), 31 and 37 (2) of bombay prevention of fragmentation and consolidation of holdings act, 1947 - petition challenging certain provisions of act - sale of certain lands took place - assistant collector instituted proceeding for violation of section 9 read with section 31 - notice issued to transferor and transferee - petition challenged validity of order - constitution of india conferred power on legislature to make laws - legislature empowered to delegate subsidiary or ancillary powers of legislation to carry out policy laid down in enactment - power delegated on authority should not be very wide - definite boundaries must be delineated within which delegated power must confine. (ii) audi alterum partem - when assistant collector proposed.....bhagwati, c.j.1. these petitions challenge the constitutional validity of certain provisions of the bombay prevention of fragmentation and consolidation of holdings act, 1947. the petitions divide themselves in two groups: one group consisting of special civil applications nos. 977/68, 1533/68 and 630/69 relates to lands situate in three villages, namely, rampur, dhori and saroda and the other group consisting of special civil applications nos. 218/69 and 220 to 222 of 1969 relates to lands situate in village sarendi. the facts giving rise to the two groups of petitions are a little different though most of the questions of law are common and it is, therefore, necessary to state the facts separately in relation to each group. but before we do so, we may point out one common feature in all.....
Judgment:

Bhagwati, C.J.

1. These petitions challenge the constitutional validity of certain provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The petitions divide themselves in two groups: one group consisting of Special Civil Applications Nos. 977/68, 1533/68 and 630/69 relates to lands situate in three villages, namely, Rampur, Dhori and Saroda and the other group consisting of Special Civil Applications Nos. 218/69 and 220 to 222 of 1969 relates to lands situate in village Sarendi. The facts giving rise to the two groups of petitions are a little different though most of the questions of law are common and it is, therefore, necessary to state the facts separately in relation to each group. But before we do so, we may point out one common feature in all the petitions, namely, that in each of these villages, at one time or the other, the scheme of consolidation of holdings was prepared by the Consolidation Officer and confirmed by the Settlement Commissioner or the State Government, as the case may be, in accordance with the procedure prescribed in the Act and consolidated holdings were allotted to owners of lands under the relevant consolidation scheme.

2. In Special Civil Application No. 977/68 which may be taken as a representative petition of the first group, Survey No. 59 which was a consolidated holding was allotted to respondents Nos. 3 to 5 under the consolidation scheme and by a registered sale deed dated 11th May 1964, the petitioner purchased this land from respondents Nos. 3 to 5 for price of Rs. 3,000/-. The Assistant Collector, on coming to know about the sale, instituted a proceeding, namely, Consolidation Case No. 6 of 1968 under Section 9 read with Section 31 and issued notice dated 13th May 1968 to the petitioner and respondents Nos. 3 to 5 calling upon them to show cause why the sale should not be declared void and fine to the extent of Rs. 250/- not imposed on respondents Nos. 3 to 5. The petitioner appeared before the Assistant Collector in response to the show cause notice and submitted his reply but the Assistant Collector by an order dated 25th July 1968 declared the sale to be void, imposed a fine of Rs. 75/- on respondents Nos. 3 to 5 and directed that possession of the land be restored to the original owners, namely, respondents Nos. 3 to 5. Similar order was also passed by the Assistant Collector in Special Civil Application No. 1533/68, while in Special Civil Application No. 630/69, only a show cause notice was issued by the Assistant Collector. The petitioners thereupon filed Special Civil Applications Nos. 977/68 and 1533/68 challenging the validity of the orders passed by the Assistant Collector and Special Civil Application No. 630/69 challenging the validity of the show cause notice issued to the petitioner.

3. So far as Special Civil Applications Nos. 218 and 220 to 222 of 1969 are concerned, the scheme of consolidation in village Sarandi was confirmed by the State Government on 29th March 1956 and possession of consolidated holdings was taken by persons entitled to possession of the same under the scheme on 6/7th May 1956. The sale of the land in special Civil Application No. 218/69 was effected on 20th April 1956 while in Special Civil Application No. 220/69 the sale of the land was effected on 19th March 1957. The Assistant Collector, in each of these cases issued notice to the transferors and the transferees and after hearing them, made orders declaring the sale in each case to be void under Section 9 read with Section 31 and imposed fine on the transferors. No directions were given by the Assistant Collector for handing over possession of the respective lands to the transferors since the transferees were tenants of the lands and were as such entitled to continue in possession of the lands. The lands forming the subject matter of Special Civil Applications Nos. 221 and 222 of 1969 were sold on 15th March 1956 and 18th July 1956 respectively before the consolidation scheme came into force but the notices issued by the Assistant Collector to the transferors and the transferees called upon them to show cause why the sale should not be declared void under Section 9 read with Section 31 and the fine of Rs. 250/- not imposed on the transferors. The transferors and the transferees appeared in answer to the show cause notices and after hearing them, the Assistant Collector passed similar orders declaring the sale in each case to be void on the ground that it was effected in violation of Section 27(b) and imposing fine on the transferors. In these cases too, no directions were given by the Assistant Collector for handing over possession of the respective lands to the transferors since the transferees were tenants of the lands and as such they were entitled to continue to remain in possession of the lands. The petitioners thereupon preferred Special Civil Applications Nos. 218 and 220 to 222 of 1969 challenging the validity of the orders passed by the Assistant Collector in each of these cases.

4. The main grounds of challenge in the petitions relate to the validity of Sections 9, 31 and 37(2)(n) of the Act but before we set out these grounds, it would be convenient at this stage to refer briefly to the relevant provisions of the Act and to analyse the scheme underlying those provisions. The Act was passed as the preamble shows 'to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof'. This is also evident from the history of the enactment of the Act which we find set out in the affidavit-in-reply filed by Kumari G.D. Desai, Deputy Collector, on 26th March 1969 in reply to the petition in Special Civil Application No. 977/68. Section 2 sub-section (2) defines 'consolidation of holdings' to mean the amalgamation and where necessary the redistribution of holdings or portions of holdings in any village, mahal or taluka or any part thereof so as to reduce the number of plots in holdings. 'Fragment' is defined in Section 2(4) to mean a plot of land of less extent than the appropriate standard area determined under the Act and 'standard area', according to Section 2(10) means the area which the State Government may from time to time determine under Section 5 as the minimum area necessary for profitable cultivation in any particular local area, and includes a standard area revised under the said section. Chapter II comprising Sections 3 to 14 deals with the subject of determination of local and standard areas and treatment of fragments, Section 6 sub-section (1) provides that all fragments in the local area shall be entered as such in the Record of Rights and notice of every entry so made shall, says Section 6 sub-section (2), be given in the manner prescribed for the giving of notice of an entry in the register of mutations. Section 7 imposes a prohibition on transfer or lease of any fragment in respect of which a notice has been given under Section 6 sub-section (2) except in certain specified circumstances and Section 8 declares that no land in any local area shall be transferred or partitioned so as to create a fragment. Section 9 which is one of the sections impugned in these petitions, then proceeds to state: -

'9. (1) The transfer or partition of any land contrary to the provisions of this Act shall be void.

