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Jugal Kishore Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSpecial Appeal No. 395 of 1972
Judge
Reported inAIR1973Raj244; 1973()WLN52
ActsRajasthan Tenancy Act, 1955 - Sections 15A; Rajasthan Tenancy (Amendment) Act, 1958; Constitution of India - Articles 14, 19(1), 31(3), 31A(1) and 31B; Rajasthan Colonisation Act, 1954 - Sections 22
AppellantJugal Kishore
RespondentState of Rajasthan and ors.
Appellant Advocate M.B.L. Bhargava,; Marudhur Mridul,; B.L. Purohit,;
Respondent Advocate G.C. Kasliwal, Adv. General
DispositionAppeals partly allowed
Cases ReferredMaharaja Himmat Singh v. State of Rajasthan
Excerpt:
constitution of india - articles 31a, 31b, 31(1) & 31(3) and rajasthan tenancy act-section 15a--object of--complete umbrella against judicial scrutiny--section 15a protected by article 31b.;the object of article 31a was to insulate statutory enactments, which advanced the implementation of the agrarian reform, from attack in courts of taw so that the progress in the achievement of the goal which was sacred to the party in power was not retarted by legal disputes i he plain meaning in these circumstances of article 31b is that even if any provision of the acts and regulations of the ninth schedule was inconsistent with any provisions of part iii of the constitution including the provision with regard to the obtaining of the assent from the president as envisaged by article 31(3) and.....beri, j.1. this appeal and other 285 appeals detailed in schedule 'a' under section 18 of the raiasthan high court ordinance are directed against the judgment of the learned single judge of this court dated 18-4-1972 wherebv he dismissed the writ petitions of the appellants holding that they never acquired any khatedari rights in the agricultural holdings in dispute.2. the circumstances which it is necessary to notice for the disposal of these appeals briefly stated are these: in the erstwhile state of bikaner there were two jagirs called chhattargarh and satta-sar. under the raiasthan land reforms and resumption of jagirs act (act vi of 1952) these jagirs werp resumed on 1-7-1954 and 15-8-1954 respectively. it is alleged by the petitioners-appellants that prior to the resumption the.....
Judgment:

Beri, J.

1. This appeal and other 285 appeals detailed in Schedule 'A' under Section 18 of the Raiasthan High Court Ordinance are directed against the judgment of the learned single Judge of this court dated 18-4-1972 wherebv he dismissed the writ petitions of the appellants holding that they never acquired any khatedari rights in the agricultural holdings in dispute.

2. The circumstances which it is necessary to notice for the disposal of these appeals briefly stated are these: In the erstwhile State of Bikaner there were two Jagirs called Chhattargarh and Satta-sar. Under the Raiasthan Land Reforms and Resumption of Jagirs Act (Act VI of 1952) these Jagirs werp resumed on 1-7-1954 and 15-8-1954 respectively. It is alleged by the petitioners-appellants that prior to the resumption the Jaeirdars had admitted them as tenants in their respective agricultural holdings on the rates of rent prevailing in the former State of Bikaner. After resumption the anppliants contend that the State of Raiasthan entered the appellants' names in the Revenue Record -- Dhalbanch -- and continued to collect rents from them.

3. On October 13. 1955 the Raiasthan Tenancy Act, 1955 (hereinafter called 'the Tenancv Act') came into force. Under Section 15 thereof any person who was a tenant became a Khate-dar tenant entitled to the rights under the Tenancy Act and the appellants claim that they acquired such rights. On March 17, 1958 however, Section 15A was added to the Tenancv Act and it ordained that no Khatedari rights would ever be deemed to have accrued to any occupant of land in the Raiasthan Canal Area on any terms whatsoever notwithstanding anything contained in any law or document or in the Act and such lands shall be deemed to have been let out only tem-porarilv. Section 15A was clearly retrospective.

4. Some of the tenants of the former Bikaner State challenged the validitv of Section 15A of the Tenancy Act before this Court and by its judg-ment dated 18-7-1962 it declared (Jassu-ram v. State. AIR 1963 Rai 72) that the Khatedari rights under Section 15 amounted tp property which belonged to the petitioner and an acquisition of those rights under Section 15A offended Article 31(2) of the Constitution and was ultra vires.

5. By the 17th Amendment Act 1964 of the Constitution, which camp into force on the 20th June, 1964- the Tenancy Act was included as item No. 55 (with an Explanation added thereto) in the 9th Schedule of the Constitution which inclusions imparted the Act an immunitv from attack under Article 31B of the Constitution.

6. The State of Ralasthan began to treat the appellants as unauthorised occupants and the authorities issued notices to some of the appellants under Section 91 of the Rajasthan Land Revenue Act (hereinafter called 'the Revenue Act') and ordered the attachment of appellants' crop under Sections 22-24 of the Raiasthan Colonization Act (hereinafter called 'the Colonization Act').

