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TMI Blog1955 (4) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1954 and 2 to 7, 9 to 14, 21, 25 to 27, 35, 37, 45, 47, 49, 52, 55) 57, 63 and 65 of 1955. AIYYAR, T.L. VENKATARAMA, MUKHERJEE, BIJAN KR. (CJ), DAS, SUDHI RANJAN, BHAGWATI, NATWARLAL H. AND IMAM, SYED JAFFER, JJ. Dr. Bakshi Tek Chand, (O. C. Chatterjee and K. L. Mehta, with him), H. L. Mordia and K. L. Mehta, Frank Anthony and K. L. Mehta U. M. Trivedi, (K. L. Mehta, with him), R. K. Rastogi and K. L. Mehta, Dr. Bakshi Tek Chand, (O. C. Chatterjee and Naunit Lal, with him), Achhru Ram, (Naunit Lal, with him), Naunit Lal, Dr. Bakshi Tek Chand, (Ganpat Rai, with him, N. C. Chatterjee, (Ganpat Rai and S. K. Kapur, with him), U. M. Trivedi, (Ganpat Rai, with him), Frank Anthony and Ganpat Rai, S. K. Kapur and Ganpat Rai, R. K. Rastogi and Ganpat Rai, O. C. Chatterji and Ganpat Rai, J. B. Dadachanji and Rajinder Narain, C. L. Aggarwal and Rajinder Narain, S. C. Isaacs, (S. D. Sekhri, with him for the Petitioner K. S. Hajela, Advocate-General for the State of Rajasthan and G. S. Pathak, (Daulat Ram Bhandari, Porus A. Mehta, P. G. Gokhale and Kan Singh, with them) for the Respondent JUDGMENT The Judgment of the Court was delivered by VENKATARAMA AYYAR J.- These are applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the petitioners, that the Act was valid. (Vide Amarsingh v. State of Rajasthan (A.I.R. 1954 Rajasthan 291). The present applications have been filed under article 32 impugning the Act on the following grounds: I. The Rajpramukh had no competence to enact law, and the Act in question is therefore not a valid piece of legislation. II. The Bill was not prepared by the Rajpramukh as required by article 212-A(2), and therefore the law was not validly enacted. III. Resumption is not one of the topics of legislation enumerated either in the State list or in the Concurrent List in the Seventh Schedule of the Constitution, and the Act is therefore ultra vires the powers of the State. IV. The Act does not provide for adequate compensation; nor is there any public purpose involved in it, and so it contravenes article 31(2) It is discriminatory, and therefore contravenes article 14. And the legislation is not saved by article 31-A, because the lands resumed are neither estates nor jagirs nor grants similar to jagirs, inams or muafi This contention is special to some of the petitioners, and has reference to the specific properties held by them. V. The properties sought to be resumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the British Crown over the States ceased. The question then arose as to the status of the ruling Chiefs. It was soon realised by them that in the larger interests of the country and in their own, they could not afford to keep out of the Indian Union and must throw in their lot with it. The problem of fitting them within the framework of the Indian Constitution was beset with considerable difficulties. The number of States which had been recognised as independent prior to 15-8-1947 was 552 excluding Hyderabad, Junagadh and Kashmir. While a few of them were sufficiently large to be able to function as separate States, many of them were too small to be administered as distinct units. While some of them had representative forms of Government others had not, the rulers being the sole authority: executive, legislative and judicial. The solution which was adopted by the Government of India was that while the bigger States were continued as independent units of the Union, the smaller States were, where they formed islets within a Province, merged within that Province, and where they were contiguous, integrated together so as to form a new State called the Union. One of the Unions thus n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislature of the United State". Article X(3) was subsequently modified by substituting for the words "Until a Constitution so framed comes into operation after receiving the assent of the Rajpramukh", the words "Until the Legislative Assembly of Rajasthan has been duly constituted and summoned to meet for the first session under the provisions of the Constitution of India". This modification was necessitated by the fact that the idea of convening a Constituent Assembly for framing a Constitution for the State as contemplated in article X (1) was dropped, and the Constitution as enacted for the Union of India was adopted. This amendment, however, is of a formal character, and does not affect the substance of the matter. Then, there is article XIX under which the Rajasthan Government was to act "under the general control of and comply with such particular directions, if any, as may from time to time, be given by the Government of India". These are the material provisions of the Constitution which was in force in the United State of Rajasthan before the Constitution of India came into operation on 26-11-1950. Article 385 of the Constitution e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance" what it connotes under the Government of India Act, 1935 or the Constitution of India. Sections 42 and 88 of the Government of India Act conferred on the Governor-General and the Governor respectively power to promulgate ordinances when the Legislature was not in session. Similar power is conferred on the President and the Governors by articles 123 and 213 of the Constitution. That is a legislative power exercisable by the head of the State, when it is not possible for the Legislature to exercise it. But the United State of Rajasthan had then no Legislature, which had yet to be constituted, and therefore in its context, the word "Ordinance" in article X (3) cannot bear the meaning which it has under the Government of India Act or the Constitution. It should be remembered that before the formation of the United State, the Covenanting rulers enjoyed sovereign rights of legislation in their respective territories; and under article VI (2) (a), they agreed