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Niranjan Singh and ors. Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 318 etc. of 1972, 25 and 483 etc. of 1973, 454 etc. of 1974
Judge
Reported inAIR1975Raj93
ActsConstitution of India - Article 14; Rajasthan Canal Project Area Rules, 1971 - Rules 3, 13 and 15; Rajasthan Tenancy Act - Sections 15; Rajasthan Land Reforms and Resumption of Jagir Act; Rajasthan Land Revenue Act, 1956 - Sections 2 and 101
AppellantNiranjan Singh and ors.
RespondentThe State of Rajasthan and ors.
Appellant Advocate M. Mridul,; G.S. Singhvi,; B.L. Purohit,;
Respondent Advocate S.K. Tewari, Dy. Govt. Adv.
Cases ReferredBinjaram v. State
Excerpt:
- - 2. in the year 1954 the state of rajasthan brought into force a measure known as the rajasthan colonisation act, 1954 (hereinafter referred to as 'the act') for making better provision for the colonisation and administration of lands in the state. iasthan canal project area while the bhakra rules were made for allotment of land in the bhakra canal project area, yet the temporary lease-holders in the rajasthan canal project area have been illegally discriminated against argued the learned counsel inasmuch as under the pre-1955 conditions as well as the post-1955 rules, the temporary cultivation lease-holders would not be allotted more than 25 bighas of command land although under the bhakra rules they have been allotted larger area of land for permanent cultivation, in case the.....orderd.p. gupta, j.1. the petitioners in this writ petition and 340 other writ petitions detailed in schedule *a* to this judgment (omitted here) have challenged the validity of the rajasthan colonisation (rajasthan canal project pre-1955 temporary tenants government land allotment) conditions, 1971( hereinafter referred to as the 'pre-1955 conditions') and the rajasthan colonisation (allotment of government land to post-1955 temporary cultivation leaseholders and other landless persons in the rajasthan canal project area) r ales, 1971 (hereinafter referred to as the 'post-1955 rules') on the ground that they are void being violative of the provisions of article 14 of the constitution of india. the petitioners in all the writ petitions claim to be landless persons holding land in the.....
Judgment:
ORDER

D.P. Gupta, J.

1. The petitioners in this writ petition and 340 other writ petitions detailed in Schedule *A* to this judgment (omitted here) have challenged the validity of the Rajasthan Colonisation (Rajasthan Canal Project Pre-1955 Temporary Tenants Government Land Allotment) Conditions, 1971( hereinafter referred to as the 'Pre-1955 Conditions') and the Rajasthan Colonisation (Allotment of Government Land to Post-1955 Temporary Cultivation Leaseholders and other Landless persons in the Rajasthan Canal Project Area) R ales, 1971 (hereinafter referred to as the 'Post-1955 Rules') on the ground that they are void being violative of the provisions of Article 14 of the Constitution of India. The petitioners in all the writ petitions claim to be landless persons holding land in the Rajasthan Canal Project Area under temporary cultivation leases granted to them and renewed from year to year and they also claim that they continued to remain in possession of the land allotted to them for temporary cultivation upto the time of the filing of the respective writ petitions. In order to appreciate the circumstances in which these writ petitions came to be filed it would be proper to briefly recount the history of legislation leading upto the framing of the Pre-1955 Conditions and Post-1955 Rules.

2. In the year 1954 the State of Rajasthan brought into force a measure known as the Rajasthan Colonisation Act, 1954 (hereinafter referred to as 'the Act') for making better provision for the colonisation and administration of lands in the State. Section 2(ii) of the Act defines a 'colony' as any area to which the Act was made applicable by an order of the State Government published in the official Gazette and by Section 3 of the Act the provisions of the Aot were made applicable to all lands in a colony. Section 7 of the Act authorised the State to issue a statement of the conditions on which it was willing to grant land in a colony to tenants and after the issuance of such statement of conditions land could be allotted to any person to be held by him subject to such conditions. Further Section 28 of the Act authorised the State Government to make rules generally for carrying into effect the provisions and purpose of the Act and in particular for matters which were required by the Act to be prescribed, by notification in the oilicial Gazette. The State Government in exercise of the powers conferred upon it under the aforesaid provisions of Section 28 read with Section 7, made and published in the official Gazette rules for allotment of Government lands for cultivation on permanent basis in respect of Bhakra Project, Chambal Project and Gang Canal areas during the years 1955 to 1957. The State Government also published in the official Gazette dated September 20, 1956 a statement of conditions called the Rajasthan Colonisation (Temporary Cultivation Leases) Conditions, 1955 (hereinafter referred to as the 'Temporary Leases Conditions').

3. In the year 1967 the State Government framed the Rajasthan Colonisation (Rajasthan Canal Project Government Land Allotment and Sale) Rules, 1967 (hereinafter referred to as 'the 1967 Rules') for the purpose of making permanent allotment of agricultural land in the Rajasthan Canal Project area The provisions of the 1967 Rules were challenged by means of several writ petitions in this Court and Hon'ble Tyagi, J. by his order dated December 18, 1969 (Civil Writ Petn. No. 657 of 1967 (Raj), Ramdhan v. State of Rajasthan and 263 connected cases) allowed the writ petitions and declared that the 1967 Rules were ultra vires of the provisions of the Constitution, The learned single Judge held that Rule 9 of the 1967 Rules was valid because the classification between Pre-1955 and Post-1955 temporary lease-holers was correlated to a reasonable nexus arising out of the date from which the Rajasthan Tenancy Act came into force. He, however, held that Rule 19 of the said Rules was invalid because the State prescribed different standards for allotment of land to families in the Bhakra Project and in the Rajasthan Canal Project area. He also held that Rule 7 of the 1967 Rules was also invalid when read in conjunction with Rule 19. The learned single Judge also declared that the latter part of Rule 16, which provided that separation or partition etfected after October 15, 1955 would not be taken into consideration, was invalid being arbitrary. The learned single Judge struck down the entire body of the 1967 Rules on the ground that the entire rationale on the basis of which those rules were framed had disappeared as a result of the striking down of the aforesaid provisions. The learned single Judge also directed the State Government to frame fresh rules for the allotment of land in the Rajasthan Canal Project area for permanent pultivation in the light of the observations made in that judgment. Jn pursuance of the aforesaid decision of this Court dated December 18, 1969 and to give effect to the direction contained therein, the State Government framed the Pre-1955 Conditions and the Post-1955 Rules. Rule 19 of the Post-1955 Rules repealed the 1967 Rules. In order to complete the narration it may also be mentioned here that the State of Rajasthan filed appeals against the aforesaid decision of the learned single Judge and the Hon'ble Division Bench partly allowed the appeals by their order in State of Rajasthan v. Ramdhan, AIR 1973 Raj 71. The order of the learned single Judge striking down the latter part of Rule 16 and also Rule 19 (a) (iii) read with Rule 7 (x) and (xi) on the ground that they offended the principle of equality and were discriminatory, was upheld, but it was held that the rest of the rules survived.

