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Budha Ram and anr. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1736 etc. of 1982
Judge
Reported inAIR1985Raj104; 1984()WLN291
ActsConstitution of India - Articles 14, 31A, 31C, 39 and 226; Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules, 1975 - Rule 23; Rajasthan Land Revenue Act, 1956 - Sections 83; Rajasthan Colonisation Act, 1954
AppellantBudha Ram and anr.
RespondentState of Rajasthan and ors.
Appellant Advocate M. Mridul Kewal Chand,; I.J. Lodha,; R.C. Sharma and
Respondent Advocate A.K. Mathur, Addl. Adv. General and; L.S. Kachhawaha, Adv.
DispositionPetition dismissed
Cases ReferredGurunarain v. Board of Revenue
Excerpt:
rajasthan colonization act, 1954 and rajasthan tenancy act, 1955 and rajasthan canal colony area rules, 1975 and rajasthan colonization (sales & allotment of government land to post 1955 temporary cultivation lease holders & other landless persons in rajasthan canal project area) rules, 1971 and rajasthan colonization (bhakhra project government lands allotment & sales) rules, 1955 and constitution of india - article 226--challenge for creating pretext against preliminary objection of non-availability of alternative remedy of appeal--held, writ deserves to be dismissed.;in my considered opinion, the challenges have been made for creating the pretext or excuse against preliminary objection which could very well be anticipated regarding non-maintainability of the writ petitions.....orderguman mal lodha, j. 1. these writ, petitions as per schedules a & b raise common questions of law, though there may be some, addotopma; features in some of the petitions, a joint request was made by the learned counsel for the petitioners m/s. m. mridul, and i.j. lodha, on behalf of the petitioner and a.k. mathur. additional advocate general on behalf of the slate of rajasthan, that it would be in the interest of justice if they all are heard and decided together. since i was of the view that the request was fair and reasonable, all these writ petitions are being decided by this common judgment.2. all the writ petitioners are claiming agricultural land in various parts of sri ganganagar district of rajasthan state and their long drawn battle relates to the effort of the respondents.....
Judgment:
ORDER

Guman Mal Lodha, J.

1. These writ, petitions as per Schedules A & B raise common questions of law, though there may be some, addotopma; features in some of the petitions, a joint request was made by the learned counsel for the petitioners M/s. M. Mridul, and I.J. Lodha, on behalf of the petitioner and A.K. Mathur. Additional Advocate General on behalf of the Slate of Rajasthan, that it would be in the interest of justice if they all are heard and decided together. Since I was of the view that the request was fair and reasonable, all these writ petitions are being decided by this common judgment.

2. All the writ petitioners are claiming agricultural land in various parts of Sri Ganganagar district of Rajasthan State and their long drawn battle relates to the effort of the respondents to either take possession of some land by declaring surplus or refuseallotment under the various laws which would be referred a little later, and the rival efforts of the petitioners to hold on the land by claiming it under one category or the other and then challenging the orders one after the other in judicial forum on manifold grounds.

3. The principal relevant law may now be referred first. Rajasthan Colonisation Act, 1954 (hereinafter referred to as the Colonisation Act') and the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Tenancy Act') ,are the principal basic statutes. Under the nomenclature of the rules, conditions have been framed from time to time. The Rajasthan Colonisation (Allotment and Sale of Government Land in the Rajasthan Canal Colony Area) Rules, 1975 (hereinafter referred to as 'the Rules of 1975'), the Rajasthan Colonisation (Sale and Allotment of Government Land to Post-1955 Temporary Cultivation Lease holders and other Landless Persons in the Rajasthan Candl Project Area) Rules, 19/1 (hereinafter, for short, called as the Post-1955-Rules of 1971) are the principal laws which are relevant, although reference may be required to be made of various rules and notifications, also, the Rajasthan Colonisation (Bhakhra Project Government Lands Allotment and Sale) Rules. 1955 (hereinafter, for short, referred to as 'the Bhakhara Rules, 1955').

4. Taking Budharam's writ only for the purposes of mentioning the facts, in details, it may be mentioned that there are two petitioners. Badharam and his son Rooparam, who are the residents of Chak 1-SVS, Tehsil Sri Bijey Nagar District Sri Ganganagar. As per the averments made in the writ petition, the petitioner No. 1 Budharam was allotted 3 bighas of command land and 10 bighas of un-command land in Murabba No. 195/409 in Chak 1 SVS; 12 bighas of command land in Murabba No. 104/409 and 25 bighas of un-command land in Murabba No. 195/409 of Chak 1 SYS, Tehsil Sri Bijey Nagar in the year 1956. The lease aforesaid was continue to be renewed till the year 1968 whereafter renewals were not effected as the State Government proceeded to make the Rajasthan Colonisation (Rajasthan Canal Project Government Land Allotment and Sale) Rules, 1967, which on challenge were later on struck down by this Court. The persons to whom the land had been allotted for temporary cultivation, was allowed to continue to remain in possession of the land as temporary cultivation lease holder.

5. Budharam-petitioner No. 1 moved an application for allotment of aforesaid land permanently under the Post-1955-Rules of 1971. This application was allowed in part on 28th Sep., 1972 and it was ordered that the 3 bighas of command land and 10 bighas of un-command land (in all 13 bighas) comprising in 'Murabba No. 195/409 and 12 bighas of command land hi Murabba No. 194/409 was allotted to the petitioner No. 1 on permanent basis while ordering resumption of 25 bighas of uncommand land of Murabba No. 195/409.

6. The petitioner's case is that the Post-1955-Rules of 1971 were challenged before, this Court by a number of writ petitions. The writ petitions were dismissed on 11th June, 1974. Appeals, against the judgment of the Single Bench were preferred before the Division Bench and the same were dismissed. Thereafter appeals were taken to the Supreme, Court against the judgment of D. B. one of the appellants being one Shri Jaila Singh who succeeded in appeal before the Supreme Court on 2-6-75; and the Supreme Court struck down the Post-1955-Rules of 1971 and the Raj. Colonisation (Raj. Canal Project Pre-1955 Temporary Tenants Govt. Land Allotment) Conditions, 1971 aforesaid. See AIR 1975 SC 1436.

7. The State Government then came out with Rules of 1975.

8. The case of the petitioner is that, whereas under the Post-1955-Rules of 1971 a temporary lease holder could be allowed land to the extent of 25 bighas if he was not possessed of land to the extent of 15 bighas or about under the Rules of 1975 a temporary lease holder defined in Clause (xvii) of Rule 2 can be allotted land to the extent of 25 bighas in terms of R. 5(2) of the Rules of 1975 provided that such person does not hold any land anywhere in India exceeding 25 bighas. According to the petitioner, besides under Rule 13(5)(b) of the Rules of 1975 an adult son of a temporary cultivation lease holder has been made eligible for allotment of land if there remains any surplus land out of the land comprised in the temporary cultivation of his father.

9. The petitioner-Budharam, submitted that the Post-1955-Rules, '971 are non est and, therefore, his case was required to beconsidered under the Rules of 1975 byreviewing orders made under the Post-1955-Rules of 1971 in terms of Rules 4(3) and 4(4) ofthe Rules of 1975 and by allotting land to himand his adult sons in terms of R. 13(5)' of theRules of 1975. The petitioner is the adult sonof the petitioner No. 1 and he claimed to belandless person within the meaning of Clause (xiii)of Rule 2 of the Rules of 1975 as he is resident ofRajasthan and is by profession bona fide,agriculturist having agriculture as his primarysource of income, proceeded to make anapplication for allotment of the land orderedto be resumed by an order dated 28-9-72 interms of the provisions of Rule 13(5)(b) of theRules of 1975.

10. In support of his application, thepetitioner No. 2 produced electoral rolls inwhich he has been shown as 21 years of age inthe year 1979 and, 22 years of age in the year1980. The application of the petitioner No. 2had been dismissed vide order dated the 5thMarch 1982 on the ground that he was only 15years of age as verified by the ColonisationTehsildar Sri Bijeyanagar and as such, he wasnot the adult son so as to be entitled toallotment of land in accordance withRule 13(5)(b) of the Rules of 1975. This positionwas also accepted by the petitioner's counsel,there.

11. The petitioner challenges the assertion of the counsel on the basis of an affidavit submitted by his counsel. The petitioner also made an application there which is yet pending before the Alloting Authority but the petitioner No. 2 submitted that he cannot wait because the land is sought to be allotted to others in the meanwhile. An appeal was filed by the petitioner No. 2 against the order of 5th March, ,1982 before the Additional Colonisation Commissioner but the petitioner has not waited for outcome of it on the ground that the Authority would not be able to declare the rules 'ultra vires' and, as such, he has withdrawn the appeal on 30th Aug, 1982.

12. In para C of the writ petition, the petitioners have also mentioned the relevant legislative changes which have taken place in the matter of regulations and allotment of the agricultural land in Sriganganagar district particularly, though the laws are for Rajasthan, as a whole.

13. By the Rajasthan Tenancy (Amendment) Act, 1979 Section 15-AAA came tobe inserted in the Rajasthan Tenancy Act and according to Section 15-AAA, Khatedari rights are made conferable on a person at the commencement of this Act, (who) was a holder of Khudkasht or an occupancy tenant or a Maurusidar or a Khatedar tenant or a tenant with transferable and heritable rights and was recorded as such in the annual registers then current, or was not so recorded, but was a holder of Khudkasht or an occupancy tenant or a Maurusidar or a Khatedar tenant or a tenant with transferable and heritable rights, notwithstanding Section 15-A of the Rajasthan Tenancy Act. By this Amending Act, after Sub-section (A), Sub-section (1-AA) of Section 19 came to be inserted. According to this provision of law, every person who, on the 31st day of Dec., 1969, was entered in the annual registers then current as the tenant of Khudkasht or sub-tenant or was not so entered but was a tenant of Khudkasht or sub-tenant of land other than grove land, shall, subject to the exceptions contained in the provisos to Sub-section (1), as from the date of the commencement of the Rajasthan Tenancy (Amendment) Act, 1979, hereinafter in this Chapter referred to as the 'said date', become subject to the other provisions contained in this Chapter, the Khatedar tenant of that part of the land held by him in which he has not acquired Khatedari rights under Sub-section (1) or Sub-section (1A), if before the said date, no proceedings for his ejectment under Clause (a) or Clause (b) of Sub-section (1) of Section 180 shall, have started within the time limit prescribed by Section 182-A, or, if on that date, no such proceedings previously started might have been pending. In proviso, it has been provided that no Khatedari rights shall accrue under this sub-section in the land which has been or is liable to be declared surplus , under any law relating to the imposition of ceiling on agricultural holdings; further provided that no Khatedari right shall accrue under this sub-section on the land belonging to the scheduled castes or scheduled tribes but it shall not be the case of the sub-tenant is the member of sheduled castes or scheduled tribes; further provided that the acquisition of Khatedari rights under this sub-section shall be subject to the provisions of Section 17 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973.

14. The case of the petitioner is that if Section 15-A of the Tenancy Act would not have been in the Act, the petitioner No. 1 wouldhave become a Khatedar tenant of the land allotted to him on temporary basis by virtue of the provisions of Section 15 of the Tenancy Act.

15. Rule 13-A of the Rules of 1975 has been inserted in the rules as on 20th Feb, 1980. Rule 13-A(1) reads as under :-

'13-A. Sale by Special allotment:-- (1) Notwithstanding anything to the contrary contained in these rules such lands as may be notified in this behalf by the State Govt. in Official Gazette to be sold by special allotment may be allotted to the person who are eligible for such allotment in the order of preference given in Sub-rule (1) of rule 7 of these rules and where any such person is not available, to any other person who has been a bona fide resident of Rajasthan for a period of not less than ten years from the date of application subject to the extent of the ceiling area applicable to the allottees under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act 11 of 1973) at a fixed price, to be notified by the State Government in the official Gazette, from time to time, for notified lands.'

