Judgement

L. D. DUA, J :- This Letters Patent Appeal under Clause 10 of the Letters Patent is directed against an order of a learned Single Judge dismissing the appellants writ petition.

2. For the purposes of the present appeal, it is not necessary to state the facts in detail suffice it to say that the petitioners challenged the consolidation proceeding with respect to reservation, of 9 kanals 9 marlas for the Government Primary School, of about 110 kanals 5 marlas for the construction of 11 karams wide road to be constructed by the Public Works Department from Jandu Singh to Kartarpur, and, of 191 kanals and if marlas (the respondents admit the area to be 91 K 17 m) for water enamels and claimed relief by way of writ in trip nature of certiorari, mandamus or prohibition or other suitable writ order or direction.

3. The learned Single Judge in his order dean with only one of these items, namely, that of 110 kanals 5 marlas reserved for the construction of road by the public works Department. This was held to be for a public purpose because, according to the learned Judge, it had been denied on behalf of the respondents that the whole of this land had been taken away from the right-holders and given to the Public Works Department.

4. On appeal, it has been argued that the three items mentioned above were challenged in the writ petition and the petitioners allegations were admitted by we respondents in the return. It has been urged in this connection that the learned Single Judge was not quire correct in holding that the respondents had denied me petitioners assertion.

5. Here it would be desirable to reproduce paragraphs 7, 8, and 9 of the writ petition as also replies to these paragraphs in the return :-

Writ petition.

7. "That the scheme provides reservation of 9 kanals 9 marlas for the Government primary School which existed before the commencement of consolidation. The respondents have no authority to reserve this area for the said purpose, without payment in compensation to the landowners and without acquiring the land under Land Acquisition Act.

8. That the scheme provides reservation of area to the extent of 110 kanals 5 marlas for 11 kanals wide road Jandu Singh to Kartarpur Road, which is proposed to be constructed by the Public Works Department and will pass through the village of the petitioners. This can also not be done, without payment of compensation and acquisition according to law.

9. That the respondents have provided in the scheme reservation to the extent of 191 kanals 17 marlas of land for water channels. Such reservation is not a common purpose and the area should have been deducted proportionately from the holdings of the land-owners who wanted to take water from canal through such channels".

Return.

7. It is admitted that an area measuring 9 kanals 9 marlas was reserved for the Middle School and its play ground in accordance with the provisions of the scheme. Before consolidation area to me extent of 2 kanals 12 marlas existed in the shamiat Patti Raipur for Primary School which was kept intact during consolidation. As the ownership of the area measuring 9 kanals 9 marlas deducted from the rightholders including the petitioners proportionately, was shown as of Mamula Malkan Hasab Rasad Raqba no compensation is payable. Moreover, this reservation is covered under Section 18(c) of the Consolidation Act. The allegation is baseless and deserves no consideration.

8. It is admitted that an area measuring no Kanals 5 marlas was reserved for Jhadu Singh Kartarpur Road in accordance with the provisions of the scheme consented to by the rightholders present at the time of its publication. It is further stated that this road passes along the village of the petitioners and serves partly as Phirni of the village. As this road is for the benefit for me village community and as the area reserved for it has been entered in the ownership of "Jamula Maikan Hasab Rasad Raqba" without adversely affecting the ownership rights of the rightholders no compensation is payable. The area left for water channels is 91 kanals 17 marlas and not 191 kanals 17 marlas as given in the petition. This area has been reserved to facilitate the irrigation for the landowners. The whole area of the village will be irrigated through these channels by which all the land owners will be benefited. This area has also been entered in the ownership of Mushtarka Malkan according to their respective shares".