to surrender those rights and vest them in the United State. It was therefore plainly intended that the State of Rajasthan should have plenary. legislative authority such as was formerly exercised by the rulers; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers is that article VII(3) has reference to the power which rulers of States had as rulers to resume jagirs, and what it provides is that it should thereafter be exercised by the Rajpramukh. That power is purely an executive one, and has nothing to do with the legislative power of the ruler, which is specially provided for in article X(3). The fields covered by the two articles are distinct and separate, and there can be no question of article VII(3) operating as a restriction on the legislative power under article X(3). Indeed, article VII(3) expressly provides that it is subject to any legislation on the subject, whereas article X(3) is not made subject to article VII(3). Even if the petitioners are right in their contention that article VII(3) imposes a limitation on the powers of the Rajpramukh, that would not, in view of article 385, derogate from the power of the Rajpramukh to enact the present law. The scope of that article is that the body or authority which was functioning before the commencement of the Constitution as the Legislature of the State has first to be ascertained, and when once that has been done and the body or authority identified, the Constitution confides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, because article 385 refers not to Legislatures under the Constitution but to the body or authority which was functioning as the Legislature of the State before the commencement of the Constitution, and article 238(7) is, under the Constitution (Removal of Difficulties) Order subject to article 385. Nor can any argument be founded on the exclusion of the first proviso to article 200 but not of the body of that article under article 212-A (1), because it lays down the procedure to be followed when a Bill has been passed by a Legislative Assembly or Legislative Council of a State, and is by its very terms inapplicable when there is no House of Legislature. The contention of Mr. Frank Anthony that the non-inclusion of the body of article 200 among the articles excluded from application to Part B States under article 212-A(1) imposes by implication a limitation on the power of the Rajpramukh to enact laws unless they are passed by Legislative Assemblies is not supported by anything in the article, and must be rejected. We must accordingly bold that the Rajpramukh had legislative competence to enact the law under challenge. II. The second contention that has been pressed by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draft the Bill, and that be might delegate that work to others. But they insist-and in our opinion, rightly-that questions of policy which are of the essence of the legislation should at least be decided by him, and that even that had not been done in the present case. They rely strongly on the statements in the affidavit of Sri Joshi, the Jagir Commissioner, that the Bill was drafted in the Ministerial Department in accordance with the rules framed under article 166(3), approved by the Council of Ministers and sent on to the Rajpramukh for his assent. These allegations, they contend, preclude any supposition that the Rajpramukh had any part or lot in the settlement of the policies underlying the Act, and the Bill must be held therefore not to have been prepared by him. Taking it that such are the facts, what follows? Only that at the inception the Bill was not prepared by the Rajpramukh. But that does not conclude the question whether there bad been compliance with article 212-A(2), unless we hold that it was not open to the Rajpramukh to adopt a Bill prepared by the Ministers as his own, or if it was open, he did not, in fact, do so. It cannot be disputed that whether a Bill is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in article 212-A(2) for the Rajpramukh approving of a Bill, and in the context, therefore, an endorsement of approval on the Bill must signify its adoption by him. We are unable to follow the subtle distinction sought to be made by Mr. Frank Anthony between the Legislative mind of the Rajpramukh and his executive mind. If it is open to the Rajpramukh to adopt a Bill prepared by his Ministers, the only matter that will have to be considered is whether, in fact, he did so. And when the Bill is produced with an endorsement of approval under his signature, the question must be held to be concluded, and any further discussion about the legislative or executive state of mind of the Rajpramukh must be ruled out as inadmissible. It must be mentioned in this connection that Mr. Pathak for the respondent took up the position that the function of the Rajpramukh at the stage of preparation of the Bill was purely executive, and that it became legislative only when he had to decide whether he would assent to the Bill or withhold his assent therefrom, or reserve it for the consideration of the President, and that by leaving it to the Ministers to prepare the Bill there had been no violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll having been modified as regards the scales of compensation. The contention, therefore, that the Act is bad for noncompliance with article 212-A(2) or for other procedural defects must be rejected. III. We may now consider the third contention of the petitioners that the Act in so far as it provides for resumption of jagir lands is ultra vires the powers of the State Legislature, as it is not one of the topics mentioned either in List II or List III of the Seventh Schedule to the Constitution. The contention of the respondent is that the Act is in substance a law relating to acquisition, and is covered by Entry No. 36 in the State List. On the other hand, the petitioners maintain that the subject-matter of the legislation is what it avows itself to be, viz., resumption