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Maharaja Gaj Singh Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal Nos. 124, 125, and 131 of 1978
Judge
Reported in1985(1)WLN656
AppellantMaharaja Gaj Singh
RespondentState of Rajasthan and anr.
DispositionAppeal dismissed
Cases ReferredHarakchand Ratanchand Banthia and Ors. v. Union of India and Ors.
Excerpt:
.....person to whom the notice is addressed and the absence thereof cannot effect two validity of the notices. the impugned notices can stand even if the third paragraph thereof is separated or deleted from such notices.;order accordingly - - 217-218) (3) even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. the matter is clearly put in coolley on constitutional limitations, 8th edn. the constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last falls. in the result..........vol. 82, p. 156 sutherland on statutory constitution, vol. 2 pp. 176, 177.)(2) if the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the act in its entirety. on the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld not with standing that the rest has become enforceable. (vide coolley's constitutional limitations. vol. 1 at pp. 360-361; crawford on statutory construction, pp. 217-218)(3) even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is.....
Judgment:

Dwarka Prasad Gupta, J.

1. These three appeals have been filed against the judgment passed by a learned Single Judge of this Court on 30-9-1978 disposing of 4 writ petition filed by the appellant, Maharaja Gaj Singh of Jodhpur. As common questions of law have been raised in these three appeals, it would be proper to dispose them of by a common order.

2. The undisputed facts are that the father of the appellant was the erstwhile Ruler of former State of Jodhpur. In the year 1949 the then Jodhpur State integrated with other princely States to form the United State of Rajasthan. At the time of merger of the former State of Jodhpur with the other States, a covenant was entered into by the father of the appellant as the Ruler of the covenating State and the Union of India, wherein amongst other things it was provided that the ex-Ruler shall be entitled to full ownership, use and enjoyment of all private properties belonging to him at the time of making over of the administration of the State to the Union. Some agricultural lands, besides other immovable and movable properties were included in the list of private properties agreed upon between the ex-Ruler and the Union Government. After the death of Maharaj Hanwant Singh, the appellant inherited the properties which were declared to be his private properties, including agricultural lands and continued to remain in possession of such lands as the landholder thereof. With a view to require the 2 lands held by the Ex-rulers by the former princely States, the Rajasthan Land Reform (Acquisition of Land Owners' Estate) Act, (here in after referred to as 'the Act') was enacted. Under Section 6(2) of the Act, khatedari rights were conferred on the Ex-rulers in respect of such lands which were in their personal cultivation on the date of vesting.

3. On December 9, 1970 the Sub-divisional Officer, Jodhpur issued a notice under Rule 10 of the Rajasthan Tenancy (Fixation of Ceiling on Land) Government Rules, 1963 (here in after called 'the Ceiling Rules') whereby the appellant was required to file a declaration in respect of lands in his possession within one month, for the purpose of determination of the ceiling limit applicable to the appellant and the land in excess of the ceiling area in his possession. Similar notices were issued to the appellant by the Sub-divisional Officers of Sojat and Pali Sub-divisions of Pali district in respect of the lands held by the appellant in those sub-divisions. The validity of the notices issued by the Sub-divisional Officers were challenged by the appellant in this Court by filing writ petitions. The learned Single Judge held that the lands belonging to the former Ruler of Jodhpur could be brought within the ambit of the provisions of the Rajasthan Tenancy Act only if the ex-Ruler could be treated as the holder of tenancy rights in respect of such lands as contemplated under the Tenancy Act and as khatedari rights were conferred on the appellant in respect of the lands under his personal cultivation with effect from September 1, 1964, as provided in Section 6(2) of the Act, the lands in possession of the appellant would fall within the ambit of the provisions of the Rajasthan Tenancy Act with effect from September 1, 1964. It was further held by him that the notices requiring the appellant to file the requisite declarations in respect of the lands held by him were valid, so far as they related to the lands in respect of which khatadari rights were conferred on him under Section 6(2) of the Act and that the appellant was bound to comply with the said notices. However, the learned Single Judge held that as khatedari rights were conferred on the appellant with effect from September 1, 1964 it could not be presumed that he was holding the lands in his possession as a tenant thereof with effect from February 25, 1959. In that view of the matter, the third paragraph of the notices was held by the learned Single Judge to be invalid and was quashed. The learned Single Judge also held that the offending parts of the impugned notices were severable from the rest of the contents of the said notices and as such the valid parts of the notices could stand separately even after the third paragraph of these notices was quashed.

4. It was submitted by the learned Counsel for the appellant in these appeals that the learned Single Judge was not justified in holding that the third paragraph of the impugned notices was severable. According to the learned Counsel, the entire notices formed an integrated whole and as such the notices given by the Sub-divisional Officers sought to have been completely quashed and the remaining parts thereof, namely, the other two paragraphs could not have been held as valid even though the third paragraph of the notices was quashed by the learned Single Judge. Thus, the only argument which has been advanced in these appeals relate to the question of severability of the third paragraph of the impugned notices from the remaining two paragraphs.

