Maharaj Himmat Singh v. State of Rajasthan — 1973 DIGILAW 18 (RAJ)

BERI, J.—These appeals are directed against a judgment of the learned Single Judge dated July 27, 1972, but, it is based on the reasons given in the judgment dated April 18, 1972 in 492 writ petitions, relating to lands occupied by persons in Rajasthan Canal Area. 2. The appellants case is that the Jagirdar of Sattasar granted in 1948, large chunks of land to the appellants and issued sanads to them. The Sattasar Jagir was resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act (Act VI of 1952) on August 15, 1954. The appellants paid all amounts due against them by way of land revenue on the said lands from the years 1948 to 1955 and they became Khatedar tenants within the meaning of the word in the Bikaner State Tenancy Act. The appellants also contend that the revenue or rent have been realised from them for the period from 1955 to 1962. 3. On October 15, 1955, the Rajasthan Tenancy Act, 1955 (hereinafter called "the Tenancy Act") came into force. Under sec. 15 thereof, any person who was a tenant became a Khatedar tenant entitled to the rights under the Tenancy Act and the appellants claim that they acquired such rights. They further contend that their Khatedari rights were confirmed by the Commissioner, Bikaner, by his order dated October 21, 1957. The appellants further say that the lands which were given to them by the sanad was banjar (barren) and the appellants reclaimed and cleared the land for cultivation and started cultivation in the year 1948 and were in possession thereof till the date of their petitions. 4. On March 17, 1958, sec. 15-A was added to the Tenancy Act and it ordained that no Khatedari rights would ever be deemed to have accrued to any occupant of the land in the Rajasthan Canal Area on any terms whatsoever notwithstanding anything contained in any law or document or in the Act and such lands shall be deemed to have been let out only temporarily. 5. Some of the tenants of the former Bikaner State challenged the validity of sec. 15-A of the Tenancy Act before this Court and by its judgment dated July 18, 1962, it declared (Jassuram vs. State AIR 1963 Rajasthan 72) that the khatedari rights under sec. 5. Some of the tenants of the former Bikaner State challenged the validity of sec. 15-A of the Tenancy Act before this Court and by its judgment dated July 18, 1962, it declared (Jassuram vs. State AIR 1963 Rajasthan 72) that the khatedari rights under sec. 15 amounted to property which belonged to the petitioner and an acquisition of those rights u/s. 15-A offended Art. 31(2) of the Constitution and was ultra vires. 6. Again by Act No. 56 of 1958, the Tenancy Act was further amended whereby sec. 15-A(2) was introduced. This sub-section provided that any person claiming that he possessed and was in enjoyment of khatedari rights in any land referred to in sub-sec. (1) because such land had been let out to him permanently before the commencement of that Act may, within four years from the date of such commencement and on payment of court fee of twenty five naya paise, apply to the Assistant Collector having jurisdiction, praying for a declaration to that effect, and the provisions of sub-sec. (5) of sec. 15 shall apply to such application. The appellants say that they moved an application under sec. 15A(2) of the Tenancy Act on December 22, 1962, but the same remains undisposed of despite a period of nearly ten years having lapsed. 7. By the 17th Amendment Act, 1964 of the Constitution, which came into force on June 20, 1964, the Tenancy Act was included as item No. 55 (with an Explanation added thereto), in the 9th Schedule of the Constitution, which inclusion imparted the Tenancy Act an immunity from attack under Art. 31-B of the Constitution. 8. That in May, 1969, the Government purported to auction away portions of the lands in possession and cultivation of the appellants. The appellants moved the Commissioner of Colonisation, Bikaner. It is further contended that despite the favourable report of the Tehsildar, the Commissioner proceeded to auction the appellants lands. Thereupon, the appellants filed writ petitions under Art. 226 of the Constitution of India. Because the Government suo-moto cancelled the auction, the appellants withdrew their writ petitions. 9. The Assistant Colonisation Commissioner by his notice dated April, 29, 1970, purporting to be under secs. Thereupon, the appellants filed writ petitions under Art. 226 of the Constitution of India. Because the Government suo-moto cancelled the auction, the appellants withdrew their writ petitions. 