4. The case of the petitioners is that they were allotted agricultural land for temporary cultivation under the provisions of the aforesaid Temporary Leases Conditions and that such temporary cultivation leases were renewed year after year in their favour. It is also the admitted case of the petitioners that the lands cultivated by them under temporary leases are comprised in the Rajasthan Canal Project area and the villages, in which such lands are situated have been declared as colonies under Section 2 (ii) of the Act by notifications published by the State Government in the Rajasthan Gazette. The petitioners' further case is that they submitted applications under the provisions of the Pre-1955 Conditions or the Post-1955 Rules for allotment for permanent cultivation, in respect of lands which were under their temporary cultivation and that such applications were either rejected or were partly allowed or were pending consideration of the Allotting Authority. Now the provisions of the Pre-1955 Conditions and the Post-1955 Rules are being challenged in these writ petitions as discriminatory. Although various provisions of the Act and the Pre-1955 Conditions and the Post-1955 Rules have been the subject-matter of attack in the writ petitions, yet at the time of arguments learned counsel for the petitioners confined their challenge to the validity of Condition No. 3 and proviso to Condition No. 9 of the Pre-1955 Conditions and Rr. 2 (1) (xiii) and 3 of the Post-1955 Rules. It was also argued by learned counsel that as the aforesaid provisions challenged by them as unconstitutional are intrinsically connected with other provisions of the Conditions and the Rules and are not severable from them and as such the entire Pre-1955 Conditions and Post-1955 Rules should be struck down as ultra vires of the provisions of Article 14 of the Constitution. It may be pertinently mentioned here that none of the provisions of the Act were subject-matter of challenge at the time of arguments before me in these writ petitions.

5. Before dealing with the submissions made by the learned counsel it would be useful to refer to the relevant provisions of the Pre-1955 Conditions and Post-1955 Rules. The Pre-1955 Conditions came into force with effect from the date of their publication in the official Gazette i. e. February 3, 1971 and they provide for allotment of Government land to Pre-1955 temporary tenants, who have been defined under Condition No. 2 (ix) as under:--

'2 (ix). 'Pre-1955 Temporary Tenant', hereinafter referred to as Temporary tenant', means a person who is resident of Rajasthan since before the 1st day of April, 1955 and who has been holding and been in possession of temporary cultivation land continuously since before the 15th day of October, 1955, upto the date of commencement of these conditions, provided that such land has not been held on temporary lease or otherwise been in possession of any other persons during this period i.e. from 15-10-1955 to the date of commencement of these conditions;'

'Joint Family' has been defined in Condition 2 (viii) as--

'an, undivided Hindu family, and in the case of other persons a group or unit, the members of which are by custom or usage joint in estate or residence.'

6. Condition No. 3 which prescribes the eligibility and extent of allotment reads as under:--

'3. Eligibility and extent of Allotment --(I) Only a Temporary Tenant shall be eligible to allotment of land under these conditions.

(2) A Temporary Tenant holding more than 25 bighas (6.32 hectares) of command temporary cultivation land under his personal cultivation since before 15th October, 1955, may be allotted this land upto ceiling limit. The excess temporary cultivation land, with the Temporary Tenant shall revert to State, for allotment.

(3) Similarly, a Temporary Tenant holding less than 25 bighas (6.32 hectares) of command temporary cultivation land under his personal cultivation since before 15th October, 1955 may be allotted this land and he may further be allotted land adjacent to his holdings or in the same chak, to the extent that his total holdings shall become 25 bighas (6.32 hectares) of command land.

Explanations:--

(i) When a land is held jointly by co-tenants or by members of joint family, each one of them shall be deemed to be holder of so much land to which he is entitled in case of division or partition.

(ii) Any transfer of land by sale, gift or otherwise effected after 15-10-1955, shall not be taken into consideration while computing the area of tenure land held by Temporary Tenant.

(iii) For the purpose of allotment under these conditions 2 bighas of uncommand land shall be reckoned as 1 bigha of command land.

(iv) For the purposes of calculating the extent of allotment of Government land upto ceiling limit under these conditions, all land, other than temporary cultivation land held by a Temporary Tenant or by any other member of his joint family shall be taken into consideration.'

7. Condition No. 9 provides for the price to be charged for different types of Government lands to be allotted under these conditions and different rates have been prescribed for different kinds of command and uncommand lands. The proviso to condition No. 9, which is subject-matter of challenge is as under:--

'Provided that no price shall be charged from a Temporary Tenant as mentioned in Condition 3 (2) for an allotment upto 25 bighas (6.32 Hectares) of Government land and from a Temporary Tenant as mentioned in condition 3 (3) for an allotment of temporary cultivation land which is already under his personal cultivation since before 15-10-1955.'

8. These conditions were later on amended by notification dated October 25, 1971 published in the Rajasthan Rajpatra dated 31-5-1973 and a new Condition No. 2-A was introduced which provided that with effect from the date of the commencement of the Conditions, all temporary leases of Government lands of Pre-1955 Temporary Tenants granted before such commencement would be deemed to have been terminated and all Government lands covered by such leases shall revert to the State Government.

9. The Post-1955 Rules were published in the Rajasthan Rajpatra dated January 27, 1972 under a notification dated May 4, 1971. Rule 2 (1) (vi) of these Rules defines 'Bhakra landless persons' as meaning a landless person as defined by sub-rule (vi) of Rule 2 of the Rajasthan Colonisation (Bhakra Project Government Land Allotment and Sale) Rules, 1955, who was declared eligible for allotment of land under those rules but who could not be allotted land in the Bhakra Project Area. Rule 2 (1) (xii) defines 'Joint Family' in the same manner as Condition 2 (viii) of the Pre-1955 Conditions.

10. Rule 2 (1) (xiii) defines 'Landless Persons' as under :--

'2 (1) (xiii). 'Landless Persons* means a person who is resident of Rajasthan since before the 1st day of April, 1955, and is by profession a bona fide agriculturist or bona fide agricultural labourer and whose primary source of income is agriculture:

Provided that such person neither holds any tenure land anywhere in excess of 15 bighas nor is he a sub-tenant of any such land (in excess of 15 bighas) from which he is not liable to ejectment under the provisions of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) or under any other Law for the time being in force in the area in which the land is situated; nor he is entitled for permanent allotment of 15 bighas or more land anywhere under any other rules, conditions or law;'

11. 'Post-1955 temporary cultivation lease holder' has been defined in Clause (xv) of Rule 2 (1) of the Post-1955 Rules as follows:--

'2 (1) (xv). 'Post-1955 temporary cultivation lease holder' means a landless person residing in Rajasthan since before the 1st day of April, 1955, to whom temporary cultivation of Government land was sanctioned by a competent authority on or after 15th day of October, 1955, but not later than the 31st day of December, 1960, and such lease has been renewed from time to time upto the year 1967 and who has been holding continuously such land since the date of commencement of such lease;'

12. Further a definition of 'temporary cultivation lease holder' was inserted in the Rules by the notification dated May 21, 1973 published in the Rajasthan Rajpatra dated May 24, 1973 under Clause (xvii-a) of Rule 2 (1) of the Post-1955 Rules as follows :--

'2 (1) (xvii-a). 'Temporary cultivation lease holder' means a landless person, other than a post-1955 temporary cultivation lease holder, holding land and cultivating it personally in Rajasthan Canal Project Area on a subsisting temporary cultivation lease granted under the Rajasthan Colonisation (Temporary Cultivation Leases) Conditions, 1955, before the commencement of the Rajasthan Colonisation (Allotment of Government land to post-1955 temporary cultivation lease holders and other landless persons in the Rajasthan Canal Project Area) (First Amendment) Rules, 1973.'

13. Rule 3 of the Post-1955 Rules provides that Agriculture Graduate, Landless persons and Bhakra landless persons shall be eligible for allotment of Government land for agricultural purposes under the aforesaid Rules and each such persons may be allotted land upto 25 bighas provided that he docs not hold any land anywhere either as a tenant or as a sub-tenant and further that he will be allotted only so much Government land as together with his existing holdings does not exceed 25 bighas. It has further been provided that the deficit land shall be allotted to such person only if such land is available adjacent to his existing holdings or in the same village.

