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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 ..... 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 under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 enacts: Until the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution 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; and where was it lodged, if not in the Rajpramukh? If we are to construe article X(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 to that body or authority all the powers conferred by the provisions of the Constitution on the House or Houses of Legislature of the State. These powers might be wider than what the body or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution, 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 petitioners is that the Rajasthan Land Reforms and Resumption of Jagirs Bill was not prepared by the Rajpramukh as required by article 212-A(2), and that the Act was therefore not validly enacte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 in the first instance prepared by the Rajpramukh or whether he adopts what had been prepared by the Ministers as his own, the position in law is the same. That has not been disputed by the petitioners. Their contention is that such ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 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 article 212-A(2). We are unable to agree with this contention. When a Bill has been passed by the Legislative Assembly of a State, article 200 enacts that it shall be presented to the Governor who is to declare whether he assents to it or withholds h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 effect of resumption is to extinguish the interests of the person whose property is resumed, that of acquisition is to vest that interest in the acquirer. But the question still remains whether the impugned Act is one for acquisition of jagirs or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 22 (1) (a) declares that the right, title and interest of the jagirdars shall stand resumed, it could not mean that these rights are acquired by the State, because acquisition implies that the properties acquired belong to the person from whom they are acquired, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esistible 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 Venkatachar Committee that the jagirs were not the properties of the jagirdars, and that no compensation need be paid for them. Under section 22(1)(a), what is resumed is expressly the right, title and interest of the jagirdar in his jagir lands, and provision is made for payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, quoad hoc, outside the ambit of that article. At the threshold of the discussion lies the question as to the precise connotation of the words jagir or other similar grant in article 31-A, and to determine it, it is necessary to trace in broad outline the origin and evolution of the jagir t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 that the rest of the territory is held on one of the following tenures, viz, Jagir, Jivka, Sansan, Doli, Bhum, Inam, Pasaita and Nankar (Vide Erskine's Rajputana Gazetteers, Volume III-A, Chapter XIII Land Revenue and Tenures), Sri Amar Singh who presented the case of his father Zorawar Singh, a leading Bhoomichara of Mall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rathors led by Rao Siaji, grandson of King Jayachander of Kanouj invaded Rajputana, subjugated the territories now known as Mallani, Yeshwantpura and Sanchora and established itself there. Some two centuries later, a section of the Rathors beaded by Biram Deo who was the younger brother of Mallinath, the ruling prince of Mallani, expanded eastwards, and establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 should be construed as limited to things which are of the same nature as those specified and not its reverse, that specific words which precede are controlled by the general words which follow. But we are of opinion that it is inherent in the very conception of jagir that it should have been granted by the ruling power, and that where there is no grant, there could be no jagir. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 nonetheless a subject; and even if the status of Bhomicharas might be considered superior to that of ordinary jagirdars, they were also subjects. The contention that the relationship between Bhomicharas and Jodhpur was of the same kind as that which subsisted between the rulers of Native States and the British Crown is untenable. Whether those States could be recognised as sovereign on the well acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 provisions of the Marwar Encumbered Estates Act, 1922, where the word 'jagir' is defined as excluding Bhomicharas. But the question is not whether the petitioners are jagirdars by force of the definition in those Acts, but whether their status is that of subjects of Jodhpur, and the only inference that could be drawn from the course of legislation above noticed is that their status W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 constructive contracts, as they are sometimes called, are not true contracts at all, since the element of consent is absent, but by a fiction of law, invented for the purposes of pleading, they are regarded as contracts, and will be treated here as such . It must be observed that the Indian law does not recognise constructive contracts, and what are classed under that category in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charas 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 section 169 as including Bhomichara tenures. It was argued that section 171 classifies jagirs as listed jagirs and scheduled jagirs, that there is an enumeration thereof in schedules I and 11 of the Act, and that no estate held on Bhomichara tenure was mentioned therein, and that that was an indication that it was not intended to be included in section 169. But section 171 does not exhaust all the jagirs or simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it fell within the purview of article 31-A. Under section 4(iii), estate means a mahal or mahals held by the same landlord. Section 4(v) defines mahal as any area not being a survey number which has been separately assessed to land revenue; and 'land revenue' is defined in section 4(iv) as any sum payable to the Government on account of an estate or