16. The petitioner Challenges the various rules and submit that Rules 5(2) and 13(5)(a) and (b) of the Rules of 1975 are ultra vires to Article 14 of the Constitution of India inasmuch as by these rules, a temporary cultivation leaseholder and/or an adult son are made eligible to get 25 and 25 bighas of land only. As against this, Rule 13-A of the Rules permits allotment of land to the extent of ceiling area, but restricts operations of this Rule to land (that) may be notified in this behalf by the State Government in the official Gazette. Whether the allotment is of land notified under Rule 13-A(1) of the Rules of 1975 or any other land to be sold all such land will be irrigated by the water supplied from the Rajasthan Canal. The intensity of water supply will be same, the revenue will be more or less same, yet extent of land which can be under Rule 13-A(1) of the Rules of 1975 is up to ceiling limit, while under Rules 5(a), 13(5)(a) and 13(5)(b) of the Rules of 1975 the extent of land permissible to be allotted is 25 bighas only. Now persons seeking allotment in the Rajasthan Canal Area constitute the same class i.e., the class of persons who are seeking allotment of land in the Rajasthan Canal Colony Area, which will be supplied water from the Rajasthan Canal. While those who have almost given then life in cultivating theland allotted to them by way of temporary cultivation lease in the Rajasthan Canal Area, like the petitioners, are required to rest content by allotment of 50 bighas of land in all as stipulated by Rules 5(2) and 13(5)(a) and-(b) of the Rules, not so the persons seeking allotment of land under Rule 13-A(1) of the Rules as he will be entitled to allotment of land up to ceiling limit. Now the idea is (in) fixing extent of allotment of land under the Rules of 1975 or such other rules is whether the land so allotted will be sufficient to support the persons cultivating the land, if that be the nexus for the purpose of fixing the extent of allotable land, there is no reason why the allotment of land should be restricted to 50 bighas of land in all in terms of Rules 5(2) and 13(5)(a) and (b) of the Rules of 1975. There is, therefore, no justification for restricting the allotment of land under Rule 13(5)(a) and (b) to 50 bighas of land only, more so, when S. 15-AAA of the Tenancy Act permits giving of Khatedari rights up to the ceiling limits.

17. The learned counsel for the petitioners further submitted that as per Tenancy Act, Khatedari rights are conferable on the categories of tenants specified therein to the extent of ceiling limits, notwithstanding the fact that Khatedari rights could not be conferred upon them by virtue of Section 15-A, According to the petitioners, the persons as referred to in Section 15 of the Tenancy Act and the petitioners all go to constitute a class of tenants who were denied Khatedari rights in the Rajasthan Canal Area by virtue of Section 15-A of the Tenancy Act. Out of this category of persons, those detailed in Section 15-AAA of the Tenancy Act, have been picked up for being entitled to conferment of Khatedari rights within the ceiling limit, whereas the petitioners' right to acquire Khatedari rights has been limited to 25 bighas only. Thus, persons falling within the same category and class have been dif rently treated for no reason or rhyme. The avowed purpose for which Section 15-A of the Tenancy Act was made was that with the construction of the Rajasthan Canal Area, the prospect of having good crops increased manifold and the legislature did not desire that the fortuitous circumstance of personsbeing in possession of the land falling in the Rajasthan Canal Area prior to the construction of the Rajasthan Canal would entitle him to conferment of Khatedari rights. The area over which rights can be allowed to be conferred is presumably determined on the basis that so much area will be sufficient to maintain the persons. If these be the reasons for fixing the ceiling limit over which a person can be allowed to have absolute proprietary rights, then there is no reason why the right of temporary cultivation lease holders should be limited to 25 bighas of land in the Rajasthan Canal Area and not up to the ceiling limit.

18. The petitioners have claimed the relief that

(a) by an appropriate writ, order or direction, the provisions of Rule 13(5)(a) of the Rajasthan Colonisation (Allotment and Sale of Government Lands in the Rajasthan Canal Colony Area) Rules, 1975 may be declared ultra vires to Article 14 of the Constitution of India;

(b) the orders dated the 28th Sep., 1972 to extent it orders resumption of land be declared to be illegal.

(c) the respondents be restrained from interfering with the possession of the petitioners on 25 bighas of uncommand land comprising in Murabba No. 195/406 Chak 1-SVS and they may be directed to allot the land to the petitioners up to the ceiling limits.

(d) If for any reason, the possession of the petitioners in land is disturbed, then the same may be ordered to be given back to the petitioners.

(e) Costs of the writ petition be awarded to the petitioners.

19. I have mentioned, in details, the facts and also the ground of challenge raised in Budharam's writ in order to have a broad idea of the controversy raised though some more points will have to be considered a little later.

20. According to the learned Addl. Advocate General the present bunch of cases can be classified in the following broad features :

2A. Petitioner (son) being minor not eligible for allotment under R. 13(5)(b)

Sr.No.

No. &Years; of writ petition

Title

1.

1736/82

Budharam and Anr. v. State of Raj. & Ors.

2.

1088/81

Sukharam& Anr. v. State of Rajasthan & Ors.

(PetitionerNo. 2, son, application pending due to his non-appearance betore Alloting Authority - reported minor).

B.Petitioner being daughter not eligible for allotment out of surplus land.

1.

344/81

Banwarilal& Anr. v. State of Raj. & Ors.

C. Landallotted to the petitioner out of T. C. lease land to make 25 bighas but he wants up to ceiling area hence challenged the extent of allotment - R. 5(2).

1.

938/81

Ramkaranv. State of Rajasthan & Ors.

2.

939/81

SardaraRam v. -do-

3.

941/81

Mewa Ram v. -do-

4.

942/81

Kamma Ram v. - do-

5.

1340/82

Badan Singh & Anr. v. -do-

D.Concealment by the petitioner of fact(at the time of permanent allotment) about havingland already in his holding or his father's holding land allotted, butcancelled on complaint about concealmentallotted land resumed, hence no surplus land - notentitled for any land.

1.

1012/81

Sheokaranv. State of Raj. & Anr.

2.

1044/81

Khubaram v. - do-

3.

1048/81

NanakRam v. - do-

4.

1050/81

NarayanRam v. - do-

5.

1051/81

Sahiram v. - do-

6.

1562/81

Nanuram v. - do -

E.Concealment of the tact by the father of the petitioner of already having land - allotted land to thefather resumed - hence no land declared surplus - adult sons cannot be allotted any land out of resumed land.

1.

180/81

Radha Kishan v State of Raj.& Ors.

2.

181/81

Sampatlal v. -do-

3.

1011/81

Kashiram v. - do-

4.

1046/81

Hetramv. - do-

5.

1047/81

Prithvirajv. - do-

6.

1049/81

Nekiramv. -do-

7.

1052/81

KrishnaLal & Anr. v. - do-

8.

1563/81

Bheraram& Ors. v. - do-

9.

1070/82

Kalekhah& Anr. v. - do-

10.

1073/82

Gyansinghv. - do-

11.

1130/32

Jagdishramv. - do -

12.

1131/82

Kashiram & Anr. v. - do-

13.

1155/82

Bhagirathv. - do-

14.

1350/82

Alladitta& Anr. v. - do-

15.

1352/82

Bugarsingh& Anr. v. - do-

16.

1375/82

Gopiram v. -do-

F.Petitioner's father having already excess land - father not eligible forallotment - T. C. land resumed - adult son notentitled for allotment of resumed land.

1.

946/82

Shri Ramv. State of Raj. & Ors.

2.

1017/82

Ramnarayan v. -do-

3.

1052/82

Manaramv. - do-

4.

1069/82

Dulichandv. - do-

5.

1100/82

Devdutt & Ors. v. -do-

6.

1173/82

Ajayabsinghv. - do-

7.

1374/82

Bhupram v. - do- .

8.

1863/82

Maniram v. - do-

9.

527/82

Gopiram v. B. O. R. & Ors.

10.

1168/80

Surjaram v. - do-

11.

1656/82

Ramnarayanv. State of Raj. & Ors.

G.Petitioner's husband concealed the fact of his already possessing land - hisallotted land resumed - no question of review under 1975 Rules.

1.

182/81 Mst. Dhapi Bai v. Stateof Rajasthan & Ors. H.Petitioner's application for surplus land pending for decision.

1.

947/82

Hariram & Ors. v. State of Rajasthan & Ors.

I.Petitioner's being brother not eligible for resumed land left after allotmentto his brother - can be allotted accordingto his priority under R 7( 1) of the rules of 1975 - Petitioner comes in priority.

1,

1308/80

Gurunarayan v. Board of Revenue & Ors.

21. Shri A.K. Mathur, the learned Additional Advocate General then raised preliminary objection of a very serious nature that in all the cases invariably without exceptions, the impugned orders are appealable and, therefore, the petitioner cannot be allowed to approach this Court directly under Article 226 of the Constitution, as there is alternative efficacious effective remedy, where all the questions raised by the petitioners can be better considered by going into details of the disputed facts also.

22. This objection of the respondents was sought to be repelled by Shri Mridul and Shri Lodha on the ground that they have challenged the validity of the various provisions of law and the appellate authority is not competent to decide them and, therefore; it would have been an exercise of futility if the petitioners would have, gone into appeal in all these cases.

23. In order to appreciate this preliminary objection, I shall have first to deal with the questions raised about the validity of the various laws and, whether they have got any substance, because if they succeed then it is obvious that the remedy of appeal would not have been an equal efficacious remedy. However, if they will fail then it will have to be considered whether the petitioners have challenged them only to create a smoke screen or excuse for circumventing the normal procedure of appeals and revisions in the hierarchy of the authorities provided under the law and to have a short circuit by invoking jurisdiction under Article 226 of the Constitution.

24. The second preliminary objection which was equally pressed in service by Shri Mathur with equal vehemence was that most of the cases raised disputed questions of fact about the age, area, computation or the non-affording of reasonable opportunity or, whether the petitioners were members of the joint Hindu family or separate and, therefore, they cannot be challenged in extraordinary jurisdiction.

25. Shri Mathur then submitted that theRules are valid as their nature is of agrarianreforms and in implementation of Article 39 ofthe Constitution, therefore, they have gotprotective umbrella under Articles 31A and 31C and as such, the challenge to the validity ofthe Rules is wholly untenable. The Rules arewith a purpose to take the excess land and todisburse and distribute it to the landless, personswho are poor and, have got no means to earn.' The main purpose is to equal distribution of the land and this is the principal object of agrarian reforms which aims at removing concentration in the hands of few.

26. Shri Mathur then contended that Article 31A clearly says that the State Government can take measures for acquisition of any estate any right therein or extinguish or modification of any such right. Similarly Article 31C also says that if any law is made in order to advance the principles laid down in Chapter IV then such law cannot be declared to be violative of Article 14 of the Constitution. This legislation is for the purpose of advancement of Article 39 which says that the material sources of the State should be so distributed to best subserve for the common good of the community, likewise the sources of livelihood should be distributed equally so as to provide adequate means of livelihood. In support of this proposition, Shri Mathur relied upon the decision of the Supreme Court in Sasanka Sekhar v. Union of India AIR 1981 SC 522 and Prem Nath Raina v. State of J & K. AIR 1983 SC 920.

27. Shri Mathur further contended that both these cases pertain to land ceiling, the present rules are also in nature of the ceiling on the holders of the land in this area. These persons were allotted the land as temporary lease holders, A special concession has been created in favour of these persons keeping in view a ceiling as provided under the rules so that these persons who have cultivated this land for a pretty long time may not suffer and the excess land may be taken away and given to general pool for allotment in accordance with rules. Thus, these rules are with a purpose to acquire the land for the equitable distribution to other landless persons. Thus this legislation in fact is to effectuate the purpose contained in Articles 31A and 31C read with Article 39 of the Constitution. As such validity of these rules on the anvil of Article 14 cannot be challenged.