of jagirs, that resumption is in law totally different from acquisition, and that the Act is therefore not covered by Entry No. 36. We agree with the petitioners that resumption and acquisition connote two different legal concepts. While resumption implies that the person or authority which resumes the property has pre-existing rights over it, acquisition carries no such implication, and in general, while the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act is framed is that jagirdars have no right of property in the lands themselves, but that they possess some ancillary rights in relation thereto, that the State is therefore entitled to resume the lands without compensation, and that it is sufficient to pay for the ancillary rights. These, it is argued, were the views expressed by the Venkatachar Committee in its Report on Land Tenures in Rajasthan, and they formed the basis of the impugned Act. Thus, it is pointed out that the Committee had held that "jagirs are not the property of the jagirdars" (vide page 47, para 5), that '-'if the jagir system is abolished, jagirdars would not be entitled to any compensation on the ground of the jagirs being private property", and that "even though jagirs are not property................ those rights which have in many cases been enjoyed for centuries have acquired around them an accretion of rights by long custom and -prescription which are entitled to due recognition", and that a rehabilitation grant might be given to the jagirdars. (Page 47, para 6). It is contended that it is these views that have been adopted in section 22 of the Act, and that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the rulers had as grantors but in exercise of the sovereign rights of eminent domain possessed by the State. The taking of properties is under the circumstances, in substance, acquisition notwithstanding that it is labelled as resumption. And this conclusion becomes irresistible when regard is had to the provisions for payment of compensation. Section 26(1) imposes on the Government a liability to pay compensation in accordance with the principles laid down in the second Schedule, and as will be presently shown, it is not illusory. The award of compensation is consistent only with the taking beingan acquisition and not with its being a resumption in accordance with the terms of the grant or the law applicable to it, for in such cases, there is no question of any liability to pay compensation. It was argued for the petitioners that the provision for the payment of rehabilitation grant was an indication that what was paid as compensation was in reality ex gratia. But the rehabilitation grant was in addition to the compensation amount, and it was provided by the amendment Act No. XIII of 1954. Nor are we impressed by the contention that the Act had adopted the findings of the Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision in The United Provinces v. Atiqa Begum(1) was quoted in support of it. The position -is well settled and in accordance therewith, it could rightly be held that the legislation falls also under Entry No. 18. But there being an Entry No. 36 specifically dealing with acquisition, and in view of our conclusion as to the nature of the legislation, we hold that it falls under that Entry. IV.Now we come to the contentions special to some of the petitioners that with reference to the (1) [1940] F.C.R. 110, 134, properties held by them the impugned Act is not saved by article 31-A, and that it is void as being in contravention of articles 14 and 31(2) of the Constitution. On this contention, two questions arise for determination: (A) Is the impugned Act in so far as it relates to the properties of the petitioners within the protection afforded by article 31-A? (B) And is the Act bad as infringing articles 14 and 31(2) of the Constitution? IV(A). On the first question, the contention of the petitioners is that the properties held by them are neither `estates'nor'Jagirs' nor 'other similar grants,' within article 31-A, and that therefore the impugned Act falls, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alsa or jagir, and that the essential features of a jagir are that it is held under a grant from the ruler, and that the grant is of the land revenue. Some of the incidents of the jagir tenure have been already touched upon. It was a life grant and succession to it depended on recognition by the ruler. It was impartible, and inalienable. But in course of time, however, grants came to be made with incidents annexed to them different from those of the jagirs, Some of them were heritable, though impartible; a few of them were both heritable and partible. While originally the jagirs were granted to the Rajput clansmen for military service the later grants were made even to non-Rajputs and for religious and charitable purposes. These grants were also known as jagirs. "The term 'jagir' is used", it is observed in the Report of the Venia-tachar Committee, page 18, para 2, "both in a generic and specific sense. In its generic sense it connotes all non-khalsa area". The stand taken by the petitioners in their argument was also that the word 'jagir' bad both a wider and a narrower connotation. Thus, after quoting from the Rajputana Gazetteer the passage t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which would achieve that object in a full measure, we must hold that jagir was meant to cover all grant under which the grantees bad only rights in respect of revenue and were not the tillers of the soil. Maintenance grants in favour of persons who were not cultivators such as members of the ruling family would be jagirs for purposes of article 31-A. We may now proceed to consider the contentions of the several petitioners with reference to the specific properties held by them, and they may be grouped under two categories: (1) those relating to the tenures on which the properties are held, and (2) those relating to particular properties. Under