Thakur Raghubir Singh and Others v. the State of Ajmer (Now Rajasthan) and Others

Judgment

ORIGINAL JURISDICTION: Petitions Nos. 230-239, 241, 249-251, 256, 257, 290, 303, 306-349, 351, 352, 355-357 of 1955 and Nos. 33 & 36 of 1956. Petitions under Article 32 of the Constitution of India. Thakur Rngllubir Si,,gli State of Ajmer Thakur Raghubir Sit1gh State of AL11rer [1959] Supp. Achhru Ram and Naunit Lal, for the petitioners in Petitions Nos. 239, 241 & 251 of 1955. N aunit Lal, for the petitioners in Petitions Nos. 249 & 250 of 1955. B. D. Sharma and K. L. Mehta, for the petitioners in Petitions Nos. 290, 303, 306-349, 351, 355-357 of 1955 and 36 of 1956. B. D. Sharma, for the petitioner in Petition No. 33 of 1956. K. L. Mehta, for the pot.itionor in Petition No. 352 of 1955. I. N. Shroff, for the petitioners in Petitions Nos. 230-238, 256-257 of 1955. H. N. Sanyal, Additional Solicitor-General of India, M. N. K£iul and 7'. M. Sen, for the respondents. 1958. November 14. The Judgment of the Court was delivered by Wanclloo J. WANCHOO, .J.-These sixty-nine petitions under Art. 32 of the Constitution by various land-owners in the former State of Ajmer attack the validity of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (Ajmer III of 1955)

(hereinafter called the Act). The petitions disclose a large num her of grounds on which the validity of the Act is impugned; but learned counsel, Mr. Achhru Ram and Mr. B. D. Sharma, ap· pearing for various petitioners, have confined their arguments only to certain grounds raised in the petitions. We propose, therefor<i, to consider only the grounds urged before us. The Act was passed by the Ajmer Legislative Assembly and received the assent of the President on May 29, 1955. Section 4 of the Act provided for vest' ing of all estates held by intermediaries, as defined in the Act, in the State Government from a date to be notified. The Act came into force on June 23, 1955, and August 1, 1955, was notified as the date on which the estates held by intermediaries would vest in the State Government. The present petitions followed on the fixing of this date. It is not disputed that; the Act is protected under Art. 31-A(l)(a) of the Constitut.ion inasmuch as it is a piece of legislation for acquisition by the State of any estate or of any rights therein.

The argument is that in spite of this protection, either the whole Act or certain provisions of it are invalid, for reasons urged by learned counsel on behalf of the petitioners. Mr. Achhru Ram attacks only ss. 8 and 38 of the Act. Mr. Sharma attacks the competency of the Ajmer legislature to pass the Act and also urges that in any case it does not apply to the case of jagirdars, one of whom is a petitioner before us in Petition No. 33 of 1956. These four are the only grounds that have been urged before us, and we shall deal with them seriatim. Re. s. 8. Section 8 is in these terms- "

Where an intermediary has on or after the 1st day of June, 1950, (a.) granted a lease of a.uy land in the estate or any part thereof for any non.agricultural purposes other than mining for a period of three years or more; or (b) granted a lease or entered into a contract relating to n,ny forest, fishery or quarry in his estate for a period of three years or more ; or (c) graMeJ a lease for the cultivation of any area of bir or pasture or waste land ; and the Collector is satisfied that such lease~ or contra.ct was not ma.de or entered into in l;he normal course of management but in anticipation of legislation for the Abolition of Intermediaries, the Collector may, subject to any rules ma.de under this Act, by order in writing, cancel the lease or the contract as the case may be." It provides for cancellation of certa.in leases granted on or after June 1, 1950, where the lease is for a period of three years or more with respect to matters dealt with in els.

