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Shiv Kalyan Singh and anr. Vs. Bhur Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberWrit Nos. 152 of 1952 and 123 of 1953
Judge
Reported inAIR1954Raj182
ActsJaipur Hitkarni Committee Rules, 1945 - Rule 1; Jaipur General Clauses Act, 1944 - Sections 5(1); Constitution of India - Article 14
AppellantShiv Kalyan Singh and anr.
RespondentBhur Singh and anr.
Appellant Advocate H.P. Gupta and; J.P. Jain, Advs.; Chandrabhan Bhargava
Respondent Advocate P.D. Mathur, Adv.
DispositionApplications allowed
Cases ReferredManohar Singh Ji v. State of Rajasthan
Excerpt:
.....in india are well known; it may very well be that in the bikaner state the courts had jurisdiction to fix the maintenance allowance in accordance with the principles enunciated in this order. looking to these rules, we are of opinion that they are not of such a nature that we should uphold them as making better provision for settlement of maintenance allowance of 'the dependants of state grantees in the area comprised in the former jaipur state. as we shall point out later, the hitkarni committees seem to take advantage of these ill-drafted rules to pass orders which are clearly beyond their competence. taking all these matters into consideration, we are of opinion that these rules are not such that we can say that they provide a better procedure as compared to the fixation of..........allowance of dependents of state grantees. it appears that before these rules came into force maintenance allowance of dependants of state grantees was fixed in case of dispute through a suit. these suits used to be filed in the civil courts. but a notification was published in the jaipur gazette of 15-6-1945, which provided that all suits against a state grantee by any chhutbhiya, maji, thakurani etc. for the grant of maintenance allowance or khangi payable from the income of a state grant shall be exclusively triable by revenue courts, and all pending suits of this nature shall be transferred by the civil courts to the revenue courts. 3. the facts alleged by bhopalsingh applicant are that in 1945 the allowance of maji mertaniji, opposite party, was fixed at rs. 78/- per.....
Judgment:

Wanchoo, C.J.

1. These are two connected applications challenging the validity of the Jaipur Hitkarni Committee Rules.

2. These Rules, which appeared in the Jaipur Government Gazette, dated 15-8-1945 provided for the appointment of what are called Hitkarni Committees for each district of the former State of Jaipur. This committee was given the power of fixing maintenance allowance of dependents of state grantees. It appears that before these rules came into force maintenance allowance of dependants of state grantees was fixed in case of dispute through a suit. These suits used to be filed in the Civil Courts. But a notification was published in the Jaipur Gazette of 15-6-1945, which provided that all suits against a state grantee by any chhutbhiya, maji, thakurani etc. for the grant of maintenance allowance or khangi payable from the income of a state grant shall be exclusively triable by revenue courts, and all pending suits of this nature shall be transferred by the civil courts to the revenue Courts.

3. The facts alleged by Bhopalsingh applicant are that in 1945 the allowance of Maji Mertaniji, opposite party, was fixed at Rs. 78/- per month. This allowance continued to be paid to her. In August, 1950, she applied to the Hitkarni Committee for increase of the allowance, and the Committee recommended that she should be paid Rs. 250/- per month. That recommendation was considered by the Revenue Minister as provided by the Rules, and on 4-8-1951, the Revenue Minister increased the allowance to Rs. 200/- per month. Then, on 16-8-1951, by another order the Revenue Minister raised the allowance to Rs. 250/- per month as recommended by the Hitkarni Committee.

Bhopal Singh says that he submitted to that order and paid at the rate of Rs. 250/- p. m. up to June, 1951, as he was apprehensive of being exposed to dishonour. Later, however, in November, 1952, Maji Mertaniji again submitted an application before the Hitkarni Committee that the maintenance for the preceding 12 years be recovered at the rate of Rs. 2507- per month. The applicant objected to this and raised the plea that the Hitkarni Committee Rules were ultra vires. The applicant also opposed further realisation of maintenance allowance at Rs. 250/- per month from him; but the Collector ordered Zabti in January, 1953. The applicant submits that he is always ready to pay at the rate of Rs. 78/-per month, but as that was not acceptable he had filed this application.

4. Bhopal Singh has raised various contentions with respect to the validity of the rules. In the first place, it is urged that these rules were not framed by His Highness the Maharaja of Jaipur, and therefore they have not the force of law. Further as they were not framed under any other law, they can have no force even as rules, as defined in the Jaipur General Clauses Act (No. VIII) of 1944. It was further urged that, in any case, even if these rules are said to be law, the law was never brought into force from any date, and therefore these rules cannot be acted upon. It was also urged that even if the rules were actually brought into force from some date, they are ultra vires in view of Articles 14 and 13 of the Constitution, inasmuch as they are discriminatory. Certain other points with respect to the powers of the Hitkarni Committee under the rules were also raised by Bhopal Singh as well as by Shiv Kalyan Singh. We shall deal with these points separately in the end.