survey number and includes rekh, chakri and bhombab . It is common ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considerable body in many districts, armed with matchlock, sword, and shield All this feudal militia pay a quit-rent to the crown, and perform local but limited service on the frontier garrison; and upon invasion, when the Kher is called out, the whole are at the disposal of the prince on furnishing rations only. They assert that they ought not to pay this quit-rent and perform service also; but this may be doubted, since the sum is so small . (Vol. I, pp. 195-197). It would appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 clearly to impress on the Bhom tenure the characteristics of grant. It must accordingly fall within the operation of article 31 -A either as jagir or as other similar grant. It was next contended by the petitioners that the Kanoon Mal Act No. V of 1947 was void, because on 23-5-1947 a Constitution had been established in Mewar which provided that no person shall be deprived of his life, liberty, or property without due process of law, nor shall any person be denied equality before the law withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 before us as to what that was. Two hypotheses are possible: they were the successors, either of the conquerors who had occupied the territory earlier than the foundation of the Udaipur Raj in which case they would be Bhoms and their rights would be identical with those of Bhomats, or of the Rajput clansmen who followed the ruling dynasty of Mewar and obtained estates as rewards for their service in the establishment of the kingdom, in which case the grants would clearly be jagirs. The facts forming the background ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amount fixed they should render military service to the rulers. Subject to these obligations they were entitled to collect revenues from the villages comprised in the izara and maintain themselves. In course of time, when the hold of the Moghul Empire on the outlying territories became weak, the Jaipur rulers assumed practically sovereign powers over the izara lands, which came to be regarded as part of the royal domain. There was a corresponding rise in the status of the sub-lessees who continued in possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 settlement arrived at with the State . (Vide page 35). The position taken up by the petitioner both in the petition and in the opening argument that his status is that of an independent Chieftain holding the properties by right of conquest and not under grant cannot therefore be maintained. In his reply, however Mr. Achhru Ram shifted the ground, and contended that the ancestors of the petitioner having come in as izaradars, the impugned Act had no application to him, as izara is not one of the tenures mentioned in the first schedule to the Act. But Muamla is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 he admits that he is styled as a subaguzar, and for the reasons given in Petition No. 473 of 1954 his estate must be held to fall within article 31-A. But it is argued that the Tikanaconsists of 18 villages, and that only two of them are held as 'Sube'. But what is the case put forward in the petitions as regards the other villages? The schedule to the petition mentions that four of them are held as maintenance grants, and two as muafi. They are clearly within article 31-A. As regards the others, there is no specific case put forward as to the nature of their tenure. But it is admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gir, 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 grant was a jagir within article 31-A, the rights of the petitioner in it could not be resumed under section 22(1)(a) of the Act, inasmuch as what could be resumed under that section was not the jagir lands, but the right, title and interest of the jagirdars therein, and that the petitioner was not a jagirdar as defined in section 2(g) of the Act, as be had not been recognised as a jagirdar as required therein. This contention was also raised by the petitioners, whose properties would not be jagirs in the specific sense of the word, but would fall within the extended definition of that word under section 2(h) as including the severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 reference to them is that they are not estates according to the law of Bikaner, and are therefore outside article 31-A. Section 3(1) of the Bikaner State Land Revenue Act No. IV of 1945 defines 'estate' as meaning an area (a) for which a separate record of rights has been made, or (b) which has been separately assessed to land revenue or would have been assessed if the land revenue bad not been released, compounded for or redeemed. Section 28 of the Act provides for record of rights, and section 45 enacts that all land, to whatever purposes applied and wherever situated, is liable to the payment of land revenue to His Highnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 of Udaipur, and that it was settled in March 1855 through the mediation of the then Agent to the Government, Sir M. Montgomery, and that under the terms of the settlement, the Tikana was recognised as the exclusive property of the holder. The agreement itself has not been produced, and it could not, even on the allegations in the petition, have had the effect of destroying the character of the estate as a jagir grant. Moreover, this estate is mentioned as item 8 in the list of jagirs mentioned in the schedule under section 117 in Mewar Act No. V of 1947, and that by itself is sufficient to bring it within article 31-A. (e)Petition No. 672 of 1954: The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enures 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 outside the schedule to the Act. On the other hand, some at least of the petitions proceed on the footing that the estates are jagirs. In Petition No. 675 of 1954 the petitioner is the Raj Mata of the ruler of Tonk. She was receiving a monthly allowance of ₹ 762/for her maintenance and in lieu of it, the village of Bagri with its hamlets, Anwarpura and Ismailpura, was granted to her by resolution dated 6-3-1948. Being a maintenance grant it will be a jagir, and that is the footing on which the petition is drafted. Mr. S. K. Kapur who appeared for the petitioner put forward a special contention that the Government was estopped from resuming the lands. The