28. It has been contended that no such declaration has been made in these rules that the rules are with policy to effectuate the principles contained in Part IV of the Constitution. Shri Mathur submitted that a perusal of the rule would clearly show that the purpose of the rule is to take away the excess land and to re-distribute the land to the landless persons. The declaration is writ at large in therule, itself and it is not necessary to repeat the same in the preamble or otherwise. According to Shri Mathur, the reference of the case of Kumari Jani Bai v. State of Rajasthan ILR (1980) 30 Raj 306 and Godavari Sugar Mills v. S.B. Kamble AIR 1975 SC 1193 and Prag Ice & Oil Mills v. Union of India AIR 1978 SC 1296 has absolutely no relevance.

29. It has been contended that it is neither agrarian reform nor the acquisition of property therefore, Article 31A is not applicable, is also , not correct. According to Shri Mathur, in fact, it was with a purpose to acquire the excess land which had been leased out to these persons, this will extinguish their temporary rights created by a grant of temporary lease. Thus it was certainly a case of extinguishment of the temporary right created by virtue of grant of temporary lease to these persons. It is also a nature of agrarian reform that this kind of land which is now fully irrigated land should not be concentrated in hand of few persons. Therefore, it is sought to be re-distributed to the landless persons. It is certainly a nature of agrarian reform.

30. It is submitted that the contention of the petitioner that the scope of Articles 31A and 31C is different and same cannot be considered to be identical, is wrong. The purpose in both the provisions is identical and overlapping. Under Article 31A land is acquired in order to effect agrarian reform likewise under Article 31C the law is framed to effectuate the purpose contained in Part IV of the Constitution. Article 39 clearly says that material sources of the country should be equally distributed and each person should get an adequate means for livelihood. In fact in the case of Sasanka Sekhar v. Union of India (AIR 1981 SC 522) (supra) their Lordships of the Supreme Court observed that the Act is a piece of social legislation for agrarian reform. The observations made by the Supreme Court are clear that such piece of legislation has its source to Article 39 of the Constitution of India also. Thus the thrust of both the Articles is same.

31. Now, as mentioned above, I would deal with these preliminary objections a little later and, would like to first mention precisely the points of challenge which were pressed during arguments, as although in writ petitions several grounds have been taken but only a few of them were pressed during arguments.

32. Regarding the challenge to the validity of Rule 2(xiii) of the Rules of 1975, Shri Mridul and Shri Lodha pointed out that, whereunder the term 'landless person' stands defined. According to it, a person possessing 25 bighas or more of land anywhere in India will not be a landless person. The validity of this provision is challenged on the anivil of the Bhakra Project Rules of 1955 and the Rajasthan Colonisation (Gang Canal Lands Permanent Allotment and Sale) Rules, 1956 (hereinafter referred to as 'the Gang Canal Rules'). According to the Bhakra Project Rules, it takes into account four types of land viz., Nali I, Nali II, Nali Lightloam, Sandy Loam and Uncommanded. Similarly, as per the Gang Canal Rules, the of land are :

(a) Nehri Perennial, (b) Nehri non-perennial and. (c) Barani. Broadly, it can be said that as per these two sets of Rules there is Nehri (commanded) land, which are perennial and non-perennial and then there is uncommanded/Barani land. Vide notification dated the 4th May, 1981 (Annexure 8, S. B. Civil Writ Petition No. 1100/82) the prices of the lands stand refixed. According to Shri Mridul, this notification controverts the contention of the respondents that difference between different types of land no longer exists. As per the aforesaid Rules, '2 Bighas of non perennial land is equal to 1 Bigha of Nehri perennial land and 3 Bighas of Barani land is equal to 1 Bigha of Nehri Perennial land. Shri Mridul further submitted that, whereas the intensity of irrigation water in the Rajasthan Canal Area is 110% so fur as the Gang Canal Area and the Bhakia Project Area arc concerned, it is 60%.

33- I has been, contended that under the 1975 Rules, while 2 Bighas of Burani land has been equaled to 1 Bigha of command land, no allowance has been made for Nehri non-perennial land. As such, a person possessing Nehri non-perennial land in Gang Canal Area of the Bhakra Project Area, which may be 25 Bighas' or more, he will not be a landless person within the meaning of this definition As against this, a person possessed of 24 Bighas of command land in the Rajastban Canal Area will be a landless person.

34. Shri Mridul contended and cited one example in support of challenge to the validity. The example cited is that if a person were to be holding 50 Bighas of Barani land, say, in Barmer or Shergarh, he will not be a landlessperson, whereas a person holding 24 Bighas of land in the Rajasthan Canal Area will be so. According to Rule 13(5)(a) of the 1975 Rules, a temporary cultivation lease holder is entitled to allotment of 25 Bighas of command land, and, under Rule 13(5)(b) a landless adult son of temporary cultivation leaseholder is entitled to allotment of land comprising the temporary cultivation lease over and above 25 Bighas of land. In case number of adult sons is more than one and the surplus land in terms of Rule 13(5)(b) is 25 Bighas, then this 25 Bighas will be allotted to as many adult sons as they are equally and they will be entitled to further allotment of land to make the total land allotable to them 25 Bighas under Rule 13(5)(e)of 1975 Rules.

35. Shri Mridul further pointed out that if a temporary cultivation lease holder were to have about 50 Bighas of land comprising his temporary cultivation land and if he were to have 4 adult sons all the five put together will be able to secure 125 Bighas of land. If the adult son has only 24 bighas of land in the Rajasthan Canal Area so as to be a landless person. As against this, a person holding 51 Bighas of Barani land in Shergarh will not be able to get any land anywhere. According to Shri Mridul, this is clearly a case of making unequals equal. It has been argued that allowance for the types of land is given under the ceiling law but not so under the 1975 Rules, and which is violative of Article 14 of the Constitution of India.

36. Shri Mridul then challenged the proviso to Rule 5(2) of 1975 Rules, where under the maximum area allotable to a landless person or a temporary cultivation lease holder is 25 bighas of command land only. According to Shvi Mridul, if a person have 24 bighas of land in the Rajasthan Canal Area he can expect allotment of 1 bigha of land more, so as to make 25 bighas and if the temporary cultivation lease comprises of more than 25 bighas of land then the landless adult sons will be able to get surplus residue land and further allotment under Rule 13(5)(c) so as to make it 25 bighas. But, if a person were to hold 25 bighas of land in Gang Canal or Bhaka Project Area or, for that matter, in Barmer or Shergarh, he will not be able to get any allotment even though quality of lands is different and even though intensity of irrigation is also different. As such to limit the extent of allotable land to 25 bighas and not up to ceiling limit is onceagain violates Article 14 of the Constitution, according to Shri Mridul.

37. Another aspect of the matter argued was that under Rule 13-A of 1975 Rules, inserted vide notification dated the 20th Feb., 1980, it has been provided that land up to ceiling limit can be allotted in the areas notified in this respect. Similarly, under Sub-sections (1) & (2) of Section 15-AAA of the Tenancy Act, as inserted vide Tenancy (Amendment) Act, 1979 and, in Sub-section (3) of Section 15-AAA as inserted by Tenancy (Amendment) Act, 1983, it has been provided that Khatedari rights can be given to the persons covered by Section 15-AAA up to ceiling limit and land to the extent of 25 bighas free of charge and rest on payment of prices fixed by it, can be given. Shri Mridul referred to the decision of the Supreme Court in Jaila Singh v. State of Rajasthan, AIR 1975 SC 1436 and, according to him, in terms of the judgment in Jaila Singh's case, no distinction can be made between those who had acquired Khatedari rights which were extinguished by Section 15-A of the Tenancy Act and those who were allotted land on temporary basis. Their Lordships of the Supreme Court, there observed that longer period of occupancy of land cannot furnish any ground for making distinction between pre-1955 and post-1955 tenants. If the land can be allotted up to ceiling limit in a particular area and/or Khatedari rights can be given up to ceiling limit in all areas, then there is hardly any reason why land up to ceiling limit cannot be allotted to a temporary cultivation lease holder and/or a landless persons.

38. It was argued that the extent of allotable land is determined either from the point of administrative viability in view of availability, (b) facility of cultivation, (c) economic holding, or (d) from the point of view of fact whether a particular produce from the land will be able to sustain a family. If this were to be the purpose of fixing the extent of allottable land then fixing the maximum at 25 Bighas of land under the proviso to Rule 5(2) and fixing it up to ceiling limit under Rule 13-A of the Rules, 1975 or under Section 15-AAA of the Tenancy Act can hardly be justified.

39. Shri Mridul then submitted that Rules 13(5)(a) and 13(5)(b) of the Rules, 1975 are invalid on the same grounds as aforesaid. In support of his above submissions, Shri Mridul placed reliance on the decisions of the SupremeCourt in New Manek Chowk Spg. and Wvg. Mills v. Ahmedabad Muncipality, AIR 1967 SC 1801; State of Kerala v. Haji K. Kutty, AIR 1969 SC 378, Mohd. Usman v. State of Andhra Pradesh, AIR 1971 SC 1801; J.P. Kulshreshta v. Allahabad University, AIR 1980 SC 2141 and Delhi High Court decision in Kewal Kumar Luthara v. Gen. Man. (Telephones) 1973 Ser. LC 404. According to Shri Mridul, these are the cases in which it has been held that if unequals are made equals or equals are made unequals it is a case of violation of Article 14 of the Constitution of India.

40. Replying to the above submission, made by Shri Mridul, Shri Mathur submitted that the petitioners have challenged Rule 2(xiii) of 1975 Rules on the ground of computation of area of Barani un-command land with command land and non-perennial land with perennial canal in Bhakra area. Shri Mathur argued that now there is no such non-perennial area in Gang Canal area. This is a question of fact which the petitioners could have proved by presenting the facts before the Allotting Authority or the Appellate Authority. So far as the Rajasthan Canal is concerned, there exists no non-perennial canal in this project. Similarly there is no non-perennial canal in Bhakra Rules for computation of non-perennial to command. Shri Mathur argued that 1975 Rules do not require computation of non-perennial land to perennial command land as there is no non-perennial canal in the Rajasthan Canal Project. The computation cannot be made on the ground of intensity of water or on the ground of said classification because the intensity of water does not remain the same as the head reaches or the tail end of the same water course. The soil classification sometimes not found the same in the same field because the computation in all these Rules have been prescribed in between command and un-command barani lands. Even in the ceiling law the intensity of irrigation has been taken into consideration to find out as to in how much area the double crop in year can mature but the major computation has been prescribed only for command and Barani lands.

41. Regarding the reference of notification dated the 4th May, 1981 in S. B. Civ. Writ Pet. No. 1100/82, Shri Mathur submitted that the petitioner has not produced any such notification as there are only 5 annexure. Shri Mathur contended that the petitionershave given an example to confuse the issues without going through the first proviso given under Rule 2(xiii) of 1975 Rules which in fact prescribes that a person holding barani land in village may surrender that land in favour of Government free of cost and on acceptance of such surrender he will be treated as a landless person of that village. The person of Shergarh of Banner holding 50 bighas of land given in example by the petitioner may surrender such land and may get allotment of command land in Rajasthan Canal Area up to 25 bighas. Their adult sons can also be allotted land as landless person in the Rajsthan Canal Area in their priority. The person who is holding 24 bighas of land in Rajasthan Canal Area will also not be a landless person if adjacent to this holding of 24 bighas, there is no government land available for allotment to him as a landless person. An adult son as provided under the second proviso to Sub-rule (2) of Rule 5 of the 1975 Rules cannot be allotted any land under Rule 13(5)(b). As such the example cited by the petitioners, according to Shri Mathur is confusing.

