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Lt. Col. Maharaj Himmatsingh and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSpecial Appeal Nos. 573 to 577 of 1972
Judge
Reported inAIR1973Raj254; 1973()WLN107
ActsRajasthan Tenancy Act, 1955 - Sections 15A; Rajasthan Colonisation Act, 1954 - Sections 22; Constitution of India - Articles 14, 19(1) and 31B
AppellantLt. Col. Maharaj Himmatsingh and ors.
RespondentState of Rajasthan and ors.
Appellant Advocate M.C. Chagla,; Bhuvnesh Kumari and; Sarojchand Mehta,
Respondent Advocate G.C. Kasliwal, Adv.
DispositionAppeal allowed
Cases ReferredRaghubir Singh v. Court of Wards
Excerpt:
.....whatsoever. this is an act to make better provisions for the colonisation and administration of lands in raiasthan. section 23 relates to penalties and section 24 reads as under :section 24. when the collector is satisfied that an act punishablp under section 23 has been committed, he may in lieu of proceedings against the offender under that section or after conviction of the offender under that section- (i) in the case of an offence under section 23 (a) confiscate the crops growing on any land cultivated in contravention of this act, or if the crops have been cut recover such sum as he may assess as the value thereof from the offender: the persons against whom he can proceed is any person in possession of land in colony about whom he is satisfied that he has no right or title to..........counsel. this is an act to make better provisions for the colonisation and administration of lands in raiasthan. section 2 is the interpretation clause and section 3 says that the act shall apply to all lands in a colonv. we have already noticed the definition of the word 'colony' earlier. section 4 gives power to the government to withdraw a colony or any part of a colonv from the operation of all or any of the provisions of this act. section 5 lays down that except as otherwise provided in this act. the laws relating to agricultural tenancies, land, the powers, duties, jurisdiction and procedure of revenue courts for the time being in force in a colony, shall apply to tenancies held and to proceedings conducted under this act. then powers are invested under section 6, and section.....
Judgment:

Beri, J.

1. These appeals are directed against a iudgment of the learned Single Judge dated July 27, 1972, but. it is based on the reasons given in the iudgment dated April 18. 1972 in 492 writ petitions, relating to lands occupied by persons in Raiasthan Canal Area.

2. The appellants' case is that the Jagirdar of Sattasar sranted in 1948. large chunks of land to the appellants and issued 'sanads' to them. The Sattasar Jaeir was resumed under the Raiasthan Land Reforms and Resumption of Jagirs Act (Act VI of 1952] on August 15. 1954. The appellants Paid all amounts due against them by wav of land revenue on the said lands from the vears 1948 to 1955 and they became Khatedar. tenants within the meaning of the word in the Bikaner State Tenancv Act. The appellants also contend that the revenue or rent have been realised from them for the period from 1953 to 1962.

3. On October 15, 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 Tenancv Act and the appellants claim that thev acauired such rights. Thev further contend that their khatedari rights were confirmed by the Commissioner. Bikaner. by his order dated October 21. 1957. The appellants further say that the lands which were given to them by the sanad was 'baniar' (barren) and the appellants reclaimed and cleared the land for cultivation and started cultivation in the vear 1948 and were in possession thereof till the date of their petition.

4. On March 17, 1958. Section 15-A was added to the Tenancv Act and it ordained that no khatedari rights would ever be deemed to have accrued to any occupant of the land in the Raiasthan Canal Area on any terms whatsoever notwithstanding anything contained in any lawor document or in the Act and such lands shall be deemed to have been let out only temporarily.

5. Some of the tenants of the former Bikaner State challenged the vajiditv of Section 15-A of the TenancyAct before this Court and by its iuds-ment dated Julv 18, 1962, it declared. Jassuram v. State, AIR 1963 Rai 72, that the khatedari rights under Section 15 amounted to property which belonged to the petitioners and an acquisition of those rights under Section 15-A offended Article 31(2) of the Constitution and was ultra vires.

6. Again by Act No. 56 of 1958 the Tenancv Act was further amended whereby Section 15-A (2) was introduced. This sub-section provided that any person claiming that he possessed and was 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 that Act may within four vears from the date of such commencement and on payment of court-fee of twentv five naye paise, applv to the Assistant Collector having iurisdiction, pravins for a declaration to that effect, and the provisions of Sub-section (5) of Section 15 shall applv to such application. The appellants say that thev moved an application under Section 15-A (2) of the Tenancv Act on December 22, 1962 but the same remains undisposed of despite a Period of nearly ten vears having lapsed.