7. The appellants contested the action of the Statp of Raiasthan and the Colonization Authorities, the eight respondents named in the writ petitions under Articles 226 and 227 of the Constitution of India inter alia on the grounds that the appellants were Khatedar tenants and could not be described as unauthorised occupants; that thev became Khatedar tenants prior to the enactment of Section 15A of the Tenancy Act that Section 15A contravenes Article 31 and 2nd Proviso of Article 31A(1) because it does not provide any compensation much less compensation at the rate of market value: that the obiect of taking awav the lands from the appellants was not a public purpose because the said lands were being sold at exorbitant prices and, therefore, an appropriate writ may be issued auash-ing the orders of the Deputy Commissioner Colonization and restraining the respondents from interfering with the appellants' possession and their standing crops.

8. The State of Raiasthan contested the appellants' writ petitions saving that till the formation of the State of Rajasthan there were only proposals for the Raiasthan Canal Proiect but in or about the vear 1957 the Proiect was sanctioned and it began, to take shape. As soonas the word went round people began to scramble for land likely to be benefited by the Canal. In this great rush for lands means fair and foul, were not spared to grab land. The Jagirdars in the area found it a God-sent opportunity to mint money, and by large scale manipulations admitted people to tenancy from back dates. Most of the petitioners were not cultivators and they lived as far awav from lands in question as 200 kilometres and some of them were millionaires who had nothing to do with cultivation as such. Documents were manufactured to show that the petitioners-appellants were admitted to tenancy prior to the coming into force of the Tenancy Act. The State further said that AIR 1963 Rai 72 was covered by the Constitution (17th Amendment) Act, 1964 and the whole of the Tenancy Act was included in the Ninth Schedule as Item No. 55 and Article 31B' set at naught the effect of the judgment in Jassu-ram's case as it made provisions in resnect of any iudement, decree or order of any court or tribunal to the contrary with a non obstante clause. Article 31B makes a special provision in respect of the Acts and Regulations specified in the Ninth Schedule. It declares that none of these Acts or any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act or Regulation or provision being inconsistent with or takin? awav or abridging any of the rights conferred by any provisions contained in Part III of the Constitution.

9. Before the learned Single Judge an argument was raised that Section 15A of the Tenancy Act could be declared as unconstitutional or void being violative of Article 31A(1) or 19(1)(f) and 31B of the Constitution despite the amendment of the Ninth Schedule of the Constitution of India by the Constitution (17th Amendment) Act, 1964. The learned Single Judge felt that the question raised was of great importance as it was likely to have a bearing on the validity of other laws and he. therefore, referred it to a larger Bench. The question came to be considered before the Full Bench. Jagat Naravan C. J. speaking for the Bench held on the basis of State of Maharashtra v. Madhavrao AIR 1968 SC 1395 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. It was also contended before thp. Full Bench that as Section 15A did not provide for the payment of compensation at market value for land included within the ceiling limit it was invalid in view of the explanation added to the Ninth Schedule. The Full Bench expressed the view that Section 15A could notbecome invalid on that account. The explanation itself laid down that any acquisition made under the Tenancy Act in contravention of the second proviso to Clause (i) of Article 31A shall be void to the extent of the contravention. Therefore only that acquisition to which the explanation applied would become void and not the provisions contained in Section 15A.

10. After the decision by the Full Bench the matter was argued before the learned Single Judge and he by his judg-ment dated a 8th April, 1972 held that he was not prepared to decide the controversial facts in the exercise of his extra-ordinary iurisdiction whether the Girda-waries or other records were manipulated as alleged by the State of Raiasthan. He also held that the protection provided by Article 31B of the Constitution enures for the benefit of all the amendments to the enactments mentioned in the Ninth Schedule. The learned Single Judge further held that the provisions of Section 15-A merely said that any lease, patta or other document in regard to the land situate in the Raiasthan Canal Area if leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso to the Sub-section (i) of Section 15 of the Tenancy Act and no khatedari right shall accrue or shall be deemed ever to have accrued in any such land. This provision in the opinion of the learned Single Judge did not amount to any acquisition of khatedari rights because none ever accrued to the appellants. Keeping in mind the distinction between the expressions acauisition by the State of any estate or the extinguishment or modification of any such right as used in Article 31A the learned Judge held that on account of the operation of Section 15-A of the Tenancy Act the State of Raiasthan did not acauirp any khatedari rights of the tenant and the same did not vest in the Statp and it was only a case of extinguishment or modification of certain rights of tenancy in the lands. The learned Single Judge expressed himself thus:

'The effect of Section 15-A is that after it was introduced in the Tenancy Act it shall be taken that no tenant in the Raiasthan Canal area ever acauired Khatedari rights in the lands held by him as tenant as it clearly speaks that no such rights shall be deemed ever to have accrued to him in any land leased out to him in that area. The position of the tenant in Raiasthan Canal Area after Section 15-A was enacted was reduced to that of a Ghair Khatedar tenant from 15th October. 1955. when the Raiasthan. Tenancy Act came into force as this pro-vision of the law was applied with retrospective effect and therefore it shall be taken that khatedari rights never accrued to the tenants in Raiasthan Canal area by virtue of Section 15 of the Raiasthan Tenancy Act, and the tenants never became Khatedar tenants and their status notwithstanding Section 15 of the Act remained as that of Ghair Khatedar tenants'.

Because the legislature had power to enact any statute with retrospective effect in the ultimatp analysis he found that the petitioners held lands by virtue of Section 15A as temporary lessees only in the capacity of Ghair Khatedar tenants.

11. In regard to the lack of the assent of the President repelling the argument of the learned Advocate General that Article 31B immunised Section 15A from an attack on the ground of non-compliance with Articlp 31 (3) of the Constitution the learned Single Judge held that no sanction was necessary because Section 1'5A did not relate to the question of acauisition of land as envisaged by Article 31(3) of the Constitution.

12. As to the argument that the parent Act had received the assent of the President and, therefore, the amendment also needed it. the learned Single Judge held that as the amendment did not introduce any .material change in the Tenancy Act the amendment did not call for any assent of the President. While dismissing the petitions of the appellants the learned Single Judge held that because they were cultivating the lands under the interim orders issued from time to tune by the Court and as the petitioners had given an undertaking that they would hand over the lands to the Statp Government with standing crop if they did not succeed, the learned Single Judge did not strictly insist on this condition becausp the petitioners had been paying land revenue to the State Government and thev would have to pay for the period during which thev cultivated the lands under the interim orders of this Court he held that dictates of iustice required that the petitioners should be ordered to handover the lands soon after the standing crop was harvested by them.

13. We have heard M/s. B. L. Purohit, M. Mridul and M. B. L. Bhar-gava on behalf of the appellants. Because the arguments turn on common points it will be convenient to discuss the arguments under convenient heads.

14. The principal attack againstthe validity of Section 15A of the Tenancy Act was that the Raiasthan TenancyAmendment Act. 1958, being Act No. VI of 1958 and which received assent of the Governor on the 7th of March. 1958 and which introduced the section under challenge was invalid because it did not receive the assent of the President, firstly, as required under Article 31(3) of the Constitution of India and secondly as reauired by Article 31A(1) 1st nro-viso and thirdly because under Article 254 of the Constitution the Parliament was competent to enact the Land Acquisition Act and Section 15-A ran contrary to it and therefore unless the Raiasthan Act VI of 1958 received the assent of the President under Article 254(2) it was invalid.

15. Article 31B of the Constitution of India reads as under:--

'31-B. Validation of certain Acts and Regulations. -- Without preiudicp 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 any of the rights conferred by, any provisions of this Part and notwithstanding any iudg-ment, 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.'

It would be necessary to recall the history of Articles 31A and 31B for an appreciation of the import of this important Article. Let us borrow the lucid summing up of their Lordships of the Supreme Court on the topic who while dealing with the background of this Article in Saiian Singh v. State of Rajas-than. AIR 1965 SC 845 have observed :--

'It is a matter of general knowledge that it became necessary to add these two provisions in the Constitution, because it was realised that legislative measures adopted by certain States for giving effect to the policv of agrarian reform which was accepted by the party in Power had to face a serious challenge in the courts of law on the ground that thev contravened the fundamental rights guaranteed to the citizens by Part III. These measures had been passed in Bihar. Uttar Pradesh and Madhya Pradesh and validity was impeached in the High Courts in the said three States. The High Court of Patna held that the relevant Bihar legislation was unconstitutional, whilst the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legisla-tive measures passed in Uttar Pradesh and Madhya Pradesh respectively. (See Kameshwar v. State of Bihar. AIR 1951Pat. 91 (SB) and Surva Pal v. U. P. Government, AIR 1951 All 674 (FB).) The parties aggrieved by these respective decisions had filed appeals by special leave before the Supreme Court.....

It was at this stage that Parliament thought it necessary to avoid the delav which would necessarily have been involved in the final decision of the disputes pending before the Supreme Court and introduced the relevant amendments in the Constitution by adding Articles 31A and 31B. That was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform by introducing Articles 31A and 31B.