(a) and (b) and where the lease is for any period in respect of matters dealt with in cl. (c). The Collector has been given the power to cancel such leases if they are not made in the normal course of managem~nt but in anticipation of legislation for abolition of intermediaries. The argument is that 61 Viakur lla1Aubir Singli Stal• of Aj111u I9$H Thakur RaghHbir Si-,1gh Staid 11/ Afme, w;.nchvo J. there ca.n he no retrospective cancellation of leases granted at a time when the land-owner ha.cl a right to dispose of his property t•s he liked under Art. 19(l)(f) a.nd there wa.s no restriction on such right. It is sa.id that in certain contingencies the cancellation of tt lease might expose the land-owner to the risk of paying compensation to the lessee, part.icula rly in cast's where the la.ml-owner might have realised the entire lease-money in one lump sum for a lease of more than three years' duratfon. We a.re of opinion that there is no force in this contention.

The legislature was certa.i11ly competent, under entry 18 of List II of the Seventh Schedule to the Constitution relating to Land, to make this provision. It cannot be disputed that the legislature has power in appropriate cases to pass even retrospective legiijlation. Provisions for ca.ncella.tion of instruments already executed are not unknown to law; for example, the Insolvency Acts pwvide for setting aside transfers made by insolvents under certain circumstances. Therefore, the Ajmor Legislature certainly had the power to enact such 1• provision, and in the circumstances in which this provision has been made in the Act, it cannot be said that it is not protected under Art. 31-A. The provi- ><ion is not an independent provi8ion ; it is merely ancillary in character enacted for carrying out the oi.>jects of the Act more effectively.

The intention of the legislature was to give power to the Collector aiter the estates Yested in the State Uovemment to scrutinise lea~es of this kind made after June l, 1950, which wa.s apparently the da.te from which such legislation was under contemplation and to see whether the leases were such iis a pru.dent land-owner would enter into in the normal course of management.. Such leases woulrl be immune from cancellation ; but. if the Uollector found that the leases.· were entered into, not in the normal course of management but designedly to ma.ke whatever the land-owners could before the estate came to be transferred to the State Government., he was given the power to cancel the same, as they would obviously be a fraud upon the Act. Such can .. cellation would su bserve t.he p11rpose8 of the A ct, a.nd the provision for it would therefore be an integral r9_~11 part of the Act, though ancillary to its main object, and would thus be protected under Art. 31.A (l)(a) of T '"":,Rahgliuhrr ,"'llf't! the Constitution.

Re. s. 38. Section 38 reads as follows :-· " Notwithstanding any itgremnent, usage, decree or order of a court or 1rny la.w for the time being in force, the maximum rent payable by a tenant in respect of the land leased 10 him shall not exc<.>ed onH and ha.If t.imes the revenue payable in respect of 1rnch land." This section providt•s for tixing the maximuru rent at fifty per cent. above the lam! re,·enne, and it is urged that this is an unreasonable restriction on the right of the land-owner to Jet his holding. The object of this legislation is to do away with intermediari~'s, and for that reason the rstates held bv internlerliaries have been made to vest in the Statt1 Government under s. 4. Chapter VI of the Act, howe\·er, provides for 11llotmeut of lands for personal cultivation to intermediaries whose estates h1we been taken over upto a certain limit and the intern1ediaries who havt' been allotted l11.nds under s.

29 of the Act are called Bhuswamis or K1tsht.kars a.ecording ti) the nature of the iands allotted to them ; (see s. aO). Hhuswamis and Kashtkars holrl l:rnd direetlv from thP Government and pay rPvenne to the 6overnment; (see s. 32). The intention of the _-\et, therefore, is that intermPdiaries who have hf'en allotted lands should cultirn.te them pel'sonally. But s. 37 permits Bhnswamis to !f~t the whole or any part of the land 11.Ilottecl to tlwm, while Kasht.ka.rs are forbidden from letting any part of their land exeept in cPrtaiu circum- ~ta.nces when they are. suffering from some disability. In order, however, that the main object of the Act (namely, that the land should be cultivated by the person to whom it is allotted and that the1·e should bP no rackrenting) is attained, S. a8 has been provided fixing the maximum rent at. 50 per cent. ab1>ve the hmd revenll<» Thns the profit which n.