(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding Rs. 250 as the Collector may, subject to the general orders of the State Government, direct. Such fine shall be recoverable as an arrear of land revenue.

(3) Any person unauthorizedly occupying, or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector'.

The remaining Sections in Chapter II make certain other provisions in regard to fragments but we are not concerned with them in the present petitions and they need not, therefore, detain us.

5. Then we come to Chapter III which contains a fasciculus of Sections from Section 15 to 25. This Chapter, as the heading shows, deals with the procedure for consolidation. Section 15 provides that with the object of consolidating holdings in any village, mahal, taluka or tehsil or any part thereof for the purpose of better cultivation of lands, the State Government may declare by a notification in the Official Gazette and by publication in the prescribed manner its intention to make a scheme for the consolidation of holdings in such village or villages or part thereof as may be specified and on such publication in the village concerned the State Government may appoint a Consolidation Officer who shall proceed to prepare a scheme for the consolidation of holdings. Section 15A lays down the principles to be followed by the Consolidation Officer in preparing the consolidation scheme. Section 16 sub-section (1) says that the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value that that of his original holding. Section 17 contemplates that by following the procedure prescribed therein any road, street, lane or path may be amalgamated with any holding in the scheme of consolidation and in that event the rights of the public as well as of all individuals in or over the said road, street, lane or path may be extinguished or, transferred to a new road, street, lane or path laid out in the scheme of consolidation. Section 18 declares that it shall be lawful for the Consolidation Officer, in consultation with the village committee.-

(a) to direct that any land specifically assigned for any public purpose shall cease to be so assigned and to assign any other land in its place;

(b) if in any area under consolidation no land is reserved for any public purpose including extension of the village sites, or if the land so reserved is inadequate, to assign other land for such requirements and for that purpose to effect a proportionate cut in all the holdings of the village, subject of payment of compensation to every person affected by the proportionate cut in the holdings of the village. Section 19 provides for publication of draft scheme of consolidation and filing of objections relating to the scheme by persons likely to be affected by the same. The Consolidation Officer is required to consider the objections received and to submit the scheme with such amendments as he considers to be necessary, together with his remarks on such objections, to the Settlement Commissioner. Section 20 then provides for confirmation of the scheme by the Settlement Commissioner or the State Government according as the objections are received or not. Section 21 states as to what is to happen after the scheme of consolidation is confirmed by the Settlement Commissioner or the State Government -

'21. (1) Upon the confirmation of the scheme under sub-section (1), (3) or (4) of Section 20, a notification stating that the scheme has been confirmed shall be published in the Official Gazette and the scheme as confirmed shall be published in the prescribed manner in the village or villages concerned. If two-thirds or more of the owners affected by such scheme agree to enter into possession of the holdings allotted to them thereunder, the Consolidation Officer may allow all the owners to enter into such possession forthwith or from such date as may be specified by him.

(2) If two-thirds or more of such owners do not agree to enter into possession under sub-section (1), all the owners shall be entitled to possession of the holdings allotted to them under the scheme from the commencement of the agricultural year next following the date of publication of the notification in the Official Gazette under sub-section (1).

(2A) In enforcing the provisions of sub-s. (1) or (2) the Consolidation Officer shall if necessary, put the owners in possession of the holdings to which they are entitled under the scheme and for doing so may, in the prescribed manner, evict any person from any land.

(3) Notwithstanding anything contained in sub-section (2) no owner shall be entitled to possession of any holding allotted to him under the scheme unless he deposits in the prescribed manner within fifteen days of the commencement of the said agricultural year such compensation as is recoverable from him under the scheme.

(4) Where an owner fails to comply with the provisions of sub-section (3) his right in such holding may be allotted in the prescribed manner by the Consolidation Officer to any person who pays the value of the holding, and in such case the value realised after deducting the expense (hereinafter called the net value) shall be paid to the owner and any other person having an interest in the holding.

(5) xx xx xx

Section 22 is also an important section and it says that as soon as the persons entitled to possession of holdings under the Act have entered into possession of the holdings respectively allotted to them, the scheme shall be deemed to have come into force. Section 24 provides for issue of a certificate of transfer to every owner to whom a holding has been allotted in pursuance of a scheme of consolidation. Section 25 is not material and we need not refer to it.

6. Chapter IV which is the next chapter is headed 'Effect of consolidation proceedings and of consolidation of holdings' and obviously deals with that subject. This chapter also comprises several sections but we are concerned only with three or four of them. Section 27 Clause (b) provides that when a Consolidation Officer proceeds to prepare a scheme under Section 15, during the continuance of the consolidation proceedings, no person shall transfer any land in respect of which a notification under Section 15 has been issued. Section 28 declares that every owner to whom a holding is allotted in pursuance of a scheme of consolidation shall, save as otherwise provided in Section 29A, have the same rights in such holding as he had in his original holdings. Section 29 provides for transfer of encumbrances from the former holding of the owner to the new holding allotted to him under the scheme of consolidation. If the holding of an owner included in a scheme of consolidation is burdened with a lease, Section 29A empowers the Consolidation Officer to decide whether such lease should be transferred to the new holding allotted to him. Section 31 is the next important Section and since it is one of the Sections impugned in these petitions, it would be desirable to set it out in extenso: -

'31. Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall be -

(a) transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, or lease, or otherwise, except in accordance with such conditions as may be prescribed;

(b) sub-divided (including sub-division by a decree or order of a Civil Court or any other competent authority) except with the permission in writing of the Commissioner, subject to the general orders of the State Government'.

7. Then there are certain other provisions in Chapter IV dealing with the variation of the scheme of consolidation but they are not material.