6. Construing the pleas before us according to the well-known rule of pleadings that a written statement must deal specifically with each allegation of fact or assertion of the opposite party in substance, the truth of which is not admitted, it does appear to us that the plea of reservation of 110 kanals and 5 marlas for a road proposed to be constructed by the Public works Department has not been denied in the written statement and should be deemed to have been admitted. It has Miner been positively averred in the written statement that this road passes along the petitioners village. The plea of the entry in the ownership column in revenue papers would appear to us to be of little avail. The respondents learned counsel Shri Doabia has placed great reliance on a Full Bench decision of this court in Munsha Singh v. State of Punjab, (1960) 62 Pun LR 1 : (AIR 1960 Punj 317) and reference has been made to the Judgment of Tek Wand, J. at p. 13 of Pun LR) : (at p. 322 of AIR) in support of the contention that land can legitimately be reserved for village roads including circular roads or for roads under development scheme with 14 karams width. Now in this very judgment the identical argument of the, State counsel there based on the entry in the ownership column in the revenue papers was not accepted by itself to constitute a conclusive or an effective answer to the constitutional challenge on the ground of expropriation of rightholders right to property, again, taking land for a road to be constructed by the Public Works Department from Jhandu Singh to Kartarpur passing along the village in question may also by itself and without more not be considered to be a common purpose under the Consolation Act so as to deprive the rightholders of their claim to compensation for such acquisition. Merely serving partly as a phirni of the village may not serve to save the entire reservation from the challenge. No attempt has been made on behalf of we respondents even to argue that the portion serving as the phirni is a permissible reservation within the Act. It would thus appear that reservation for the road is outside the Consolidation Act and, therefore unauthorised, The matter also seems to be covered by a decision of a learned Single Judge of this court in Gurbux Singh v. state, Civil Writ No. 435 of 1957 where it is laid down mat Section 18(c) of the Consolidation Act read with the rules framed under it does not justify reservation or taking away of any area for the purpose of additing it or joining it with a road which belongs to the District Board as the entire road will then vest in the District Board and it cannot be said that the lands which have been taken from the rightholders will still continue to Vest in them. The relevant part of the scheme was quashed by the learned Judge. Letters Patent Appeal preferred against that decision was dismissed in the opinion of the Letters patent Bench there was no reason to think that the ownership of the new land had been kept apart from the ownership of the District Board land in which the new land was included.

7. Regarding the other two items, the respondents learned counsel has argued that these points were not urged before the learned Single Judge. The appellants counsel has on the other hand contended that these points were actually canvassed before the learned Single judge end that the respondents having admitted the petitioners allegations it is unlikely that he could have omitted to press them. In the alternative, it has been submitted that on admitted pleas this question would be one of the law and should be allowed to be raised on appeal particularly because it relates to fundamental rights it is undoubtedly true that pleadings contained in paragraphs 7 and 9 of the writ petition can hardly be considered to have been specifically denied and the counsel appearing for the petitioners before the learned Single judge should have been expected to press the points; but at the same time I am unable to hold that the learned Single Judge could have omitted to deal with the points it they had been effectively argued before him. However, the question relates to a fundamental right and, therefore, it has teen considered by us to be more appropriate to allow this point to be raised. Lord Tomlin, while preparing the opinion of the Judicial Committee in Official Liquidator of M.E. Moola sons Ltd. v. Perm R. Burjoree, AIR 1932 PC 188 quoted the following observations of Lord Watson from Connecticut Fire insurance Co. v. Kavanagh, 1892 AC 473 at p. 480 :

"When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below. But their Lordships have no hesitation in holding that the course ought not in any case to be followed unless the Court is satisfied that the evidence upon which they are asked to decide, establishes beyond doubt that the facts if fully investigated would have supported the new plea"

We are aware of the rule of practice that usually a point not raised before a learned Single judge is ordinarily not allowed to be raised on a Letters Patent Appeal, but on the facts and circumstances of this case, in view of a fundamental right being involved, we have allowed this point to be raised.

8. In so far as the question relating to reservation for Government Primary School is concerned, the point again does not seem to us to be res integra but is covered by authority, in Jai Singh etc. v. The State of Punjab etc. Civil Writ No. 1413 of 1961, a learned Single Judge of this Court held reservation for the purpose of water works, Government School and Veterinary Hospital to be outside the provisions of the Act or the rules made thereunder and, accordingly, quashed the same. A Letters Patent Appeal against that decision is stated to have been dismissed in limine.

9. Regarding reservation of 91 Kanals 17 marlas for water channels as admitted in the written statements, here again it appears that it cannot be described to be a common purpose within the Act, land owners who want to take water from canal through channels can make their own arrangements and those who do not so desire cannot be forced to part with their land. On behalf of the respondents, nothing convincing has been urged as to how this reservation can be considered to be a common purpose if a large number of rightholders did not want to utilise it.

10. This Court is not unmindful of the five inconvenience which is likely to result from our decision, but then in case of conflict between convenience on the one hand and constitutional guarantee and rule of law on the other, the latter must the former. This Court, as indeed all authorities and departments in this Republic, are expected, and indeed bound, to uphold the constitutional mandates and enforce the rule of law, no matter how great the administrative inconvenience. This position has to be clearly kept in this forefront by all administrative agencies who may, at times, by stress of administrative emergencies feel tempted - though unconsciously - to ignore the constitutional mandates or give it secondary importance for the sake of administrative convenience. Allegiance to the Constitution which is supreme in cur country demands due resistance to such temptations.

11. For the foregoing reasons, we are constrained to allow tins appeal and setting aside the order of the learned Single Judge allow the writ petition in part and quash the scheme only in respect of three items mentioned above. In respect of the water channel 91 kanals 17 marlas are to be taken to have been reserved as admitted in we written statement mere would be no order as to costs of this appeal.

12. MEHAR SINGH, J. :- I agree.

Petition allowed.