7. Bv the 17th Amendment Act 1964 of the Constitution, which came into force on June 20, 1964, the Tenancv Act was included as item No. 65 (with an explanation added thereto) in the 9th Schedule of the Constitution which inclusion imparted the Tenancv Act an immunity from attack under Article 31B of the Constitution.

8. That in Mav. 1969. the Government purported to auction awav portions of the lands in possession and cultivation of the appellants. The appellants moved the Commissioner Colonisation, Bikaner. It is further contended that despite the favourable report of the Tehsildar, the Commissioner proceeded to auction the appellants' lands. Thereupon the appellants filed writ petitions under Article 226 of the Constitution of India. Because the Government suo motu cancelled the auction, the appellants withdrew their writ petitions.

9. The Assistant Colonisation Commissioner by his notice dated April 29. 1970, purporting to be under Ss. 22 and 24 of the Raiasthan Colonisation Act 1954 (hereinafter referred to as 'the Colonisation Act') informed the appellants that as thev were in illegal possession of the said lands action against the appellants was threatened. The appel-lants thereupon moved this Court by filing writ petitions. The appellants contend that the Cplonisation Authorities had been acting mala fide. They claimthat they have become khatedar tenants: that Section 15A of the Tenancy Act contravened Article 31 and second proviso to Article 31(1) of the Constitution of India, that it was not saved by Article 31B of the Constitution and that the appel-lants were being deprived of their pro-perty contrary to Article 19(1)(f) and Article 31 of the Constitution. They further say that Sections 22 to 25 of the Colonisation Act were violative of the appellants' fundamental rights guaranteed under Articles 19(1)(f) and 31 of the Constitution, because it was left to the sweet will of the authorities under the Act to decide whether the person was in possession of land under a legal right or not according to the subiective satisfaction of the officer concerned. That no procedure having been provided for taking action under Section 22 of the Colonisation Act it was violative of Article 14 of the Constitution; that the Government showed discrimination in the treatment of number of tenants similarly situated and that the 'Raiasthan Canal Project' having not been defined and demarcated, the provisions of Colonisation Act cannot be attracted to the lands in possession of the appellants and therefore, the action taken by the Colonisation Authorities against the appellants was illegal and void.

10. Mr. M. C. Chagla, learned counsel for the appellants complained that his arguments were not considered by the learned Single Judge, because he was not even heard. However, he confined his attack firstly on the ground that the 'Raiasthan Canal Area' not having been defined, neither the Tenancy Act nor the Colonisation Act applied to the lands of the appellants. The learned Single Judge's reference to the notification dated July 14 1956 was not sufficient to fix the area, added the learned counsel.

11. The learned counsel for the State submitted that all the appellants in the petition in ground (ii) of paragraph 41, have admitted that as their lands were situated in Raiasthan Canal Area, therefore it did not lie in the mouth of the appellants now to contest the position.

12. This argument of Mr. Chagla has to be examined from two Points of view. The first is in regard to the expression 'Raiasthan Canal Area' as contained in Section 15-A of the Tenancy Act, and the second is in regard to the use of the word 'Colony' in Section 22 of the Colonisation Act.

13. So far as the argument relating to Section 15-A of the Tenancy Act is concerned, it would be correct to say that there is neither any notification nor anystatutory provision which precisely demarcates the Raiasthan Canal Area. We have however, not been shown any law which reauires the State Government to delineate the exact boundaries of the Raiasthan Canal Area. The method adopted by the learned Single Judge by reference to the notifications along with a notification, the term 'Raiasthan Canal Area' becomes fairly ascertainable.

14. We have held in D. B. Special Appeal No. 395 of 1972 and other 283 connected appeals as follows = (reported in AIR 1973 Rai 244)-

'However, the plain meaning of the term 'Raiasthan Canal Area' can be ascertained in the context in which it has been used in the statute like any other expression. Raiasthan Canal is the name siven to a canal proiect which has to pass through Raiasthan and is very easily ascertainable. The word which calls for interpretation is 'area'. The plain mean-ins 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, p. 99). The part of the earth surface will have to take its colour from the preceding words 'Raiasthan Canal'. In our opinion as 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 that they are situate in that part of the earth's surface which can legitimately be called the Raiasthan Canal Area'.

This, in our opinion, fairly answers the argument raised by Mr. Chagla. To this, if the admission of the appellants is added, the argument that this term is not ascertainable becomes entirely untenable.

15. Section 22 of the Colonisation Act reads as under :--

'When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, order immediate re-entry upon the land and taking possession of all crops, trees and buildings thereon on behalf of the State Government without Payment of any compensation whatsoever.'