8. The last Section to which we must refer is Section 37 which is contained in Chapter V. That Section, omitting portions immaterial, reads as follows: -

'37. (1) The State Government may by notification in the Official Gazette make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the forgoing power, the State Government may make rules, providing for -

xx xx xx (n) the conditions in accordance with which holdings may be transferred under Clause (a) of Section 31;'

The State Government has, in exercise of the powers conferred under Section 37, made the Bombay Prevention of Fragmentation and Consolidation of Holdings Rules, 1959, and Rule 27 sets out the conditions in accordance with which holdings may be transferred under Section 31 Clause (a) as contemplated in Section 37(2)(n).

9. Having referred to the relevant provisions of the Act and the Rules, we will now proceed to set out the grounds on which the challenge in the present petitions is based. These grounds are seven in number and they may be formulated as follows: -

(A) The power to prescribe conditions according to which consolidated holdings may be transferred, conferred on the State Government under Section 37(2)(n) read with Section 31 Clause (a) is a legislative power and since it is arbitrary, unguided and uncanalised, without any legislative policy or principle to control its exercise Sections 31 Clause (a) and 37(2)(n) suffer from the vice of excessive delegation of legislative power and are, therefore, void.

(B) Section 9 sub-section (3) confers unguided and unfettered power on the Collector to summarily evict any person falling within the category there specified: there is no policy or principle to guide the Collector in the matter of selection of persons within the specified category who should be summarily evicted under Section 9 sub-section (3): even amongst persons falling within the specified category, it is open to the Collector at his own sweet will to proceed against and thus to discriminate amongst them; Section 9 sub-section (3), therefore, goes beyond the permissible limits of constitutional delegation of legislative power and is in any event violative of Article 14.

(C) Section 31 Clause (a) discriminates unjustly between the transferor and the transferee in that it empowers the Collector to restore possession of the land to the transferor though the transferor is the person who commits breach of the inhibition contained in the statute and does not provide for refund of the purchase price to the transferee though the transferee is not under any direct prohibition from purchasing and is, therefore, less blame-worthy than the transferor and it, therefore, infringes the equal protection clause contained in Article 14.

(D) Section 31 Clause (a) is violative of Article 31(2): It also infringes Art. 19(1)(f) in that it imposes unreasonable restrictions on the right of the owner to transfer the consolidated holding allotted to him under the consolidation scheme.

(E) Rule 27 is beyond the scope of the rule-making power conferred under Section 37(2)(n): in any event it is violative of Articles 19(1)(f) and 31(2).

(F) Section 9 sub-section (3) merely empowers the Collector to summarily evict the transferee: it does not authorise him to take possession of the land from the transferee and to hand it over to the transferor; the impugned orders are, therefore, bad in so far as they direct that possession of the respective lands be given back to the original owners.

(G) The show cause notice in Special Civil Application No. 630 of 1969 is issued and the orders impugned in the other petitions are made by the Assistant Collector and not by the Collector as required under Section 9 sub-sections (2) and (3) and being made by an officer without authority, they are null and void.

These grounds are common to all petitions but there are certain additional grounds which are peculiar only to some of the petitions and they are: -

(H) The impugned order of possession in special Civil Application No. 977/68 was made by the Assistant Collector without giving any opportunity to the petitioner to show cause why he should not be summarily evicted and possession of the land restored to respondent Nos. 3 to 5 and it was, therefore, void as being in breach of audi alteram partem rule.

(I) The sales in Special Civil Applications Nos. 218/69 and 220/69 were effected prior to the date when certificates of transfer were issued by the Consolidation Officer under Section 24 and Section 31 Clause (a) was, therefore, not attracted and the sales could not be declared to be void on ground of contravention of Section 31 Clause (a).

(J) The show cause notices issued to the parties in Special Civil Applications Nos. 221/69 and 222/69 alleged contravention of Section 31 and called upon the parties to show cause why the sale should not be declared to be void under Section 9 read with Section 31 while the impugned orders were based on contravention of Section 27 Clause (b); the impugned orders were, therefore, based on a ground in relation to which no opportunity to show cause was given by the Assistant Collector and they were accordingly null and void.

10. We shall examine these grounds in the order in which we have set them out above.

11. Re: Ground (A):- The question as to whether a Legislature which has limited powers under the Constitution can delegate its legislative power to any other authority and if so to what extent is now no longer open to doubt or debate and is well settled by several decisions of the Supreme Court. These decisions clearly establish that the Constitution having conferred a power and imposed a duty on the Legislature to make laws, the Legislature cannot abdicate or efface itself. The Legislature alone must perform the essential legislative function and the essential power of legislation cannot be delegated. The essential legislative function consists in the determination or choice of the legislative policy and its formulation as a rule of conduct. The Legislature cannot, therefore, delegate to an extraneous authority its function of laying down legislative policy in respect of a measure and of formally enacting that policy into a binding rule of conduct. That must be done by the Legislature itself. Now though the aim of the Legislature be to project its mind as far as possible into the future and to provide in terms as general as possible for all contingencies that are likely to arise in the application of the law, it may not be possible to provide specifically for all cases and the application of the law in many cases may depend on ascertainment of facts and circumstances which must necessarily be a 'subject of inquiry and determination outside the halls of the Legislature. It may, therefore, become necessary for the Legislature to delegate subsidiary or ancillary powers of legislation to delegates of its choice for carrying out the policy laid down in the enactment and this would be particularly so in modern times when the Legislature is called upon to enact laws to meet the challenge of complex socio-economic problems. The Legislature, must therefore, necessarily delegate subsidiary or ancillary powers of legislation to the executive or other authority and leave the executive or such other authority to work out the details within the framework of the policy laid down by it to suit the varying aspects and needs of a complex and sometimes rapidly changing situation. The power conferred on the delegate must not, however, be so wide that it is impossible to discern its limits. There must be definite boundaries within which the power of the delegate must be confined. The Legislature must lay down the legislative policy and the legal principles which are to control any given cases and must provide a standard which would afford guidance in carrying out that policy before it delegates its subsidiary power in that behalf. Where therefore, there is a challenge to the vires of a statute on the ground of excessive delegation, it becomes necessary to inquire whether the impugned delegation involves the delegation of an essential legislative function or power or whether the Legislature has enunciated its policy and principles and delegated to the subordinate authority accessory or subordinate powers for the purpose of working out the details within the framework of that policy and principle. If it is the former, the delegation would be excessive but not so, if it is the latter.