9. The Assistant Colonisation Commissioner by his notice dated April, 29, 1970, purporting to be under secs. 22 and 24 of the Rajasthan Colonisation Act, 1964 (hereinafter referred to as "the Colonisation Act") informed the appellants that as they were in illegal possession of the said lands action against the appellants was threatened. The appellants thereupon moved this Court by filing writ petitions. The appellants contend that the Colonisation Authorities had been acting mala fide. They claim that they have become khatedar tenants; that sec. 15A of the Tenancy Act contravened Art. 31 and second proviso to Art. 31(1) of the Constitution of India, that it was not saved by Art. 31(3) of the Constitution and that the appellants were being deprived of their property contrary to Art. 19(l)(f) and Art. 31 of the Constitution. They further say that secs. 22 to 25 of the Colonisation Act were violative of the appellants fundamental rights guaranteed under Art. 19(1)(f) and 31 of the Constitution, because it was left to the sweet will of the authorities under the Act to decide whether the person was in possession of land under a legal right or not according to the subjective satisfaction of the officer concerned. That no procedure having been provided for taking action under sec. 22 of the Colonisation Act it was violative of Art. 14 of the Constitution; that the Government showed discrimination in the treatment of number, of tenants similarly situated and that the "Rajasthan Canal Project" having not been defined and demarcated, the provisions of Colonisation Act cannot be attracted to the lands in possession of the appellants and, therefore, the action taken by the Colonisation Authorities against the appellants was illegal and void. 10. Mr. M.C. Chagla, learned counsel for the appellants complained that his arguments were not considered by the learned Single Judge, because he was not even heard. However, he) confined his attack firstly on the ground that the "Rajasthan Canal Area" not having been defined, neither the Tenancy Act nor the Colonisation Act applied to the lands of the appellants. The learned Single Judges reference to the notification dated July 14, 1956 was not sufficient to fix the area, added the learned counsel. 11. However, he) confined his attack firstly on the ground that the "Rajasthan Canal Area" not having been defined, neither the Tenancy Act nor the Colonisation Act applied to the lands of the appellants. The learned Single Judges reference to the notification dated July 14, 1956 was not sufficient to fix the area, added the learned counsel. 11. The learned counsel for the State submitted that all the appellants in the petition, in ground (ii) of paragraph 41, have admitted that as their lands were situated in Rajasthan Canal Area, therefore, it did not lie in the mouth of the appellants now to contest the position. 12. This argument of Mr. Chagla has to be examined from two points of view. The first is in regard to the expression "Rajasthan Canal Area" as contained in sec. 15-A of the Tenancy Act, and the second is in regard to the use of the word "Colony" in sec. 22 of the Colonisation Act. 13. So far as the argument relating to sec. 15-A of the Tenancy Act is concerned, it would be correct to say that there is neither any notification nor any statutory provision which precisely demarcates the Rajasthan Canal Area. We have, however, not been shown any law which requires the State Government to delineate the exact boundaries of the Rajasthan Canal Area. The method adopted by the learned Single Judge by reference to the notifications the term "Rajasthan Canal Area" becomes fairly ascertainable. 14. We have held in D. B. Special Appeal No. 395 of 1972 and other 283 connected appeals as follows: "However, the plain meaning of the term Rajasthan Canal Area" can be ascertained in the context in which it has been used in the statute like any other expression. Rajasthan Canal is the name given to a canal project which has to pass through Rajasthan and is very easily ascertainable. The word which calls for interpretation is "area". The plain meaning in this context of the word "area" is "a part of the earth surface, region or track" (see Websters New 20th Century Dictionary, 2nd Ed. p. 99). The part of the earth surface will have to take its colour from the preceding words "Rajasthan Canal". The word which calls for interpretation is "area". The plain meaning in this context of the word "area" is "a part of the earth surface, region or track" (see Websters New 20th Century Dictionary, 2nd Ed. p. 99). The part of the earth surface will have to take its colour from the preceding words "Rajasthan Canal". In our opinion, as far as the lands of the appellants are concerned which are served by the Rajasthan Canal or its distributaries and minors, there can be no doubt that they are situate in that part of the earths surface which can legitimately be called the Rajasthan Canal Area." This, in our opinion, fairly answers the argument raised by Mr. Chagla. To this, if the admission of the appellants is added, the argument that this term is not ascertainable becomes entirely untenable. 