Sushila Kumari v. State of Rajasthan — 1995 DIGILAW 489 (RAJ)

Honble CHOPRA, J. – By this writ petition,the erstwhile Ruler of the covenanting State of the Bikaner Dr. Karni Singh who has now expired during the pendency of the writ petition and has been succeeded by his legal representatives brought on record vide order of this court dt. 21.8.89 have sought following reliefs: ``(i) Section 6(2) along with the proviso to the said Section may be declared unconstitutional and void. (ii) Constitution 40th Amendment Act 1976 may be declared unconstitutional and void in so far as it makes provision for item No. 163. (iii) The Sub-Divisional Officer (South) Bikaner may be restrained from proceeding to acquire the agricultural lands in possession of the petitioner. (iv) Any other appropriate writ, direction or order that may be deemed expedient for the ends of justice may be issued. (v) Cost be awarded. (2). The contention of the petitioner Dr. Karni Singh now succeeded by his legal representatives was that he was erstwhile Ruler of Bikaner at the time of the merger of the State of Bikaner with the Union of India and an inventory of the personal and private properties of the Rules of Bikaner was prepared in pursuance of Article XII of the Covenant and that inventory stands finally approved by the Central Government. The petitioner thus, became the owner of the properties, the particulars of which were given in the inventory approved by the Central Government, the copy of that inventory has not been produced in the writ petition. (3). The Rajasthan State Legislature enacted Act No.11 of 1964 named as Raja- sthan Land Reforms and Acquisition of Landowners, Estates Act 1963 which received the assent on sixth day of April 1964. This Act later came to be amended by an Act No. 15 of 1975 receiving the assent of the President of India on 26th March 1975. The petitioner has referred in the writ petition to the definition of land as mentioned in Sec.2-F as originally incorporated in the Act of 1963 as also the defi- nition of `Land after the 1975 amendment Act came into force and has also referred to the definition of the `Estate, `Landowner etc. The petitioner has referred in the writ petition to the definition of land as mentioned in Sec.2-F as originally incorporated in the Act of 1963 as also the defi- nition of `Land after the 1975 amendment Act came into force and has also referred to the definition of the `Estate, `Landowner etc. and has further contended as per the amended Act the estate of landowner vested in the Government from appointed dated which was notified as 1.9.1964 and from the date of vesting the right, title and interest of the landowner in the Estate shall vest in the Government free from all encumbrances. The combined effect of Sec. 7 and 8 of the 1963 Act is that the Estate and the land of the landowner shall vest in the State Government from 1.9.64 except the land referred to sub-section 1 of 10. (4). Section 6 (2) of the Act 1963 provides that out of the lands covered by Section 10 (1) (a) (i) the lands which are in the personal cultivation of the landow- ner shall, as from the date of vesting, be the Khatedar tenant thereof. The petitioners have admitted that they have lands under their cultivation on which there are no tenants but these lands are included in the inventory of the private private properties of the petitioners prepared in pursuance of Article XII of the Covenant. The petitioner does not possess any other agricultural land which is not included in in- ventory as aforesaid. On account of the notification issued by the State Government in exercise of powers conferred on it under Sec. 7 of the Rajasthan Land Reforms and Acquisition of Landowners Estates Act, 1963 (Rajasthan Act No. 11 of 1964) fixing first day of September as the date of vesting of the landowners Estate in the Government. As regards the Estate of the late Dr. Karni Singh, the Collector, Bikaner commenced proceedings for acquisitions of certain properties vide notice dated 31.10.1975 and passed an order Annex. 1 dt. 19.12.75 in respect thereof. Certain properties have been exempted from acquisition but it is alleged that in respect of some properties, the matter has been referred by the Collector to the Compensation Commissioner for decision and the Compensation Commissioner has not fina- lly decided the matter. 1 dt. 19.12.75 in respect thereof. Certain properties have been exempted from acquisition but it is alleged that in respect of some properties, the matter has been referred by the Collector to the Compensation Commissioner for decision and the Compensation Commissioner has not fina- lly decided the matter. No final order declaring the petitioner as the Khatedar tenant of the lands covered by Sec. 6(2) of the 1964 Act has also been passed. However, the Sub-Divisional Officer has issued a notice to him for acquisition of his agricultural lands as per provisions of Chapter IIIB of the Rajasthan Tenancy Act, 1955. The petitioner challenged the jurisdiction of the S.D.O. (South), Bikaner to proceed in the matter but that contention has been rejected and he has passed an order for acquisition of agricultural lands in possession of the petitioner except 305 bighas and 12 biswas of the Banjar land. The copy of that order dt. 28.10.71 has been filed as Annex. 2. The appeal preferred by the petitioner before the Revenue Appellate Authority was disposed of vide order dt. 13.9.76, whereby, the R.A.A. sustained the order of the S.D.O. (South), Bikaner that he has jurisdiction to proceed against the ex-Ruler under Chapter IIIB of the Rajasthan Tenancy Act. The revision petition preferred against that order before the Board of Revenue was also failed vide order Annex. 4 dt. 5.9.80 and the review petition was also dismissed vide Annex. 