category (1) fall the estates held by (a) Bhomicharas of Marwar, (b) Bhomats of Mewar, (c) Tikanadars of Shekhwati, and (d) Subeguzars of Jaipur. (1)(a) Bhomicharas: This is the subject-matter of Petitions Nos. 462, 579, 630, 638 and 654,of 1954. The Bhomichara tenure is to be found in Jaisalmere, in Shekhawati in Jaipur and in Marwar. (Vide Report of the Venkatachar Committee, page 19, para 13). But we are concerned here only with the Bhomichara tenure in the State of Marwar. Its history goes back to the year 1212 A.D. when the clan of Ratho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not holders of jagirs or other similar grants within the meaning of article 31-A, because a jagir could be created only by grant by the ruler, and that the petitioners could not be said to hold under a grant from Jodhpur, because they had obtained the territory by right of conquest long before Jodhpur established its suzerainty, and even prior to its foundation as a State, and that though they lost their political independence when Jodhpur established its overlord ship, they had not lost their right to property, that their status was that of semi-independent chiefs, not jagirdars, and that "Foujbal" was paid by them not on account of land revenue but by way of tribute. We agree with the petitioners that a jagir can be created only by a grant, and that if it is established that Bhomichara tenure is not held under a grant, it cannot be classed as a jagir. We do not base this conclusion on the ground put forward by Mr. Achhru Ram that the word 'jagir' in article 31-A should be read ejusdem generis with 'other similar grants' because the true scope of the rule of ejusdem generis is that words of a general nature following specific and particular words shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentatives of the former rulers themselves, and as against them, the above conclusion must follow a fortiori. As already stated, it is as if the Maharajah of Jodhpur annexed all the territories and re-granted them to the former rulers. They must accordingly be held to derive their title under an implied grant. It is argued that notwithstanding that the Bhomicharas had acknowledged the sovereignty of the ruler of Jodhpur, his hold over the country was slight and ineffective, and even the payment of "Foujbal" was irregular, and that in substance therefore they enjoyed semi-sovereign status, and that their relationship to the Jodhpur ruler resembled that of the rulers of Native States to the British Crown. We are unable to accept this argument. The status of a person must be either that of a sovereign or a subject. There is no tertium quid. The law does not recognise an intermediate status of a person being partly a sovereign and partly a subject, and when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur their status can only be that of a subject: A subject might occupy an exalted position and enjoy special privileges, but he is noneth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1923" was passed, and that applied to the estates of Bhomicharas. In 1937 rules were framed for the maintenance of the wives of jagirdars, and Bhomicharas also were subject to that Act. In 1938 the Marwar Customs Act was passed, and that applied to these territories. In 1947 rules for assessment of rents on jagir estates were passed and they applied to lands held on Bhomichara tenure. There was again a Customs Act in 1948, and it applied to the whole of Marwar including this area. In 1949 a Tenancy Act was passed, and that applied to the Bhomicharas. It is thus plain that the State of Marwar was exercising full legislative control over the Bhomichara area. This alone is sufficient to differentiate the position of the petitioners from that of the rulers of the Native States. The British Government never exercised legislative authority over those States. In the argument before us, Sri Amar Singh conceded the authority of the State of Marwar to legislate for Mallani. But he contended that the definition of jagirdars as including Bhomicharas in the several Acts .referred to above was only for the purpose of those Acts, and bad no bearing on their true status, and referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition for which Mr. Pathak contends is itself not open to exception, and it must be held that it was competent for the legislative authority of Marwar to define and limit the rights which the petitioners possessed in Bhomichara lands. It was also contended by Mr. Pathak that if the effect of the legislation was to impress on the tenure the character of a grant, that would be sufficient to attract article 31-A, the argument being that a grant like a contract could be not merely express or implied but also constructive. He quoted the following statement of the law in Halsbury's Laws of England, Volume VII, page 261, para 361: "Contracts may be either express or implied, and of the latter there are two broad divisions, the term 'implied contract' in English law being applied not only to contracts which are inferred from the conduct or presumed intention of the parties, of which examples have already been given, but also to obligations imposed by implication of law, quite apart from and without regard to the probable intention of the parties, and sometimes even in opposition to their expressed or presumed intention. Strictly speaking, the latter class, or constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion called Brief Account of Mallani, the title given to the history of Bhomicharas is "Brief history of the jagirdars". In Sir Drake Brockman's Report of the Settlement Operations, 1921 to 1924, he refers to the Bhomichara jagir as "survival from a time antecedent to the establishment of the Raj". Turning next to legislation in Marwar, its general trend was to include Bhomicharas in the definition of jagirdars. Vide section 3(1) of the Marwar Court of Wards Act, 1923; rule 4 of rules regulating claims for maintenance by ladies