12. Now the power to prescribe conditions according to which consolidated holdings may be transferred under S. 31 Clause (a) is clearly legislative power and the question, therefore, becomes relevant whether the delegation of the legislative power is within permissible limits or not and to answer this question it is necessary for us to inquire whether or not there is any legislative policy or principle laid down by the Legislature and the power delegated to the State Government under Section 31 Clause (a) read with Section 37(2)(n) is merely an ancillary or subsidiary power to be exercised within the framework of that policy or principle. If there is legislative policy or principle to guide and control the State Government in the exercise of its power under Section 31 Clause (a) and Section 37(2)(n) the delegation would be a constitutionally valid delegation. Now Section 31 Clause (a) prima facie does not seem to impose any fetter on the power to prescribe conditions in accordance with which consolidated holdings may be transferred. But the words used are 'such conditions as may be prescribed' and 'prescribed' according to Section 2 sub-section (9) means prescribed by rules made under the Act. These words, therefore, take us to Section 37 which confers rule making power on the State Government and when we turn to that section we find that the rules which can be made by the State Government under that section are rules 'for carrying out the purposes of this Act'. The rule-making power conferred on the State Government is not an absolute and unguided power. It is a power which can be exercised only for carrying out the purposes of the Act and it is, therefore, apparent that the power to prescribe conditions in accordance with which consolidated holdings may be transferred under Section 31 Clause (a) - which is a power exercisable by making rules - is conditioned by the requirement that it must be exercised for carrying out the purposes of the Act. If any conditions are prescribed by the State Government which do not subserve the purpose or policy of the Act which are so unrelated to the purpose or policy of the Act that they cannot possibly be said to be condition which would carry out the purposes of the Act. They would be outside the scope of the rule making power conferred on the State Government. The power to prescribe conditions contemplated in Section 31 Clause (a) and Section 37(2)(n) is, therefore, a power which is guided and controlled by the purpose and policy of the enactment. It is not a vagrant and uncanalised power: it cannot be exercised at the sweet will of the State Government in such manner as it likes in its absolute discretion: it must run within the confines of the policy and principle laid down in the Act. And this policy or principle inspiring and underlying the Act is not far to seek. The preamble and the operative provisions of the Act clearly indicate what is the purpose or policy of this enactment. The avowed purpose of the Act is to prevent fragmentation of agricultural holdings and to provide for consolidation of agricultural holdings for the purpose of better cultivation of the lands. It is with this central object and purpose in view that the Legislature has enacted in the Act two different sets of provisions. Both sets of provisions are in a sense complementary to each other and they are both intended to remove the evil arising from fragmentation and scattered holdings and to improve the cultivation of lands by enabling economic and efficient use being made of lands. The first set of provisions freezes alienability of existing fragments and prohibits creation of further fragments while the second set provides for consolidation of scattered holdings and realignment of consolidated holdings with a view to economic and efficient cultivation of land. It is only within the limits of this policy or principle and for effectuating it and carrying it out that the State Government can prescribe conditions in accordance with which consolidated holdings may be transferred under Section 31 Clause (a). Even a little reflection would show that this task of prescribing conditions could not possibly be performed by the Legislature itself and had to be left by it to the State Government. What conditions should be prescribed for permitting transfer of consolidated holdings would necessarily depend upon the changing circumstances, the impact of the legislation, its operation and working, the reaction of the agricultural community to it and the socio-economic impulses activated by it and all that would require constant assessment and evaluation of facts and circumstances which the State Government would be the most competent authority to perform. The Legislature accordingly laid down the legislative policy or principle and left it to the State Government to prescribe conditions within the framework of that policy or principle. We are, therefore, of the view that the power to prescribe conditions contemplated under Section 31 Clause (a) read with Section 37(2)(n) is not an uncontrolled or uncanalised power but there is a legislative policy or principle to guide and control it and it is only within the confines of that policy or principle and for the purpose of effectuating or carrying it out that the State Government can, in exercise of the delegated power, make rules prescribing conditions according to which consolidated holdings may be transferred under S. 31 Clause (a). Section 31 Clause (a) and Section 37(2)(n) cannot, in the circumstances be held to be invalid on the ground of excessive delegation of legislative power.

13. Re: Ground (B): - The validity of Section 9 sub-section (3) was challenged on two grounds: one ground was that it was outside the permissible limits of constitutional delegation of legislative power and the other was that it was violative of Art. 14. So far as the first ground is concerned, it is difficult to see what delegation of legislative power is involved in Section 9 sub-section (3). The power conferred on the Collector by Section 9 sub-section (3) is not a legislative power. It is an adjudicatory power in so far as it empowers the Collector to make an order of summary eviction against a person when he is satisfied that such person is unauthorizedly occupying, or wrongfully in possession of, any land the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of the Act and is an executive power in so far as it authorizes the Collector to summarily evict such person in enforcement of the order made by him. If the power conferred on the Collector under Section 9 sub-section (3) is not a legislative power, no question of excessive delegation of legislative power can possibly arise. The other ground of challenge under Article 14 of course does arise but for reasons, which we shall presently state, a complete answer to it is provided by Article 31A Clause (1) (a).

14. Re: Grounds (C) and (D): - These two grounds may be considered together since a common answer given on behalf of the respondents is sufficient to dispose them of. That answer is furnished by Article 31A. Now there can be no doubt that if the impugned provisions come within the purview of Article 31A, they would be immune from attack on any of the grounds based on Articles 14, 19 and 31. But a threefold contention was urged on behalf of the petitioners in order to repel the applicability of Article 31A. The first contention advanced on behalf of the petitioners was that Article 31A is applicable only to post-Constitution laws and since the present Act is a pre-Constitution legislation, it is not saved by Article 31A. But this contention is plainly contrary to the language of Article 31A. That Article provides that notwithstanding anything contained in Art. 13, no law falling within any of the categories set out in Clauses (a) to (e) shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Articles 14, 19 or 31. On a plain natural construction, the word 'law' cannot be limited to post-Constitution laws, it must include existing law as well. Moreover, it is apparent that Article. 31A is intended to negative the effect of Article 13 in so far as any law falling within any of the categories specified in clauses (a) to (e) is concerned and since Article 13 refers both to existing law as well as to post-Constitution law, the law protected by Article 31A must comprise not only post-Constitution law but also existing law. Some reliance was placed on behalf of the petitioners on the first proviso to Article 31A but that proviso cannot compel us to read the word 'law' in the main part of Article 31A in a narrow and constricted sense so as to exclude pre-Constitution law which otherwise would be clearly within it; that would be contrary to all canons of construction. The main part of Article 31A takes within its broad sweep pre-Constitution law as well as post-Constitution law and all that the first proviso says is that if the law which claims the protection of Art. 31A is a post-Constitution law made by the Legislature of a State then, in order to be entitled to the protection, it shall have to satisfy a further requirement, namely that having been reserved for the consideration of the President, it has received his assent. It , therefore, becomes necessary to consider whether the impugned provisions of the present Act fall within any of Clauses (a) to (e) of Article 31A(1) so as to be entitled to the protection of that Article.

