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Himmat Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 497 and 1127 of 1970
Judge
Reported inAIR1972Raj218
ActsConstitution of India - Article 31A and 31B; Rajasthan Tenancy Act, 1955 - Sections 15A; Tenancy Law; Constitution of India (7th Amendment) Act, 1964
AppellantHimmat Singh
RespondentState of Rajasthan and ors.
Appellant Advocate Savar Chand,; M.B.L. Bhargava,; S.N. Bhargava,;
Respondent Advocate G.C. Kasliwal, Adv. General and; D.P. Gupta, Adv.
Cases ReferredState of Maharashtra v. Madhavrao
Excerpt:
- .....given by the constitution under article 31(2) and was ultra vires.4. both article 31a and the ninth schedule of the constitution were amended by the constitution (seventeenth amendment) act. 1964. the following second proviso was added to clause (1) of article 31a:--'provided further that where any law makes any provision for the acquisition by the state of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the state to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for.....
Judgment:

Jagat Narayan, C.J.

1. The following question has been referred by a learned single Judge of this Court:--

'Whehter Section 15-A of the Rajasthan Tenancy Act 1955, can be declared as unconstitutional or void as being violative of Article 31A(1) or 19(1)(F) and 31B of the Constitution despite the amendment of Schedule 9 of the Constitution of India by the Constitution (Seventeenth Amendment) Act. 1964?'

The case of the petitioners is that they were temporary cultivators of land situated in the Rajasthan Canal Area and became Khatedar tenants on the coming into force of the Rajasthan Tenancy Act. They further assert that their Khatedari rights cannot be extinguished by Section 15-A of the Rajasthan. Tenancy Act, which runs as follows:--

'15-A. Khatedari rights not to accrue in Rajasthan Canal Area. -- (1) Notwithstanding anything contained in Section 13 or in Sub-section (1) of Section 15 of this Act or in any other law for the time being in force, or in any lease, patta or other document, land in the Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso to the said sub-section of the said Section 15 of this Act and no Khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as aforesaid.

Provided that nothing in Sub-section (1) shall affect or apply to any person to whom Khatedari rights shall accrue in accordance with the provisions of the Rajasthan Colonisation (General Colony) Conditions, 1955 or any other statement of Conditions or Rules of Allotment and Sale of Government land made in exercise of the power conferred by Section 7 of the Rajasthan Colonisation Act. 1954 (Rajasthan Act 27 of 1954) or the rules for allotment of lands for Khudkasht in the Rajasthan Canal area made under the Rajasthan Land Reforms and Resumption of Jagirs Act 1952 (Rajasthan Act 6 of 1952).

(2) Any person claiming that he possesses and is in eniovment of Khatedari rights in any land referred to in Sub-section (1) because such land had been let out to him permanently before the commencement of this Act may within four years from the date of such commencement and on payment of a court-fee of twenty-five nave paise apply to the Assistant Collector having jurisdiction praving for a declaration to that effect and the provisions of Sub-section (5) of Section 15 shall apply to such application.'

2. Section 15-A was inserted by Section 3 of Rajasthan Act No. 6 of 1958 published in the Rajasthan Gazette dated 17-3-58. It was amended by Act No. 35 of 1958 published in the Rajasthan Gazette dated 15-11-58, by Act No. 46 of 1958 published in the Rajasthan Gazette dated 24-12-58, by Act No. 7 of 1960 published in the Rajasthan Gazette dated 24-3-60 and by Act No. 5 of 1962 published in the Rajasthan Gazette dated 21-4-62.

3. It was held by this Court in Jassuram v. State of Rajasthan. ILR (1962) 12 Rai 900 = (AIR 1963 Raj 72) that the above provision offended the guarantee given by the Constitution under Article 31(2) and was ultra vires.

4. Both Article 31A and the Ninth Schedule of the Constitution were amended by the Constitution (Seventeenth Amendment) Act. 1964. The following second proviso was added to Clause (1) of Article 31A:--

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

At the same time to the Ninth Schedule to the Constitution the following entry was added along with the explanation:--

'55. The Rajasthan Tenancy Act 1955 (Rajasthan Act III of 1955).. ... ... ... ... ... ... ... ...

Explanation -- Any acquisition made under the Rajasthan Tenancy Act. 1955 (Raiasthan Act III of 1955), in contravention of the second proviso to Clause (1) of Article 31A shall to the extent of the contravention, be void.-'

Article 31B of the Constitution runs as follows:--

'31-B. Validation of certain Acts and Regulations. Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void on the ground that such Act. Regulation or provision is inconsistent with, or takes away or abridges and of the rights conferred by any provisions of this Part, and notwithstanding any judgment decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it continue in force.'

5. After the inclusion of the Rajasthan Tenancy Act. 1955 in the Ninth Schedule it was held by this Court in Puransingh v. State of Rajasthan ILR (1966) 16 Raj 1105 that the validity of Section 15-A of the Rajasthan Tenancy Act could not be challenged on the ground that it contravened any fundamental right, despite the earlier iudgment of this Court, as it had been included in the Ninth Schedule.

6. Despite the above judgment it was argued before the learned single Judge on behalf of the petitioners that Section 15-A having been struck down as invalid by this Court in ILR (1962) 12 Raj 900 = (AIR 1963 Raj 72) it was nonest and was void ab initio and Article 31B could not validate it. That is why this reference was made.

7. A similar argument was put forward before their Lordships of the Supreme Court in relation to the Madras Land Reforms (Fixation of Ceiling on Land) Act. 1961. in Civil Appeals Nos 247. 257, 1061. 552. 623. 700. 701. 714. 1260 1261 and 1696 of 1967 (Jagannath v. Authorised Officer, Land Reforms) decided on 11-10-1971 (reported in AIR 1972 SC 425) and was repelled by them. It is unnecessary for us to repeat the reason given by their Lordships in their judgment, which is equally applicable to the present case.

8. Another contention which was put forward before us was that only the provisions of the Rajasthan Tenancy Act. 1955, as originally enacted were validated as the Amending Acts by which Section 15-A was inserted and was amended are not mentioned in the Ninth Schedule. We are of the opinion that if an Act is referred to by its title it is intended to refer to that Act with all the amendments made in it upto the date of the reference. In this connection we may refer to the decision of their Lordships of the Supreme Court in State of Maharashtra v. Madhavrao, AIR 1968 SC 395.

9. Lastly, it was contended on behalf of the petitioners that as Section 15-A does not provide for payment of compensation at market value for land included within the ceiling limit it is invalid in view of the explanation added to the Ninth Schedule, which has been reproduced above. We are of the opinion that Section 15-A cannot become invalid on that account. The explanation itself lays down that any acquisition made under the Rajasthan Tenancy Act, 1955 in cotravention of the second proviso to Clause (1) of Article 31A shall, to the extent of the contravention, be void. So only the particular acquisition to which this explanation may apply will become void and not the provision contained in Section 15-A. The learned Advocate General contended before us that the second proviso to article 31A of the Constitution and consequently the explanation to Ninth Schedule are not retrospective and that in the present case there was no acquisition of any estate or even of any right in an estate. We do not consider it proper to go into these questions as they have not been referred to us for decision by the learned single Judge.

10. We accordingly answer the question in the negative in favour of the State of Rajasthan. The costs of this reference shall abide the final result of the writ petitions.


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