against jagirdars, 1937. In the Customs Act, 1938, section 64 and Appendix E refer to the Bhomicharas as jagirdars of Mallani. In Marwar Tenancy Act No. XXXIX of 1949, section 3(9) defines landlord as including a "Bhomichara jagirdai,", and in view of the fact that both this Act and Act No. XL of 1949 were part of a comprehensive scheme of legislation, that both of them came into force on 6-4-1949 and that section 4 (I 1) of Act No. XL of 1949 enacts that the words and expressions used therein are to have the same meaning as in Act No. XXXIX of 1949, it would be safe to assume that the word 'jagir' was used in sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; in section 169. We are also of opinion that it will, in any event, be "similar proprietary interests" within the language of the section. It is argued that the only feature common to jagirs, Bhoms, Sasan and Dolis is that they are held under grant, and that therefore "similar proprietary interests" must mean interests acquired under a grant. It is true that Bhom, Sasan and Doli are held under grant from the State. (Vide Rajasthan Gazetteer, Volume III-A, Chapter XIII); but section 169 enacts that the proprietary interests to which it applies, shall be held or deemed to be held as grant from His Highness. The word "deemed" imports that in fact there was no grant, and therefore interests which were held otherwise than under a grant were obviously intended to be included. Therefore, if Bhomichara is a proprietary interest, it cannot be taken out of the section because its origin was not in grant. In the result, it must be held to fall within section 169, and therefore within the operation of article 31-A. The respondent further contended that Bhomichara tenure was also an estate as defined in section 4(iii) of Act No. XL of 1949 and that therefore i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Venkatachar Committee has the following: "In Mewar those holding on the Bhom tenure may be classed under two groups, namely, the Bhomats who pay a small tribute to the State and are liable to be called for local service and Bhumias who pay a normal quit-rent (BhumBarar) and perform such services as watch and ward of their villages, guarding the roads, etc." (vide page 19, para 10). Earlier, the Report had stated that Bbom tenure was to be found in Jodhpur, Mewar and Bundi, and that its holders were always Rajputs. The origin of Bhom tenure is thus stated by Tod in his Annals and Antiquities of Rajasthan: "It is stated in the historical annals of this country that the ancient clans had ceased on the rising greatness of the subsequent new divisions of clans, to hold the higher grades of rank; and had, in fact, merged into the general military landed proprietors of this country under the term bhumia, a most expressive and comprehensive name, importing absolute identity with the soil: bhum meaning 'land These Bhumias, the scions of the earliest princes, are to be met with in various parts of Mewar These, the allodial tenantry of our feudal system, form a considerab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument of the respondent is that under these provisions the ownership of the lands vests in the Maharajah and the tenures mentioned therein including the Bhom are held as grants under him. It was argued by Mr. Frank Anthony that under section 4(2) of the Act the lands are divided into two categories, one category comprising jagirs, muafi and Bhom and the other Khalsa lands, that section 27 applies only to Khalsa lands, and that section 106(1) applies to grants which may thereafter be made by the State, and that the rights of the persons who held jagirs, muafi or Bhom before this Act were unaffected by it. We are unable to accede to this contention. No statute was needed to declare the rights of the sovereign over Khalsa lands, Nor was resort to legislation necessary to define the rights of the future grantees of those lands, because that could be done by inserting appropriate terms in the grants. The language of the enactment read as a whole leaves no doubt in our mind as to what the legislature intended to do. It declared the State ownership of lands, both Khalsa and non-Khalsa lands and defined the rights of the holders of the non-Khalsa lands; and the result of that law was cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up a code of law subject to approval by the Political Agent and for the settlement in future of all civil and criminal cases in accordance therewith, (vide Aitchison's Treaties, Vol. III, pp. 33 and 35) and for compensation being awarded to them for taking over their right to manufacture salt (vide Aitchison's Treaties, Vol. III, pp. 38 to 42). He argued that the payments made by them to the State were not revenue but their contribution for purposes of common defence, and that that had not the effect of reducing their status as feudatory chiefs to that of subordinate tenure holders. Certain observations in Biswambhar Singh v. The State of Orissa and others ([1954] S C.R. 842,870) were relied on as supporting this contention. We have had considerable difficulty in following this argument, as it was general in character and unrelated to specific tenures or the claims of individual petitioners. The kowls which were relied on as showing that their status was not that of subordinates are not conclusive of the matter, because the value to be attached to them would depend on the previous status of the Chiefs with whom they were entered into, and no materials have been placed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State is known as Shekhwati. It consists of large estates known as Panchpana Singhana, Sikar, Udaipurwati, Khandela and others. These estates are known as Tikanas and their holders as Tikanadars. The petitioner in Petition No. 424 of 1954 is one of them, his estate being the Tikana of Malsisar and Mandrela in Panchpana Singhana. His contention is that he is a ruler with semi-sovereign status subject only to the