Bhuswami 11'trHCAoo f, 1'hnkur Raghubir Singh Stata nf Aj,,wr <;an make by letting his land is so reduced compared to what he would cam if he cultivated it himself as to discourage him from letting the land and becoming a. new kind of iutermediat·y. Section 38, therefore, is another ancillary section, like B. 8, and is meant to subRerve the purposes of the Act, namely, the abolition of all intermediaries and encouragement of ~elf.culti­ vation of the land. We are, therefore, of opinion I.hat, s. 38 is also protected under Art. 3l·A(l)(a) of the Constitution as an ancillary provision necessa.ry . for the purposes of carrying out the objects of the Act. Re. 'J.'he competency of the Ajmer Legislation. The argument in this behalf is put. in this way. The Act is a piece of legislation for the acquisition of estates. Before the Constitution (Seventh Amendment)

Act, 1956, came into force on November 1, 1956, there were two entries relating to acquisition ef property in the Seventh Schedule, namely, entry 33 of List I (acquisition or requisitioning of property for the purposes of the Union) and entry 36 of List II (acquisition or requisitioning of property, except for t,he purposes of the Union, subject to the provisions of entry 42 of List III). The argument continues that the Act was passed by the Ajmer legislature under the power it was supposed to have under entry 36 of List II rca.rl with s. 21 of the Government of Part C States Act, 1951 (XLIX of 1951). But entry 36 of I...i~t II only gives power t.o the State legisla t urc to acquire property for purposes other than the purposes of the Union.

As, however, the property acquired under the Act vested in the President and therefore the Union after its acquisition, the Act was really for the acquisition of property for the purposes of the Union and could uot have been passed by the Ajmer legisla. ture. In support of this argument .Mr. Sharma refened us to various Articles of the Constitution in Part XII thereof relating to Finance, J>roperty, Contracts and Suits, and also Arts. 73 and 239. He contends that these provisions show that before the Governme11t of Part C States Act was passed, the legislative power with respect to the areas comprised in Part C States wa.s in the Union which also through the President had executive power over the subjects over which the Parliament could legislate with respect to what were Part C States. After the passing of the Government of Pa.rt C States Act, by virtue of the power conferred on Parliament by Art. 240, there was no change so far as the executive power in Part C States was con. cerned a.nd it is st.ill vested in the President.

Any property acquired for the purposes of Part C States vests in the President or the Union. Therefore, according to him, the Ajmer legislature would have no power to enact a law for acquiring estates under entry 36 of List II ; for the property so acquired would really be for the purposes of the Union and 110 law under that entry could be made for acquiring property for the purposes of the Union. We are of opinion that the argument, though plausible, must be rejected. Assuming, without deciding, tha.t even after the passing of the Government of Part C States Act, any propertJ acquired for a Pa.rt C: State vested in the Union Government by virtue of the provisions of Pa.rt XII of the Constitution, the ·question still remains whether the Ajmer legislature could make a law under entry 36 of J.,ist II acquiring estates even though the estates when acquired may legally vest in the Union Government. Xow, entry 33 of List I refers to acquiring of property for the purposes of the Union.

It doei> not lay down in wl1om the property should vest after it has been acquired. Similarly, entry 36 of List II speaks of acquisition of property, except for the purposes of the Union, and makes no mention in whom the property should vest after it has been acquired. Entry 42 of List III which deals with compensation for such acquisition as well as for acquisition for any other public purpose, also does not speak where the property should vest after acquisition. It is not necessary, therefore, to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under those two entries. The key to the interpretation of these two entries is not in whom the property would vest after it has been acquired but whether the T haku' Raghubir Si11gh Stat• of Ajm•' Wa11cAoo ]. Thokttr RaChuhir Singh StaltJ of Ajnur WancJioo .f. SUPREME C'OUR'l' REPORTS [1959]