14. Rule 5 of the Post-1955 Rules provides for the priorities for allotment of Government land amongst landless persons in the following order:--

(a) Pre-1955 landless persons;

(b) Post-1955 temporary cultivation lease holders.

Explanation:-- For (a) and (b) further allotment for making up deficiencies will be made without disturbing tenants in the same categories.

(c) Landless persons of the same village;

(d) Landless persons of the same Colony Tehsil;

(e) Landless persons of other Colony Tehsil of the same district and person's of contiguous Revenue Tehsil major part of which is in the Rajasthan Canal Project Area;

(f) Landless persons of Revenue Tehsils of the same district any part of which in the Rajasthan Canal Project Area;

(g) Landless persons of other Tehsils of the district; (h) Landless persons of contiguous district of Rajasthan; and (i) Landless persons of any other district of Rajasthan:

Provided that amongst landless persons of the same category for purposes of making up deficiencies in respect of (a) and (b) a person, holding more tenure land shall be given priority over others holding less tenure lands:

Provided further that thereafter amongst landless persons of the same category inter se priority shall be determined by drawal of lots:

Explanation:-- For the purpose of this rule, a temporary cultivation lease holder shall be deemed to be of the village, Tehsil, or district where he holds land on a temporary cultivation lease.''

15. Rule 13 of the Post-1955 Rules may also be referred here which provides for computation of area and sub-rule (1) thereof provides that when land is held jointly by two or more persons as members of a mint family or as co-tenant each one of them shall be deemed to be a holder of so much area of land to which he may be entitled upon a partition. It has further been provided in Rule 13 that the area and scale of allotment referred to in the Rules are with reference to command land, and where any area of land allotted is uncommand land, two bighas of such land shall be reckoned as one bigha of command land for purposes of computation of area.

16. 1 may also at this stage refer to three provisions of the Rajasthan Colonisation (Bhakra Project Government Lands Allotment and Sale) Rules, 1955 (hereinafter referred to as 'the Bhakra Rules'), as a comparison with these Rules has been made by the petitioners the basis of challenge to the validity of the Pre-1955 Conditions and the Post-1955 Rules. Rule 2 (vi) of the Bhakra Rules defined a 'landless tenant' as follows:--

'2 (vi). 'Landless tenant' means a bona fide agriculturist by profession who cultivates or can reasonably be expected to cultivate land personally and does not hold any land under proprietary, Mau-roosie or Khatedari rights in his own name or in the name of any member of his joint family and is not a sub-tenant of any land owner or land-holder holding Khatas under proprietary, Mauroosie or Khatedari tenures, not liable to eiect-ment under the provisions of the Rajasthan Tenancy Act, 1955 or of any law for the time being in force in the area in. which the land is situated.''

17. Rule 16 of the Bhakra Rules provided for the extent of allotment of Government land in the Bhakra Project area to the different classes of tenants. The measure of allotment in respect of temporary tenants, who were holding Government lands under Temporary Cultivation Leases since before 31-12-1952 and who held no tenure lands in their own name or of any member of their joint family was as under:--

'(i)Those cultivating Government lands since before December 31,1947.

50 bighas (two murabbas) if the joint family consists of adult 'male' members not exceeding five who have attained the age of 18 years and if the joint family consists of more than five adult 'male' members an additional area of 15 bighas per head may be allotted to the tenant for each of additional adult, male member of the family, who has attained the age of 18 years.

(ii)Those cultivating Government lands since after 31st December, 1947.

25 bighas (one murrabba) if the joint family consists of adult 'male' members not exceeding 3 who have attained the age of 18 years and if the ioint family consists of more than 3 adult 'male' members an additional area of 15 bighas per head may be allotted to the tenant, for each of the additional adult male member of the family who has attained the age of 18 years.'

It has also been provided that 'landless tenants', who are agriculturist by profession and whose main stay of life is agriculture but who have no agriculture tenure or temporary cultivation lands in their own name or in the name of any member of their family and are cultivating lands under tenure tenants without having acquired any rights thereon as sub-tenants or under proprietary, Mau-roosie or Khatedari rights shall be allotted 15 bighas of Government land.

18. Rule 16-A of the Bhakra Rules provides for the exceptions as under:--

'16-A. (Exception) (1)-- Subject tothe provision of Rule 14 fii) no personshall be allotted any land under Rule 16out of the Government lands held byhim under a temporary cultivation leaseif he has not been cultivating the leaseland personally:

xx xx xx(2) No Government land shall be allotted to any tenant or a family under Rule 16 in excess of the Government land actually held by him under a temporary cultivation lease on 15th June, 1955:

Provided that no temporary 'or tenure' tenant to whom land is allottedunder Sub-rules (I) and (2) of Rule 16shall be allotted less than 15 bighas ifGovernment land is available for the purpose in the vilage. xx xx xx'

19. Under Rule 17 of the Bhakra Rules different rates have been provided for different categories of command and uncommand lands and it has also been provided that temporary tenants who were In continuous cultivatory possession of Government land held by them under temporary cultivation leases before Sam-vat 1985 in khalsa villages and under Gair-Dakhalkari tenure since before Sam-vat 19i81 in the resumed jagir villages shall pay only betterment fee and no price for the first 25 bighas of Government land allotted to them shall be charged, in respect of land allotted to such persons over and above the first 25 bighas full price at the prescribed scale would be charged.

20. The first contention advanced by Mr. Mridul appearing on behalf of the petitioners is that the allottees in the Rajasthan Canal Project area and the Bhakra Canal Project area stood similarly situated yet they were differently treated. It is submitted that the intention of the State Government in framing the Pre-1955 Conditions and the Post-1955 Rules was to make permanent allotment in favour of and to regularise the cultivation of persons who were in temporary cultivation of Government land in these areas continuously for a number of years and that the purpose of the Bhakra Rules was also the same. It has also been submitted that the Bhakra Rules and the Pre-1955 Conditions and the Post-1955 Rules have been framed under the very same Act. The Pre-1955 Conditions and the Post-1955 Rules were being made for allotment of land in the Ra.iasthan Canal Project Area while the Bhakra Rules were made for allotment of land in the Bhakra Canal Project Area, yet the temporary lease-holders in the Rajasthan Canal Project Area have been illegally discriminated against argued the learned counsel inasmuch as under the Pre-1955 Conditions as well as the Post-1955 Rules, the temporary cultivation lease-holders would not be allotted more than 25 bighas of command land although under the Bhakra Rules they have been allotted larger area of land for permanent cultivation, in case the members of their joint family were more than three.

Learned counsel further argued that although the land may be cultivated by a family consisting of 8 or 10 adult male members, who initially tended the land and converted uncultivated barren land into a cultivated field, yet under the Post-1955 Rules only 25 bighas will be allotted to a member of such a family while the remaining land cultivated by the said family would be resumed by the State and other members of the family will have to apply afresh separately as landless persons and await their turn for allotment in that category and it is possible that the land so resumed may not at all be available when the turn of other members of the family comes for allotment of land in the category of 'landless persons'. He submitted that in the Bhakra Rules there was a provision lor allotment of 25 bighas of land if the joint family consisted of adult male members not exceeding three and in case the joint family consisted of more than three adult male members an additional area of 15 bighas per head w.as allottable to the tenant for each of the additional adult male member of his family, but there is no such provision in the Post-1955 Rules. Mr. Mridul relied in support of his contention upon the following passage in the decision of this Court in Ram Dhan's case AIR 1973 Raj 71:--

'The learned Single Judge has himself recognised the difference between the types of lands and the intensity of irrigation for distinguishing the allotment in Bhakra Project and in the Rajasthan Canal Area but where the learned Single Judge finds that the definition of the term 'family' in the Bhakra Rule 16 regulates the allotment by the size of the family, the Rajasthan Canal Rules have set out one standard for each family irrespective of its size. Both the Bhakra Carial Project Rules and the Rajasthan Canal Rules have been framed under the Rajasthan Colonisation Act, 1954 and treating the unit of family differently in these two different sets of rules cannot be justified though there may be variation in the scale of allotment.