42. Similarly, in the second example, the adult sons of the temporary cultivation lease holders are entitled for allotment of the surplus land of their father but if they remain eligible for more lands they will be allotted the remaining land along with other eligible persons of the same priority to which they belong in the manner provided in Rule 13(5)(c) and 13(5)(d).

43. Shri Mathur further controverting the submission of Shri Mridul, contended that Rule 13(5)(b) itself is very clear and, the eligible adult sons of a temporary cultivation lease holder can only be allotted land in the following manner:

(a) If there is surplus land after allotment to the father such surplus land may be allotted to them as cotenant.

(b) If they remain eligible for more land as landless persons they will be allotted more land in their priority.

According to Shri Mathur, the priority means the priority prescribed under Rule 7(1) of 1975 Rules.

44. Shri Mathur submitted that the Rules do not debar the persons of Shergarh tosurrender the barani land and such allotment as landless persons like other landless persons in their priority. The case of making unequals equal does not apply to these rules.

45. Shri Mathur pointed out that the rules of allotment of 1975 cannot be compared to ceiling land. The ceiling land provides for acquiring land held by a person over and above the ceiling area. While the Rules of 1975 have been made for the allotment of the land to the landless persons, the two are meant for different categories of persons and as such there is no violation of Article 14 of the Constitution. According to Shri Mathur, petitioners' argument for challenging Rule 5(2) of 1975 Rules shows their confusion about the Rules. Every person who is holding 24 bighas of land either in Rajasthan Canal or Gang Canal can be allotted as (sic) one bigha land and landless person under Rule 5(2) of 1975 Rules to make his holding up to 25 bighas only when the Government land or his temporary cultivation land is available adjacent to his existing holding as has been provided under second proviso and Sub-rule (2) of Rule 5. Rules give equal treatment to every landless person whether he belongs to Rajasthan Canal Area or to Gang Canal or Bhakra Canal Area or anywhere, in Rajasthan and because this example is wrong so this cannot form a basis of allotment to ceiling limit.

46. As regards Rule 13-A, Shri Mathur argued that it is a rule prescribing sale by special allotment and under the Rules the petitioners can get land in special allotment up to ceiling limit out of the land and price notified for this purpose. As such the extent of allotment under Rule 5(2) does not debar him from making his deficiency for ceiling limit under Rule 13-A and as per Shri Mathur, Jailasingh's case (AIR 1975 SC 1436) is not relevant in this matter, and Rule 13-A does not make any discrimination between any tenant. Section 15-AAA of the Tenancy Act restores the rights of these tenants who were denied these rights under Section 15-A, of course, with certain terms and conditions. Thus, Rule 5(2) while prescribes the extent of allotment to landless persons. Rule 13A prescribes sale by special allotment to all persons with preference to those who came in the priority in Sub-rule (1) of Rule 7 of 1975 Rules, while Section 15-AAA restores the rights of those tenants who were denied these rights under Section 15-A with some terms and conditions. Thus, these two sections and Rules are specifically made for specific purpose and cannot form a ground for allotment up to ceiling limit.

47. The extent of 25 bighas prescribed under Rule 5(2) of 1975 Rules is justified from allthe points. It is viable unit and it will facilitate cultivation and also form an economic holding for subsistence of a family. Thus allotment of 25' bighas to a person is justified. If he wants land up to ceiling limit, the provision is there under Rule 13-A which he can get it by way of sale by special allotment which has been provided to augment the resources of the State.

48. So far as Section 15-AAA is concerned, it is not a provision for allotment of land to landless person. It is a provision to restore that rights of those who were denied. These rights (are) under Section 15-A of the Tenancy Act and thus the challenge is unwarranted, argued Shri Mathur.

49. Shri Mathur pointed out that there is no question of treating unequals with equals. The criteria (is) that these persons should not exceed their holdings more than 25 bighas of land. Among this class of person there is no question of treating equals with unequals. All these persons constitute one class.

50. Shri Mathur contended that according to first proviso to Rule 2(xiii) if a person holding continuously since before the first day of April, 1955 only barani land in a village, 'may surrender that land to the government free of cost and on acceptance of such surrender he will also be treated as landless person of that village. In case he is not allotted any command land within a year of such surrender he can revoke the surrender of the land made by him. In view of it, the assumption of the petitioner that unequals are being made equals is not correct. The proviso negatives this argument. If any person has a barani land in Jaisalmer or any other remote village he can surrender the same and he will be treated as landless persons and he can legitimately apply for the land in command area in his priority as contained in Rule 7(1) of 1975 Rules.

51. Now, I would deal with individual cases special feature, if any, after considering and deciding the common questions of law involved in all these writ petitions and with this object and scheme of this judgment, I would now proceed to consider the various facts of this bunch of writ petitions.

52. However, before I do that, I must as a preface and introductory remarks, mention that vast lands of Rajasthan and all agricultural holdings are, primarily governed by theTenancy Act which was enacted in the year 1955. 'Right of tiller' is the main theme of this enactment which broadly covers about three-fourth of the population of Rajasthan as about 1/4th is in town and cities. Before this came into force, enactments mentioned in col. 2 of the first Schedule of this Act which were laws in the tenancy of the various covenanting State of Rajasthan which ultimately merged in Rajasthan were in force. This law introduced land reforms for the benefit of the tenants.

53. The Colonisation Act 1954 which was enacted a little earlier to it but which was amended from time to time made even after the colonisation and administration of land. The various enactments were made in the forms of Rules and conditions for regulating the colonisation and some of them may be taken note of hereunder;

1. The Rajasthan Colonisation (Fruit Vegetable Gardens) Conditions, 1955.

2. The Rajasthan Colonisation (Project Area Brick-Kiln Leases) Conditions, 1966.

3. The Rajasthan Colonisation (Allotment of Government Land to Ghair DakilkarTenants in Raintalisa Area) Conditions, 1970 -

4. The Rajasthan Colonisation (Bhakra Project Gadolia Lohars Allotment of Government Lands) Rules, 1955.

5. The Rajasthan Colonisation (Chambal Project Government Lands Allotment and Sale) Rules 1957.

6. The Rajasthan Colonisation (Grant of Land for Residence in Chak Abadi) Rules, 1959.

7. The Rajasthan Colonisation (Allotment of Land to Co-operative Societies) Rules, 1959.

8. The Rajasthan Colonisation (Medium ant Minor Irrigation Project-Government Lands Allotment) Rules, 1968

9. The Rajasthan Special Assistance to Disabled Ex-servicemen and Dependents of Deceased Defence Personnel (Allotment pf Lands) Rules, 1963.

10. The Rajasthan Colonlsation (Rajasthan Canal Project Government Land Allotment & Sale) Rules, 1967.

11. The Rajasthan Colonisation (Grant of Land for Residence in Chak Abadi in Rajasthan Canal Area) Rules, 1971.

12. The Rajasthan Colonisation (Allotment ) of Government Land to Pong Dam Oustees in the Rajasthan Canal Colony) Rules, 1972.

13. The Rajasthan Colonisation (Special Grantof Land for Residence to Landless Persons,Scheduled Caste and Scheduled Tribes, Village Artisans, Small Farmers and Marginal Farmers) Rules, 1974.

14. The Rajasthan Colonisation (Allotment& Sales of Government Land in Rajasthan ,Canal Colony Area) Rules, 1975.

15. The Rajasthan Colonisation (Jawai Project Land Allotment and Sale) Rules, 1978.

The above are not exhaustive.

54. The post- 1955 Rules of 1971 were challenged and amended from time to time and ultimately they were repealed and then, fresh rules were made in the form of Rules of 1975. These 1975-Rules have been also amended from time to time.

55. I have given a brief resume and survey because of plethora of amendments made, repeals done, death and re-birth of several parts of them, it is almost impossible to put them at one place in a comprehensive manner, unless a reserach scholar is assigned the job which may take at least one year or so. The object of mentioning the above broad feature of this legislation is to show that the reference made in the arguments by the rival parties are not exhasutive and one had to keep in view that this particular branch of legislation under the broad caption of 'land-reforms' and, specially, irrigated areas and colonisation of them is a gigantic one and the legislative process have been mostly outwitted by the litigants, challenging them, based on the one or other Article of the Constitution which would become obvious, when the various decisions are noticed. It is not for this Court to probe into and observe that, in what manner the land reforms legislation have mostly been subject matter of litigation only so far and the landless persons who are called the 'tiller of the soil' still remain landless and 'tiller' in name, only without any land to cultivate in spite of legislative process enacting the various laws and Rules, notifications. Contrary to it, those occupying lands beyond permissible limits continue to enjoy the fruits of their extra occupation at the costs of the landless and, both, the legislative as well as judicial wings have almost felt 'helplessness1 in evictingthem and distributing the land to the landless in spite of the power and prearhble of the Constitution, Directive Principles and various amendments made, to provide protective umbrella to land-reforms and agrarian legislation from being challenged under the Constitution.

56. The actual challenge to the various provisions summarised above, as per the rival contention of the parties would be dealt with by me, a little later if necessary but, before that, I would like to consider the preliminary objections of Shri A. K. Mathur, the learned Advocate General.

57. The first and foremost objection regarding the maintainability of these writ petitions except writ petitions filed by Ramlal (S. B. Civil Writ Pet. No. 907/79); Surjaram (S. B. Civil Writ Pet. No. 1168/80) and Gopiram (S. B. Civil Writ Pet. No. 527/82), where they have challenged the orders of the Board of Revenue, relate to the non-availability of the alternative remedy.

58. The Colonisation Act only deals with one facet of land legislation and, therefore, it being not comprehensive, S. 5 provides as under:

'5. Applicability of tenancy and land revenue laws : (1) Except as otherwise provided in this Act, the laws relating to agricultural tenancies, land, the powers duties, jurisdiction and procedure of revenue courts, the survey and record operations, the settlement and collection of revenue, rent and other demands and the partition of estates and tenancies, for the time being in force in a colony, shall in so far as may be applicable, apply to tenancies held and to proceedings conducted under this Act.

(2) Nothing in such laws shall, however, be so construed as to vary or invalidate any rule made, or any condition entered in any statement of conditions issued, by the State Government under this Act.'

59. Rule 3 of the 1975 Rules read with Sections 75 & 78 of the Rajasthan Land Revenu Act shows that the appeals have been provided. Rule 23 provides for limitation of appeal against the orders of the Allotting Authorities.

60. Section 83 of the Rajasthan Land Revenue Act provides for revision. The Rule providing for appeal and revision was newly inserted on25-5-1981. Thus prior to the date of 25-5-1981 there was no rule providing for revision. Section 83 of the Land Revenue Act could be resorted to for revision read with Section 5 of the Colonisation Act, still the person was not eligible to move revision application without resorting to an appeal first. The person ought to have exhausted the remedy available by appeal then could prefer revision otherwise not as required by Section 76 of the Land Revenue Act.

61. It may be noticed that the Colonisation Act is silent about the remedies of appeal and revision and, therefore, on the one hand, Rules govern the remedy of appeal, on the other hand, the Act being silent, the appeal can be filed under the provisions of the Rajasthan Tenancy Act and the Land Revenue Act.

62. Rule 23 of the 1975 Rules reads as under :

'23. Appeal and Revision. -- (1) Any person aggrieved by an order passed by an Allotting Authority may within 30 days from the date of such order, appeal to the Colonisation Commissioner.

(2) Any person aggrieved by a final order of the Colonisation Commissioner whether passed in appeal or otherwise may within 60 days of the date of such order, file revision to the Board of Revenue for Rajasthan.'