obligation to render military service and to pay tribute called Maumla to the State of Jaipur, that be is accordingly a Maumlaguzar and not jagirdar, and that he is not a grantee from the State. The history of these estates is narrated in great detail by Mr. Wills in his report on "The Land Tenures and Special Powers of Certain Tikanadars of Jaipur State, 1933". To state it briefly, these estates originally formed part of the Khalsa lands of the Moghuls. During the period of their decline, King Sawai Jai Singh who ruled over Jaipur from 1700-1743 with great distinction acquired them from the Moghul Emperors on izara, and in his turn granted them on sub-leases or izaras to various persons mostly his clansmen, on condition that in addition to the payment of izara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re they the clansmen of the ruling dynasty who assisted in the establishment of the Raj. They derived their title to the properties only under grants made by the rulers of Jaipur, and even if their estates could not be considered, as they shaped themselves, as jagirs, they were at least " other similar grants" within article 31 _A. That was the view which the State took of their position. Section 4(15) of the Jaipur State-Grants Land Tenures Act No. I of 1947 defines "State grant" as including a jagir, muamla, etc. Muamla is, as already stated, the amount payable by the Tikanadars of Shekhwati to the ruler of Jaipur. Section 4 (7) defines an estate as meaning "land comprised in a State grant". According to this definition, the properties in question would be 'estate' as defined in article 31-A of the Constitution. The Matmi Rules of 1945 provide for recognising succession to State grants, and they include Muamlaguzars. (Vide Part III in Appendix A). Describing the tenures in the non-Khalsa area, the Administration Report of Jaipur 1947-1948 states that "Muamla is the grant of an interest in land for which a fixed amount is payable under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that the family of the petitioners had always enjoyed a special distinction in that the adoption of the ruling house of Jaipur was always made from among the members in this family. That, however, would not affect the status of subeguzars who must be held to be grantees from the State. A special contention was raised with reference to 12 villages which are stated to have been purchased in 1730 by Raja Jaisingh the then holder of Isarda for a sum of ₹ 20,000; and it was argued that these villages at least could not be treated as held under grant from the State. Isarda was a new State founded by Mohansinghji, and its area was extended from time to time by incorporation of fresh villages, and when in 1751 the Chief acknowledged the suzerainty of Jaipur and held the estate as subeguzar under him, that title must have related to the entire estate including these villages, and there is therefore no ground for treating them differently from the rest. It must be mentioned that this contention was raised only in the reply statement. It must be overruled. Petitions Nos. 471 and 472 of 1954: The petitioner in Petition No. 471 of '1954 is the Tikanadar of Jhalai. In para 2 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(a) of the Alwar State Revenue Code, `estate' means "an area for which there is a separate record of rights or which is treated as such under orders of His Highness' Government". It is stated by the petitioners that there has been no separate record of rights in the State of Alwar, and that therefore there could not be an estate as defined in the Code. The respondent, however, does not admit this, and contends that, in any event, the grants are jagirs and are therefore within article 31-A. The question is whether the grant is a jagir. The deed dated 11-8-1941 describes it as a jagir, and so does the Gazette Notification publishing it; and that is also how the estate is described by the petitioner himself Section 3(3) of the Alwar State Jagir Rules, 1939 defines jagir as meaning "grant of land or money granted is such by His Highness or recognised as such by His Highness". Section 2(k) of the Alwar Revenue Code defines "assignee of land revenue" as meaning "a Muafidar or a Jagirdar". Thus, all the requirements of a Jagir are satisfied, and the grant would fall within the scope of article 31-A. It was next argued that even if the gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em under section 20 if the Legislature did not understand them as falling within the operation of section 22(1)(a), and they would fall under that section only if the word 'jagirdar' is interpreted as meaning all persons who hold properties which are jagirs as defined in the Act. In the result, the resumption must be held to be valid. Petition No. 417 of 1954 relates to properties in Alwar, and the contention raised therein is the same as in Petition No. 391 of 1954, that they are not an estate within article 31A. But the petitioner describes himself in the petition as the "proprietor jagirdar of the jagir known as Garhi", and states in para (9) that his jagir is unsettled and pays neither revenue nor tribute, and the prayer in para 21(3) is that the State should be restrained by an injunction from interfering with the rights of the petitioner. as jagirdar. In view of these allegations, it is idle for him now to contend that the properties do not fall within article 31-A. (b) Petitions Nos. 401, 414, 518, 535 and 539 of 1954: The properties comprised in these petitions are situated wholly or in part in the former State of Bikaner, and the contention raised with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... village or land as jagir by the Durbar in consideration of his past and future services, and Rule 5 classifies jagirdars into five categories. The argument of the petitioners is that they have not been shown to fall within any of these categories. Not merely is this contention not distinctly raised in the petitions, but