The second step in the same direction was taken by Parliament in 1955 by amending Article 31A by the Constitution (Fourth Amendment) Act, 1955. The object of this amendment was to widen the scope of agrarian reform and to confer on the legislative measures adopted in that behalf immunity from a Possible attack that they contravened fundamental rights of citizens. In other words, this amendment protected the legislative measures in respect of certain other items of agrarian and social welfare legislation, which affected the proprietary rights of certain citizens.....At this time 19Acts were listed in Schedule 9, and they were thus effectively validated. One more Act was added to this list by the Amendment Act of 1955. so that as a result of the second amendment, the Schedule contained 20 Acts which were validated.

It appears that notwithstanding these amendments, certain other legislative measures adopted by different States for the purpose of giving effect to the agrarian policy of the Party in power, were effectively challenged.....

Thus, it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31B to the Constitution clearly is to assist the State Legislatures in this country to give effect to the economic policv in which the party in power passionately believes to bring about much needed agrarian reform. It is with the same object that the second amendment was made by Parliament in 1955, and as we have iust indicated, the obiect underlying the amendment made by the impugned Act is also the same. Parliament desires that agrarian reform in a broad and comprehensive sense must be introduced in the interests of a very large section of Indian citizens who live in villages and whose financial prospects are integrally connected with the mirsuit of progressive agrarian policy. Thus. If the pith and substance test is applied to theamendment made by the impugned Act. it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socio-economic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Court's powers prescribed by Article 226 operate is incidental and in the present case can be described as of an insignificant order.'

16. When analysed Article 31B without shrinking the generality of the provisions contained in Article 31A provides that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void or ever to have become void on the ground that anyone of them was (a) inconsistent with any provisions of Part III of the Constitution or (b) because it took away or abridged any of the rights conferred by any provisions of this Part. In our view Article 31B protects all the Acts and Regulations specified in the Ninth Schedule even if the provision thereof is 'inconsistent with any provisions of this part' or it 'takes away or abridges any of the rights conferred bv' any provisions of this Part. The words 'anv provisions of this Part' govern both the clauses separately. We are persuaded to this view because of the historical background and the need to minimise the measures of agrarian reforms from all possible attack. Our conclusion is strengthened because the clause 'or takes awav or abridges any of the rights conferred by' is preceded and followed by commas. It was urged by Mr. Bhargava. learned counsel for some of the appellants, that punctuation must be ignored. He relied on Maharani of Burdwan v. Murtunioy Singh (1887) 14 Ind App 30 where their Lordships observed that it was an error to rely on punctuation in construing the acts of the legislature. In Lewis Pugh Evans Push v. Ashutosh Sen, AIR 1929 PC 69 their Lordships observed that commas were no Part of the Statute. In Jupiter General Insurance Companv Ltd. v. Abdul Aziz AIR 1923 Rang 185 the learned Judges observed that it is not always safe to rely on punctuation as a deciding factor in a question of construction of a section. In Niaz Ahmad Khan v. Parsot-tam Chandra, AIR 1931 All 154 it is observed that punctuation is no part of the statute and a Court of law is bound to interpret the section without the commas inserted in the print. In Aswini Kumar v. Arbinda Bose, (AIR 1952 SC 369) their Lordships of the Supreme Court have held that Punctuation is after all a minor element in the construction of a statute and verv little attention is paid to it by En-glish Courts. When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to the punctuation. Punctuation may have its uses in some cases but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text. In India Sugars and Refineries Ltd. v. State of Mysore. AIR 1960 Mvs 326 relying on the aforesaid Supreme Court case of AIR' 1952 SC 369 the learned Judges of the Mysore High Court have observed that punctuation is after all a minor element in the construction pf a statute, and very little attention is paid to it by English Courts. When a statute is carefully punctuated and there is doubt about its meaning, weight should undoubtedly be given to the punctuation.

17. In our opinion because the, punctuation to which we have adverted earlier was contained in the Bill (See Gazette of India No. 16 Part II Sectionj 2, dated June 2. 1951 page 399) relating to the First Amendment of the Constitution, it deserves due weight because the Legislature was conscious of its existence at the time of passing the law. After all the object of Article 31A was to insulate statutory enactments, which advanced the implementation of the agrarian reform. from attack in courts of law so that the progress in the achievement of the goal which was sacred to the party in power was not retarded by legal disputes. The plain meaning in these circumstances of Article 31B is that even if any provision of the Acts a_nd Regulations of the Ninth Schedule was inconsistent with any provisions, of Part III of the Constitution including the Provision with regard to the obtaining of the assent from the President as envisaged by Article 31(3) and Article 31A(1) second proviso such an enactment shall not be. void or ever deemed to be void on account of the non-compliance. It is a complete umbrella against judicial scrutiny so far as the Act or its provision being inconsistent with any of the provisions contained in Part III of the Constitution was concerned. Therefore, assuming for the sake of argument, that Section ISA of the Tenancy Act reauired President's assent under Articles 31(3) and 31A(1) the attack is effectively answered by the comprehensive protection provided by Article 31B of the Constitution.