63. This would show that all orders passed by the Allotting Authority under the ceiling Rules are appealable. It further shows that the orders of Colonisation Commissioner in appeal or, otherwise can be revised by the Board of Revenue for Rajasthan.

64. As would be seen from the' orders passed by the Board of Revenue produced in the writ petitions of Ramlal (Writ No. 907/79); Surjaram (Writ No. 1168/80) and Gopiram (Writ No. 527/82), these three applicants have, in fact, exhausted the remedies provided under the law and then come to this court after failure to get relief from the Board of Revenue for Rajasthan.

65. All other applicants, who are the petitioners in this bunch of writ petitions have directly approached this court either by not filing any appeal at all, or, in some cases, by withdrawing or, without waiting for its result.

66. Shri Mathur has placed strong reliance upon the judgment of the Apex Court inTitaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603 wherein their Lordships were dealing with the Orissa Sales Tax Act (14 of 1947) under which the appeal could be preferred under Section 23 of the Act. Their Lordships of the Supreme Court held that, under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of, and the petitioners assessees have the right to prefer an appeal before the prescribed authority under Sub-section (1) of Section 23 of the Act. It was further held that, if the petitioners assessees are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under Sub-section (3) of Section 23, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24. Then it was observed as under (at p. 607) :

'The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be avalied of.' (paras 6 and 11)

Their Lordships of the Supreme Court further held as under (at p. 607) :

'Furthermore, the Act provides for an adequate safeguard against an arbitrary or unjust assessment. The petitioners have a right to prefer an appeal under Sub-section (1) of Section 23 subject to their payment of the admitted amount of tax as enjoined by the proviso thereto. As regards the disputed amount of tax, the petitioners have the remedy of applying for stay of recovery to the Commissioner of Sales-Tax under Clause (a) of the second proviso to Sub-section (1) of Section 13 of the Act.' (para 12)

67. This Court has repeatedly held that the writ petition would not be entertained where equally efficacious remedy is available to the petitioner, in a series of cases including, Sukhai v. Union of India AIR 1953 Raj 199; Sohansingh v. R. T. A. 1968 Raj LW 389; M/s. Bhanwarlal Binjaram v. A. C. T. O., 1976 WLN (UC) 459; Narayanalal v. S.D. O. Bhilwara AIR 1977 Raj 65; Executive Engineer R. C. P. v. Smt. Rukmani 1978 Raj LW 264 Nandlal v. State. 1978 Raj LW 198 : (AIR 1979 NOC 78(Raj)) and Jafrullah Khan v. State 1978 Raj LW 44 : (1978 Tax LR 2254).

68. Shri Mathur also relied on the decision of Jafrullah Khan's case (supra) where a bunch of writ petitions challenging the orders passed under the Rajasthan Passengers and Goods Taxation Act, 1959 were considered and rejected on the ground on alternative remedy.

69. In Lekhasingh v. State of Rajasthan S. B. Civil Writ Petn. No. 1875 of 1981. decided on 19-4-1984 : (AIR 1985 Raj 101). I have taken the view that when appeal is provided under the Statute, the writ petition should not be entertained as the petitioner has not first availed of the alternative efficacious remedy which was available. Similar observations have been made by this Court in Brijlal v. State Civil Writ Petn. No. 2168 of 1980 decided on 13-7-1982 (Raj).

70. Shri Mridul's contentions that, since the-validity of certain provisions have been challenged the filing of the appeal would have been futile, would certainly hold the field, if I am convinced that the challenge to the validity can succeed. Since, after a thoughtful consideration of the various facets of these cases including the challenge to the validity of the provisions of law, I am convinced for the reasons which I would give hereinafter, that the challenge is untenable. I am of the opinion that in the present writ petitions, the plea that the appeals could not be filed on account of the challenge to the validity of the provisions of law is equally futile. In my considered opinion, the challenges have been made for creating the pretext or excuse against preliminary objection which could very well be anticipated regarding non-maintainability of the writ petitions due to the alternative remedy of appeal. They are nothing but smoke screen raised by the petitioners themselves, for avoiding the objection of maintainability of writ petitions and, therefore, this defence weapon against the preliminary objection of Shri Mathur cannot succeed.

71. The preliminary objection regarding the non-maintainability of the writ petitions on account of availability of the forum of appeal and the petitioners not availing it and not exhausting it, is well sustained in all the writ petitions except the three writ petitions of Ramlal, Surjaram and Gopiram, as mentioned above. This preliminary objectiondeserves to be accepted and all the writ petitions except three mentioned above deserves to be dismissed on this ground, alone.

72. However, since I have heard the cases at length and also gone through the written arguments of the learned counsel for the parties and devoted considerable time to them, it would be in the interest of natural justice, to avoid future innings of the litigation, to decide them on merits also.

73. It is also necessary to decide them because I have said above, if they can succeed on the question of Constitutional validity, then I would not have dismissed them on the ground of alternative remedy and would have entertained them.

74. In order to decide the validity of the various provisions challenged, it would be first necessary to consider the objection of Shri Mathur whether Article 31A of the Constitution of India provides a protective umbrella. In Kumari Jani Bai v. State of Rajasthan ILR (1980) 30 Raj 306 (supra) brother S. K. Mal Lodha J., had occasion to consider this precise question in respect of the challenge to Section 15-A of the Tenancy Act. It was observed as under :

'After the amendment of the Constitution of India by the Seventeenth Amendment Act of 1964 Ninth Schedule of the Constitution was amended and the Rajasthan Tenancy Act (No. III of 1955) was included in it as item No. 155 with effect from June 20, 1964. By virtue of the amendment in the Ninth Schedule, provision of Article 31B of the Constitution became applicable to it and therefore, the validity of Section 15-A of the Rajasthan Tenancy Act cannot be challenged despite the fact that Section 15-A was struck down by this Court in Jassuram's case, AIR 1963 Raj 72 and on the ground that it contravened any fundamental right as it is immune from challenge under Article 31B of the Constitution. Thus Section 15-A is neither void nor ultra vires the provisions of the Constitution.'

In taking the above view, reliance was placed on the decisions in Jailasingh v. State of Rajasthan, (AIR 1975 SC 1436) (supra) D. G. Mahajan v. State of Maharashtra AIR 1977 SC 915; L. Jagannath v. Authorised Officer, L. R. Madurai AIR 1972 SC 425 State of Maharashtra v. Mansingh, AIR 1978 SC 916Hasmukhlal v. State of Gujarat AIR 1976 SC 2316 and Harbanslal v. Produce Exchange Corpn. AIR 1972 Raj 214.

75. Before I proceed further to examinethe defence of Articles 31A and 31C of the Constitution, it would be better to have a fresh and precise study of Articles 39, 31-A and 31C of the Constitution which read as under :

'Article 39. The State shall, in particular, direct its policy towards securing-

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equatwork for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and .dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.'

Article 31A(1) Notwithstanding anything contained in Article 13, no law providing for

(b) the acquisition by the State of any estate or of any extinguishment or modification of any such right, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral oil, or the premature termination or cancellation of any such agreement, lease or license.

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 Article 14.

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appartenent thereto unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.'

Article 31C 'Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV 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 Article 14, or

Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President of the India, has received' his assent.'

76. Sub-clauses (a), (b) and (c) to Article 39 of the Constitution have got great relevance so far as the regulations of argicultural land by allotment, cancellation of allotment and its distribution is concerned. It is well known that, whereas the entire agrarian economy of Rajasthan was earlier in the hands of a few Rajas or their Jagirdars or Biswedars or big landlords proverbially known as 'Kulaks' infifties and earlier to it, advent of freedom and coming into force of the Constitution and merger of Rajasthan after abolition of Princely order and Jagirdari systems, has resulted in an era of land reforms by redistribution of agricultural land, creation of tenancy rights and particular emphasis on giving lease to 'tillers' with requirement of regulation and acquisition of surplus land from big landlords either by way of ceiling or other laws and then allotment of surplus lands to landless persons and petty cultivators and tillers. The concept of ceiling limit of agricultural land for cultivation is not limited to ceiling laws as such but, it is to be kept alive in all laws governing allotment, distribution of land, either by re-distribution or acquisition or by like methods. The basic concept of a socialistic State, as per our Preamble and Article 39, the Directive Principles in this respect is that the ownership and control of the land should not be such that instead of subserving the common good by its fair distribution in the community as a whole it is concentrated in the hands of fortunate few to the detriment of unfortunate many. Concentration of wealth and means of production to the common detriment has been prohibited and the economic system should be so operated as to rule out the possibility of it. The distribution of the land, with the above object should be such that Clause (a) of Article 39 of the Constitution of India also, instead of decorating the constitutional books, becomes a real livelihood and lively phenomenon and, the citizens can get adequate means of livelihood.

77. In my considered opinion, for an agriculturist whose main source of livelihood is agriculture only, unless the agricultural land is allotted to him if he has none or he has only unequitable land, then this dream of forefathers of the Constitution enshrined in Article 39 and the Preamble of our Constitution cannot become a reality. The agrarian revolution by Constitutional methods can only be brought about if those who have got surplus land are compelled to part with it by legal process and those who have not got sufficient land to cultivate are allotted surplus land. In colonies, like Ganganagar, it assumes more importance because the command area of irrigation yields extremely good crop and rich landlords or the affluent class of the cultivators always tried to retain whatever they have got to the detriment of the landless cultivators who remaincultivators by name only, without sufficient land to cultivate.

78. Mr. Mridul's contention that land-reforms, or agrarian laws meant for reforms would not have in their compass various rules and particularly Rules of 1975, which are under challenge, because they are not laws of ceiling of land, is wholly untenable and completely devoid of any force on the test of the above principles and I am firmly of the opinion that all provisions in the Colonisation Act or Rules of 1975 or other Rules or Tenancy Act or Land Revenue Act, wherefrom, directly or indirectly, the area of legislation covers the allotment, acquisition, requisition, cancellation! of allotment, eviction, and distribution of agricultural land, they would all be squarely covered by the broad terms, 'land-reforms' and would attract Article 39 of the Constitution on the one hand and Article 31A and Article 31C of the Constitution on the other hand.

79. I am in agreement with Shri Mathur that the impugned rules are having the purpose of taking away the excess land and to distribute this land to other land-less persons or needy persons.

80. The present petitioners were allotted this land by temporary lease and when it is found that they are having excess land then all that is sought to be done is to take excess land, for putting out in the general pool and allotted to those who are landless persons or who have not got sufficient land to the extent permissible in the relevant rules. The equitable distribution of the land and the emphasis to give to the landless persons is writ large in the scheme of these rules and. therefore, they are pure and simple agrarian reforms. Article 31A mandates the State to take measure for acquisition of any estate or of any rights therein or extinguish it or modify such rights and that is what precisely is being done by the impugned rules.

81. Chapter IV has been repeatedly held to be of fundamental importance and Article 31C only says that if any law is made in order to secure all or any of the principles laid down in Part IV then such laws cannot be declared to be violative of Article 14 of the Constitution of India. Obviously these rules are for advancement of Article 39 of the Constitution as discussed above.

82. In Sasanka Sekhar Maity v. Union of India (AIR 1981 SC 522) (supra) West BengalLand Reforms act came under challenge before the Supreme Court and their Lordships observed as under :

'The Act is a piece of social legislation for agrarian reform. The object of the legislation is to break up the concentration of ownership and control of the material resources of the community and to so distribute the same as best to subserve the common good, as enjoined by Article 39(b). Having regard to the quantity of land available in the State of West Bengal, the ceiling limits appear to be reasonable and fair. For equitable distribution of the natural resources, it was essential to design the Act as it is so that the surplus land is available for distribution to the landless peasentry. In order, therefore, to reconcile the fundamental rights of the community as a whole with the individual rights of the more fortunate section of the community, it was fundamentally necessary to make the impugned legislation to secure to a certain extent the rights of that part of the community which is denied its legitimate share in the means of livelihood.' (Para 23)

The ceiling limit introduced by Section 14-M of the impugned Act is the ceiling limit 'under the Law for the time being in force' within the meaning of the second proviso to Article 31A(1). That being so, the provisions of Chapter IIB have the Constitutional immunity of Article 31A and cannot be challenged on the ground that they are inconsistent with, take away or abridge the fundamental rights guaranteed by Articles 14, 19 or 31(2). Even if it were not so, they would be under the protective umbrella of Article 31B. Indubitably, the provisions of Chapter IIB are a law related to agrarian reform and thus protected.'