Supp. property is being acquired for the purposes of the Union in one case or for purposes other than the purposes of the Union in the other. It is in this context that the competency of the Ajmer legislature to enact this law under entry 36 of List II is to be judged. Section 21 of the Government of Part C States Act created a Legislative Assembly for Ajmer and gav!l that legislatfre 11ssembly power to make law" for the whole or any part of the State with respect to any of the matters enumerated in List IT nr List III of the Seventh Schedule to the Constitution. Ajmer legislature was thus giveu power to pass laws with respect to acquisition of property for purposes other than those of the Uniou. In other words, it had the power to make law to ac411ire property for the purposes of the State of Ajmer or for any other public purpose. The <JUest.ion then is whether the Act was passed acquiring estates in the State of Ajmer for the purposes of th<'

State of Ajmer, irrespective of where the title may vest. The answer to this question to our miud can only be one; the Act w11s passed by the State legislature for acquiring estates within the State and it could onl~· have been for the purposes of the State. There is no reason to limit the meaning of these genernl words, namely, 'the purposes of the Stale', by importiug in them the idea of where the property would vest after its acquisition. That the purposeR for which the e•tates were acquired wen· purpose; of the State of Ajmer would be quite clear from the fact tlu1t now that the State of Ajmer is part of the State of R.ajasthiin, the estates acquired under the Act have gone to Rajasthan and have not been kept by the Union on the ground that the title .ve"ted in the Uniou.

Therefore, aR the estates were acquired in thi• case for the purpose" of the State of Ajmer the Act would be within the competency of the Ajmer legislat.ure as it falls wit.bin the pla.in words of entry 36 of List II. Re .. Jagirdars. The contention on behalf of the petitionn in petition "'1 o. 33 of 1956 is that. under the Act the word 'inter. mediary ' includes it jagirdar. The Act also provides that the definitions in t.he Ajmer Tenancy and Land r Record!! Act, 1950 (Ajmer XLII of 1950), will be import.ed where the words used in it are not defined. The word ' jagirdar ' is defiued in the Ajmer Tenancy and Land Records Act as a person to whom the revenue of any land has been assigned under a sanad issued by the Chief Commissioner before the commencement of the Ajmer Land and Revenue Regulation, 1877; (see 1:1. 2 (15) ).

It is not in dispute that a sanad was issued to a predecessor of the petitiont1· before 1877 ; but it is urged that a jagirdar is merely the assignee ofland revenue and so far as that assignment is concerned it may be said t.o have been acquired under the Act. But the petitioner besides being an assignee of land revenue is also owner of land and that interest of his has not been acquired under the Act. We are of opinion that them is no force in this argument. The word' estate' is defined in s. 2(v) of the Act as having the same meaning as assigned to it i11 the Ajmer Land and Revenue Regulation, 1877. The Ajmer Regulation does not define the word 'estate' as such, but it has defined the wo1·d ' Malguzar ' as a person liable under s. 64 for payment of the revenue assessed upon an estate, under s. 2(d). Further, s. 64 provides that all persons who are bound by the agreement prescribed by s.

61 and their successors-il1- interest shall, while they continue to be owners of land in the Estate to which such agreement relates, be jointly and severally liable for the payment of the whole amount of revenue assessed upon such estate. The Ajmer Regulation also defines particular types of estates like 'Istimrari Estate' and 'Bhum '; but the general meaning of thfl word ' estate ' under the Ajmer H.egulatio11 is an area of land separately assessed to revenue, which is payable by the holder of the estate. Thakur Raghubir Singh State of Ajm<r ' Intermediary ' as defined in s. 2 (viii) of the Act is a holder of an estate and includes a jagirdar. Under s. 4 all the estates held by intermediaries vest in the State Government on the issue of a notification. Therefore, if the jagirdars are intermediaries, that is holders of estates, their estates will vest in the State Government under s. 4 of the Act.