18. Next comes the attack based on Article 254 of the Constitution. The article reads,--

'254. Inconsistency between laws made by Parliament and laws madp by the legislature of States.-- If any provi-sion of a law made by the legislature ofa State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent list. then, subiect to the provisions of Clause (2). the law made by Parliament, whether passed before or after the law made by the Legislature of such State or as the case may be, the existing law. shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of .the President and has received his assent, prevail in that State;

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.'

19. The contention of Mr. Bhar-gava is that the Ralasthan Tenancy Amending Act (VI of 19581 whereby Section 15A of the Tenancv Act was introduced was void under Article 254 of the Constitution because it is a law of acauisition and falls under Entry 42 in the Concurrent List. There was in the field the Land Acauisition Act 1894. enacted by the Central Government, on which field intruded Section 15A of the Tenancv Act and it could not prevail the Amending Act not having received the assent of the President of India. As the Act VI of 1958 was repugnant to a Central law on the same subiect it was void under Article 254 because it did not receive the President's assent. The argument of the learned counsel for the State In answer was that the Land Acauisition Act of 1894 did not apply to the territories which immediately before the 1st of November 1956 were comprised in Part 'B' States and Ralasthan was one of them and, therefore, there was no Central law In force regarding acauisition in the State of Rajasthan and conseauentlv Article 254 was not attracted. Mr. Bhargava reioined that Aimer was a Part 'C' State upto the 31st of October. 1956 and it merged under the States Reorganisation, Act, 1956 with theUnited State of Raiasthan on and from the 1st of November, 1956. The Act applied to that part of the State of Raiasthan which was originallv a part 'C' State and became merged in the United State of Raiasthan from 1-11-1956. The existing law in this part was certainlv the central Land Acauisition Act of 1894 and the Amending Act VI of 1958 was passed on the 17th of March 1958 and it was, therefore, inconsistent and was thus void unless it received the assent of the Pre-sident. It is not necessary to examinp the argument for the purposes of determining, the validity of Section 15A of the Tenancy Act under Article 254 of the Constitution of India because no territory of erstwhile State of Aimer is involved in the Dre-sent petitions. Anv consideration in regard to that territory would be clearly irrelevant to the controversy before us. In so far as the State of Raiasthan including the area in which the lands in dispute are situate the Land Acauisition Act, 1894 was not applicable and, therefore, the argument fails on that broad ground. We are in completp agreement with the learned Single Judffe for the reasons given by him that Section 15A does not have the effect acquiring any property. . It merely denied to the appellants the possibility of acquiring any Khatedari right. Therefore if Section 15A does not amount to an acquisition the conflict of Central law and the State law under entry 42 of the Concurrent list does not survive and it need not detain us.

20. It was urged by Mr. B. L. Purohit that Section 15A of the Tenancv Act is not apolicable to the appellants, namely, his clients because the Raiasthan Canal area as emploved in Section 15-A has not been defined in the Tenancv Act. This ground has not been raised in all the petitions. It is correct that in some of the petitions such a ground has been taken. In the iudgment of the learned Single Judffe. however, this point appears to have been urged only by Miss Bhuv-nesh Kumari. learned counsel for Lt. Col. Himmat Singh and others which five connected appeals are before us and which we propose to decide by a separate iudgment. As the point, had been taken in some of the petitions and urged beforp us without any objection from the State we think it necessary to decide it.

21. In the Government reply to the writ petition No. 1768/69 paragraph I it is clearlv stated that there are 424 writ petitions pending in the Court which relate to the lands in certain villages of the erstwhile Jagir of Chhatargarh. The villages are as follows :--

S. No.Name of Villages.Name of Colonisation Tehsil.1.GhadsanaGhadsana2.Momenwala-do-3.SutranaGhadsana4.Jeewandesar-do-5.Chak Kamrana-do-6..Sardarpura alias Phulewala-do-7.Anand ka Bera-do-8.Chaksera-do-9.Kamrana-do-10.PanpaliaGhadsana & Biiavnagar11.Lunia Raisinghnagar.12.DesliChatargarh No. 1

In the affidavit filed by the State it is urged that these villages constitute a compact block and all of them are now being irrigated by the water of the Anupgarh branch of the Rajas-than Canal its distributories and itsminors. In answer to the writ petition No. 484/70 the State in paragraph 1 has stated that there are 68 writ petitions pending in this Court which relate to the lands in certain villages of erstwhile Jagir of Sattasar. These villages are :--