XX X X XIn our opinion the learned Single Judge was correct in holding that this discrimination in the connotation of the term 'family' itself for the purposes of allotment in these two different Rules emanating from the same statute could not but be discriminatory and as Rules 19 (a) (iii) and 7 (x) and (xi) read together provide for an allotment on the basis of a family. Rule 19 (a) (iii) and the words 'per family' in .Section 7 (x) and (xi) are clearly discriminatory.'

21. So far as the Pre-1955 Conditions are concerned, a temporary cultivation lease-holder is entitled to the allotment of the entire land under his personal cultivation since before October 15, 1955, subject to the ceiling limit under Condition No. 3 (2) of such Conditions. Moreover, under the Pre-1955 Conditions, even if such a temporary cultivation lease-holder has less than 25 bighas of command land under his temporary cultivation then he will be allotted the entire land under his temporary cultivation and in addition thereto he would be allotted land to make up the deficiency so as to allow his total holding to become 25 bighas of command land, provided that land adjacent to his holding or in the same chak is available. Thus the aforesaid argument of the learned counsel is net at all attracted to the allotment of lands made under the Pre-1955 Conditions although the unit of allotment in such Conditions is an individual tenant and not a joint family.

22. In the Bhakra Rules a family consisting of three male adult members was made the unit of allotment in respect of temporary tenants cultivating Government lands since after December 31, 1947 and 25 bighas of agricultural land was to be allotted to s,uch family. However, 50 bighas of land were to be allotted to a joint family consisting of 5 adult male, members who were cultivating Government lands since before December 31, 1947. But in respect of the category of persons described as landless tenants only 15 bighas o Government land was to be allotted. Thus in the Bhakra Rules lor persons who were already in cultivation as temporary tenants, the unit of allotment was a joint family and so was the case in the 1967 Rules, wherein under Rule 19 fa) (i) and (iii) 15 bighas of land was to be allotted irrespective of the fact whether the tenant is an unmarried individual having no other members in his family or was a joint family irrespective of its size. It was in this context that in Ram Dhan's case AIR 1973 Raj 71 the Hon'ble Division Bench held that the connotation of the term 'family' for the purpose of allotment in the 1967 Rules was discriminatory qua the Bhakra Rules, because in the 1967 Rules there was one standard for each family irrespective of its size, while in the Bhakra Rules the extent of allotment of land was regulated by the size of the family. As the unit of allotment in both the sets of Rules was 'a family' and as such it was held by this Court that treating the same unit of family differently in the Bhakra Rules and the 1967 Rules could not be justified. But the position in the Pre-1955 Conditions and the Post-1955 Rules is entirely different inasmuch as the unit of allotment under these Conditions and Rules is an individual tenant and not a joint family. Under Rules 2 (1) (xv) and 2 (1) (xvii-a) a Post-1955 temporary cultivation lease-holder and a temporary cultivation lease-holder is a landless person holding Government land under temporary cultivation lease granted to him by competent authority. Obviously such a lease could have been granted to him under the Temporary Leases Conditions, and under Condition No. 8 thereof the extent of allotment was 25 bighas of irrigated and 50 bighas of barren land and the unit of allotment was a person, a bona fide landless agriculturist was eligible for allotment under Condition No. 7.

Even if a temporary lease was granted or renewed in favour of a joint family treating it as a person within the meaning of the explanation appended to Condition No. 7 of the Temporary Leases Conditions, the provisions of Rule 13 of the Post-1955 Rules would apply and it has been clearly laid down therein that in case of land held jointly by two or more persons as members of joint family or as co-tenants, then for the purposes of allotment under the Post-1955 Rules, each one of such members of the joint family and each one of such co-tenants, shall be deemed to be a holder of so much area of land to which he may be entitled upon a partition thereof. Thus if a joint family consisting of 3 members is in possession of 45 bighas of land, as a temporary tenant thereof, each one of such members shall be deemed to be a holder of 15 bighas of such land for the purposes of computation of area for allotment and besides being entitled to the allotment of the whole of such area of land for permanent cultivation, under the first proviso to Rule 5 of the Post-1955 Rules, they will have priority for the purpose of making up deficiencies upto the extent of 25 bighas each. In view of the provisions of Rule 13 of the Post-1955 Rules the argument of the learned counsel that only one member of the joint family shall be allotted 25 bighas of land out of the entire land cultivated by the joint family while other members of such joint family shall have to apply as landless tenants and await for their turn for allotment of land in that category is not at all tenable. However, for the application of the provisions of Rule 13 it is necessary that the allottee of the temporary cultivation lease should be co-tenant or a joint family. If the allottee of the temporary cultivation lease granted or renewed under the Temporary Leases Conditions is an individual, he alone is entitled to get priority in the matter of allotment of land under the Post-1955 Rules over the other landless persons, because he alone has a right as a tenant under the temporary cultivation lease granted to him and the members of the family of such a temporary tenant get no rights whatsoever on account of temporary cultivation lease granted or renewed in favour of an individual under the Temporary Leases Conditions.

In this view of the matter, the members of the family of such a temporary tenant could, not claim any - superior rights or priority over other landless persons entitled to allotment of land under the Post-1955 Rules, merely on the basis of their relationship to a person to whom a temporary cultivation lease was granted or in whose favour such a lease was renewed within the provisions of the Temporary Leases Conditions. Of course such persons would be entitled to the allotment of 25 bighas of command land in their favour under the Post-1955 Rules, in the category of landless persons, in case they fulfil the other conditions requisite for making them eligible for inclusion in the said category. Moreover, in Ram Dhan's case AIR 1973 Raj 71 this Court took into consideration the fact that there was difference between the type, of lands and the intensity of irrigation in the Bhakra Project Area and the Rajasthan Canal Area and it was held that for that reason there may be a variation in the scale of allotment. In the reply submitted by the State it has been averred that the intensity of irrigation in Bhakra Canal Area is 60% while in the Rajasthan Canal Project Area it is 110% and thus taking into consideration the intensity of irrigation of water, the chances of maturing of crop in the Rajasthan Canal Project Area is almost double than that in the Bhakra Canal Project Area and thus 25 bighas of irrigated land allotted in the Rajasthan Canal Area is almost equivalent to about 49 bighas of irrigated land in the Bhakra Canal Project Area. Further a joint family having three adult male members was to be allotted only 25 bighas of land under the Bhakra Rules in case of temporary tenants cultivating since after December 31, 1947, while under the Post-1955 Rules each one of the 3 adult male members of such joint family may be allotted 25 bighas and thus 75 bighas agricultural land could be allotted to them under the Post-1955 Rules, provided the joint family was the tenant under the temporary cultivation lease and land is available in the neighbourhood without disturbing the tenants in the same category.