it is admitted in para 1 that "the petitioners' properties are known as Jagirs, Bhoms, Muafi, etc." which will clearly bring them within the operation of article 31-A. In the schedule to the petition also, the petitioners are described as jagirdars, and the particular villages held by them are noted as jagir villages. The contention that they do not fall within article 31-A must be rejected. It is stated that the 128th petitioner, Pratap Singh, does not make any payment in respect of his estate, and that it is not a jagir. If that is so, then on the admission extracted above, it must be muafi, and will be within article 31-A. (d)Petition No. 536 of 1954: The petitioner is the holder of an estate in Mewar known as Bhaisrodgarh Tikana, and he alleges that there was a dispute between Rawat Himmat Singhji the then holder of the estate, and the Maharajah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al contention that maintenance grants are not within article 31-A, the further argument of Mr. Dadachanji on behalf of these 46 petitioners is that Lawazma and Kothrikharch are tenures not mentioned in the first schedule to the Act, and that the resumption of these lands was therefore without the authority of law. But these expressions meaning maintenance expenses are indicative of the purpose of the grant and are not descriptive of the tenure. A grant can both be a jagir and a maintenance grant, and the fact that it was granted for Lawazma and Kothrikharch does not militate against its being a jagir. It was suggested that the question whether Lawazma and Kothrikharch are tenures different from those mentioned in the schedule to the Act might be left open and that the right of the petitioners to establish their contention in other proceedings may be reserved. That would undoubtedly be the proper course to adopt when the point for determination is not whether the Act itself is unconstitutional and void, but whether the action taken under it was authorised by its provisions. But then, there are no allegations in the petition that the properties were held under a tenure, which is outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets. Whether this principle of assessing compensation is open to attack is another question, and that will be considered in its due place. (g)Petitions Nos. 371, 375, 379, 416) 455 and 461 of 1954: These petitions raise in general terms the contention that the properties to which they relate are not estates as defined in article 31-A. Petition No. 371 of 1954 relates to the estate of Doongri in Jaipur, and it is contended that it is not an estate because the liability of the holder is only to pay Naqdirazan, and it is argued that this is not revenue. Naqdirazan is money commutation for the obligation of maintaining a specified number of horses. This is clearly a grant for military service, and will be a jagir, and that is admitted in para I where the petitioner is described as the jagirdar of Doongri and in para 9 where it is stated that the jagir is unsettled. The prayer is that an injunction might be issued restraining the State from interfering with the rights of the petitioner as jagirdar. It is also alleged in para 19 of the stay petition that "the whole family is to be supported from this jagir". Article 31-A clearly applies. Petition No. 375 of 1954 relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income is to be ascertained, and enumerates the several heads of income which are to be included therein, and rule 4 mentions the deductions which are admissible. Rule 4(3) provides that 25 per cent. of the gross income may be deducted for "administrative charges inclusive of the cost of collection, maintenance of land records, management of jagir lands and irrecoverable arrears of rent"; and there is a proviso to that rule that "in no case shall the net income be computed at a figure less than 50 per cent. of the gross income". Under rule 5 compensation payable is seven times the net income calculated under rule 4. Rule 6 provides that any compensation paid to the jagirdar for customs duties during the basic year shall continue to be payable. Under section 26(2) the compensation amount carries interest at 21 per cent. from the date of resumption, and under section 35 it is payable in instalments. Under section 35(A) the payment may be made in cash or in bond or partly in cash and partly in bond. In addition to this, there is provision for the payment of rehabilitation grant on the scale mentioned in schedule III. The complaint of the petitioner is that the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the market value of the properties. But that is not a ground on which an Act protected by article 31-A could be impugned. Before such an Act could be struck down, it must be shown that the true intention of the law was to take properties without making any payment, that the provisions relating to,' compensation are merely veils concealing that intention, and that the compensation payable is so illusory as to be no compensation at all. (Vide State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and others ([1952] S.C.R. 889, 946-948). We are clear that this cannot be said of the provisions of the impugned Act, and the contention that it is a fraud on the Constitution must, in consequence, fail. It was argued by Mr. Achhru Ram that the impugned Act suffered from a fundamental defect in that it treated all the 41 tenures classed as jagirs in the schedule as of the same character, and on that basis laid down the same principles of compensation for all of them. It is argued that these tenures differ widely from one another as regards several incidents such as heritability, partibility and alienability, and that different scales of compensation should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. There cannot therefore be any doubt that it was the intention of the Legislature that all jagir lands should be resumed under section 21. It was also urged that under section 21 