S. No.Name of Villages.Name of Colonisation Tehsil.1.SattasarChhatargarh No. 22.Kakrala-do-3.HasiawasNil4.AnandgarhChhatargarh No. 15.Meergarh-do-6.Phulesar-do-7.Rawala-do-

It is stated on behalf of the State that these 68 writ petitions relate to lands situate in only 4 out of the aforesaid 7 villages. The number of writ petitions is shown against the name of such villages. These four villages are comprised in a compact block in the Jagir of Sattasar. In paragraph 18 of the reply it is stated that through these 4 villages viz. Anandgarh, Meersarh. Phulesar and Eawala 'the Anupgarh Branch of the Rajasthan Canal, with its distributories and minors passes.' From this Branch no less than 4 distributories spread out through these villages. Quite a good number of minors have also been constructed for irrigating fields in these villages. This statement has been supported by an affidavit sworn by the Deputy Commissioner Colonization Jaipur and we have no reason to disbelieve the correctness thereof. These two statements cover the entire 492 writ petitions filed before the learned Single Judge out of which the present 286 appeals arise.

22. The learned Single Judge in his judgment under appeal has referred to two Notifications, the one is dated May 10, 1956 published in Part I (kha) of the Raiasthan Gazette dated July 14, 1956, wherebv the Raiasthan Colonization Act 1954 was applied to the villages where petitioners' lands are situate. Bv another Notification issued in exercise of the powers conferred under Section 106 of the Land Revenue Act 1956 the RaiasthanGovernment directed the re-survey of the area mentioned in the said notification. This Notification is dated November 15, 1957 and was published in the Raiasthan Gazette of Julv 10, 1958 Part I (Kha). In this Notification the villages that have been mentioned are shown as the villages coming under the Raiasthan Canal Pro-iect and the villages relating to which these appeals have been filed have been shown in this Notification and. therefore, the learned Single Judge concluded that it is not open to the petitioners to say that the Raiasthan Canal Area has not been notificed by the State Government.

23. The argument of Mr. Purohit is that thesp Notifications were published prior to the Raiasthan Tenancv Amendment Act, 1958, in which the term 'Raiasthan Canal Area' has been used and, therefore, these Notifications are of no help.

24. It would be correct to say that there is neither any Notification nor any statutory provision which precisely demarcates the Raiasthan Canal Area. We have, however not been shown any law which requires the State Government to delineate the exact boundaries of the Raiasthan Canal Area. There are two methods available for ascertaining the meaning of the expression. The one is which has been adopted by the learned Single Judge namley by reference to the Notifications and the other is to give the expression its natural meaning.

25. If we were to read these Notifications that have been referred to by the learned Single Judge along with another Notification in this context the term 'Rajasthan Canal Area' is fairly ascer-tainable. Bv a Notification of the 10th May, 1956 published in Part I (kha) of the Rajasthan Gazette dated July 14. 1956 Ra.iasthan Colonization Act. 1954 was applied to the villages where the appellants' lands are situate. This Notification is No. F (513) Rev. (B)/55 dated 10-5-1956-There is another Notification bearing No. 6 (513) Rev. (b)/55 dated the 10th May, 1956 published in the Raiasthan Gazette dated May 19, 1956 Part 1 (b), which reads :--

'In exercise of the powers conferred by the proviso to Section 15 of the Raiasthan Tenancy Act, 1955 (No 3 of 1955). the Government of Raiasthan is pleased to order that no Khatedari rights shall accrue under Section 15 of the said Act to any tenant to whom land is or has been let out temnorarily in the area notified as colony by this Government notification No.' F. 6 (513) Rev. (B)/55 dated the 10th May, 1956.'

The abovp notification has a reference to the earlier notification No. F. (513) Rev. B/55 of 10-5-1956. The combined effect of these two notifications is that no Khatedari rights shall accrup under Section 15 in favour of those to whom lands had been let out temporarily in the area notified as colony. These two notifications do not emplov the term 'Rajasthan Canal Area' as such. The term, however, is indirectly ascertainable by reference to the notification of July 10, 1958 published in Part I (Kha) of Raiasthan Gazette where under the table of Raiasthan Canal Project the villages in question have been included and from these three notifications it is permissible to conclude what the Raiasthan Canal Area implies. The argument of Mr. Purohit that these notifications came into being earlier than the expression 'Raiasthan Canal Area' by the Raiasthan Tenancy Amendment Act 1958 is chronologically correct. Thp legislature employed the expression in 1958 obvious-lv assuming that it was a verv well understood term.