15. The petitioners contended - and that was the second contention advanced on their behalf to repel the applicability of Article 31A - that Section 31 Clause (a) was not a law involving agrarian reform and it was, therefore, not protected by Article 31A. Now it can hardly be disputed, having regard to the consistent course of decisions of the Supreme Court, that Article 31A is intended to protect only laws which envisage agrarian reforms. One of the earliest cases in which this was pointed out by the Supreme Court was Atma Ram v. State of Punjab : AIR1959SC519 where Sinha J. as he then was delivering the judgment of the Court observed at page 526: -

'Keeping in view the fact that Art. 31A was enacted by two successive amendments - one in 1951 (First Amendment), and the second in 1955 (Fourth Amendment) - with retrospective effect, in order to save legislation effecting agrarian reforms, we have every reason to hold that those expressions have been used in their widest amplitude, consistent with the purpose behind those amendments'. (Underlining is ours).

These observations were quoted with approval in a subsequent decision of the Supreme Court in Kochuni v. States of Madras & Kerala, : [1960]3SCR887 . Subbarao J. as he then was pointed out that it was clear from these observations that the Supreme Court had recognised that the amendments inserting Article 31A in the Constitution and subsequently amending it were 'to facilitate agrarian reforms'. This view has been subsequently reaffirmed by the Supreme Court in several other decisions of which we may mention only one, namely, Ranjit Singh v. State of Punjab : [1965]1SCR82 . It is, therefore, evident that Section 31 Clause (a) cannot claim the protection of Article 31A unless it can be said that it is a law relating to agrarian reform.

16. But in order to determine whether Section 31 Clause (a) is a law relating to agrarian reforms, it is not correct to look at it in isolation. It is not an independent provision standing by itself unconnected or unrelated with the other provisions of the Act. It is an integral part of the provisions of the Act relating to consolidation of holdings. The provisions contained in Chapter III provide for consolidation of holdings and allotment of consolidated holdings but when consolidated holdings are allotted, the question must necessarily arise: what shall be the rights of the owners in the consolidated holdings allotted to them and for that, some provision must be made in the statute. Such a provision would be a necessary provision in a statute of this kind and it is to be found in Sections 28 and 31. Section 28 provides that every owner to whom consolidated holding is allotted in pursuance of a scheme of consolidation shall have the same rights in such holding as he had in his original holding but with this qualification introduced by Section 31 that no such consolidated holding or any part thereof shall be transferred except in accordance with such conditions as may be prescribed or sub-divided except with the permission in writing of the State Government: Section 31, Clause (a) is, therefore, a necessary and integral part of the Scheme relating to consolidation of holdings embodied in the Act and its validity cannot be tested as if it were an independent provision having an existence of its own divorced from the other provisions relating to consolidation or holdings. We must view Section 31 Clause (a) as part and parcel of the provisions relating to consolidation of holdings and approach the question of applicability of Article 31A not from the point of view whether Section 31 Clause (a) is a measure of agrarian reform but whether the provisions of the Act relating to consolidation of holdings are intended to bring about agrarian reform. If the question is approached from this angle, there can be little doubt that Section 31 Clause (a) must be held protected by Article 31A clause (1) (a). Consolidation of scattered holdings and re-alignment of consolidated holdings would undoubtedly lead to economic and efficient cultivation of land and promote agrarian reform. The proper planning of rural areas was one of the objectives behind the Fourth Amendment which amended Article 31A and, as pointed out by Hidayathullah. J. in Ranjit Singh's case : [1965]1SCR82 (supra) 'consolidation of holdings is really nothing more than a proper planning of rural areas'. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be proper planning of rural economy and any measure intended to advance rural economy and to bring about better and more efficient cultivation of land would clearly be a measure of agrarian reform. The conclusion is, therefore, irresistible that the provisions of the Act relating to consolidation of holdings embody a measure of agrarian reform and since Section 31 Clause (a) is an integral part of those provisions, it must be held to be entitled to the protection of Article 31A Clause (1) (a) if it otherwise falls within it.

17. But, contended the petitioner - and this was the last contention - even if Section 31 Clause (a) be held to be part of a law involving agrarian reform, it was still not protected by Article 31A since it did not fall within any of clauses (a) to (e) of that Article. Now obviously the only clause of Article 31A Clause (1) which could be invoked on behalf of the respondents was Clause (a) and, therefore, so far as this contention is concerned the controversy between the parties centered round the question whether Section 31 Clause (a) was a law providing for 'acquisition of any estate by the State or of any rights therein or the extinguishment or modification of any such rights'. There was admittedly no question here of acquisition by the State and the only question was whether Section 31 Clause (a) involved extinguishment or modification of any rights in an estate. Now it is well settled that the expressions 'estate', 'rights in an estate' and 'the extinguishment or modification of any such rights' occurring in Article 31A Clause (1) must receive a liberal interpretation. Vide : AIR1959SC519 (supra) and : [1965]1SCR82 (supra). Even a restriction on the right to transfer would be comprehended within the expression 'modification'. The Supreme Court had occasion to consider the proper scope and meaning of this expression in Article 31A Clause (1) (a) in M/s. Burrakur Coal Co. v. Union of India : [1962]1SCR44 . There the question was whether a certain provision preventing a mine owner or a lessee from working his mine for a period of two or three years was protected as 'modification' of a right accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral within the meaning of Article 31A Clause (1) (e). The Supreme Court pointed out that the word 'modify' means, according to Oxford Dictionary, 'to limit, restrain, to assuage, to make less severe, rigorous, or decisive, to tone down' and in Rowland and Burrows words and phrases, it has been defined as meaning 'vary, extend or enlarge limit or restrict' and held that the restriction on the right of a mine owner or lessee to work his mine for a temporary period was included within the expression 'modification'. The same view was also taken by the Supreme Court in Atma Ram's case : AIR1959SC519 (supra) where the statute challenged was the Punjab Security of Land Tenure Act, 1953. The Act inter alia imposed a restriction on the land owners' right to transfer in this respect namely, it modified his right of transfer in so far as it obliged him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons in accordance with the provisions of the Act and the question was whether this restrictive provision could be regarded as 'modification' within the meaning of Article 31A Clause (1) (a). The Supreme Court held that this restriction amounted to modification of the land owners right of transfer in relation to the lands comprised in the estate and was covered by Art. 31A Clause (1) (a). It is, therefore, impossible to resist the conclusion that the restriction on the right to transfer a consolidated holding imposed under Section 31 Clause (a) amounts to a modification of the rights of the owner of land within the meaning of Article 31A Clause (1) (a) and must be held to be immune from challenge under Article 19(1)(f) and 31. In reaching this conclusion we have examined the validity of Section 31 Clause (a) as if it were an independent provision but, as we have already pointed out above, that is not the correct way of looking at the problem. Section 31 Clause (a) is an integral part of the provisions of the Act relating to consolidation of holdings and since those provisions are admittedly law providing for extinguishment and modification of rights in 'estate' within the meaning of Art. 31A Clause (1) (a), Section 31 Clause (a) must be held entitled to the protection of Article 31A Clause (1) (a) along with those provisions. The grounds of attack at (B) (C) and (D) are, therefore, not available to the petitioners and must be rejected.