5. The State Government contends that these rules are law, and were brought into force on the date they were published in the Jaipur Gazette, namely 15-8-1945. It is also contended that they are not void on account of Article 14 and Article 13 of the Constitution. As there was nothing in the rules to indicate that they had been made or passed or approved by His Highness the Maharaja of Jaipur, an affidavit was filed on behalf of the State to the effect that these rules were in fact sanctioned by His Highness the Maharaja of Jaipur.

6. The rules are of 1945 when the Maharaja of Jaipur was the sovereign authority in the former State of Jaipur. Though the Jaipur General Clauses Act (No. VIII) of 1944 was in force when these Rules were passed, that Act did not in any way affect the sovereignty of His Highness the Maharaja. The Act defined the word 'Act' as well as the words 'Regulation' and 'Rule' and also provided by Section 5(1) when a particular law would come into force. In view therefore of the affidavit that has been filed, it may be accepted that the Hitkarni Committee Rules were sanctioned by His Highness the Maharaja.

It is true that these Rules were wrongly so described, for, under the General Clauses Act, the word 'rule' is defined to mean a rule made in exercise of a power conferred by any enactment, and shall include a regulation made as a rule under any enactment. Strictly speaking, therefore, these provisions could not be called rules, because they were not made in exercise of the power conferred by any enactment. However as they had the sanction of His Highness the Maharaja they must be held to be law because the Maharaja had full legislative authority and their being miscalled rules will not, in our opinion, take away from them the force of law. We must, therefore, overrule the objection that these rules are not law even though they are miscalled rules.

But though these rules are law, the question is as to whether they ever came into force. On that point, our attention was drawn to the Jaipur Laws Act, 1923, which came into force in November, 1924. Section 3 (b) of that Act provides that all regulations now in force within the said territories, and the enactments and regulations that may hereafter be passed from time to time by the State and published in the Official Gazette shall be the law to be administered by the courts of Jaipur State. This section, in our opinion, does not affect the question as to when a particular law comes into force. It only provides that enactments and regulations, that may be passed after the 1st of November, 1924, and published in the official gazette, shall be the law to be administered by the Courts of Jaipur State. But it is well known that though many an enactment is published in the gazette on a particular day, it does not come into force on that day. The mere fact, therefore, that an enactment is published in the gazette is not enough to hold that it came into force on that day also.

7. Section 5 (1) of the Jaipur General Clauses Act provides when a law will come into force, and is as follows:

'Where any act is not expressed to come into operation on a particular day, then it shall come into operation if it is an Act of the legislature, on the day on which the assent thereto of His Highness the Maharaja is first published in the Jaipur Gazette, and if it is any other Act, on the day on which it is first published as an Act in the Jaipur Gazette.'

An analysis of this section shows that there are three ways in which a law 'came into force in the former Jaipur State after the Jaipur General Clauses Act (No. VIII) of 1944 came into force from the 8th February, 1944. These three ways are:

(1) If the Act contains a date on which it is to come into operation, it will come into operation on that date;

(2) If the Act does not contain such date, but has been passed by the legislature, it comes into operation on the day on which the assent of His Highness the Maharaja to the Act is first published in the Gazette;

(3) If the Act does not contain a date on which it is to come into operation, and if it is not an Act of the legislature but any other law, it comes into force on the day on which it is first published as an Act in the Jaipur Gazette.

8. The third condition can only apply to this case, for the Rules do not contain any date on which they are to come into force; nor are these Rules an Act of the legislature to which the assent of His Highness has been given. They can only be covered by the third class of laws which means any other Act. This class has to remain because the sovereign authority of His Highness the Maharaja to legislate was still there. In such cases, the law came into force when it was published in the gazette as an Act. Mere publication in the gazette was not enough. The publication had to be as an 'Act' and the word 'act' is defined in the Jaipur General Clauses Act as an Act made by or with the assent of His Highness the Maharaja.

These rules, even though may be law because, according to the affidavit now filed, they are said to have been sanctioned by His Highness the Maharaja, were never published as an Act in the Jaipur Gazette. Publication as an Act, in our opinion, means that it should be published in the Gazette in such manner that every body may know that the Act published is a law which has been made by or with the assent of His Highness the Maharaja. Unless the publication is in this form, no law of the third kind, even though published in the Gazette, could come into operation in the former Jaipur State after the Jaipur General Clauses Act came into force on 8-2-1944.