26. Mr. Bhargava and Mr. Purohit contended that the plain meaning of the term Raiasthan Canal area should mean the land on which the canal flows, we have no difficulty in reiectine the con-tention. It is plain that the lands in the area had little value prior to the arrival of the precious water of the canal. The land on which the water flows could not but be a small strip of land. Could it be this strip of land laden with water wherein Khatedari rights were intended to beexcluded? The answer is plainly in the negative. An interpretation before it is acceptable has to be reasonable. However, the plain meaning of the term 'Raiasthan Canal Area' can be ascertain- ed in the context in which it has been used in the statute like any other expression. Raiasthan Canal is the name given to a canal protect which has to Pass through Raiasthan and is very easily ascertainable. The word which calls for interpretation is 'area.' Thp plain meaning in this context of the word 'area' is 'a part of the earth surface, region or track' (See Webster's New Twentieth Century Dictionary 2nd Edition, page 99). The Part of the earth surface will have to take Us colour from the preceding words 'Raiasthan Canal.' In our opinion so far as the lands of the appellants are concerned which are served by the Raiasthan Canal or its distributories or its minors there can be no doubt they are situate in that part of the earth's surface which can legitimatelv be called Raiasthan Canal area. We have no reason to disbelieve the affidavits filed by the Deputy Commissioner Colonisation. Jaipur who savs that the villages covered by the 492 petitions, from which these 286 appeals arise, are clearly covered by the expression 'Raiasthan Canal Area.'

27. The last argument urged by the learned counsel for the appellants was that even assuming that Section 15-A was valid the petitioners could not be described as unauthorised occupants or trespassers and thev could not be ousted except by ordinary process of law. The learned single Judge has treated the petitioners as persons to whom the lands had been leased out temporarily. In our opinion that conclusion is correct because that precisely is the language of Section 15-A which lavs down that notwithstanding anything contained in Section 15 of the Act or any other law for the time being in force or in any lease, patta or other document land in the Raiasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the Pro-viso to the said sub-section of the said Section 15 of the Tenancy Act. Section 14 of the Tenancy Act speaks of four classes of tenants, namely, (a) Khatedar tenants, (aa) Maliks, (b) Tenants of Khudkasht, and (c) Ghair Khatedar tenants. Under Section 17 the Ghair Khatedar tenant has been defined to mean every tenant of land in any Part of the State other than a Khatedar tenant, a tenant of Khudkasht or a sub-tenant shall bp a Ghair Khatedar tenant. Under Section 38 the interest of a tenant in his holding is heritable but not transferable. In Section 45 (3) it is provided that no Ghair Khatedar tenantshall sub-let the whole or ANY Dart of his holding for a term exceeding one vear. Under Section 161 no tenant shall be elected from his holding otherwise than in accordance with the provisions of the Act. Under Section 180 there are additional provisions for eiectment of Ghair-khate-dar tenants. Section 181 provides for application and notice for eiectment and Section 182 provides for the procedure subsequent to the issue of notice. Section 183, however, provides that notwithstanding anvthing to the contrarv in any provision of this Act. a trespasser who has taken or retained possession of any land without lawful authoritv shall be liable to ejectment, subiect to the provision contained in Sub-section (2), on the suit of the person or persons entitled to admit him as tenant and Sub-section (2) of Section 183 provides that in case of land which is held directlv from the State Government (State Government) is entitled to admit the trespasser as tenant, the Tehsildar shall proceed in accordance with the provisions of Section 91 of the Rajasthan Land Revenue Act 1956,

28. The question is whether the appellants could be treated as trespassers. The petitioners claim to have been admitted to tenancy by the former Jagirdars and in many cases land revenue was collected by the State from them. The learned Single Judge has given them the label of Ghair Khatedar tenants. We are unable to call the appellants as trespassers nor did the learned Single Judgp consider them to be so. The law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. The possession of the trespasser is never juridical and never protected by law while the posses-sion of the erstwhile tenant is iuridical and he can only be elected in accordance with the process of law.

29. The learned single Judge in the last paragraph of his judgment observed that notwithstanding the fact, that the appellants had given an undertaking that if their petitions were ultimatelv dismissed by this court, they will hand over the lands to the State Government with the standing crop, the learned Single Judgp directed that the petitioners appellants shall hand over the lands held by them to the Government soon after the present standing crop is harvested by them. On the question of fact whether the appellants had given any such undertaking there is a dispute. The learnedSingle Judge had passed an order on 5-5-1971, whereby in the insterest of jus-tice he extended the operation of the stayorder passed In each case from time to time and allowed the Petitioners to cultivate the lands for kharif crop provided they kept the account of the produce har-vested by them from the lands and he made it clear that if the petitions were not decided in favour of the petitioners before the harvesting of the next Kharif crop then the petitioners shall have to hand over the standing crops to the Government as agreed before. An application dated 8-5-1971 was moved in writ petition No. 375/70 seeking a clarification of the order dated 5-5-1971 passed in the case of Maharaja Himmat Singh v. State of Rajasthan: Civil Writ Petn. No. 1127 of 1970 reported in AIR 1972 Rai 218 and the learned Judge clarified the Position in his order dated 14-5-1971 in the following words :--

'The order passed by this court on 5-5-1971 shall govern those eight cases only in which Mr. Chhagla and Princess Bhuvnesh Kumari appeared. In other cases the old stav order shall continue for the next Kharif crops only.'