5. In order to appreciate the argument about the severability advanced by the learned Counsel for the appellant, it would be proper to reproduce one of the notices issued to the appellant as all the three notices are in identical terms. The notice issued by the Sub-divisional Officer, Pali runs a under:

Jh HkwriwoZ egkjkt Jh xtsflagth tks/kiqj ds odhy Jh jtjktth iqjksfgr] tks/kiqj] pwfd eq>s eskguflag iqjksfgr lc fMohtuy vf/kdkjh ikyh lc fMohtu] ikyh ftyk dks jktLFkku fVIuslh ,DV 1955 jktLFkku ,DV la0 3 lu~ 1950 dh /kkjk 30 ds v/khu bl lc fMohtu es Hkwfe /kkj.k {ks= djus okys izR;sd O;fDr ij ykxw gksus okys vf/keku {ks= dk fuokj.k djuk gS A

Pwfd esjs ikl ;g fo'okl djus ds dkj.k fo|eku gS fd rqe esjs {ks=kf/kdkj ds Hkhrj fuokl djrs gsk ;k Hkwfe /kkj.k djrs gsk vr% gels ,rn}kjk bl uksfVl ds tkjh gskus dh rkjh[k ls 60 fnu ds Hkhrj jktLFkku fVusUlks Hkwfe dk vf/kdre {ks= fuokj.k l;dkjh fu;e 1963 ds vf/kdre {ks= lEcU/kh izi= 4 es rqEgkjs Hkwfe {ks= tSlk fd mi;qDr ,DV ds vf/kfu;e 3 iSjk ds iq;sktukFkZ ifjf.kr gS lEcU/k es ,d ?kks'k.kk ijLrqfr dh vis{kk dh tkrh gS fd mDr ,DV ds /kkjk 5 ds [k.M+ 17 ds vuqlkj A

Lwpuk gks fd ;fn visf{kr ?kks'k.kk mi;qDr vof/k ds Hkhrj izLrqr ugh dh xbZ rks vf/kdre {ks= ;k fu/kkZj.k ds vfHkys[k ds vk/kkj ij djus dh dk;Zokgh dh tkosxh A vkSj ;g /kkj.kk fLFkj dh tkosxh fd rqEgkjs ifjokj ds lnL;ks dh la0 ikWp ls vf/kd ugh gsS A vkSj rqEgkjk {ks= ogh gS tks pkyw of.kZr jkftLVjks es rkjh[k 25 Qjojh 1958 cryk;k gqvk gS A

vkt rkjh[k 14710&1971 dks bl U;k;ky; dh eksgj vkSj esjs gLrk{kj ls tkjh fd;k x;k A okLrs tckcnsg rkjh[k 21&10&1971 fuf'pr dh x;h gS A

6. Rule 9 of the Rules requires every land holder and the tenant, who was in possession of land in excess of the ceiling limit applicable to him to furnish a return in Form Ceiling IV to the Sub-divisional Officer of the sub-division in which his holding or any part thereof is situated, in order to enable the Sub-divisional Officers to determine the ceiling area applicable to the said land-holder and to determine the excess land, over and above the ceiling area, in his possession. Rule 10 provides that without prejudice to the provisions of Rule 9, the Sub-divisional Officer may issue a notice in Form 'Ceiling V requiring the land holder or the tenant who, he has reason to believe, resides or holds land within his jurisdiction in excess of the ceiling applicable to him, to furnish to him a declaration of his holding and particulars of his family within such period as may be specified in the notice. It has further been provided in Rule 10 that it shall be the duty of such land holder or tenant to whom notice has been issued by the Sub-divisional Officer, to submit a declaration and particulars of his holding and the excess land held by the land-holder within the jurisdiction of such Sub-divisional Officer. After the declaration is filed by the land-holder or the tenant, the Sub-divisional Officer may proceed to get the declaration verified from the respective Tehsildars and thereafter he has to give a notice to the land-holder or the tenant concerned under Rule 14, informing him of the receipt of the Tehsildar's report and directing him to appear before the Sub-divisional Officer on a specified date, if he wished to be heard in the matter then the Sub-divisional Officers would proceed to determine the ceiling area applicable to the person concerned. The first paragraph of the impugned notices only goes to state that Sub-divisional Officers has been authorised by law to determine the ceiling limit applicable to the person whose lands are situated within his sub-division. The second paragraph of these notices is in accordance with the provisions of Rule 10. The third paragraph proceeds to warn the person to whom the notices are addressed; that in case a declaration is not filed by him within the proper time, then the land shown in the annual register as on February 25, 1958 in his possession shall be presumed to be the holding of such person, for the purpose of determination of the ceiling area applicable to him and in order to find out the excess area, above the ceiling limit, in his possession. If the third paragraph, which has been declared to be invalid and has been quashed by the learned Single Judge, is taken out of the impugned notices, the validity of rest of these notices would not be affected by the invalidity of the third paragraph thereof and the impugned notices can exist by themselves even after the deletion of the third paragraph.