18. Re: Ground (E): - This ground challenges the validity of Rule 27 but it is difficult to see how the petitioners are entitled to impugn the validity of this Rule. The sales in favour of the petitioners are held to be void not because of the operation of Rule 27 but because of the inhibition in Section 31 Clause (a). Rule 27 merely lays down the conditions according to which consolidated holdings may be transferred. If a transfer is in conformity with Rule 27, it would go outside the inhibition of Section 31 Clause (a) and would be valid but if it is not, it would be within the mischief of Section 31 Clause (a) and would be void. What therefore hurts the petitioners is not Rule 27 but Section 31 Clause (a) and that being so, it is immaterial to consider whether Rule 27 is valid or not. Even if it is invalid, it cannot help the petitioners. This ground is, therefore, irrelevant and we do not propose to decide it.

19. Re: Ground (F): - It is no doubt true that the words used in Section 9 sub-section (3) are only these, namely 'any person.....may be summarily evicted by the Collector' and the sub-section does not say in so many terms that having summarily evicted such person, the Collector may restore possession of the land to the original owner but that is clearly implicit in the sub-section. The Collector is given the power to summarily evict a person when it is found that by reason of the transfer being void, he is unauthorisedly in occupation or wrongfully in possession of the land. And this power is obviously conferred upon the Collector to secure enforcement of the salutary and beneficent provisions of the Act. If a transfer has been made contrary to the provisions of the Act, it must not have any effect at all and the status quo ante must be restored, for otherwise the object of the Act would be frustrated. Even after the transfer is declared void, the transferor may not take action to recover possession of the land, for then he would have to return the purchase price received by him which he may not want to do and in that event the land would continue to remain in possession of the transferee and the object of the legislation would be defeated. The Legislature, therefore, did not leave it to the transferor to adopt proceedings for recovering possession of the land but provided that the Collector may summarily evict the transferee or any other person who is unauthorisedly in occupation or wrongfully in possession of it, so that possession could be restored to the transferor and the effect of the transfer obliterated. It could not have been intended by the Legislature that the Collector after evicting the unauthorised occupant should retain possession of the land with himself or it should be appropriated to the use of the State. If such had been the intention, there would have been clear and express words to that effect. There being no such provision the Collector must obviously, after summarily evicting the unauthorized occupant, hand back possession to the person who is the owner of the land. The Collector cannot, in the absence of specific provision to that effect, retain possession as against the owner of the land. This ground is, therefore, without substance and must be rejected.

20. Re: Ground (G): - The question which arises for consideration under this head of challenge is whether the Assistant Collector has jurisdiction or authority to impose fine under Section 9 sub-section (2) and to summarily evict a person under Section 9 sub-section (3). On the plain terms of the Section, the power is conferred on the 'Collector' and unlike the Bombay Tenancy and Agricultural Lands Act, 1948, and the Gujarat Agricultural Lands Ceiling Act, 1960, the word 'Collector' is not defined in the Act to include Assistant Collector and Deputy Collector. In fact there is no definition of the word 'Collector' in the Act. Section 2(11) no doubt provides that words and expressions used in the Act but not defined shall have the same meaning assigned to them in the Bombay Land Revenue Code, but in the Bombay Land Revenue Code also the word 'Collector' is nowhere defined. The petitioners, therefore, urged that 'Collector' in Section 9 sub-sections (2) and (3) must mean the Collector and cannot include Assistant Collector or Deputy Collector and in support of this contention, the petitioners relied strongly on Section 3(11) of the Bombay General Clauses Act which provides that in all Bombay Acts, unless there is anything repugnant in the subject or context, the 'Collector' shall mean, in the City of Bombay, the Collector of Bombay, and elsewhere the Chief Officer in charge of the revenue administration of a district. Now there can be no doubt, particularly in view of Section 3(11) of the Bombay General Clauses Act, that since there is nothing repugnant in the subject or context, the expression 'Collector' in Section 9 sub-section (2) and (3) must mean the Collector who is the Chief Officer in charge of the revenue administration of a district and Assistant Collector or Deputy Collector would not be within the connotation of that expression. But Section 10 of the Bombay Land Revenue Code provides in the first two paragraphs which are the only material paragraphs for the purpose of the present discussion:

'Subject to the general orders of the State Government, a Collector may place any of the assistants or deputies in charge of the revenue administration of one or more of the talukas in his district, or may himself retain charge thereof.

Any Assistant or Deputy Collector thus placed in charge shall, subject to the provisions of Chapter XIII, perform all the duties and exercise all the powers conferred upon a Collector by this Act or any other law at the time being in force, so far as regards the taluka or talukas in his charge'. It is a clear on a plain reading of these two paragraphs that when an Assistant Collector or Deputy Collector is placed by the Collector in charge of the revenue administration of one or more of the talukas, he is, subject to territorial limits, entitled to exercise all the powers conferred upon a Collector by the Bombay Land Revenue Code or any other law for the time being in force. Now it was pointed out in the affidavit - in - reply in each petition and this statement was not controverted by the petitioners by filing an affidavit-in-rejoinder that the Assistant Collector who made the impugned order was placed by the Collector of Ahmedabad District in charge of the Dholka Taluka in which the villages in question are situate and the present Act was clearly 'any other law at the time being in force'. The Assistant Collector was, therefore, entitled under the second paragraph of Section 10 to exercise the powers of the Collector under Section 9 sub-sections (2) and (3) so far as regards the villages situate in Dholka Taluka.