We asked the learned counsel for the State if there was any undertaking by the appellants to hand over the land in their possession in the event of their petitions failing and he could not point out to us any such order. Therefore it appears that there is some factual error. At no Point of time did the appellants in these appeals give any undertaking to hand over the possession of their lands should their petitions fail. This part of the iudgment of the learned Single Judge, which proceeds on the basis of the assumed undertaking given by the appellants before us, is set aside.

30. The learned Single Judge in the penultimate paragraph of his judg-ment dated 18-4-1972 has observed that 'the petitioners have been cultivating the lands under the interim orders issued from time to time by this court. They had given a definite undertaking that if their petitions werp ultimatelv dismissed by this Court, thev would hand over the lands to the State Government with the standing crop, but looking to the circumstances that the petitioners have been paving land revenue to the State Government and that thev would pay the land revenup for the period for which thev have been cultivating these lands under the interim orders of this Court, he felt that it will be in the interest of justice if the petitioners were to hand over the lands held by them to the Government soon after the present standing crop was harvested by them.' As we have noticed earlier, such an undertaking was not given by the appellants before us and the learned Single Judge has proceeded under an erroneous impression. On 1-11-1972 we had asked the learned counsel for the parties to give us a detailed analvsis of the petitions in which notices under Sec-tion 22 of the Raiasthan Colonisation Act, 1954 were issued and the cases in which notices under Section 91 of the Raiasthan Revenue Act were given in these bunch of appeals. Thp details were submitted on 27-11-1972. 29-11-1972 and 6-12-1972. The details given by the learned counsel for the State have not been contested. Incidentally, some of the learned counsel have tried to introduce certain new arguments in the garb of presenting the analy-sis. We regret, WP cannot entertain those arguments at this stage. From the analysis given by the learned counsel for the State it appears that in 14 writ petitions from which appeals are before us and which are detailed in Schedule B to this judgment, notices under Section 22 of the Colonisation Act were issued. These notices have been challenged in the petitions. Whilp disposing of the Special Appeals Nos. 573 to 577 of 1972 -- (reported in AIR 1973 Rai 254) we have found that Section 22 of the Colonisation Act is ultra vires being violative of Articles 14 and 19(1)(f) of the Constitution of India because the power conferred by this section is unguided and absolute, discriminatory and violative of the risht of eaua-lity guaranteed by Article 14 of the Constitution. This is manifest also on the ground that on the showing of the learned counsel for the State, in 13 cases proceedings were initiated under the Raiasthan Land Revenue Act. 1956, while in 14 cases action wag taken under Section 22 of the Colonisation Act. These two powers residing in the Executive Officers are materially different. There are two appeals provided in proceedings initiated under Section 91 of the Raiasthan Land Revenue Act, while no appeal is envisaged under the provisions of Section 22 of the Colonisation Act. In fact, an action under Section 22 of the Colonisation Act does not require even a notice to the party whose land is sought to be re-entered upon. In this view of the matter, we are of the opinion that the proceedings under Section 22 of the Colonisation Act in the 14 appeals detailed in Schedule B to this iudgment must be and are hereby set aside and auashed.

31. In 13 appeals detailed in Schedule C to this judgment, the proceedings under Section 91 of the Raiasthan Land Revenue Act have been taken. The appellants desired us to hold that they are not unauthorised occupants to whom Section 91 would apply. A number of documents for the payment of revenue a'nd 'abiana' (water charges) have been filed. These arp matters of detail and the procedure provided by the Revenue Law with a right of two appeals in the place where questions relating to the applicability or otherwise of Section 91could be decided. We express no opinion whether that section is applicable to the appellants or not because several aues-tions of facts will have to be gone into which we are not inclined to entertain in these special appeals. It is not for us to advise the Government as to what action it will take in casp it desires to evict the appellants. We modify the judgment of the learned Single Judge by holding that in the 14 appeals detailed in Schedule 'B' to this iudgment the proceedings under Section 22 of the Raiasthan Colonization Act are auashed and that the appellants if thev are to be evicted shall be evicted only in accordance with law.

32. To the extent indicated above, these appeals arp allowed and the costs shall be easy.


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