(Paras 31 and 34)

83. In my considered opinion, the principles laid down by the Apex Court in Premnath v. State of J & K, AIR 1983 SC 920 squarely covered the challenge to the various provisions, referred to above. Their Lordships of the Apex Court in Premnath v. State of J & K (supra) observed as under :

'The dominant purpose of the J & K Act is to bring about a just and equitable redistribution of lands, which is achieved by making the tiller of the soil the owner of the land which he cultivates and by imposing a ceiling on the extent of the land which any person, whether landlord or tenant, can hold. Considering the scheme and purpose of the Act, it has to be held that the Act is a measureof agrarian reform and is saved by Article 31A from the challenge under Articles 14, 19 or 31 of the Constitution. Therefore, it could not be argued that particular provisions of the Act are discriminatory and are therefore violative of Article 14; that those provisions impose unreasonable restrictions on their fundamental rights and are, therefore, violative of Article 19 in view of Article 31A of the Constitution.'

(Para 5)

In Premnath v. State of J. & K. (supra), their Lordships of the Supreme Court further observed that the question as to whether any particular Act is a measure of agrarian reform has to be decided by looking at the dominant purpose of that Act.

84. If the present scheme of the Rajasthan Colonisation Act and the Rules under challenge is looked into, it is obvious, as observed by me above, they are an integrated scheme of land-reforms and the agrarian reforms for re-distribution of land of agriculture and regulations of it. by acquisition or cancellation of allotment and making fresh allotments in order to ensure the equitable distribution of land and to avoid conceniration of it in the hands of few to the detriment of many. I am, therefore, convinced that the impugned rules are protected, by the protective umbrella of Article 31A, Article 31C of the Constitution of India and, the challenge to their validity on the allegation that they are in contravention of Article Hand other Articles of the Constitution, cannot be sustained.

85. The contention of Shri Mridul and Shri Lodha that there is no such declaration in the Rules that they have been made with a view to effectuate the principles contained in Part IV of the Constitution is equally devoid of any force. Our Constitution is a living document, taking into active consideration miseries of the poor and taking a notice of the people's ambitions and to ameliorate their conditions b agrarian reforms and it nowhere insists on any rituals. The insistence on mention of the object under the Rules by reference to Part IV is an insistence of a ritual which hardly exists in our Constitution, it is an insistence on form against substance and if 1 may say so. it is a requirement, where shadow is given more importance than the real image. As I have observed above, re-distribution of land by taking excess land from cultivators and giving it to those who have not got sufficient land as per the normal limits prescribed, is a speakingtribute to Article 39 of the Constitution and what a poor homage we would be paying to it by striking it down on the shallow superficial unreal, imaginary and illusory deceptive bedrock of absence of ritual of mentioning of it in the Rules.

86. I have got no hesitation in accepting the contention of Shri Mathur. the learned Addl Advocate General that we must look to the substance and not 'form'.

87. In my opinion, this second preliminary objection raised by Shri Mathur cannot be lightly brushed aside and deserves to be accepted.

88. Since I am of the view that repeated innings of challenges to the land-reforms legislation should be avoided, I would also deal with the Constitutional validity on its merits, otherwise, also, so that the debate comes to an end.

89. Sub-rule (xiii) of Rule 2 of the Rules of 1975 reads as under :

'(xiii) 'Landless person' means a person who, -- (i) is a resident of Rajasthan; and (ii) has been by profession, a bona fide agricultural labourer/or a bona fide agriculturist; having agriculture as the primary source of his income and who either does not hold any land anywhere in India or holds landjess than 25bighas. but it does not include a temporary cultivation lease holder :

Provided that a person holding continuously since before the 1st day of April, 1955, only barani land in a village may surrender that land in favour of Government free of cost and on acceptance of such surrender, he will also be treated as a landless person of that village. In case he is not allotted any command land within a year of such surrender, he can revoke the surrender of the land made by him;

Provided further that a released 'Sagri' as certified by the Sub-Divisional Officer will also be treated as landless person of that village.

Explanation-- For the purpose of this proviso 'Sagri' means the bonded labourer as defined in the Bonded Labour System (Abolition) Act. 1976 (Central Act No. 19 of 1976).'

90. As per resume of the arguments earlier, the challenge with the computation of area ofBarani, to uncommand land with command land and non-perennial land with perennial command land in Bhakhra deserves consideration now. Obviously, there is no such non-perennial canal in Bhakra Area and therefore, anology or comparison of the computation made by Shri Mridul is of hardly any relevance. Again, no such perennial area runs in the Gang Canal Area. In my considered view, it would not be proper to compare the Bhakhra Canal Areas, Gang Canal Areas and Rajasthan Canal Areas in as much as situation, conditions, circumstances of each will have to be considered and they may raise several disputed questions of fact. Undoubtedly, no non-perennial canal exists in Rajasthan Canal Area. In view of the above, 1975 Rules would not require any computation of non-perennial land to perennial command land.

91. Similarly, the computation sought to be done by Shri Mridul on the basis of the intensity of water and the classification sought to be made on that basis is again, based on fallacious assumptions. It is well known that the intensity of water differs even in the same canal or the 'nali (drain) taken from it because it may differ even on the 'head' in comparison to the 'tail' in the same water course. Again, it depends upon the release of the water from time to time and the intensity' can change.

92. The soil-classification also differs even in the same field. In my opinion, the most reliable method of computation is prescribing it on the basis of command and uncommand 'barani' lands. It is common knowledge that even in the ceiling law, major computation is prescribed only for the command and barani lands. This is, in substance, irrigated and unirrigated lands and, there cannot be any doubt that the capacity to grow the crop is entirely different on the two types of land. In view of the above, I am in agreement with Shri Mathur that the comparison of land between Bhakhra and Rajasthan is misconceived and in any case cannot provide a ground of the alleged discrimination.

93. The example given by Shri Mridul, of comparison of land of Ganganagar with comparison of land Shergarh or Barmer is a comparison between 'lion' and 'ox' which is not sustainable under any Constitutional guarantee. Moreover, there is a good deal of confusion in it. R. 2 (xiii) of the Rules of 1975 permits surrender by a person holding 'barani' land in favour of the Government free of costsand, then he can be treated as landless person. A person of Banner district or Shergarh Tehsil of Raj as than can have 25 bighas of land and surrender such land and get allotment in the Rajasthan Canal Areas upto 25 bighas of land. The adult sons can also be allotted land comprising the temporary cultivation lease over and above 25 bighas of land, on account of being a landless adult son/person in Rajasthan Canal Areas.

94. It is true that a person who has got 24 bighas of land in Rajasthan Canal Areas will not be a landless person if adjacent to this holding of 24 bighas of land, there is no Government land available for allotment to him as a landless person. It is difficult to appreciate, how this creates any discrimination.

95. As per the second illustration and comparison by Shri Mridul, the eligible adult sons of a temporary cultivation lease holder will be allotted land, if there is surplus land after allotment to the father of such surplus and if they remain eligible for more land as landless persons.

96. The Rules of 1975 never debar and there is no case of unequals.

97. The submission of Shri Mridul that comparision to ceiling laws and allotting with Rules of 1975 are discriminatory and violative of Article 14 of the Constitution is also untenable. Every person who is holding 24 bighas of land either in Rajasthan Canal or Ganga Canal Areas can be allotted one more bigha of land as landless persons under Rule 5 (2) of the 1975 Rules, to make his holding upto 25 bighas only. Of course, this is on the condition that the Government land or his temporary cultivation lease land is available adjacent to his existing holding as provided under second proviso and Sub-rule (2) of Rule 5. I wonder, how this proviso or the Rule is violative of Article 14 of the Constitution as in my opinion, it provides equal treatment to every landless persons.

98. The examples cited of Rule 13-A of the 1975 Rules and Section 15-A A A of the Tenancy Act about the ceiling limit now be considered. Rule 13-A of 1975 Rules is a rule which prescribed special procedure for special allotment. The ceiling limit here also would apply. If the person has got any deficiency under Rule 5(2) of the Rules of 1975, it can bemade good by such purchase. Section 15-AAA of the Tenancy Act actually restores rights of tenants who were denied these rights under Section 15-AAA. It would be seen that, whereas Rule 5(2) of the Rules of 1975 prescribe the extent of allotment to landless persons. Rule 13-A prescribed the sale by special allotment to all persons with preference to those who come under the priority provided in Sub-rule 0) of Rule 7 of 1975 Rules. Section 15-AAA only restores the rights which were taken away, earlier. Thus, these two provisions comtemplated different contigencies. I am unable to apply Article 14 of the Constitution of India as a rule of thumb without appreciating the difference in the circumstances, conditions and situations in which the provisions are made and for which they are intended.

99. It is also difficult to hold that the 25 bighas prescribed in Rule 5(2) of the 1975 Rules are not a viable unit. The conditions of Rajasthan are well known and it cannot be said that 25 bighas of land are not a viable unit. If one wants more land upto ceiling limit, he can purchase it under Rule 13-A. Under Rule 13-A of the Rules of 1975 the resources of the State would be augmented and land reforms which also ensue cannot be termed to be violative of Constitutional provisions, although I am in agreement with Shri Mridul that as per lofly ideals, the Preamble of the Constitution and Article 39 the object of augmentation of revenue in the matter of allotment of land of agricultural holdings, where the emphasis is on the equitable distribution should have been and could have been avoided. However, on that alone, Rule 5(2) of the 1975 Rules cannot be said to be discriminatory.

100. Equally, futile is the submission that unequals have been treated equals. It is true that as a principle of Constitutional law. Article 14 is of comprehensive nature and if unequals are treated equals, it would be contravened. However, it is to be kept in mind that the provision is for allotment on permanent basis in the Rajasthan Canal Areas to the temporary cultivation lease holder and putting the ceiling limit of 25 bighas of land for that. How can it be said that they are being treated equals with unequals. In my considered opinion, those persons who have got temporary allotments constitute one class and cannot be compared with other classes. It should be noticed that the provisions have been made for thesurrender of land under the first proviso to Sub-rule (xiii) of Rule 2 of the 1975 Rules and, therefore, there is no question of unequals being treated as equals. One can surrender Barani land and then he will be treated as landless person and he can apply in the command area in his priority for the land under Rule 7( 1) of the 1975 Rules.

101. So far as the question of challenge on [he basis that the daughters are not eligible, is concerned, the discrimination sought to be shown between sons and daughters, stands settled by the authoritative decision of this court in Kumari Jani Bai v. State of Rajasthan (supra) wherein it has been held that there is no distinction between adult sons and adult daughter so far as the definition of 'landless person' is concerned regarding eligibility and extent of allotment. Under Rule 5(1), each person namely, temporary cultivation lease holders, agriculture graduate landless persons and Bhakra landless persons, can be allotted Government land upto 25 bighas. Under Rule 7 relating to priorities for allotment, there is no distinction between adult son and adult daughter. Rule 10 provides that within the time fixed in the public notice issued under Rule 9 or within such time fixed and as may be extended by the Allotting Authority from time to time any person eligible for allotment of Government land may present an application in Form III to the Allotting Authority of the urea or to any in this behalf. No such distinction is found in Rule 12(5), for, it provides that the Allotting Authority shall allot each applicant Government land to the extent provided in Sub-rule (2) of Rule 5 out of the area reserved for such persons on the terms and conditions as laid down in the Rules of 1975 and inform the applicant in Form IX. In rule 13(5)(b) the adult daughter had been escluded in regard to surplus land of a temporary cultivation lease holder, while an adult son is not required to move an application under Rule 13(5)(b).