The term used herein is 'land in a colony'. The word 'colony' has been defined in Section 2 (iil which means any area to which this Act shall be applied by order of the State Government published in the official Gazette.

16. By notification of May 10, 1956 published in Part (Kha) of the Raiasthan Gazette dated May 19, 1956. Rajasthan Colonisation Act. 1954 was applied to the villages where the appellants' lands aresituate. This notification is No. 6 (513) Rev. (b) 55 dated May 10, 1956. Thus, the villages covered by the notification of May 10, 1956, constitute a colony within the meaning of the Colonisation Act, 1954. The lands of the appellants are situated in the village Rawala included in the notification. This argument has no substance and, therefore, fails.

17. The contention of Mr. Chagla that the appellants' application under Section 15-A (2) dated December 22, 1962 still remains to be decided, seems to be factuallv correct as it has not been controverted by the State. The answer of the learned counsel for the State, however, was that the application was beyond time. It should have been made within four vears from October 1955 when the parent Tenancy Act camp into force. Whether this argument is correct or otherwise, we express no opinion. The regrettablp fact however, is that the applications remain to be disposed of and the appellants' claim to Khatedari rights require to be determined.

18. The next argument of Mr. Chagla was that Section 15A is not valid, because it did not receive the President's assent. He urged that it did not even become law because without the President's assent it could not be law and, therefore, even Article 31B did not save It. In our judgment in D. B. Special Appeal No. 395 of 1972 we have observed as follows :-- (Reported in AIR 1973 Rai 244).

'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 any one of them was fa) 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 any provision thereof is 'inconsistent with any provision of this Part' or it 'takes away or abridges any of the rights by any provisions of this Part. The words 'any Provisions of this Part' govern both the clauses separately. We arp persuaded to this view because of the historical background and the need to immunise the measures of agra-rian reforms from all possible attack. Our conclusion is strengthened because the clause 'or takes away or abridges any of the rights conferred by' is preceded and followed by comas.'

We have further referred to the Bill by which the 1st amendment of the Consti-tution was introduced in the legislature and passed to justify our argument based on punctuation. We have observed in that judgment as follows :--

'We are in complete agreement with the learned Single Judge for the reasons given by him that Section 15-A does not have the effect of acquiring any property. It merely denied to the appellants the possibility of acquiring any khatedari right.'

For these reasons, we are unable to agree with the learned counsel for the appellants that Section 15-A is invalid because it did not receive the President's assent. The assent of the President is required under Articles 31A and 31(3) and both these provisions, assuming for the sake of argument that Section 15A amounts to acquisition, are contained in Part III of the Constitution and the attack is plainly neutralised by Articlp 31B.

19. Mr. Chagla then urged that his submission may be indicated in the judgment that the Full Bench Decision of this Court dated December 15, 1971 is not correct. He was, however conscious that challenge to that decision could not be made before us.

20. The last attack of Mr. Chagla was that Sections 22 and 24 of the Colonisation Act under which notices were issued to the appellants were inconsistent with Articles 14 and 19(1)(f) of the Constitution. He placed reliance on State of West Bengal v. Anwar Ali Sarkar, (1952) 3 SCR 284 = AIR 19o2 SC 75 and Northern India Caterers (Private) Ltd. v. State of Puniab, AIR 1967 SC 1581.

21. A close examination of the provisions of the Colonisation Act will become necessary to appreciate the argument of the learned counsel. This is an Act to make better provisions for the colonisation and administration of lands in Raiasthan. Section 2 is the interpretation clause and Section 3 says that the Act shall apply to all lands in a colonv. We have already noticed the definition of the word 'colony' earlier. Section 4 gives power to the Government to withdraw a colony or any part of a colonv from the operation of all or any of the provisions of this Act. Section 5 lays down that except as otherwise provided in this Act. the laws relating to agricultural tenancies, land, the powers, duties, jurisdiction and procedure of revenue courts for the time being in force in a colony, shall apply to tenancies held and to proceedings conducted under this Act. Then Powers are invested under Section 6, and Section 7 provides for the issuance of the conditions of tenancy. There is a provision for rectangulisation of fields under Sec-tion 9. Section 15 Provides for the power of re-entry and compensation in certain cases, and then comes Section 22 which contemplates power of re-entrv in certain cases and has already been quoted in extenso by us. Section 23 relates to penalties and Section 24 reads as under :--

'Section 24. When the Collector is satisfied that an act punishablp under Section 23 has been committed, he may in lieu of proceedings against the offender under that section or after conviction of the offender under that section-

(i) in the case of an offence under Section 23 (a) confiscate the crops growing on any land cultivated in contravention of this Act, or if the crops have been cut recover such sum as he may assess as the value thereof from the offender:

(ii) in the case of an offence under Section 23 (c) recover such sum as he may assess as the value of the tree or trees destroyed:

(iii) in the case of an offence under Section 23 (b), (d) or (e). cause the building or other encroachment to be demolished or removed or the excavation or channel to bp filled up, and lew the cost of so doing from the person responsible for such act.'