15. Sec. 22 of the Colonisation Act reads as under :— "When the Collector, is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, order immediate re-entry upon the land and take possession of all crops, trees and buildings thereon on behalf of the State Government without payment of any compensation whatsoever." The term used herein is "land in a colony". The word "colony" has been defined in sec. 2(h) which means any area to which this Act shall be applied by order of the State-Government published in the official Gazette. 16. By notification of May 10, 1956, published in Part (Kha) of the Rajasthan. Gazette dated May 19, 1956, Rajasthan Colonisation Act, 1954 was applied to the villages where the appellants lands are situate. This notification is No. 6(513)Rev.(b)/55. dated May 10, 1956. Thus, the villages covered by the notification of May 10, 1956, constitute a colony within the meaning of the Colonisation Act, 1954. The lands of the appellants are situated in the village Rawlo included in the notification. This, argument has no substance and, therefore, fails. 17. The contention of Mr. Chagla that the appellants application u/s. 15-A(2) dated 22-12-1962 still remains to be decided, seems to be factually correct as it has not been controverted, by the State. The answer of the learned counsel for the State, however, was that the application was beyond time. This, argument has no substance and, therefore, fails. 17. The contention of Mr. Chagla that the appellants application u/s. 15-A(2) dated 22-12-1962 still remains to be decided, seems to be factually correct as it has not been controverted, by the State. The answer of the learned counsel for the State, however, was that the application was beyond time. It should have been made within four years, from October, 1955 when the parent Tenancy Act came into force. Whether this argument is correct or otherwise, we express no opinion. The regrettable fact however, is that the applications remain to be disposed of and the appellants claim to Khatedari rights require to be determined. 18. The next argument of Mr. Chagla was that sec. 15A is not valid, because it did not receive the Presidents assent, He urged that it did not even become law because without the Presidents assent it could not be law and, therefore, even Art.31-B did not save it. In our judgment in D. B. Special Appeal No. 395 of 1972 we have observed as follows :— "When analysed Art. 31-B without shrinking the generality of the provisions contained in Art. 31-A provides that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void or ever to have become void on the ground that any one of them was (a) inconsistent with any provisions of Part III of the Constitution or (b) because it took away or abridged any of the rights conferred by any provisions of this part. In our view, Art. 31-B protects all the Acts and Regulations specified in the Ninth Schedule even if any provision thereof is inconsistent with any provision of this Part or it takes away or abridges any of the rights by any provisions of this Part. The words any provisions of this Part govern both the clauses separately. We are persuaded to this view because of the historical background and the need to immunise the measures of agrarian reforms from all possible attack. Our conclusion is strengthened because the clause or takes away or a bridges any of the rights conferred by is preceded and followed by commas." We have further referred to the Bill by which the 1st amendment of the Constitution was introduced by the legislature and passed to justify our argument based on punctuation. Our conclusion is strengthened because the clause or takes away or a bridges any of the rights conferred by is preceded and followed by commas." We have further referred to the Bill by which the 1st amendment of the Constitution was introduced by the legislature and passed to justify our argument based on punctuation. We have observed in that judgment as follows : — "We are in complete agreement with the learned Single Judge for the reasons given by him that sec. 15-A does not have the effect of acquiring any property. It merely denied to the appellants the possibility of acquiring any khatedari right." For these reasons, we are unable to agree with the learned counsel for the appellants that sec. 15A is invalid because it did not receive the Presidents assent. The assent of the President is required under Art. 31-A and 31(3) and both these provisions, assuming for the sake of argument that sec. 15A amounts to acquisition, are contained in part III of the Constitution and the attack is plainly neutralised by Art. 31B. 19. Mr. Chagla then urged that his submission may be indicated in the judgment that the Full Bench Decision of this Court dated December 15, 1971 is not correct. He was, however conscious that challenge to that decision could not be made before us. 20. The last attack of Mr. Chagla was that sec. 22 and 24 of the Colonisation Act under which notices were issued to the appellants were inconsistent with Arts. 14 and 19(1)(f) of the Constitution. He placed reliance on The State of West Bengal vs. Anwar Ali Sarkar (1) and Northern India Caterers Ltd vs. State of Punjab(2). 