23. In any event, in case such a joint family consisting of 3 adult male members is in possession of Government land upto 75 bighas as a temporary tenant thereof, the members of such a family may be allowed to retain the same by allotment of 25 bighas of land therefrom in the name of each individual member of such joint family, it cannot there-fore be accepted for a moment that the Post-1955 Rules are more drastic or pre-judicial to temporary cultivation leaseholders than the Bhakra Rules. It may be emphasised that under the Bhakra Rules the unit of allotment was joint family, while under the Pre-1955 Conditions and Post-1955 Rules the unit of allotment is an individual. Rule 10 of the Bhakra Rules specifically provided that a joint family for the purpose of allotment of land under those Rules would be deemed to be one person and would be dealt with accordingly and that all lands held jointly or severally by various members of a joint family under different Khatqs of the same or different classes of tenures would be deemed to be held by the whole family jointly. On the other hand under the Post-1955 Rules, even if land is held jointly by 2 or more members of a joint family then each one of them shall be considered to be a holder of only that much area of land which may fall to his share upon partition of the joint family and thus the unit of allotment being individual member of the joint family, these Rules are certainly more beneficial to the temporary cultivation tenants, if they are joint families. In the Bhakra Rules only an additional area of 15 bighas per head was to be allotted in respect of each additional male member of the family but under the Post-1955 Rules, such additional member of the family is also entitled to obtain allotment of 25 bighas of land independently of the other members thereof. Then under the Bhakra Rules, in case of temporary tenants and tenure tenants, larger area of land was allottable for permanent cultivation according to the number of adult male members of the joint family, but owing to Rule 16-A of those Rules, the land actually held by the tenant or the family under a temporary cultivation lease on 15th June, 1955 (though such lease should have been sanctioned prior to 31st December, 1952) and actually under his personal cultivation was the outermost limit of the extent to which land could be allotted to the family provided it was not less than 25 bighas.

Thus under the Bhakra Rules, if a family having 5 or more adult male members, was possessed of 50 bighas of Land under a temporary cultivation lease, since after 31st December, T947, only that much land would be allottable. to such family, inclusive of all members thereof under Rule 16 read with Rule 16-A of those Rules. But there is no such restriction in the Post-1955 Rules and in the Rajasthan Project Area if the temporary cultivation lease, granted or renewed in favour of a family of 5 members, comprised of 50 bighas of land, then each member of such family shall be deemed to be the holder of only 10 bighas of such land and he would be entitled to the allotment of deficit land upto 25 bighas each, provided land is available in the adjoining area or in the same village. Further in the case of landless persons other than temporary cultivation, leaseholders, the Bhakra Rules provided for allotment of only 15 bighas of land while the Post-1955 Rules provide for allotment of a uniform area of 25 bighas to all landless persons, irrespective of the fact as to whether they hold land on a temporary cultivation lease or cultivate lands under tenure holders without having acquired any rights in. respect of such land or work as agriculture labourer. Of course, under Rule 5 of the Post-1955 Rules the temporary cultivation leaseholders get a higher priority for allotment of land than other landless persons. Thus viewed from any angle, the Post-1955 Rules and Pre-1955 Conditions, in my opinion, are more beneficial to the temporary cultivation lease-holders as well as to other landless tenants and cannot be considered to be drastic or prejudicial as compared with the Bhakra Rules and are, therefore, not discriminatory.

24. I may also deal here with one more aspect of the matter. Reading Rules 2 (viii), 16 and 16-A of the Bhakra Rules together, there were two classes of temporary tenants to whom allotment was permissible under Rule 16 (l) of those Rules, namely (i) those cultivating lands since before 31st December, 1947 and (ii) those who came to cultivate lands under temporary cultivation leases sanctioned in their favour between 31st December, 1947 and 31st December, 1952 (according to the definition of a 'temporary tenant' in Rule 2 (viii) of the Bhakra Rules) and who actually held such land on 15th June, 1955.

25. So far as the first class of temporary tenants mentioned above are concerned, it is not the case of the petitioners that there is any corresponding class of persons in the Rajasthan Canal Project Area cultivating land since before 31st December, 194-7. In respect of the second class of Bhakra temporary tenants mentioned above, they can be reasonably compared with the Pre-1955 temporary tenants, to whom allotment of land is made under the Pre-1955 Conditions. But the Post-1955 temporary cultivation lease-holders or the temporary cultivation lease-holders, who came on the scene much later and began to cultivate lands under temporary cultivation leases after 15th October, 1955 are not at all similarly situated with the temporary tenants as defined in the Bhakra Rules.

In Ram Dhan's case, AIR 1973 Raj 71 their Lordships compared the connotation of term 'family' given in the Bhakra Rules and the 1967 Rules because the 1967 Rules also covered allotment of land to Pre-1955 temporary cultivation leaseholders. But now the position is entirely different after two separate sets of Rules have been framed by the State Government governing allotment off land to Pre-1955 and Post-1955 temporary leaseholders. The Post-1955 temporary cultivation lease-holders came to cultivate lands in the Rajasthan Canal Project Area under temporary leases granted to them much later i.e. after 15th October, 1955 and further their leases were governed by the Temporary Leases Conditions. The temporary tenants in the Bhakra Project Area who were cultivating lands under temporary leases since before 31st December, 1952 are differently situated considering the length of their tenure and the conditions governing the same and no question of discrimination could arise in respect of persons who are dissimilar and, therefore, form separate and distinct categories or classes. In Ram Dhan's case, the unit of allotment was 'family' in both the sets of Rules and as the same unit was regulated by two different standards in the two sets of Rules, their Lordships held the 1967 Rules to be discriminatory qua the Bhakra Rules. The decision in Ram Dhan's case is not at all applicable to the question before me inasmuch as a different unit of allotment, namely the individual applicant has been prescribed in the Post-1955 Rules and that too in respect of entirely different class of persons.

26. So far as the Pre-1955 Conditions are concerned, the allottee thereunder is entitled to the allotment for permanent cultivation of the entire land under his temporary cultivation upto the ceiling limit and in case 'the temporary lease-holder was a joint family, then on account of the provisions of Explanation (1) to Condition No. 3 (3) each member of the joint family shall be deemed to be the holder of only as much land out of the land allotted to the joint family as may fall to his share in case of a division or partition thereof and in that event the members of such a joint family will be entitled not only to retain the land originally allotted to the joint family under a temporary cultivation lease but they would also be entitled to allotment of additional land so as to make up the deficiency to the extent of 25 bighas in respect of each member of the joint family subject to the availability of land in the adjoining area or chak. Thus it is not possible to accept the contention of the learned counsel that the Pre-1955 Conditions are drastic or in any manner prejudicial in their application to temporary tenants. I may observe that so far as the Pre-1955 temporary tenants are concerned they are placed in almost the same or rather better position as compared to the temporary tenants who were allotted lands for permanent cultivation under the Bhakra Rules and as such the Pre-1955 Conditions cannot be held to be void on the ground of discrimination.

27. Dr. Tewari, learned Deputy Government Advocate also submitted that the question of discrimination or violation of the provisions of Article 14 of the Constitution could only arise if two different procedures or alternatives are available at the same time, one of which is more drastic or prejudicial than the other and if it is left to the arbitrary will of the authority concerned to apply one of the two available procedures. His submission is that in the present case there is no ground for discrimination as it has not been alleged in any one of the petitions that allotment of land under the Bhakra Rules is available at present. Learned Deputy Government Advocate submitted that Bhakra Rules were framed as early as in the year 1955 and that all available land in the Bhakra Project Area has since been allotted and no land for allotment under the Bhakra Rules was now available, while the Post-1955 Rules have been framed in the year 1972 and allotment in accordance therewith is in progress.