facts on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the estate of Renwal, and the special contention raised is that the petitioner pays no revenue but only Naqdirazan. But he describes himself in para 1 as jagirdar of Renwal, admits in para 9 that it is a jagir, and claims relief in para 21(3) on that footing. The properties are clearly jagirs within article 31-A. The petitioner in Petition No. 379 of 1954 is also stated to be holding the estate on payment of Naqdirazan. He describes himself as owner of the properties in Khera as jagirdar, admits in paras 9, 14, 16 and 19 that the estate is a jagir, and prays for an injunction restraining the State from interfering with his rights as jagirdar. His estate is clearly withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 compensation provided by the rules is inadequate, being far less than the market value of the estate, that rule 2 takes into account only the income which was being actually received from the properties and omits altogether potential income which might arise in future, as for example, from vacant house sites and unopened mines; and reliance was placed on the decision of this Court in State of West Bengal v. Bela Banerjea ([1952] S.C.R. 1056) where it was held that the compensation guaranteed under article 31(2) was just compensation, equivalent of what the owner had been deprived of. But we have held that the impugned Act is protected by article 31-A, and that article enacts that no law providing for acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been provided suitably to the nature and quality of the tenure. There is considerable force in this contention. But this is an objection to the quantum of compensation, and that is not justiciable under article 31A. We may add that even if it was open to the petitioners to go behind article 31-A and to assail the legislation on the ground that the compensation awarded was not just, they have failed to place any materials before us for substantiating that contention, and on this ground also, the objection must fail. It was also argued that there was no public purpose involved in the resumption, and that therefore article 31(2) had been contravened. This again is an objection which is barred by article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 affirmed by this court in The State of Rajasthan v. Rao Manohar Singhji ([1954] S.C.R. 996), that the present Act came into force on 8-2-1952, and that the Government having wrongly taken possession of the jagirs in 1949 under the provisions of the Ordinance, instead of returning them to the petitioners notified them first under section 21 of the Act, and thus managed to continue in possession, and that in the result, these jagirdars had been treated differently from the jagirdars in other States of Rajputana to whom section 8(A) did not apply and article 14 had been contravened. There is no substance in this contention. The Mewar jagirdars having lost possession under a legislation which has been held to be void, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir. 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 which was both in name and in 369, substance a permanent lease and not a jagir. Mr. Pathak contends that even if what was granted under the deed was not a jagir, it was at least a grant of istimrari tenure, which is item 2 in schedule I to the Act. This argument is mainly founded on certain,' proceedings which were taken with reference to the Khandela estate during the years 1932 to 1939. The occasion for these proceedings was a dispute between the Thikanadars of Shekhwati and the Durbar with reference to their respective rights, and the status of the Izaradars of Khandela also came up for investigation. There was an enquiry and report by Mr. Wills in 1933, and on that report the matter was again investigated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the legislature intended, effect can be given only to its expressed intention, and that the definition of jagir in section 2(h) is not sufficiently wide to catch the petitioner. The notification under section 21 in so far as it relates to the properties held by the petitioner under the izara of 1836 must be held to be not within the purview of the Act and therefore unauthorised. (b)Petition No. 427 of 1954: Three villages, Haripura, Khata and Niradun, are comprised in this petition. Lands in Haripura belonged to certain Bhumias of Jaipur. The petitioner acquired them under a number of purchases, the last of them being in 1915. Bhom tenure is item 17 in schedule I to the Act, and these lands would therefore be within the purview of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shangarh 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 maintain horses for Imperial service were called Mansubdars. The petitioner states that Akbar the Great granted three paraganas, Narayana, Kolak and Jobner, to his ancestors as Mansub for maintaining 1000 horses, that in 1727 they came under the subordination of the Amber Durbar -which was the name of the State prior to the foundation of Jaipur in 1728, and that they had continued to hold the estate thereafter as Mansubdars and not as jagirdars. But the grant will clearly be a jagir as there is an assignment of land revenue for the rendering of military service, and Mansub is only another name for a jagir. It is classified as a jagir in the Jaipur Administration Report 1947-1948, page 35, and even though the Report has not the force of legislation, it is valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. To sum up: The impugned Act is not open to attack either on the ground that the Rajpramukh had no legislative competence to enact it, or that the procedure prescribed in article 212-A for enactment of laws had not been followed. The Act is, in substance, one for acquisition of property, and is within the legislative competence of the State, and it is protected by article 31-A. But the notification is bad as regards properties comprised in Petitions Nos. 392 and 488 of 1954, as izaras are not within the impugned Act. The properties mentioned in Petition No. 36 of 1955 are dedicated for religious services, and are exempt under section 20 of the Act. Appropriate writs will issue in these three petitions. In Petition No. 468 of 1954 the right of the petitioner to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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