21. A close examination of the provisions of the Colonisation Act will become necessary to appreciate the argument of the learned counsel. This is an Act to make better provisions for the colonisation and administration of lands in Rajasthan. Sec. 2 is the interpretation clause and sec. 3 says that the Act shall apply to all lands in a colony. We have already noticed the definition of the word "colony" earlier. Sec. 4 gives power to the Government to withdraw a colony or any part of a colony from the operation of all or any of the provisions of this Act. 3 says that the Act shall apply to all lands in a colony. We have already noticed the definition of the word "colony" earlier. Sec. 4 gives power to the Government to withdraw a colony or any part of a colony from the operation of all or any of the provisions of this Act. Sec. 5 lays down that except as otherwise provided in this Act, the laws relating to agricultural tenancies, the powers, jurisdiction and procedure of revenue courts, for the time being in force in a colony, shall apply to tenancies held and to proceedings conducted under this Act. Then powers are invested under sec. 6, and sec. 7 provides for the issuance of the conditions of tenancy. There is a provision for rectangularisation of fields under sec. 9. Sec. 15 provides for the power of re-entry and compensation in certain cases, and then comes sec. 22 which contemplates power of re-entry in certain cases and has already been quoted in extenso by us. Sec. 23 relates to penalties and sec. 24 reads as under :— "Sec. 24. When the Collector is satisfied that an act punishable under sec. 23 has been committed, he may in lieu of proceedings against the offender under that section or after conviction of the offender under that section— (i) in the case of an offence under sec. 23(a), confiscate the crops growing on any land cultivated in contravention of this Act, or if the crops have been cut recover such sum as he may assess as the value thereof from the offender; (ii) in the case of an offence under sec. 23(c) recover such sum as he may assess as the value of the tree or trees destroyed; (iii) in the case of an offence under sec. 23(b), (d) and (e), cause the building or other encroachment to be demolished or removed or the excavation or channel to be filled up, and levy the cost of so doing from the person responsible for such act." Sec. 22 has been challenged on the ground that it denies equality before law. It was urged that there are two provisions, one is provided in sec. 91 of the Rajasthan Land Revenue Act for summary eviction of an unauthorised occupant of land, who is to be deemed as trespasser, but the whole procedure for the action under that section gives fair opportunity to the occupant. It was urged that there are two provisions, one is provided in sec. 91 of the Rajasthan Land Revenue Act for summary eviction of an unauthorised occupant of land, who is to be deemed as trespasser, but the whole procedure for the action under that section gives fair opportunity to the occupant. It reads as under :— Sec. 91(1)—Any person who occupies or continues to occupy any land without lawful authority shall be regarded as a trespasser and may be summarily evicted therefrom by the Tehsildar at any time of his own mo titan or upon the application of a local authority at whose disposal such land has been placed ; and any building or other construction erected, or anything deposited, on such land shall, if not removed within such reasonable time as the Tehsildar may from time to time fix for the purpose, be liable to be forfeited to the State and to be disposed of as the Collector may direct : Provided that the Tehsildar may, in lieu of ordering the forfeiture of any such building or other construction, order the demolition, of the whole or any part thereof. (2) Such trespasser shall be also liable, by way of penalty, to pay a sum which may extend to six times the annual rent or assessment, as the case may be, and such sum shall be recoverable as an arrear of land revenue : Provided that, upon payment of such penalty, he shall have the right offending, gathering and removing any ungathered crops. (3) Before taking proceedings for eviction under sub-sec. (1), the Tehsildar shall cause to be served in the prescribed manner on the person reported to be occupying or continuing to occupy land without lawful