Section 22 has been challenged on the around that it denies equality before law. It was urged that there are two provisions, one is provided in Section 91 of the Raiasthan Land Revenue Act for sum-mary eviction of an unauthorised occupant of land who is to be deemed as trespasser, but the whole procedure for the action under that section gives fair opportunity to the occupant. It read as under :--

'Section 91. (1) Anv person who occupies or continues to occupv any land without lawful authority shall be regarded as a trespasser and may be summari-ly evicted therefrom by the Tehsildar at any time of his motion or upon the application of a local authority at whose disposal such land has been placed: and any building or other construction erected, or anything deposited on such land shall, if not removed within such reasonable time as the Tehsildar may from time to time fix for the purpose, be liable to be forfeited to the State and to be disposed of as the Collector may direct:

Provided that the Tehsildar mav. in lieu of ordering the forfeiture of any such building or other construction, order the demolition of the whole or any part thereof.

(2) [Such trespasser shall be also liable by way of penalty, to pay a sum which may extend to six times the annual rent or assessment, as the casemay be, and such sum shall be recoverable as an arrear of land revenue:

Provided that, upon Payment of such penalty, he shall have the right of tending, gathering and removing any un-gathered crops.

(3) Before taking proceedings for eviction under Sub-section (1) the Tehsildar shall cause to be served in the prescribed manner on the person reported to be occupying or continuing to occupy land without lawful authority a notice specifying such land and calling on him by a certain date either to vacate such land or to appear and show cause why he should not be so evicted therefrom.

(4) In any of the following cases, namely-

(i) where the trespasser does neither vacate the land nor make appearance in response to the notice issued under subsection (3) or

(ii) where in response to such notice the trespasser does not vacate the land and makes appearance but-

fa) does not show any such cause, or

(b) makes any representation which is reiected after such inauirv and hearing as may be necessary in the circumstances of the case, the Tehsildar shall, unless, in the case covered by Clause (ii) the trespasser undertakes to vacate the land within a week's time and vacates it within such time, order the removal of the trespasser from such land and shall remove, or depute any person to remove him therefrom and take possession thereof: and. if the Tehsildar or the person so deputed is opposed or impeded in taking Possession of such land, the Tehsildar shall apply to a Magistrate having iurisdiction and such Magistrate shall enforce the surrender of the land to the Tehsildar.

(5) Notwithstanding anything contained in the foregoing sub-sections, the Tehsildar mav. in casp any such land belongs to the category specified in Clause (ii) of the proviso to Section 97, sell it with the approval of the Sub-Divisional Officer to the trespasser upon payment by him of the premium therefor at the rate fixed under Section 96 and applicable to such land in addition to the assessment and panaltv recoverable from him under Sub-section (2) in respect of the whole period of unlawful occupation.'

The learned counsel argued on the authority of (AIR 1952 SC 751 that where a Special Court was authorised to try such offences or classes of offences, or cases or classes of cases, as the State Government may by general or special order in writing direct and where theAct laid down a procedure for trial before Special Courts which were different in several respects from that laid down by the Criminal Procedure Code for trial of offences generally, the section was held to be unconstitutional and void because it contravened Article 14 of the Constitution which provided that 'the State shall not denv to any person any eaualitv before the law or the eaual protection of the laws. It was held that discrimination followed or arose on the express term of the law itself. Section 22 tested on this touchstone also to our minds suffers from the same defect. The powers of the Collector are in addition to any other power he may possess. Thp satisfaction is merely his subjective satisfaction. The persons against whom he can proceed is any person in possession of land in colony about whom he is satisfied that he has no right or title to such land. No notice is also provided to be served on such person and immediate re-entry on the land and taking of possession of all trees and buildings thereon on behalf of the State Government without pavment of any compensation whatsoever is autho-rised. such an unguided. uncontrolled and uncanalised drastic power depending on the subjective satisfaction of the Collector is certainly violative of Article 14 of the Constitution.