102. It is, therefore, obvious that allotment to adult son is a must and each adult son has to get land to the extent he is eligible out of the surplus land. For allotment of the remaining land, it has to be made in accordance with Clauses (c) and (d). Second proviso of Rule 13(5)(b) when makes reference to the other eligible persons of the same priority, it includes daughters, also. In my considered opinion, in view of the above, no valid exception can betaken on the ground of discrimination under Article 15 of the Constitution.

103. It would thus be seen that even on merits, the various challenges made by the petitioners to the provisions of Rules of 1975 that, the extent of allottable land is determined either from the point of administrative viability in view of availability, (b) facility of cultivation, (c) economic holding, or (d) from the point of view of fact whether a particular produce from the land will be able to sustain a family and, if this were to be the purpose of fixing the extent of allottable land then fixing the maximum at 25 bighas of land under the proviso to Rule 5(2) and fixing it up to ceiling limit under Rule 13-A of the Rules or under S- 15-AAA of the Tenancy Act can hardly be justified; are untenable as these provisions are meant for different categories of persons and the Constitutional guarantee of Article 14 of the Constitution has not been contravened, at all and there has been no discrimination.

104. In order to substantiate his submission that, if unequals are made equals and equals are made unequals, in either case, Article 14 of the Constitution of India would be violated and, therefore, Rule 13(5)(a) and 13(5)(b) of 1975 Rules so also proviso to Rule 5(2) are invalid; Shri Mridul placed strong reliance upon the decision in New Manek Chowk Spg. Mills v. Ahemdabad Municipality (AIR 1967 SC 1801) (supra) State of Kerala v. Haji K. Kutty (supra) (AIR 1969 SC 3781, J.P. Kulshreshta v. Allahabad University (supra) (AIR 1980 SC 2141), Mohd. Usman v. State of A. P. (AIR 1971 SC 1801) (supra) of the Supreme Court and Kewal Kumar v. Gen. Man. Tel. (1973 Serv LC 404) (supra) of Delhi High Court.

105. There cannot be any two opinions so far as the proposition of Constitutional law is concerned, that Article 14 applies in both the situations but. as discussed above, the petitioners have failed to convince me that unequals have been treated equals or, equals have been treated unequals.

106. In view of the above, even the Constitutional challenges fail on merits, also.

107. Now, before I proceed to discuss individual cases, I may also dispose of another question of law which was canvassed by Shri I. J. Lodha and Shri Mridul that even if there is allotment of no land to the father, it would be a case of 'zero' allotment for the purpose ofRule 13(5)(b). My attention was invited to the definition/meaning of 'Zero' given in the Mozley and Whitley's Law Dictionary (Ninth Edition by John B. Saunders p. 361) and in Biswas Encyclopaedic Law Dictionary (Eastern Law House p. 762 first Edition), which respectively reads as under :

'ZERO-RATING. Relief from payment of value added tax on the supply of certain goods and services, e.g. food (with exceptions), books and newspapers, coal fuel etc.',

'ZERO POINT ENERGY. The energy possessed by the atoms or molecules of a substance at the absolute zero temperature.' (p. 762).

'ZERO LIFE LINE. An expression in Aeronautics. It is a line through the trailing edge of an air foil parallel to the direction of the wind when the lift is zero.' (p. 762).

Further the learned counsel relied on the decisions of this Court in Shriniwas v. Keshri Chand, AIR 1984 Raj 14 and Baxiram v. Ashwinikumar, ILR (1965) 15 Raj 440. According to S/Shri Lodha and Mridul, in Baxiram v. Ashwini Kumar (supra), the provisions of Order XVI, Rule l(i) regarding list of proviso 'supplementary' was interpreted and it was held that not filing any list means filing that no names. In Sriniwas v. Keshari Chand (supra), Rule 10 Clause (8)(a) of the Election Rules was interpreted and it was held that 'zero' vote also means that the candidate got the lowest votes.

108. In view, of the above, it was argued that R, 13 Sub-clause (5)(b) was interpreted to be that even where no land is allotted to the father, it was a case of 'zero' allotment permitting the exemption to get the whole of the land of the father of temporary cultivation to the extent of adult son.

109. It was further argued that the decision of the Revenue Court in Ramlal v. Board of Revenue (High Court file No. D. B. Civil Writ Pet. No. 9/1979) wherein contrary view has been taken by the Revenue Board on 23rd April, 1979 (Ex. 3) deserves to be quashed. The Revenue Board in this case has taken the view as under :

'It is &r.; established fact, which has not been denied by the petitioners, that Rawat Ram, the father of the petitioners, was found to be in possession of 40 bighas of land in the command area and 11 bighas of barani landand, therefore, his application for permanent allotment had been rejected. The relevant provisions of the Rules which has been relied upon by the petitioners is Rule 13 (5)(b), which stipulates that if an adult son of a temporary cultivation lease holder is eligible for the allotment of Government land under the Rules and 'if after allotment of land to his father there remains any surplus land out of the land comprised in the temporary cultivation lease of the father, such surplus land may be allotted to the adult son to the extent to which he is eligible......' The words, 'after allotment ofland to his father' and 'such surplus land' are significant, and imply that the adult son of a temporary cultivation lease holder is eligible to be considered for the allotment of land only if his father was himself found to be eligible for such permanent allotment under the Rules. If the father was not found to be eligible for permanent allotment, then the question of allotting any land to his sons would not arise, as that would be beyond the objective and purview of Rule 13 (5)(b) of the Rules. In these circumstances, since the father of the petitioners was himself not eligible for the permanent allotment of land, the learned lower authorities have rightly declined to allot any land to the petitioners and I observe no reason to interfere with the decision taken by them in this behalf. This revision is, accordingly, rejected.'

110. The above contention was repelled by Shri Mathur who argued that the decisions in Baxiram and Sriniwas's cfise (supra) have got no relevance for interpreting Rule 13(5)(b). The contingency contemplated for permitting allotment to adult son of the surplus land after allotment of land to his father comprises of the temporary cultivation lease holdings of the father clearly shows that the pre-requisite condition is that father must be eligible for permanent allotment of land. The object appears to be that if father is allotted land on account of his eligibility for permanent cultivation and some surplus land remains then the adult son may be accommodated at that very place which would make the holding for cultivation beneficial-for the purpose of agrarian reforms as normally, the father and son will have a compact holding. The decision of Baxiram (supra) naturally cannot have any relevancy being in the context of list of candidates. Similarly, Sriniwas's case (supra) regarding system of giving of votes can hardly be applied to the question of allotment of land.

111. Shri Lodha emphasized that the object of providing Rule 13{5)(b) in the Rules of 1975, aimed at benefiting the adult sons and this is beneficial legislation. He reiterated that the word, 'after allotment of land to his father' used in Rule 13(5)(b) means 'after finishing the process of allotment to the father if there remains any surplus land then that land will be allotted to the adult sons. The same argument of 'zero' allotment, discussed above, was repeated and as I have discussed above, I am not persuaded to discuss it here also.

112. Now, coming to the factual dispute raised apart from the fact that, as I have already held above, such disputes should be raised in appeals, even on merits, I am examining them for avoiding multiplicity of litigation.

113. In Budharam v. State of Rajasthan (S. B. Civil Writ Petition No. 1736/1982), Sukharam v. State of Rajasthan (S. B CW 1088/81) the application of petitioner No. 2, son of the petitioner No. 1 submitted under Rule 13(5)(b) of Rules of 1975 has been rejected as the petitioner No. 2 was minor.

114. Shri Mathur, learned Addl. Advocate General has reiterated that this finding cannot be challenged here, before this Court as this Court would not take evidence and decide this matter. It was held that he was only 15 years of his age and the counsel for the petitioner admitted that he was minor as the facts mentioned in photo forms were correct. Though an affidavit has been filed here by Shri Ghanshyam to challenge it, I am of the opinion that it cannot be permitted. Immediately after the order, the counsel should have filed an affidavit and application before the Allotting Authority either in the form of review or otherwise the Allotting Authority could have commented on it. That having not been done, it cannot be allowed here now in writ jurisdiction. The contention of Shri Mridul that the date of the application is not material and it should be the date of allotment, is equally futile because unless one becomes eligible, no application can be made in anticipation that he would become major after two years or three years.

115. ' Even regarding the additional grounds of Shri Mridul that 10 bighas of land out of 25 bighas is uncommanded, it may be mentioned that Shri Mathur's objection that this is purely a question of fact which is not admitted and which can only be decided by the Appellate Authority, appears to be well founded. The petitioner-Budharam did file appeal and if he has withdrawn it he has done at his own peril and, that cannot give him advantage of converting this Court under Article 226 of the Constitution as an Appellate forum. Consequently, even on merits, these writ petitions cannot succeed.

116. In Banwarilal v. State of Rajasthan (S. B. Civil Writ Petition No. 344/1981), it has been contended that Rule 13(5)(b) of the 1975 Rules, is ultra-vires Articles 14 and 15 of the Constitution in so far as it excludes adult daughters of temporary cultivation lease holders and makes them ineligible for allotment. I have already held above, in view of Kumari Jani Bai's decision (supra), the challenge under Article 14 of the Constitution cannot succeed for adult daughters. Hence the writ petition filed by Banwarilal and another deserves to be dismissed.

117. In the following writ petitions, the allotment of the land was cancelled on the ground that there was concealment of facts. On the plain language of the relevant rule, the concealment having been established, results in cancellation of allotment of land. -

1.

SB CW 1012/81

Sheokaranv. State of Raj. & Anr.

2.

-do- 1044/81

Khurbramv.

- do-

3.

-do- 1048/81

Nanak Ram v.

- do-

4.

-do- 1050/81

Narayan Ram v.

- do-

5.

-do- 1051/81

Sahiram v.

-do -

6.

-do- 1562/81

Nanuram v.

- do-

7.

-do- 1045/81

Om Prakash v.

-do-

118. In the above seven writ petitions, on facts cancellation is justified.

119. In the following writ petitions, the cancellation was made because of the concealment of the fact by the father of the petitioners having land already and, therefore, there was no surplus land. In view of this, the adult son cannot be allowed any land out of the resumed land and the impugned orders are Justified.

1.

SB CW 180/81

RadhaKishan v. State of Raj. & Ors.

2.

-do- 181/81

Sampatlalv.

-do-

3.

-do- 1011/81

Kashiramv. State of Raj. & Anr.

4.

-do- 1046/81

Hetram v.State of Raj. & Anr.

5.

-do- 1047/81

Prithvirajv.

-do-

6.

-do- 1049/81

Nekiramv.

-do-

7.

-do- 1052/81

Krishnalal& Anr. v.

-do-

8.

-do- 1563/81

Bheraram& Ors.

-do-

9.

-do- 1070/82

Kalekhan& Anr. v. State of Raj.

&Ors.;

10.

-do- 1073/82

Gyansinghv.

-do-

11.

-do- 1130/82

Jagdishramv.

-do-

12.

-do- 1131/82

Kashiram& Anr. v.

-do-

13.

-do- 1155/82

Bhagirathv.

-do-

14.

-do- 1350/82

Alladitta& Anr. v.

-do-

15.

-do- 1352/82

Bugarsingh& Anr. v.

-do-

16.

-do- 1375/82

Gopiramv.

-do-

120. In the following writ petitions, the petitioner's fathers had already excess land and, therefore, they were not eligible forallotment of any land. The temporary cultivation land being resumed in these circumstances cannot be allotted to sons.