authority, a notice specifying such land and calling on him by a certain date either to vacate such land or to appear and show cause why he should not be so evicted therefrom. (4) In any of the following cases, namely— (i) where the trespasser does neither vacate the land nor make appearance in response to the notice issued u/sub-sec. (4) In any of the following cases, namely— (i) where the trespasser does neither vacate the land nor make appearance in response to the notice issued u/sub-sec. (3), or (ii) where in response to such notice the trespasser does not vacate the land and makes appearance but— (a) does not show any such cause, or (b) makes any representation which is rejected after such inquiry and hearing as may be necessary in the circumstances of the case, the Tehsildar shall, unless, in the case covered by cl. (ii), the trespasser undertakes to vacate the land within a weeks time and vacates it within such time, order the removal of the trespasser from such land and shall remove, or depute any person to remove him therefrom and take possession thereof; and, if the Tehsildar or the person so deputed is opposed or impeded in taking possession of such land, the Tehsildar shall apply to a magistrate having jurisdiction and such magistrate shall enforce the surrender of the land to the Tehsildar. (5) Notwithstanding anything contained in the foregoing sub-sections, the Tehsildar may, in case any such land belongs to the category specified in cl. (ii), of the proviso to sec. 97, sell it, with the approval of the Sub-Divisional Officer, to the trespasser upon payment by him of the premium therefor at the rate fixed under sec. 96 and applicable to such land in addition to the assessment and penalty recoverable from him under sub-sec. (2) in respect of the whole period of unlawful occupation." The learned counsel argued on the authority of The State of West Bengal vs. Anwar Ali Sarkar (l) that where a Special Court was authorised to try such offence or classes of offences, or cases or classes of cases, as the State Government may by general or special order in writing, direct and where the Act laid down a procedure for trial before Special Courts which were different in several respects from that laid down by the Criminal Procedure Code for trial of offences generally, the section was held to be unconstitutional and void because it contravened Art. 14 of the Constitution which provided that "the State shall not deny to any person equality before the law or the equal protection of the laws. It was held that discrimination followed or arose on the express term of the law itself. It was held that discrimination followed or arose on the express term of the law itself. Sec. 22 tested on this touchstone also to our minds suffers from the same defect. The powers of the Collector are in addition to any other power he may possess. The satisfaction is merely his subjective satisfaction. The person against whom he can proceed is any person in possession of land in colony about whom he is satisfied that he has no right or title to such land. No notice is also provided to be served on such person and immediate re-entry on the land and taking of possession of all trees and buildings thereon on behalf of the State Government without payment of any compensation whatsoever is authorised. Such an unguided, uncontrolled and uncanalised drastic power depending on the subjective satisfaction of the Collector is certainly violative of Art. 14 of the Constitution. 22. In Northern India Caterers Ltd. vs. State of Punjab(2) the validity of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act (31 of 1959) was challenged. In that context their Lordships of the Supreme Court observed, and we quote only portions that are directly applicable to the case before us : "Under Sec. 4, if the Collector is of opinion that any person is in unauthorised occupation of public premises and that he should be evicted, he has to issue a notice calling upon person to show cause why an order of eviction should not be made. Under sec. 5, if the Collector is satisfied that the public premises are in unauthorised occupation he has the power to make an order of eviction giving reasons therefor. The contention is that the Government thus has two remedies open to it, one under the ordinary law and the other a drastic and more prejudicial remedy under the present Act. The words the Collector may make an order of eviction in sec. 5 show that the section confers discretion to adopt the procedure under secs. 4 and 5 or not. Sec. 5 has left it to the discretion of the Collector to make such an order in the case of some of the tenants and not to make such an order against others. 