7. The principles about severability have been exhaustively discussed and summarised by their Lordships of the Supreme Court in R.M.D. Chamarbaugwalla and Anr. v. Union of India any Anr. AIR 1957 628, wherein following tests have been laid down for the determination of the question as to whether the invalid portion of a statute is separable from the valid part thereof:

(1) In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. (Vide Corpus Juris Secundum, Vol. 82, P. 156 Sutherland on Statutory Constitution, Vol. 2 pp. 176, 177.)

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld not with standing that the rest has become enforceable. (Vide Coolley's Constitutional Limitations. Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 217-218)

(3) Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. (Vide Crawford on Statutory Construction pp. 218-219)

(4) Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme, but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

(5) The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different Section (Vide Coolley's Constitutional Limitations Vol. 1, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein.

(6) If after the invalid portion is expunged from the statute, what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. (Vide Sutherland on Statutory Construction, Vol. 2, p. 194.)

(7) In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. (Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178)

8. The same view was taken by the Supreme Court in the case of the Corporation of Calcutta v. Calcutta Tramways Co. Ltd. Calcutta 0043/1963 : 1964CriLJ354 . ln that case, Wanchoo, J., as he then was, speaking for the court followed the decision in Charmarbaugwal/a's case (1) and while repelling the contention that the invalid portion was part of the single scheme, as was contended before us by the learned Counsel for the appellant, observed as under:

We are of opinion that the third proposition does not apply in the present case. That proposition applies only where the valid and the invalid provisions even when they are separate and distinct form part of a single scheme which is intended to be operative as a whole. If that is really so, then the whole must go and there is no question of sever-ability. But making a certain opinion conclusive find non-justiciable is a separate matter altogether and it cannot be said that it is so embeded in Section 437(1)(b) as to make conclusiveness and non-justiciability of the opinion of the Corporation a part of the scheme for licensing which is provided therein. As we read Section 437(1)(b) it cannot be said that the whole of it is a part of a single scheme which was intended to be operative as one whole. This is really another aspect of the first proposition relating to the intention of the legislature and it seems to us that the scheme in Section 437(1)(b) is not such a single scheme that it must be said that the legislature must have intended it to be operative as a whole. We see no difficulty in holding that the provision in the parenthetical clause cannot be said to be part of a single scheme of such a nature that either the whole must be operative or nothing at all. We are therefore of opinion that the parenthetical clause consisting of the words 'which opinion shall be conclusive and shall not be challenged in any court' is severable from the rest of Section 437(1)(b) and therefore, only these words of this section can be struck down and not the whole of the section.

9. The same tests were applied by their Lordships of the Supreme Court in Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors. : [1970]1SCR479 , while declaring some of the provisions of the Gold Control Act to be invalid. Their Lordships observed as under in the aforesaid case:

The only other point that remains to be decided is whether as a result of some of the sections of the impugned Act being struck down, what is left of the impugned Act should survive or whether the whole of the impugned Act should be declared invalid. We are of opinion that the provisions which are declared invalid cannot affect the validity of the Act as a whole. In a case of this description the real test is whether what remains of the Statute is so extricably bound up with the invalid part that what remains cannot independently survive or as it is some times put whether on fair review of the whole matter it can be assumed that the legislature would have enacted at all that which survives without enacting the part that is ultra vires. The matter is clearly put in Coolley on Constitutional Limitations, 8th Edn. at p. 368;

It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same Act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorise the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last falls. The point is not whether they are contained in the same section; for the distinction into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is struck out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.

Applying the test to the present case we are of the opinion that the provisions held to be invalid are not inextricably bound up with the remaining provisions of the Act. It is difficult to hold that Parliament would not have enacted the impugned Act at all without including that part which is found to be ultra vires.

The observations made by their Lordships of the Supreme Court in the aforesaid three cases and the tests laid down in Chamarbaugwala's case (1) support the view taken by the learned Sihgle Judge that the contents of third paragraph of the impugned notice, which has been found to be invalid, could be separated from the remaining part of the said notice without effecting the validity of such notices. What will be the effect if the landholder or the tenant fails to furnish the declaration in accordance with the notice given to him under Rule 10 would be a question which will be decided by the competent authority in accordance with the provisions of the Rules. In fact the third paragraph appears to us be a superfluous which is in the nature of a warning given to the person to whom the notice is addressed and the absence thereof cannot effect the validity of the notices. The impugned notices can stand even if the third paragraph thereof is separated or deleted from such notices.

10. We, therefore, find no substance in these appeals. In the result the three appeals fail and are dismissed. The parties are left to bear their own costs of these appeals.


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