We may for example refer to the notification with respect to the Jaipur General Clauses Act itself. That notification says that the following Act received the assent of His Highness the Maharaja Sahib Bahadur on the 8th of February 1944, and is hereby promulgated for general information. It is some notification of this kind which is necessary before any law, by whatever name it may be called, could come into force in the former Jaipur State.

9. So far as the Hitkarni Committee Rules are concerned, all that the notification said was that 'the following rules with regards to the appointment, duties etc. of the committees are also published for general information. There was no indication that these Rules had received the assent of His Highness on a particular date, and were being published as an Act. In this view of the matter, we are of opinion that even though these Rules might have been acted upon, they never came into operation as law even in the time of the former Jaipur State. It may perhaps look odd that Rules, which had been actually in force for so many years, are now held to have never come into force; but we may refer to --Harla v. State of Rajasthan', AIR 1951 SC 467 (A), where the Jaipur Opium Act, which had been acted upon for over 20 years, was declared to have never come into force, because it was not published as required by the Jaipur Laws Act.

10. We are further of opinion that these Hitkarni Committee Rules are hit by Articles 14 and 13 of the Constitution, and are discriminatory. These Rules are only in force in that part of the State of Rajasthan, which was formerly comprised in the State of Jaipur. Before therefore a special legislation can apply to a particular geographical area, there must be some basis for singling out that area for the application of that special legislation. We may in this connection refer to the following observations in -- 'Manohar Singh Ji v. State of Rajasthan', AIR 1953 Raj 22 (B) at p. 30:

'There is no doubt that it is possible to have classification based on geographical distinction but such distinction must be based on the particular needs of that geographical area which are distinct and real as compared to the needs of the remaining geographical area. Special laws applying to particular geographical area in special parts of various states in India are well known; but all those special laws are based on special needs of those particular areas.'

It was also pointed out that special legislation relating to a particular area based on a regard to the welfare of all classes within the particular area would also be saved from being hit by Article 14 of the Constitution. We have to see whether these Rules can be justified on these grounds.

11. Before we do so, we may briefly dispose of an argument urged on behalf of the state. It is said that there is no proof that in other areas of Rajasthan similar laws are not enforced. Our attention in this connection was drawn to laws in certain former states which are now part of Rajasthan. Under Rule 27 of the Alwar State Jagir Rules, it is provided that

'any collateral for whom the Tikai Jagirdar fails to make such reasonable provision may apply to the Hakim Jagir who after necessary enquiries may pass such orders as he deems fit. Appeals against such orders will lie in the usual way to the Minister-in-charge of the department and revision to Shri Rajendra Shasan.'

This rule to a certain extent resembles the Hitkarni committee Rules though it is not so detailed. In the former Kishangarh State, it was provided by Rule 73 of the Jagir Rules that if any dependant was dissatisfied with the maintenance allowance given to him by the Jagirdar, he could lodge a complaint to the Baxi Jagir who would look into the matter, and taking into consideration the number and the needs of the complainant, and the condition of the Jagir, should decide upon such amount of maintenance allowance as he thought fit. In the case of Jagirs held by Umraos or Tazimi Sardars sanction of the Revenue Minister was also necessary. The jurisdiction of the Courts in these matters was barred by Rule 75. These rules also may, to a certain extent, be said to be similar to the Hitkarni Committee Rules.

12. Reference was also made to an order of the Bikaner Government published on the 23rd of April, 1942. This order said that there were complaints about the fixation of maintenance allowance, and that, in order to set at rest these complaints, certain minima and maxima were fixed for maintenance holders. These rules however do not show that the jurisdiction of the Courts was barred. It may very well be that in the Bikaner state the Courts had jurisdiction to fix the maintenance allowance in accordance with the principles enunciated in this order.

13. Our attention was also drawn to a judgment of this Court in -- 'Writ Case No. 118 of 1951, D/- 23-7-1952 (Raj) (C)'. That was also a case of maintenance allowance relating to the former State of Karauli. It was pointed out in that case that there was no law in the former State of Karauli, which entitled the Revenue Minister to pass an order for maintenance.

14. It is clear, therefore, that the law is not the same all over Rajasthan, and in some parts the Courts, whether civil or revenue had jurisdiction to fix maintenance allowance, though in Bikaner, for example, that fixation was guided by certain rules framed by the Government of Bikaner. The conclusion, therefore, at which we arrive is that in some parts of Rajasthan maintenance allowances of dependants of Jagirdars or State grantees are fixed by the Courts, whether civil or revenue, while in others there are state rules which give this power to certain executive authorities. There is obviously discrimination in these circumstances, and we have to see whether this discrimination can be justified on the principles laid down in -- 'Manoharsinghji's case (B)'.