28. The argument of the learned Deputy Government Advocate appears to be plausible inasmuch as Bhakra landless tenants, as defined in Rule 2 (1) (vi) of the Post-1955 Rules, are persons who were declared eligible for allotment of land under the Bhakra Rules, but who could not be allotted land in the Bhakra Canal Project Area and they have been made eligible for allotment of land in the Rajasthan Canal Project Area under Rule 3 (3) of the Post-1955 Rules and under Rule 5 (2) they are entitled to the same priorities for allotment as a Post-1955 temporary cultivation lease-holder and other landless persons. If agricultural land would have been available for allotment in the Bhakra Project Area then the Bhakra landless persons who, being eligible for allotment of land under the Bhakra Rules, could be allotted land in the Bhakra Project Area itself and as such they would not have been made eligible for allotment of Land under the Rajasthan Project Area. It has not been pointed out by any one of the petitioners that land is still available in the Bhakra Project Area for allotment and that, any allotment of land was being made under the Bhakra Rules in the year 1972 or thereafter and in that event if the Bhakra Rules are not now available for allotment, the question of discrimination may not arise at all. It was observed by Hida-yatullah, J. as he then was, in Banarsi Dass v. Cane Commissioner, Uttar Pra-desh, AIR 1963 SC 1417 that where there are two procedures, discrimination can only be found to exist if the election is with someone else who can exercise his will arbitrarily. But if two procedures for allotment of land are not available now, then obviously the question of discrimination does not arise. However, it is not necessary for me to pursue the matter further .as I have already held that the Pre-1955 Conditions and the Post-4955 Rules are neither more drastic nor prejudicial to the allottee than the Bhakra Rules, and are as such not discriminatory.

29. The other argument submitted by Mr, Mridul was that the Post-1955 Rules were discriminatory as compared to the Pre-1955 Conditions on the ground that although under Condition 'No. 9 of the Pre-1955 Conditions no price is to be charged from a temporary tenant for an allotment upto 25 bighas of Government land under Conditions Nos. 3 (2) and 3 (3), yet under the Post-1955 Rules even a temporary tenant has to make payment of price under Rule 15, in respect of every bit of land allotted to him. Learned counsel also argued that although under the Pre-1955 Conditions a temporary tenant was entitled to the allotment for permanent cultivation of the entire area of land held by him as a temporary tenant upto the ceiling limit, yet under the Post-1955 Rules the maximum limit upto which land could be allotted to a temporary tenant was 25 bighas, irrespective of the extent of land held by him as a temporary tenant, In my opinion the question of discrimination can arise only in respect of persons who are similarly situated and it cannot be conceived by any stretch of imagination that the Pre-1955 temporary tenants who have been in continuous temporary cultivation of Government land since before October 15, 1955 upto the date of the commencement of the Pre-1955 Conditions, stand on the same footing as the Post-1955 temporary cultivation lease-holders or a temporary cultivation lease-holders as defined in the Post-1955 Rules, inasmuch as the two classes of tenants came into temporary cultivation at different periods of time and cannot be said to be similarly situated. Thus temporary cultivators, who had been in continuous cultivation of land from a prior point of time and have been in possession of their respective holdings continuously for a longer period necessarily form a separate class than the persons who came into possession of Government land as temporary cultivation leaseholders between October 15, 1955 and December 31, 1960 and even thereafter.

30. The argument of the learned counsel is that the fixation of October 15, 1955 as the date separating the two categories of temporary tenants, namely the Pre-1955 and Post-1955 tenants is not a reasonable basis for a valid classification as a temporary cultivator cultivating land prior to or subsequently after October 15, 1955 is entitled to acquire Khate-dari rights under Section 15 of the Rajas-than Tenancy Act and, according to the learned counsel, there is no distinction between the aforesaid two categories of temporary cultivators.

31. I am unable to agree with the above contention of the learned counsel as Section 15 of the Rajasthan Tenancy Act itself makes a distinction between the two classes of persons -- one consist-jing of persons who were tenants of land on the date of the commencement of the Rajasthan Tenancy Act namely, October 15, 1955 and upon whom Khatedari rights are automatically conferred by the aforesaid provision and the other consisting of persons who are to be admitted as tenants after the aforesaid date or who acquire Khatedari rights in accordance with the provisions of the Rajasthan Tenancy Act or the Rajasthan Land Reforms and Resumption of Jagir Act or any other law for the time being in force. In the case of the first category of persons mentioned above they automatically became Khate-dar tenants on the coming into force of the Rajasthan Tenancy Act on October 15, 1955 but in the case of the other category of persons they have to acquire Khatedari rights on being admitted as tenants after the said date in accordance with the procedure prescribed by the aforesaid Act or they have to acquire Khatedari rights in accordance with any other law as mentioned in Section 15 of the Rajasthan Tenancy Act. In this view of the matter, such persons form two distinct and well-demarcated classes and while the persons in possession of land as tenants on October 15, 1955 have nothing else to do but they automatically become Khatedar tenants with effect from the aforesaid date yet the other class of persons have to acquire Khatedari rights by following certain procedure and in some cases by making certain payments according to the Rajasthan Tenancy Act or the Rajasthan Land Revenue Act or the Rajasthan Land Reforms and Resumption of Jagirs Act or any other law. Thus it cannot be said that there is no basis for distinction between the aforesaid two classes of persons, rather there is a reasonable basis for the classification of temporary tenants into the aforesaid two different categories and to deal with them differently in the matter of extent of allotment of land as well as the payment of price of land so allotted to them.

32. It may also be noticed that the Pre-1955 temporary tenants who were admittedly tenants holding land on October 15, 1955 would have naturally acquired Khatedari rights automatically on the coming into force for the Rajasthan Tenancy Act, but they were prevented from obtaining the benefit of such rights because Section 15-A prohibited the acquisition of Khatedari rights in lands falling within the Rajasthan Canal Area. Thus as a matter of fact, the Pre-1955 temporary tenants were similarly situat-ed to the persons who were tenants oi land on October 15, 1955 in other areas of the State and who automatically acquired Khatedari rights on that date and it is proper that permanent allotment of land in their favour is made without payment of any price under Condition No. 9 of the Pre-1955 Conditions. However, such exemption from payment of price is allowed to them only in respect of allotment of land upto 25 bighas while they are required to make payment of the price in accordance with the rate fixed under Condition No. 9 in respect of the additional land allottable to them upto the ceiling limit under Condition No. 3 (2) and the scale of price which is to be charged is the same both under Condition No. 9 of the Pre-1955 Conditions and Rule 15 of the Post-1955 Rules.

In Ramdhan's case AIR 1973 Raj 71 it has been observed that the date, October 15, 1955, on which the Rajasthan Tenancy Act came into force, brought in its wake certain benefits such as conferment of Khatedari rights and holders of leases granted by the Government prior ,to October 15, 1955 were conferred with certain rights because of the coming into force of the Rajasthan Tenancy Act and that it was perfectly possible and plausible for the Government to treat temporary leases granted after October 15, 1955 as a different class. Hon'ble Tyagi, J. in his order dated December 18, 1969 (Raj.), while deciding the Writ Petitions of Ram-dhan and others made the following observations in this context:--

'If we scrutinise the rule in the light of the facts disclosed by the Government then I do not find it difficult to accept the contention of Mr. Kasliwal that the Pre-1955 leases can conveniently be treated as a class separate from the Post-195.5 leases as with the coming into force of the Rajasthan Tenancy Act Khatedari rights would have accrued to them with regard to the temporary leases created in their favour before the Rajasthan Tenancy Act came into force, but those rights were washed away subsequently by the legislature by introducing Section 15-A in the Rajasthan Tenancy Act.