The distinction which the learned counsel for this petitioner draws between the ( Wantlv>o). •958 interest of the ja.girdar as jagirdar and as land-owner Tltah R h bi is in our opinion wholly unfounded. A perusal of u;;.;f u ' annexures B, C and D, filed by the petitioner himself, would make this clear. Anuexures B and C are sanads Stale of Ai""' with respect to the jagir_s held by the pet it imlPr. Entry in the remarks column of annexure B begins with the Wonchoo J. words "Grant of this estate lasts ... ". Similarly, in annexure C the opening words in the remarks column are "The Grant is to the Dudha.dha.ri for t.he time being. No part of the estate is transferable by sale or mortgage ... ". Therefore, the grants themselves designated these jagirs as estates. They were assessed to revenue, which was, however, remitted and the estates thus came to be known as revenue-free jagirs and the estate holder was designated as jagirdar.

It was because of this remission of the land revenue that the word ' jagirdar ' was defined in the Ajmer Tenancy and Land Records Act, 1950, as assignee of land revenue. Annexures B and C also show that when the grants were ma.de before 1877 a large part of the area covered by the grant was uncultivated. Annexure D shows that disputes arose between the jagirdars and the Biswedars in the~e jagirs about the;;e uncultivated lands, and oue such dispute was decided as late as 1954. ln that judgment (annexure D) history of jagir tenure was traced and it was held that the jagirdar was the owner of uncultivated land in-his ja.gir and not the Biswedar. Therefore, the distinction which has been drawn by the learned counsel between the jagirdar as an assignee of land revenue based on the definition in the Ajmer Tenancy and Land Records Act, 1950, and the same person as the land-owner is unfounded.

It appears that though the jagirda.r may have been defined as assignee of land revenue because of the peculiar fact that in the case of a jagirdar there had been remission of land revenue by sanads granted before 1877, he was the proprietor of his jagir and the grantee of the estate given to him as jagir. There is no question, therefore, of separating the interest of jagirdar as the assignee of land revenue from his interest as the holder of jagir-estate by virtue of a grant before 1877. The petitioner therefore in petition (I) S.C.R. SUPREME COURT HEPORTS No. 33 of 1956 is the holder of the jagir-estate and therefore his entire interest in the estate is liable to resumption under the Act. In the Ajmer Regulations, (Vol. H to I,) at pp. 564-6, these two estates have been considered and their history is given, and they are called jagirs. The history of jagirs in Rajasthan was considered by this Court in Thakur Amarsinghji v. State of Rajasthan (1), at p. 330 onwards, and the word 'jagir' was held to connote all grants which conferred on the grantees rights in respect of land revenue.

In the case of these two jagirs also, as annexures B and C show, land revenue was remitted and they were granted as estates for particular purposes. They arc, therefore, clearly estates in view of the origin of the title of 'the holder of these estates who is called a jagirdar and therefore the State could take them over under s. 4 of the Act. There is no force in any of the points raised on behalf of the petitioners, and the petitions fail and are hereby dismissed with one set of costs to the contesting rer:!pondcnt. Petitions dismisser!. SRI RAM RAM NARAIN MEDHI THE STATE OF BOMBAY (and connected petition) (S. R. DAS, c. J., N. H. BHAGWATI, 'B. P. SINHA, K. SuBBA RAO and K. N. W ANCHOO, JJ.) Land Ref arm-Distribution of ownership and control of agricultural land--Purchase by tenants-Validity of enactmcnt-Dombay Tenancy and Agricultural Lands (Amendment) Act, 1956 (llom. XIII of 1956), ss. 32 to 32R-C?nstitution of India, Arts. r4, r9, :JI, 3rA, Entry r8, List II, Seventh Schedule.

The petitions challenged the constitutional validity of the Bomhay Tenancy and Agricultural lands (Amendment) Act, 1956 (1) [1955] 2 S.C.R. 3•>J. 62 Thakur Raghubir Singh State of A }mer Wanc/wo j. November rB.