21. The petitioners, however, contended that the words 'any other law at the time being in force' did not comprehend the present Act. These words, said the petitioner, though general in character, were preceded by the specific word 'this Act' that is, the Bombay Land Revenue Code and they were, therefore, liable to be construed ejusdem generis and they must be confined to the same genus as the Bombay Land Revenue Code, namely, legislation dealing with land revenue and since the present Act was not a piece of legislation relating to land revenue, it was not covered by the words 'any other law at the time being in force'. We do not think this contention is well-founded. There is, in our opinion, no scope here for the application of the principle of ejusdem generis. The principle of ejusdem generis postulates that the particular and specific words which precede the general words and which constitute the members of the enumeration constitute a class and that class is not exhausted by the enumeration, for then only can the general words be construed as confined to that class. But where the general words follow a single word or expression as in the present case before us, there being only one specie, it is not possible to find out the genus constituted by such specie and in such cases there being no genus indicated by the enumeration of the specie, the principle of interpretation ejusdem generis cannot be made applicable. There are several decisions of the English Courts on this point, chief amongst them being Allen v. Emmerson, (1944) 1 KB 362 and United Towns Elec. Co. v. Att. Gen. Newfoundland, (1939) 1 All ER 423, where it has been held that there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single specie.............does not constitute a genus'. But it is not necessary to make any detailed reference to these decisions for we find that there is a decision of the Supreme Court in State of Bombay v. Ali Gulshan : [1955]2SCR867 where the same view has been expressed by Chandrasekhara Aiyar J., speaking on behalf of the Supreme Court: -

'With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the Court below for reaching the result that the words 'any other public purpose' are restricted to a public purpose which is also a purpose of the State, has scarcely any application. Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in the intendment, it is requisite that there must be a distinct genus, which must comprise more than one species before the rule can be applied'.

It is, therefore, clear that in the present case there is no scope for the application of the doctrine of ejusdem generis and the words 'any other law at the time being in force' must receive their full and natural meaning and if that be so, the present Act would clearly be within those words.

22. This view which we are taking receives considerable support from two decisions of the Bombay High Court. The first is an early decision of a Division Bench in Keshav v. Jairam, : (1911)13BOMLR1031 . The Division Bench pointed out in that case that it would be stretching the interpretation of the expression 'any other law at the time being in force' too far to hold that laws or Acts ejusdem generis with the Bombay Land Revenue Code alone were intended to be covered thereby and not other Acts such as the Mamlatdars' Courts Act 1906, with which the Division Bench was concerned in that case. The same view was also taken by another Division Bench in Vishnu Dadu Lokhande v. Umabai : (1955)57BOMLR816 . The petitioners, however, relied upon a decision of the Bombay High Court is Sonu v. Arjun, : AIR1915Bom17 where a Division Bench refusing to follow the earlier decision in : (1911)13BOMLR1031 held that the expression 'any other law at the time being in force' 'must mean any law ejusdem generis with the Bombay Land Revenue Code and would not embrace any special law relating to Mamlatdars' Courts such as is found in the Act of 1906. Now it is no doubt true that the Division Bench in 17 Bom LR 579 = (AIR 1915 Bom 17) applied the principle of ejusdem generis in the construction of the words 'any other law at the time being in force' and that decision, therefore, does support the contention of the petitioners but we are afraid, we cannot follow that decision since, as pointed out above, it proceeds upon a misapplication of the rule of ejusdem generis and moreover, there are two other decisions of Division Benches in : (1911)13BOMLR1031 and : (1955)57BOMLR816 , where a different view has been taken. There being conflicting decisions of Division Benches on the same point, it is open to us to follow that which commends itself to us for our acceptance and we are of the view that the decisions in : (1911)13BOMLR1031 and : (1955)57BOMLR816 , lay down the correct law and we prefer to follow them. We must, therefore, hold that paragraph 2 of Section 10 applies in the present case and the Assistant Collector was, by virtue of that paragraph entitled to exercise the powers of the Collector under Section 9 sub-sections (2) and (3).

23. Re: Ground (H): - This ground is available only in Special Civil Application No. 977 of 1968 since in this case the show cause notice issued by the Assistant Collector did not give any opportunity to the petitioner to show cause why he should not be summarily evicted and possession restored to respondents Nos. 3 to 5. The opportunity to show cause given by the show cause notice was limited only to the matters, namely, why the sale should not be declared void and why penalty to the extent of Rs. 250/- should not be imposed. The argument of the petitioner was that since the impugned order of possession was made by the Assistant Collector without giving any opportunity to the petitioner of being heard in his defence, there was breach of audi alteram partem rule and the impugned order of possession was, therefore, null and void. Now on this argument the first question which arises for consideration is whether audi alteram partem rule has application when the Collector proposes to make an order of summary eviction under Section 9 sub-section (3). To determine this question we must turn to the provisions of Section 9. That Section declares in sub-section (1) that the transfer or partition of any land contrary to the provisions of the Act shall be void and then in sub-ss. (2) and (3) it proceeds to constitute the Collector an authority for imposition of fine and summary eviction. When the Collector proposes to impose fine on the owner of any land under Section 9 sub-section (2), he will have to adjudicate whether the transfer or partition is contrary to the provisions of the Act and if he so finds, he will then have to determine what fine should be imposed on the owner of the land. This process is clearly an adjudicatory process and there can be no doubt or dispute that in this process the Collector must follow the principles of natural justice and observe the audi alteram partem rule. That was admittedly done in the present case. Then the Collector would have to determine under S. 9 sub-section (3) whether the person in possession of the land should be summarily evicted. The Collector can make an order of summary eviction only if he finds that such person is unauthorisedly in occupation or wrongully in possession of the land. It is clear from the nature of this power that the Collector is under a duty to act judicially in determining whether an order of summary eviction should be made and the Collector must, therefore, before making an order of summary eviction, comply with the principles of nature justice and give an opportunity of being heard to the person who is sought to be summarily evicted. No such opportunity was admittedly given to the petitioner in the present case. The argument of the respondents was that on the facts of the case no such opportunity was necessary, for there were no other facts than those set out in the show cause notice on which the order of summary eviction was founded and if the sale was void, the petitioner was indisputably a person unauthorisedly occupying or wrongfully in possession of the land. But in our view this is no answer to a breach of audi alteram partem rule, when there is a breach of audi alteram partem rule, the question of prejudice is irrelevant. As pointed out by Vakil J. and myself in a judgment delivered on 25-6-1969 in Original Jurisdiction Appeals Nos. 1 and 2 of 1969 (Guj). 'The audi alteram partem rule is indeed so vital and fundamental as a basic concept of justice that where it is infringed, the Courts do not pause to inquire whether there has been any miscarriage of justice as a result of its breach. The breach of natural justice is itself miscarriage of justice which entitles the applicant to succeed'. The impugned order made by the Assistant Collector in Special Civil Application No. 977 of 1968 must, therefore be held to be null and void in so far as it directs summary eviction of the petitioner and restoration of possession of the land to the respondents Nos. 3 to 5.