5 show that the section confers discretion to adopt the procedure under secs. 4 and 5 or not. Sec. 5 has left it to the discretion of the Collector to make such an order in the case of some of the tenants and not to make such an order against others. Sec. 5 thus enables the Collector to discriminate against some by exercising his power under Sec. 5 and take proceedings by way of a suit against others, both the remedies being simultaneously available to the Government. There can be no doubt that if the Collector were to proceed under secs. 4 and 5 the remedy is drastic for a mere opinion by him that a person is in unauthorised occupation authorises him to issue a show cause notice and his satisfaction under sec. 5 is sufficient for him so pass an order of eviction and then to recover under sec. 7 rent in arrears and damages which he may assess in respect of such premises as arrears of land revenue. Sec. 5 does not lay down any guiding principle or policy under which the Collector has to decide in which cases he should follow one or the other procedure and, therefore, the choice is entirely left to his arbitrary will. Consequently, S.5 by conferring such un-guided and absolute discretion manifestly violates the right of equality guaranteed by Art. 14. It is well settle that if a law were to provide for differential treatment for amongst persons similarly situated, it violates the equality clause of Art. 14............." Sec. 22 confers greater discrimination than the section which their Lordships were examining in the above case. The allegation of the appellants is, and we have seen in D. B. Special Appeal No. 395/72, that in some cases resort had been taken to sec. 91 of the Land Revenue Act while in other cases the provisions of sec. 22 have been resorted to in the Rajasthan Canal Area itself. The proceedings under sec. 91 are not only regulated by the procedure prescribed but there are two appeals provided against orders passed in such proceedings. For an action under sec. 22, no notice is necessary, no opportunity to the person in possession is afforded, the jurisdiction of civil Court is barred under sec. 25 and there is no right of appeal. 91 are not only regulated by the procedure prescribed but there are two appeals provided against orders passed in such proceedings. For an action under sec. 22, no notice is necessary, no opportunity to the person in possession is afforded, the jurisdiction of civil Court is barred under sec. 25 and there is no right of appeal. We might in this connection, also refer to Raghubir Singh vs. Court of Wards, Ajmer(3). In this case, under sec. 112 of the Ajmer Tenancy and Land Records Act, 1950, it was provided that, "If a landlord habitually infringes the rights of a tenant under this Act, he shall, notwithstanding in sec. 7 of the Ajmer Government Wards Regulation, 1888 (1 of 1388) be deemed to be a landlord who is disqualified to manage his own property" within the meaning of sec. 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards. Their Lordships observed as follows: "The provisions of sec. 112 of Act 42 of 1950 are penal in nature and are intended by way of punishment of a landlord who habitually infringes the rights of his tenants. He is punished by being placed at the mercy of the Court of Wards and by being made subject to the stringent provisions of Regulation I of 1888. An enactment which prescribes a punishment or penalty for bad behaviour or for misconduct of a landlord cannot possibly be regarded as restriction on a fundamental right. Indeed a punishment is not a restriction. This was frankly conceded by the learned Attorney General. It is still more difficult to regard such a provision as a reasonable restriction on the fundamental right. When a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can on no construction of the word reasonable, be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a civil court. Sec. 112 of Act 42 of 1950 cannot, therefore, be held valid as coming within the scope of Art. 19(5) of the Constitution." Sec. 25 of the Colonisation Act excludes the jurisdiction of the Civil Court in matters arising under the Act and the exercise of powers u/s. 22 is dependent on the satisfaction of the Collector to order immediate re-entry on the land and take possession of all crops, trees and buildings thereon on behalf of the State Government without compensation. 23. We are, therefore, of the opinion that sec. 22 is violative of Arts. 14 and 19(1)(f) of the Constitution. We accordingly strike it down. As a matter of necessary consequence, we quash the notices issued thereunder. No action has been alleged to be taken under sec. 24 of the Colonisation Act and it is, therefore, not necessary to examine its validity. 24. No other point was pressed before us. 25. The result of our discussion is that the notices issued to the appellants under sec. 22 are quashed and the appeals of the appellants are allowed to this extent. There will be no order as to costs.