22. In (AIR 1967 SC 1581) the validity of the Puniab Public Premises and Land (Eviction and Rent Recovery) Act (31 of 1959) was challenged. In that context their Lordships of the Supreme Court observed, and wp emote only portions that are directly applicable to the case before us :--

'Under Section 4, if the Collector is of opinion that any person is in unauthorised occupation of public premises and that he should be evicted, he has to issue a notice calling upon such person to show cause why an order of eviction should not be made. Under Section 5 if the Collector is satisfied that the public premises are in unauthorised occupation he has the power to make an order of eviction giving reasons therefor. The contention is that the Government thus has two remedies open to it. one under the ordinary law and the other a drastic and more prejudicial remedy under the present Act. The words 'the Collector may make an order of eviction' in Section 5 show that the section confers discretionto adopt the procedure under Sections 4 and 5 or not. Section 5 has left it to the discretion of the Collector to make suchan order in the case of some of the tenants and not to make such an order against others. Section 5 thus enables the Collector to discriminate against some byexercising his power under Section 5 and take proceedings by way of a suit against others, both the remedies being simultaneously available to the Government. There can be no doubt that if the Collector were to proceed under Sections 4 and 5 the remedy is drastic for a mere opinion by him that a person is in unauthorised occupation authorises him to issue a show cause notice and his satisfaction under Section 5 is sufficient for him to pass an order of eviction and then to recover under Section 7 rent in arrears and damages which he may assess in respect of such premises as arrears of land revenue. Section 5 does not lay down any guiding principle or policy under which the Collector has to decide in which cases he should follow one or the other procedure and. therefore, the choice is entirely left to his arbitrary will. Consequently, Section 5 by conferring such unguided and absolute discretion manifestly violates the right of eaualitv guaranteed by Article 14.

It is well settled that if a law were to provide for differential treatment for amongst persons similarly situated, it violates the equality clause of Article 14...'

Section 22 confers greater discrimination than the section which their Lordships were examining in the above case. The allegation of the appellants is. and we have seen in D. B. Special Appeal No. 395/72 = (Reported in AIR 1973 Rai 244) that in some cases resort had been taken to Section 91 of the Land Revenue Act while in other cases the Provisions of-action 22 have been resorted to in the Raia-sthan Canal Area itself. The Proceedings under Section 91 are not only regulated by the procedure prescribed but there are two appeals provided against orders passed in such proceedings. For an action under Section 22, no notice is necessary, no opportunity to the person in possession is afforded, the jurisdiction of civil Court is barred under Section 25 and there is no right of appeal. We might in this connection also refer to Raghubir Singh v. Court of Wards, Aimer. (AIR 1953 SC 373). In this case, under Section 112 of the Aimer Tenancy and Land Records Act 1950 it was provided that 'if a landlord habitually infringes the rights of a tenant under this Act. he shall notwithstanding anything in Section 7 of the Ajmer Government Wards Regulation. 1888 (1 of 1888) be deemed to be a landlord who is disqualified to manage his own property' within the meaning of Section 6 of the said Regulation and his property shall be liable to bp taken under the superintendence of the Court of Wards. Their Lordships observed as follows :--

'The provisions of Section 112 of Act 42 of 1930 are penal in nature and are intended by way of punishment of a landlord who habitually infringes the rights of his tenants. He is punished by being placed at the mercy of the Court of Wards and by being made subiect to the stringent provisions of Regulation I of 1888. An enactment which prescribes a punishment or penaltv for bad behaviour or for misconduct of a landlord cannot possibly be regarded as restriction on a fundamental right. Indeed a punishment is not a restriction. This was frankly conceded by the learned Attorney General. It is still more difficult to regard such a provision as a reasonable restriction on the fundamental right. When a law deprives a person of possession of his property for an indefinite period of time merely on the subiective determination of an executive officer, such a law can on no construction of the word 'reasonable', be described as coming within that expression, because it completely nega-tives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrarv in a civil court. Section 112 of Act 42 of 1950 cannot therefore, be held valid as coming within the scope of Article 19(5) of the Constitution.'

Section 25 of the Colonisation Act excludes the jurisdiction of the Civil Court in matters arising under the Act and the exercise of powers under Section 22 is dependent on the satisfaction of the Collector to order immediate reentry on the land and take Possession of all crops, trees and buildings thereon on behalf of the State Government without compensation.

23. We are, therefore, of the opinion that Section 22 is violative of Articles 14 and 19(1)(f) of the Constitution. wE accordingly strike it down. As a matter of necessary conseauence. we quash the notices issued thereunder. No action has been alleged to be taken under Section 24 of the Colonisation Act and it is, therefore, not necessary to examine its validity.

24. No other point was pressed before us.

25. The result of our discussion is that the notices issued to the appellants under Section 22 are auashed and the appeals of the appellants are allowedto this extent. There will be no order as to costs.


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