24. Re: Ground (I):- The scheme of consolidation in village Sarendi was confirmed by the State Government on 29th March 1956 and it came into force on 6/7th May 1956 when possession of consolidated holdings was taken by persons entitled to possession of the same under the scheme. The sale of the land in Special Civil Application No. 218 of 1969 was effected on 20th April 1956 before the scheme came into force but in Special Civil Application No. 220 of 1969, the sale of the land was effected on 19th March 1957 after the coming into force of the Scheme. However, in both cases the sales were prior to the date when certificates of transfer were issued by the Consolidation Officer under Section 24. The question is: whether the sales were invalidated under Section 31 Clause (a)? The argument of petitioners was that the prohibition in Section 31 Clause (a) operates after certificates of transfer are issued under Section 24 while the contention of the respondents was that Section 31 Clause (a) comes into play as soon as the scheme is confirmed. We do not think either of the two contentions is well-founded. We are of the view that both the contentions proceed upon a misinterpretation of the provisions of the Act.

25. It is no doubt true that the marginal note cannot be relied upon as an aid in interpretation of a section but it can certainly be referred to as indicating the drift of the Section. The marginal note to Section 31 reads 'Restrictions on alienation and sub-division of consolidated holdings'. Section 31 clause (a) imposes restriction on transfer of consolidated holding allotted under the Act and it says that no such consolidated holding shall be transferred except in accordance with such condition as may be prescribed. Now obviously there can be no consolidated holding in law until the scheme of consolidation has come into force. So long as the consolidation scheme has not come into force, it has no effect and it cannot be said that a particular area represents a consolidated holding. Even after the scheme is confirmed, there may be changes in the allotment of consolidated holdings on account or sub-sections (4) and (5) of section 21. If an owner of land who is allotted a holding of greater market value than that of his original holding fails to pay the amount of compensation recoverable from him under the consolidation scheme, his right in the consolidated holding may be allotted to any other person who pays the value of the holding and in that event when the scheme comes into force, it would not be possible to say that the particular consolidated holding in question is allotted to the original owner. It is only when the consolidation scheme comes into force on possession being taken of the respective consolidated holdings by persons entitled to the same under the scheme that the rights are crystallized and the persons to whom the consolidated holdings are allotted become the respective owners of such consolidated holdings. Then only can the question arise as to what should be the rights of the owners in the consolidated holdings allotted to them: should they be permitted to transfer the consolidated holdings or not? Moreover, there can be no question of imposing restriction against transfer unless the person concerned has the capacity to transfer and obviously the capacity to transfer cannot arise until the scheme comes into force. This view also receives support from the heading of Chapter IV in which occurs Section 31 Clause (a). That heading shows that Section 31 Clause (a) is intended to deal with the effect of consolidation of holdings and there can be no question of ascertaining the effect of consolidation of holdings before the Scheme has come into force. It is, therefore, incontrovertible that Section 31 Clause (a) comes into operation only when the scheme comes into force and not before. It is no doubt true that the Consolidation Officer is required under Section 24 to grant to the owner to whom a holding has been allotted in pursuance of a scheme of consolidation, a certificate in the prescribed form to the effect that the holding has been transferred to him in pursuance of the scheme but the certificate is merely evidence of the title which is already acquired by the owner on the coming into force of the scheme under Section 22. The vesting of the title in the consolidated holding in the owner does not depend on the grant of the certificate of transfer. It is, therefore, not possible to extend the date of operation of Section 31 Clause (a) to the point of time when Certificates of transfer are issued by the Consolidation Officer.

26. If this be the correct view as to the construction of the provisions of the Act, it is apparent that the sale of the land in Special Civil Application No. 218 of 1969 cannot be held to be invalid on the ground of infraction of Section 31 Clause (a) since it was effected prior to the coming into force of the scheme and the impugned order made by the Assistant Collector declaring the sale to be void and imposing fine on the transferors on the ground of violation of Section 31 Clause (a) must be held to be invalid. So far as special Civil Application No. 220 of 1969 is concerned, the sale was admittedly effected on 19th March 1957 after the coming into force of the scheme and was, therefore, affected by the inhibition contained in Section 31 Clause (a) and the impugned order made by the Assistant Collector must be held to be valid.

27. Re: Ground (J): - This ground is self-evident and does not need elaboration. The impugned orders were clearly based on a ground not mentioned in the show cause notice and must, therefore, be held to be bad. The only answer which the respondents attempted to give was that Section 27 Clause (b) clearly applied on the facts of the case and it would be futile to issue fresh show cause notices alleging contravention of Section 27 Clause (b), for the result would be the same. But, as already pointed out by us above, this is no answer to a breach of audi alteram partem rule. The impugned orders based as they are on a ground in relation to which no opportunity to show cause was given by the Assistant Collector must, therefore, be held to be null and void.

28. We, therefore, allow Special Civil Application No. 977 of 1968 and make the rule issued in that petition absolute by issuing a writ quashing and setting aside the impugned order made by the Assistant Collector only in so far as it directs summary eviction of the petitioner and handing over possession of the land to respondents Nos. 3 to 5. We reject petitions Nos. 1533 of 1968 and 630 of 1969. We allow petitions Nos. 213/69, 221 and 222 of 1969 and make the rule issued in each of these three petitions absolute by issuing a writ quashing and setting aside the impugned orders made by the Assistant Collector. We may make it clear that this order made by us will not stand in the way of the appropriate officer adopting such proceedings as may be available to him according to law. We reject special Civil Application No. 220 of 1969. Since the petitioners in some of the petitions have partly succeeded and partly failed on the points raised by them, the fair order of costs would be that each party will bear and pay his own costs of the petitions.

29. Order accordingly.


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