15. Learned Deputy Government Advocate has not been able to point out to us the particular needs of the area comprised in the former state of Jaipur as compared to the needs of the remaining area of the state of Rajasthan, which requires this special law. It is, however, urged that having regard to the welfare of all classes within the particular area, this law should be upheld even though in some parts of the state these maintenance allowances are settled by the Courts, whether civil or revenue. Looking to these Rules, we are of opinion that they are not of such a nature that we should uphold them as making better provision for settlement of maintenance allowance of 'the dependants of state grantees in the area comprised in the former Jaipur State.

The rules, appear to us to be ill-drafted and ambiguous in some respects. As we shall point out later, the Hitkarni Committees seem to take advantage of these ill-drafted rules to pass orders which are clearly beyond their competence. It is true that in certain respects these Rules provide a cheaper remedy to the dependants, as for example Rule 18 which says that no court-fee shall be leviable on these applications. At the same time, there does not seem to be sufficient provision for proper representation of the case before the authorities concerned in these rules. Rule 6 excludes appearance of lawyers, though it allows parties to produce evidence themselves or through their representatives. There is, however, no provision for hearing by Revenue Minister who is the final authority, as the Committee is only a recommending body.

Taking all these matters into consideration, we are of opinion that these Rules are not such that we can say that they provide a better procedure as compared to the fixation of maintenance allowance by Courts. We, cannot therefore uphold the application of these rules only to the former State of Jaipur, having regard to the welfare of all classes within the particular territory. We, therefore, hold that these rules are hit by Article 14, and are therefore ultra vires.

16. We may briefly consider some other points which have been raised. It has been urged that these rules only authorise the committee to fix maintenance allowance in those cases where none has been fixed, and that it is not open to the Committee to consider these cases where allowance has been fixed by some other authority or by agreement between the parties. These rules are so ill-drafted that it is difficult to say whether the framers of the Rules intended the committee to have power to increase 'or decrease the allowances already settled by some authority or by agreement between the parties. But the Committee seem to take the view that they can do so. Rule 2 (1) says that the committee shall deal with matters relating to Khangi payable from a state grant. To our mind, it can hardly be the intention of the framers of the Rules that the Committee should have the power to unsettle matters relating to maintenance which had been already settled. If we had held the Rules valid, we would have been inclined to hold that the Committee could not vary the allowance already fixed.

Again, the provision as to execution is also very vague. Rule 12 provides that the decisions of the Revenue Minister and of the Committee shall be executed by the Deputy Commissioner. It has been contended on behalf of the applicants that that has been interpreted as meaning that the Deputy Commissioner had the same powers of execution as he had with respect to public demands. We are of opinion that this is not so, and Rule 12 only provides that the Deputy Commissioner as a Court should execute the orders of the Revenue Minister and the Hitkarni Committee, as if it was the decree of his Court. The manner of execution in the present two cases, we are told, is not of this type, and if that is so, all proceedings are invalid, and a proper application for execution, as required for revenue decrees, should have been made before the Deputy Commissioner.

17. Lastly, we may refer to the facts of Shiv Kalyan Singh's case. In that case the Hitkarni Committee took upon itself to decide whether Shiv Kalyan singh should pay a certain amount to Thakur Bhursingh for the marriage expenses of Shiv Kalyansingh's daughters, as they were married at the expense of Thakur Bhoorsingh who was heir maternal grandfather. The Hitkarni Committee also decided to grant arrears of maintenance allowance to Thakur Bhursingh with respect to these two girls. We are clearly of the opinion that these rules do not authorise the Hitkarni Committee to pass an order amounting to a decree for expenses of marriage, or to grant a decree for arrears of maintenance. Even if these rules were valid, they only authorised the Committee to fix maintenance allowance of the dependants. After such maintenance allowance was fixed, it was open to the dependants to apply for execution of the order before the Deputy Commissioner as if it was a decree of his Court. The manner, therefore, in which these rules have been interpreted and used by the Hitkarni Committee is a clear indication that these rules should not be upheld having regard to the welfare of all classes which include the state grantees against whom these rules appear to be misused.

18. We, therefore, allow these applications anddeclaring that the Hitkarni Committee Rules,dated 20-7-1945, published in the Jaipur Gazetteof August 15, 1945, are ultra vires, and nevercame into force, direct that all actions takenunder these rules against the applicants stayedforthwith.


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