Article 14 of the Constitution envisages the creating of a class to deal differently if that classification has a reasonable nexus with the object to be achieved thereby. In my opinion, persons who had acquired certain rights under the Rajasthan Tenancy Act in the lands which they were holding under temporary cultivation leases in that area which right was subsequently taken away by the amendment of the Tenancy Act by introducing Section 15-A therein, can be treated as a different class and, therefore Rule 9 which deals only with the cancellation of the Post-1955 temporary cultivation leases, cannot be said to be discriminatory and it does not, therefore, offend Article 14.'

33. The aforesaid view of the learned Single Judge on the question of classification of temporary leases by correlating it with the date of coming into force of the Rajasthan Tenancy Act was upheld by the Division Bench in AIR 1973 Raj71.

34. The decision of this Court in Ramdhan's case AIR 1973 Raj 71 is fully applicable in this respect and the classification of Pre-1955 temporary tenants and Post-1955 temporary lease-holders on the basis of the existence or non-existence of their temporary cultivation lease on October 15, 1955 is reasonable and valid and the Post-1955 Rules cannot be struck down as discriminatory, because an allottee of land under those Rules has to make payment of price for the land allotted to him in accordance with the provisions of Rule 15 thereof or that the maximum extent upto which allotment for permanent cultivation is permissible under such Rules is different from the maximum limit of allotment under the Pre-1955 Conditions.

35. Mr. B. L. Purohit submitted that there were two classes of temporary lease-holders namely, those who were allotted land for temporary cultivation under the Rajasthan Land Revenue Act and the Rules made thereunder and those who were allotted land for temporary cultivation under the Temporary Leases Conditions and that the aforesaid two classes of temporary lease-holders should not have been clubbed together for the purpose of permanent allotment of land under the Post-1955 Rules. Learned counsel argued that as the persons placed in dissimilar circumstances have been treated alike, it has resulted in discrimination and in support of his submission he relied upon the decision of their Lordships of the Supreme Court in Mohd. Usman v. The State of Andhra Pradesh, AIR 1971 SC 1/801. The submission of the learned counsel has no basis inasmuch as the Rajasthan Land Revenue Act came into force with effect from July 1, 1956 and Section 101 thereof authorised allotment of land for agricultural purposes in accordance with the Rules made by the State Government in that behalf. The State Government made the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1957 which came into force with effect from November, 28, 1957. The Temporary Leases Conditions came into force with effect from September 20, 1956 and they prescribed the special conditions on which land could be allotted in a colony on lease for temporary cultivation. It is an admitted position that various villages included in the Rajasthan Canal Project Area have been declared as a colony within the meaning of Section 2 (ii) of the Act and as such the temporary leases granted in such area are to be governed by the special conditions prescribed under the Temporary Leases Conditions, which came into force earlier than the Rules framed under the Rajasthan Land Revenue Act and were of special application to the land falling within the areas declared as a colony. In these circumstances there is no question of dissimilar persons being treated alike inasmuch as the Post-1955 temporary leaseholders who were granted leases for temporary cultivation within the Rajasthan Canal Project Area after October 15, 1955 form one class in this respect. Learned counsel was unable to point out a single case in which an allotment of agricultural land for temporary cultivation was made in the Rajasthan Canal Project Area under the provisions of the Rajas-than Land Revenue Act and the Rules made thereunder and as such the principles laid down by their Lordships of the Supreme Court in Mohd.' Usman's case are not at all attracted to the cases before me. Thus it cannot be said that any discrimination has been practised on account of the inclusion of two separate classes within the Post-1955 temporary cultivation lease-holders.

36. Mr. Jangid submitted that there was no power under the Act or the Rules made thereunder for directing resumption of excess land. It is an admitted position that until orders were passed for permanent allotment of land in the Raj asthan Ganal Project Area either under the Pre-1955 Conditions or under the Post-1955 Rules, the petitioners held land under temporary cultivation leases whose duration was only one year. The petitioners, who were temporary cultivation lease-holders, themselves submitted applications for permanent allotment of land either under the Pre-1955 Conditions or under the Post-1955 Rules and the land held by them in excess of the land allotted to them for permanent cultivation under the Pre-1955 Conditions or the Post-1955 Rules would naturally revert to the State Government unless the term of the temporary lease of such persons was renewed under Condition No. 8 of the Temporary Lease Conditions. There is thus no question of any resumption of excess land or the land in respect of which allotment for permanent cultivation was refused to an applicant, because on the expiry of the period of his temporary cultivation lease such Land reverted to the State Government and there was nothing wrong if while passing the order of allotment of land for permanent cultivation or refusing to allot such land to the applicants the authority concerned passed an order that the excess land or the land in respect of which allotment was refused would revert to the State Govrenment. As a matter of fart Condition No. 2-A of the Pre-1955 Conditions terminated all temporary leases with effect from the date of the coming into force of such Conditions.

37. Having dealt with the general arguments advanced by the learned counsel appearing on behalf of the petitioners, I shall now deal with the arguments advanced by Mr. Mridul in respect to specific cases.

38. On behalf of the petitioners in Writ Petitions Nos. 1697 of 1972 and 279 of 1973, Mr. Mridul argued that the petitioners :n those cases were only allotted 18 bighas 12 biswas and 17 bighas of land respectively and that they were not allotted 25 bighas land out of the land held by them on temporary cultivation. No such ground has been taken in the aforesaid Writ Petitions. The petitioners have challenged the validity of the Post-1955 Rules on the ground that they were discriminatory as only 25 bighas of land was allottable to them under those Rules. The argument now advanced by learned counsel appears to be based on the additional pleas taken by the respondents in their reply, but as the order of allotment has not been produced by the petitioners or the respondents it is not possible to say as to in what circumstances and for what reasons the petitioners were allotted 18 bighas 12 biswas and 17 bighas of land respectively. The petitioners have not even submitted a copy of their applications for allotment of land under the Post-1955 Rules and as such it cannot be said as to what was the extent of land for which allotment was sought by them.

It may be mentioned here that there is a provision for appeal and revision under Rule 17 of the Post-1955 Rules and if the petitioners felt aggrieved by the order of allotment of less than 25 bighas of land to them they could have certainly taken recourse to the remedy provided under the Rules themselves. The petitioners have merely challenged the validity of the Rules in the present Writ Petitions and no 'prayer has been made by them for quashing any order of allotment nor even a copy thereof has been produced along with the writ petitions. jn these circumstances I am unable to hold that there was any contravention of the Rules in the matter of allotment of land to the petitioners Surja and Khuda-bux under the Post-1955 Rules in the absence of any pleadings on the part of the petitioners and also in the absence of relevant material on record and I do not feel inclined to allow such a new ground to be advanced at this stage. The aforesaid contention of the learned counsel, therefore, cannot be accepted.

39. Then in the case of Dhapi Bai v. State of Rajasthan, Civil Writ Petition No. 1718 of 1972, it was submitted by Mr. Mridul that the petitioner was refused permanent allotment of land held under temporary cultivation lease on the ground that she was not a landless person as she held 18 bighas irrigated and 6 bighas unirrigated land in the Gang Canal Area. Learned counsel argued that the definition of 'landless person' contained in Clause (xiii) of Sub-rule (l) of Rule 2 of the Post-1955 Rules is discriminatory and should be struck down inasmuch as it has been laid down therein that a person holding 15 bighas or lesser area of land shall be considered as a landless person and the limit of 15 bighas so laid down is absolutely .arbitrary as there is no basis for fixing the aforesaid limit. The argument of the learned counsel is that the extent of land allottable under Rule. 3 of the Post-1955 Rules is 25 bighas and under sub-rule (2) of Rule 3 a person holding Land less than 25 bighas is to be allotted so much land as together with his existing holding does not exceed 25 bighas and in this view the petitioner should have been allotted land to make up the deficiency to the extent of 25 bighas.