the State is authorised to resume different classes of jagir lands on different dates, and that must result in the law operating unequally. This provision was obviously dictated by practical considerations such as administrative convenience and facilities for payment of compensation' and cannot be held to be discriminatory. It was held by this Court in Biswambhar Singh v. The State of Orissa and others ([1954] S.C.R. 842, 855) that a similarprovision in the Orissa Estates Abolition Act No. I of 1952 was not obnoxious to article 14. The objection must accordingly be overruled. Petitions Nos. 629 and 643 of 1954: These are petitions by jagirdars of Mewar, and the special contention urged on their behalf by Mr. Trivedi is that their jagirs had been taken possession of by the State in 1949 under section 8(A) of the Rajasthan Ordinance No. 27 of 1948, that by its judgment dated 11-12-1951 the High Court of Rajasthan had held that that enactment was void under article 14, that that judgment had been aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till 1812. Thereafter, it was leased to the Chieftain of Sikar and others on short Term leases till 1836 when the grant under which the petitioner claims was made. The occasion -for the grant was that there were negotiations for marrying a princess of the Bikaner royal family to the ruler of Jaipur, and the Bikaner Durbar insisted that the Khandela estate should be restored to the Raisalot family. Though the marriage itself did not eventually materialise, the princess having in the meantime died, the negotiations which had been going on with the Jaipur State for the handing over of the Khandela estate to its old holders resulted in the izara of 1836. Now the question is whether the grant of 1836 was that of a jagir. It was clearly not a grant for services renderedor to be rendered, nor was there an assignment of any right to collect revenue. The grantees -were to enjoy the income from the lands and pay a fixed annual amount to the Durbar. It is true that the estate had some of the incidents of a jagir tenure attached to it. It was impartible, it was inalienable, and in matters of succession it was governed by the Matmi Rules. All this did not affect the true character of the grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .............. Under British rule, the estate holders were made liable to pay an annual fixed and permanent quit-rent and were converted into Istimrari tenure holders". (Page 22, para 24). "This quit rent or fixed revenue is a nominal assessment, not related to the income from the holding, but with the condition of confirmation of grant; the amount is invariable. This class of persons are known as 'Istimrardars"'. (Page 24, para 36). It is clear from the above that the essential features of istimrari tenure are that the lands are assessed to a nominal quit rent and that is permanent. The amount of ₹ 80,001 fixed as assessment under the deed of 1836 cannot be said to be a nominal amount, and as found in the report of the 1933 Committee, it was not a permanent assessment. It cannot therefore be held that what was created by the deed of 1836 was istimrari tenure. It was argued for the respondent that Khandela was clearly an estate as defined in article 31-A, that the policy of the law was to abolish all intermediaries, and that section 2(h) should be so construed as to comprehend all holders of intermediate tenures. The answer to this is that whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means only a sub-grant. In the petition it is not stated that Javad is a tenure; nor is there a mention of its incidents. The word 'javad' is not noticed either in Wilson's Glossary or in Ramanatha Iyer's Law Lexicon. In the Jagir Rules of Kishangarh, section 4(xiii) defines 'javad' as "a jagir confiscated by or reverted to the State", and that has reference to the practice of making a grant of a small portion of the jagir to the 'jagirdar when it is confiscated or to the members of the family when it reverts back to the State. We are satisfied that there is no tenure called Javad, and it will not assist the petitioner whether Javad is a sub-grant or a grant of jagir of the nature mentioned in section 4(xiii) of the Kishangarh Rules. We may add that this contention was raised by the petitioner in a supplemental statement. (c) Petition No. 468 of 1954: The petitioner is the holder of an estate known as Jobner. He contends that he is a Mansubdar and not a jagirdar, and that his tenure is not included in schedule I to the Act. During the Moghul administration persons to whom assignments of land revenue were made subject to an obligation to mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Rampur and Tapiplya comprised in the izara of Khandela of the year 1836, which forms the subject-matter of Petition No. 392 of 1954, and their title rests on Chhut Bhayas or sub-grant from the izaradar. Their rights are therefore precisely those of the izaradars, and for the reasons given in Petition No. 392 of 1954 these petitioners must succeed. (f) Petition No. 36 of 1955: The properties to which this petition relates are held as "Sansan" which is one of the tenures mentioned in the first schedule being item 25, and would therefore fall within the operation of section 21. The contention of the petitioner is that they are dedicated for the worship of Lord Shiva and Goddess Shakti, and that he is a Brahmacharan utilising the income from the lands for the above religious service. The properties comprised in the grant are said to be of a small extent, and the dedication is not improbable. There has been no denial by the respondent of the allegation in the petition, and on the materials placed before us, we have come to the conclusion that the dedication pleaded by the petitioner has been established, and that the properties are within the exemption enacted in section 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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