1.

SBCW

946/82

Shri Ram v. State of Raj. & Ors.

2.

-do-

1017/82

Ramnarayan & Ors. v.

-do-

3.

-do-

1052/82

Manaram v.

-do-

4.

-do-

1069/82

Dulichand v.

-do-

5.

-do-

1100/82

Devdutt & Ors. v.

-do-

6.

-do-

1173/82

Ajayab Singh v.

-do-

7.

-do-

1374/82

Bhupram v.

-do-

8.

-do-

1863/82

Maniram v.

-do-

9.

-do-

527/82

Gopiramv. B. D. R. and ors.

10.

-do-

1168/80

Surajaram v.

-do-

11.

-do-

1656/82

Ramnarayan v. State of Raj. & Ors.

12.

-do-

907/79

Ram Lal & Ors. v. B. D. R. & Ors.

121, In S. B. Civil Writ Petition No. 182/81 Smt. Dhapi Bai v. State of Rajasthan and Ors. the petitioner's husband concealed the facts of his already possessing the land and the land resumed on account of that. In view of this, noquestion of review under the 1975 Rules can arise.

122. In S.B. 'Civil Writ Petition No. 947/82 Hariram and Ors. v. State of Rajasthan and Ors. petitioner's application for surplus land is yetpending for decision and, therefore, it is directed that it must be decided within six months from the date of production of this judgment by the petitioner before the Allotting Authority. To this extent, this writ petition filed by Hariram is allowed.

123. In S. B. Civil Writ Petition No. 1308/80 Gurunarayan v. Board of Revenue the petitioner is brother and not eligible for the resumed land after allotment to his brother. Of course, he can be allotted land according to his priority under Rule 7(1) of the 1975 Rules for which there is no bar but, for that he must apply and take a chance. The petitioner comes in G category of priority being resident of Sardargarh Tehsil Sadulshahar.

124. In S. B. Civil Writ Petition No. 1340/82 Badan Singh v. State of Rajasthan, the petitioner No. 1 was allotted 25 bighas of land on permanent basis and rest of the land was declared surplus. The petitioner applied for allotment of the surplus land. As the petitioner was in the joint family of his father, he was having 12-10 bighas of land and the rest of the land was resumed. He claimed for allotment of 25 bighas but he cannot get it as his claim as an adult son is from temporary cultivation land of his father which has been allotted to him according to the policy.

124. In the following writ petitions, the petitioners have been allotted 25 bighas of land in every case. The claimed allotment to the ceiling limit which cannot be done as the extent of allotment of land is 25 bighas, only.

1.

SBCW 938/81

Ramkaranv. State of Raj. & Ors.

2.

-do- 939/81

Sardara Ram v.

-do-

3.

-do- 941/81

Mevaram v.

-do-

4.

-do- 942/81

Kamma Ram v.

-do-

125. The S. B. Civil Writ Petition No. 1100/82 Devdutt, Gajanand and Sahab Ram v. State of Raj., cannot succeed. Devdutt has temporary cultivation land. His application for permanent allotment was cancelled as he has 23 bighas command land in Chak 63-Sri Ganganagar. Hence his temporary cultivation land was resumed. In such circumstances, the petitioners Nos. 2 and 3 are not eligible for the resumed land.

126. Maniram, the petitioner in S. B. Civil Writ Petition No. 1863/82, is grandson of Koduram who had temporary cultivation lease land. Koduram applied for permanent allotment and his application was rejected on 29th March, 1976 Under the 1975 Rules as he had excess land in his name elsewhere. In view of this, the question of review under Rule 4(3) cannot arise. The father of the petitioner Maniram applied for the resumed land of his father as adult son, but he was not found eligible for the resumed land and therefore, the grandson cannot have better case,

127. Sukansingh, the petitioner in S. B. Civil Writ Petition No. 637/81, applied for permanent allotment of his 25 bighas of temporary cultivation land which was rejected and it was found that he has land in chak No. 8LL Sri Ganganagar in his own namewhich together with his % share in his father's land came to 25 bighas. His appeal was also accepted and the case was remanded for ascertaining his share and his land in Chak 8 LL. After giving full opportunity of hearing it was found that his father had 64.6 bighas land in which his share was of 1/4th, which comes to 16.1 bighas of land. He was allotted 8.17 Bighas of land. This order of allotment was not challenged by way of appeal or revision and this order has become final and consequently he cannot have any grievance.

128. Shri I. J. Lodha, broadly pointed out that in S. B. Civil Writ Petition No. 527/82 Gopiram v. Board of Revenue, there were two adult sons, Gopi Ram and Krishan Kumar of temporary cultivation lease holder of Hetram. No land was allotted to Hetram therefore whole land comprised of temporary cultivation lease was permanently allotted to two adult sons mentioned above, in equal share. The appeal of the State resulted in setting aside the order of the Allotting Authority. The sons filed revision before the Board of Revenue. The Board of Revenue in Krishna Kumar's revision accepted it but rejected the revision in Gopiram's case.

129. It was argued that the conflict in judgment only creates anomalies. I am of theopinion that, whatever situation may be, the members on which the revision of Gopiram was rejected being that temporary cultivation lease holder could not get land because he was having enough land and, therefore, his adult sons are not entitled to get allotment (permanent) of land under Rule 13(5)(b) is just and correct and, therefore, no interference can be made.

130. I have already held above, that the interpretation of the finding arrived at by the Board of Revenue in Ramlal's case (supra) is correct and Rule 13(5){b) as interpreted by the Board of Revenue in Ramlal's case should hold the field of interpretation in all cases.

131. Shri Lodha further submitted that the Board of Revenue has interpreted Rule 13(5)(b) in particular manner, therefore, the arguments of alternative remedy in the facts and circumstances cannot be accepted as even if it should have been filed under Rule 23, the same view would have prevailed, I am unable to accept this for a number of reasons. Firstly, the view, the Board of Revenue would take need not be finally imagined on account of previous judgment which may act as precedent and a different view can always be taken by the succeeding members and if the member is the same, the reference can be made to the larger bench. Secondly, it would be a dangerous doctrine to hold that if the High Court takes the one view of law in a given case, the period (sic) would be entitled to approach the Supreme Court without filing the appeal. When the right of appeal is there, it must be exhausted normally, more so because in most of the cases apart from the interpretation, various disputed questions of fact were also raised.

132. Shri Lodha also referred to the decision in Govind Ram v. State of Rajasthan (Govindram v. State, decided on 28th October, 1976 Per M. L. Joshi, J.) and argued that Rule 13(5)(b) is mandatory and this has been held to be so in Kumari Jani Bai's case (supra). It was pointed out that the view taken in Manoharlal v. State of Rajasthan (S. B. Civil Writ Petition No. 297/83, decided on 22nd April, 1983 (Per D. L. Mehta, J.) recently by another Judge of this Court that Rule 13(5)(b) is directory is not correct. I have not been able to persuade myself to enter into this controversy in the present bunch of writ petitions, because nothing turns Upon it.

133. I have already held that 'zero' allotment theory as convassed by Shri Lodha, then supported by Shri Mridul and then by Shri Samdariya, has failed to convince me and, therefore, for all intents and purposes, so far as this bunch of writ petitions are concerned, the thin line and hair splitting distinction and photo finishing difference sought to be magnified, is purely academic and of no consequences. I have already taken the view that we cannot afford to have luxury of excursion and converting the Courts into academic debating society as thousands of litigants now boarding on legs involved in about 40000 cases are waiting decision of their fate one way or the other. In some cases, waiting queue relates back even to 1969 year and the birth anniversary of some civil cases may relate back in the first innings to forties. I have expressed my concern and anxiety and could not resist my agony over academic debates when they can be avoided.

134. 1 am firmly of the view that, so far as the present cases are concerned not even in one order, it has been held that the allotment is refused because it is discretionary depending upon whims and caprice of the Allotting Authority. Contrary to it, in every case, except a few cases which have not been decided finally, the Allotting Authority had applied its mind conclusively and come to the conclusion on merits about the prayers for allotment. That being so, I regret that I would not decide the controversy of the 'Directory v. Mandatory' in this bunch of writ petitions.

135. In Sultan Singh v. State of Rajasthan, S. B. Civil Writ Petition No. 637/81, Shri Lodha relied upon the judgment of Board of Revenue (State of Rajasthan v. Jogendra Singh, Review application No. 16/77/LR/Ganganagar, decided on 21st September, 1978). It appears that the petitioner has not filed an appeal or revision against that order. I wonder, how that order of 1978 can be allowed to be challenged now, that too by disputed facts.

136. In S. B. Civil Writ Petition No. 1308/82 Gurunarain v. Board of Revenue, petitioner's learned counsel claimed that 12.5 bighas of land should be allotted as is lying vacant adjacent to his holdings. The petitioner's father Kishana Ram had 25 bighas of land in village Sardargarh and he had two sons, Gurunarain and Guru Bachan Singh. Father of the petitioner died, as such each of the sonsgot 12.5 highas of land. Guru Bachun Singh, brother of the petitioner was also allotted 25 highas of land as temporary lease holders.

137. Gurubachan in the meanwhile applied for permanent holding by him on temporary cultivation basis. He was allotted 13.15 bighas of land more to make his holding total 25 bighas. The remaining land of 12.5 bighas was resumed. The petitioner wants this land also. Proviso to Rule 13(5) of the 1975 Rules reads as under : --

'Provided that if such lease holder holds such lease land less than 25 bighas, he will seek allotment as a landless person for the balance of land to make up the deficiency in the extent of land to which he is eligible along with other landless persons of the same priority in the manner provided in Clauses (c) and (d).'

He will have therefore to apply when the applications under Rule 13(5) of the 1975 Rules are invited. Since no such applications have been invited so far, the rejection of his application under the proviso was justified.

138. It would thus be seen that except the cases where the applications are pending which are as under, all other writ petitions deserve to be dismissed. The cases in which the applications are pending yet as mentioned above, should be decided within 6 months according to law and partly those writ petitions (As per schedule B) are accepted with costs.

139. I have also allowed the costs to the respondents because I am of the opinion that under the garb of the pendency of writ petition and the stay orders of this Court, the petitioners have successfully frustrated object of Article 39 of the Constitution. The precise policy of land-reforms legislations which are primarily meant to implement the agrarian reforms for making the tiller of soil as the owner of the land and ensure equitable distribution of material resources by taking away excessive surplus land and distribute it amongst the landless and the needy persons, is undoubtedly kingpin and fundamental in this State where the main economy of more than 2/3 of the population is based on the agricultural land. Undoubtedly the series of the writ petitions and the stay orders obtained retard that the expected progress and comprehensive legislations are thrown in cold storage. The State as would be visible from the proceedings of these writ petitions have also contributed in prolongingthe litigation by repeated adjournments and lack of enthusiasm in pursuing the matter for expeditious decision. It is primarily the duty of the State which means the legislative and executive wings to make Article 39 with the Preamble of the Constitution having twinkling star of Justice, social economic and political lo be a reality but the role of judiciary though confined to interpretation of laws need to be undermined for all practical purposes. In such matters where the legislative challenge are agrarian reforms implementation to ameliorate and emancipate the teeming millions of landless persons, judicial activism would be only judiciary and remaining alive to the 'felt necessities of time' and not being oblivious to it, as for the classical guidance provided by Justice Holmes of the United States Supreme Court. The petitioners should, therefore, pay costs to the respondents. The stay orders passed are hereby vacated in cases of conditions laid down in the stay orders. It would be open to the respondents to realise the amount.

140. The resultant position is that all the writ petitions contained in Schedule A are dismissed with costs and those contained in Schedule B are partly allowed with costs, to the extent mentioned above.


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