40. Learned Deputy Government Advocate submitted that the proviso in the definition of landless person contained in Rule 2 (1) (xiii) of the Post-1955 Rules was introduced to make such persons who were allotted Land under the 1967 Rules to the extent of 15 bighas eligible for allotment of excess land so as to make up their respective holdings up-to 25 bighas and he laid emphasis on the proviso to Rule 3 (2) of the Post-1955 Rules on account of which allotment of land in order to make up the deficiency to the extent of 25 bigbas was subject to the condition that such land was available adjacent to the existing holding of the allottee concerned or was in the same village. In this context Dr. Tewari argued that as the petitioner in the aforesaid writ petition has her existing holding in a different village in the Gang Canal Area, the argument advanced by the learned counsel is merely of academic value so far as allotment of land to this petitioner is concerned. There is nothing in the definition of landless persons contained in Rule 2 (1) (xiii) of the Post-1955 Rules to restrict the application of the proviso to such persons only to whom land had been allotted under the 1967 Rules and as such it is difficult to accept the contention of the learned Deputy Government Advocate that the aforesaid limit contained in the definition of land-leas person was introduced for the benefit of those persons only who were allotted 15 bighas land under the 1967 Rules and who would otherwise have been eligible for allotment of 25 bighas of land under the Post-1955 Rules. Rule 19 (3) of the Post-1955 Rules provide that all allotments of Government land in the Rajasthan Canal Project Area made on permanent basis before the commencement of the Post-1955 Rules, which obviously included allotments of land made under the 1967 Rules, shall be deemed to have been made under the provisions of the Post-1955 Rules.

Mr. Mridul may be right in contending that no real basis exists so as to include persons holdmg 15 bighas or less of tenure land within the category of landless person and to ex-elude persons holding more than 15 bighas of tenure land out of the aforesaid category, even though the land held by such persons may be less than 25 bighas. Such a classification appears to be arbitrary as apparently there appears to be no nexus with the objects sought to be achieved by the Post-1955 Rules, namely the allotment of agricultural land in the Raiasthan Canal Project Area for permanent cutlivation to temporary cultivation lease-holders and other landless persons. However, in my view, the matter is merely of academic value so far as Dhapi Bai's case is concerned, inasmuch as even if the argument of Mr. Mridul is accepted that the artificial limit of 15 bighas inserted in the definition of a landless person in the Post-1955 Rules is discriminatory, then the words 'in excess of 13 bighas' occurring in such definition appear to be clearly severable on the basis of the principles laid down by their Lordships of the Supreme Court in R. M. D. Cha-marbaugwalla v. Union of India, AIR 1957 S'C 628. If the invalid words in definition of landless persons are struck down and severed then a person holding any tenure land elsewhere would not be included within the ambit of the class of landless persons. Obviously the Post-1955 Rules have been framed for the purpose of regularisation of cultivation of persons holding land in the Rajasthan Canal Project Area under temporary cultivation leases for the last several years and for allotment of land for permanent cultivation to such temporary cultivation leaseholders and to other landless persons and they do not appear to have been made for the purpose of allotment of land to persons holding tenure land elsewhere.

The petitioner, Dhapi Bai, who holds tenure land to the extent of 21 bighas (2 bighas of unirrigated land being reckoned as 1 bigha of irrigated land) in the Gang Canal Area, could not obviously be allotted any land in the Rajasthan Canal Project Area under the Post-1955 Rules, because on account of the proviso to Rule 3 (2) such land could be allotted only adjacent to the existing holding or in the same village in which the existing holding of the allottee is situated, which is in the Gang Canal Area in the instant case. An allotment of a small patch of land at a long distance from the existing holding of the allottee would obviously lead to fragmentation. The writ petition of Dhapi Bai, must, therefore, fail because the provisions of Rule 3 (2) relating to the making up of deficiency upto 25 bighas is subject to the conditions mentioned in the proviso to the aforesaid Rule, even if the limit of 15 bighas would not have been there. However, in the aforesaid circumstances, it is not necessary for me to express any concluded opinion in this case regarding the argument of Mr. Mri-dul that the provision including persons holding 15 bighas or less of tenure land within the definition of landless persons is invalid.

41. It may be noted here that except Dhapi Bai's case, in none of the other writ petitions the validity of Rule 2 (1) (xiii) has been challenged, nor the other petitioners have made any grouse that they were refused allotment of land under the Post-1955 Rules on account of the aforesaid provision in Rule 2 (1) (xiii), nor any material appears to have been brought on the record of these writ petitions which may lead to such conclusion. The. learned counsel appearing before me in these writ petitions have not even argued that allotment to any one of the petitioners, except Dhapi Bai, was refused on the ground that such petitioner was not included in the category of landless persons as he possessed more than 15 bighas land and that such classification was discriminatory, nor my attention was invited by learned counsel to any specific order in any one of these writ petitions, whereby allotment of land under the Post-1955 Rules was declined to a petitioner on. the ground that he was not a landless person because of the application of the proviso to Rule 2 (1) (xiii) of the said Rules.

42. In Binjaram v. State of Rajas-than (Civil Writ Petition No. 457 of 1974) Mr. Mridul submitted that 50 bighas of land in the Rajasthan Canal Project Area was held under temporary cultivation leases by the father of the petitioner, who expired in the year 1967 leaving his four sons, including the petitioner. They continued to hold the land jointly as tem-porary cultivation lease-holders thereof, but under the Post-1955 Rules only 25 bighas of land out of the aforesaid 50 bighas was allotted to all the four brothers -jointly while the remaining 25 bighas was ordered to revert to the State vide orders Exhibits 1 and 2. These orders are clearly in contravention of the provisions of Rule 3 read with Rule 13 of the Post-1955 Rules, inasmuch as each one of the four brothers should be deemed to be in possession of 12 1/2 bighas of land out of the 50 bighas held by them jointly under temporary cultivation leases and there appears to be no reason as to why only 25 bighas of land was allotted to all the four brothers jointly including the petitioner out of the 50 bighas already in their cultivation under temporary cultivation leases. The orders Exhibits 1 and 2 in this case, therefore deserve to be quashed.

43. In the result, (a) the Rajasthan Colonisation (Rajas-than Canal Project Pre-1955 Temporary Tenants Government Land Allotment) Conditions, 1971 and the Rajasthan Colonisation (Allotment of Government Land to Post-1955 Temporary Cultivation Lease-holders and other Landless Persons in the Rajasthan Canal Project Area) Rules, 1971 are held to be valid;

(b) the. Writ Petition No. 457 of 1974, Binjaram v. State, of Rajasthan is hereby allowed and the orders of allotment (Exhibits 1 and 2) in this case are quashed'. The Allotting Authority is hereby directed to consider the matter of allotment of land for permanent cultivation to the petitioner in this writ petition afresh in the light of the observations made above;

(c) all the remaining writ 'petitions mentioned in Schedule 'A'* (except Writ Petition No. 457 of 1974) are hereby dismissed; and

(d) the parties are left to bear their own costs in all the writ petitions.


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