5 dt. 16.9.82. The petitioner has, therefore, challenged these orders and has sought the aforesaid reliefs through this writ petition. (5). A return has been filed on behalf of the State in which it was contended that the S.D.O. has full authority to proceed against the land which is in personal cultivation of the Ex-ruler of Bikaner State and Chapter IIIB of the Rajasthan Tenan- cy Act which has now been superceded by the Rajasthan Imposition of Ceiling on Agricultural Holdings Act 1973 (hereinafter referred to as the Act of 1973), read with the provisions of the Act, 1963 clearly authorised the S.D.O. (South), Bikaner to proceed in the matter. (6). We have heard Shri B.L. Purohit appearing for the petitioners who are legal representatives of late Dr. Karni Singh and Shri C.R. Jakhar, for the State. Notices were issued to the Advocate General as also to the Attorney General, but none has appeared. (7). Mr. (6). We have heard Shri B.L. Purohit appearing for the petitioners who are legal representatives of late Dr. Karni Singh and Shri C.R. Jakhar, for the State. Notices were issued to the Advocate General as also to the Attorney General, but none has appeared. (7). Mr. Purohit has challenged the validity of 40th Amendment of the Constitution as also the validity of Sec., 6 (2) of the 1963 Act (Act No. 11 of 1964). It appears that he has abandoned both these reliefs as he has not canvassed a word about these two reliefs. It is stated that the validity of the 40th Amendment of the Constitution has already been upheld and this Act having been included in Schedule IX of the Constitution at No. 163, the validity of Sec. 6(2) of the Act of 1963 i.e. Rajasthan Act No. 11 of 1964 cannot be challenged on the basis of the infringement of fundamental rights. This is the effect of the inclusion of this Act in the IX Schedule and thus, so far as the first two reliefs are concerned. There are no more res-integra. Thus, we are to consider the third relief sought by the petitioners as to whether S.D.O., Bikaner has any jurisdiction to proceed in the ceiling matter of the Ex- ruler of covenanting State of Bikaner. Chapter IIIB of the Tenancy Act, 1955 imposed certain restrictions on holding of lands in excess of ceiling areas. This chapter was later repealed and was superceded by the aforesaid Act of 1973. The Act of 1963 defines `Estate to mean land or right, title or interest in land held by the landowner. Section 2(d) of the aforesaid Act defines `Inventory to mean the inventory of the private properties of the Ruler prepared in pursuance of Article XII of the Covenant and finally approved by the Government of India. Section 2(e) defines `Khudkasht to mean any land cultivated personally by the landowner and includes any land recorded as the landowners sir or Khudkasht. Section 2(d) of the aforesaid Act defines `Inventory to mean the inventory of the private properties of the Ruler prepared in pursuance of Article XII of the Covenant and finally approved by the Government of India. Section 2(e) defines `Khudkasht to mean any land cultivated personally by the landowner and includes any land recorded as the landowners sir or Khudkasht. Section 2(f) defines `Land and reads as under : ``land means, the land held or let for purposes of agriculture or for purposes ancillary thereto including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans and includes-(a) tanks, lakes ponds, river and water channels held for purposes of irrigation, (b) surface of hills, (c) landing grounds or strips, and (d) shikargarh but does not include forts, palace buildings and building plots, specified in the inventory. Section 2 (g) defines `Landowner. Section 2(i) provides that the `words and expressions defined in Rajasthan Tenancy Act, 1955 and Rajasthan Land Revenue Act 1956 but not defined in this Act shall wherever used herein be construed to have the meanings respectively assigned to them by those Acts. Section 3 provides for liability of the estates to pay land revenue and Section 4 pertains to determination of rental income from estates. Section 6(2) of the Act provides that in respect of land under the personal cultivation of the landowner and in which there are no tenants, the landowner shall, as from the date of vesting be the Khatedar tenant thereof. Its proviso reads as under :– ``Provided that nothing in this sub-section shall affect the provisions contained in Chapter IIIB of the Rajasthan Tenancy Act, 1955 (Raj. Act 3 of 1955). Section 7 provides that the Estate of the landowner shall be acquired by the Govern- ment from a date to be notified in the Official Gazette and admittedly that date has been notified as 1.9.64. The consequences of acquisition are provided in Sec. 8 and it provides that right, title and interest of the landowner and of every other person claiming through him in his estate, shall stand acquired by and vested in the Government free from all encumbrances and shall be utilised by it for the purpose of carrying out agrarian reform in accordance with the provisions of this Act. Section 10 pertains to private lands, buildings, wells, house-sites and enclosures and it reads as under :– ``Notwithstanding anything contained in Section 8. (a)(i) all open/enclosures in the possession of the landowner used for agricultural or domestic purpose, (ii) all private buildings, places of worship, and wells situated in, and trees standing on, lands, included in such enclosures or house-sites, as are specified in clause (i) above or land appertaining to such buildings or places of worship, (iii) all groves, wherever situate, belonging to or held by the landowner or any other person, (b) all private wells and buildings belonging to or held by the landowner or any other person, and (c) all tanks in the personal occupation of the landowner and used solely for irrigating the land referred to in sub-section (2) of Section 6; shall continue to belong to, or be held by, such landowner or other person, subject in the case of tanks, to the terms and conditions, if any mentioned in the Covenant. (2) If any question arises whether any property is of the nature refe- rred to in sub-section (1), it shall be referred to the Compensation Commissioner who may, after holding the prescribed enquiry, make such order thereon as he deems fit. (8). Much stress has been laid on clause (a) (i) of sub-section (1) of Section 10 which provides that all open enclosures in the possession of the landowner used for agricultural or domestic purposes, if included in the inventory as private lands buildings and wells etc., then they shall continue to belong to, or be held, by, such landowner or other person, subject in the case of tanks, to the terms and conditions, if any mentioned in the Covenant. It has, therefore, been claimed that all those opening enclosures which are in possession of the landowner and which are included in the inventory prepared under Article XII of the Covenant which has been approved by the Central Government, proceedings under Chapter IIIB of the Tenancy Act, 1955 or for that matter under the Act of 1973 cannot be taken by S.D.O. (South), Bikaner. Now this has to be seen whether this contention can be sustained. (9). Section 7 to Section 11-A from part of Chapter IV and Section 14 to Section 19 from part of Chapter VI which relate to payment of compensation. Now this has to be seen whether this contention can be sustained. (9). Section 7 to Section 11-A from part of Chapter IV and Section 14 to Section 19 from part of Chapter VI which relate to payment of compensation. It was argued before S.D.O. (South), Bikaner on behalf of the petitioner that both these chapters have been held to the unconstitutional ultra-vires by a decision of the Rajasthan High Court. That decision has not been cited before us nor both the parties have raised any such plea before us that these chapters are ultra vires. If they are so, then no relief can be claimed under Sec. 7 or Sec. 8 read with Section 10 of the Act. But even if, it is assumed that they are on the statute book and are valid, then too, the interpretation of these provisions is that as from the specified date i.e. 1.9.64, the landowners Estate shall vest in the State Government and consequences of vesting as provided in Sec. 8 of the Act, 1963 will follow. However, two exceptions have been carved out of this vesting and acquisition provided by Sec. 7 read with Sec. 8 of this Act of 1963. The first exception is Section 6(2) of the Act and the second one is sub-section (1) is Section 10 of the Act. Section 6 (2) provides that although, the landowners estate will vest in the State Government as per the provisions of Sec. 7 and 8 of the Act but as per Sec. 6 (2) in respect of land, under the personal cultivation of the landowner, in which there are no tenants, the landowner shall as from the date of vesting be the Khatedar tenant thereof. This is a legal right granted to the Ex-ruler of the covenanting estate and no formal orders of any authority i.e. either the Collector or Compensation Commissioner are required. This is a legal right granted to the Ex-ruler of the covenanting estate and no formal orders of any authority i.e. either the Collector or Compensation Commissioner are required. This is a legal right available to a landowner under this Act of 1963 and a corresponding obligation has been cast on the Government that the land which is its personal cultivation of the landowner and in which there are no tenants, although, it may forms part of the estate of the landowner and will vest in the Government and the Government will become its owner but tenancy rights as a Khatedar tenant will accrue to the Ex-ruler about this land and therefore, that land will vest in the Government only for the purpose of ownership rights but tenancy rights as a Khatedari tenant will surive in the Ex-ruler and he will not be required to deliver the possession of that land under Sec. 9 and 9-A of the aforesaid Act. This is the precise effect of Sec. 6 (2) of the Act. (10). Another exception carved out is of Section 10 which says that notwithstanding anything contained in Sec. 8 all open enclosures, all private buildings, places of worship, all groves and private wells and all tanks in the personal occupation of the landowner and used solely for irrigating the lands referred to in sub-section (2) of Section 6 shall continue to belong to or be held by such land- owner or other person subject in the case of tanks, to the terms and conditions, if any mentioned in the Covenant. Thus, all open enclosures in possession of the landowner and used for agricultural purposes or for domestic purposes will be retained by him and he will not be required to deliver the possession thereof to the State Government under the Act of 1963. (11). Section 10 is an exception to Sec. 7 and Sec. 8 of this Act of 1963 but it is not an exception to Section 6(2) of the Act. If there are any lands which are in personal cultivation of the landowner, he becomes its Khatedar tenant and has to be recorded as such on account of operation of law and once he becomes a Khatedar tenant of those lands, they become emenable to ceiling proceedings as provided by the proviso to Sec. 6 (2) of the Act of 1963. It is true that Sec. 2 (f) of the Act which defines land categorically provides that it will not include fort palaces, buildings and building plots specified in inventory and thus, if any land forms part of a fort, palace building or building plots and is specified in the inventory, it will not be treated as land. When it is not treated as land, then it does not become `estate as per section 2(b) of the Act, 1963 and if any question arises about this as to whether any enclosure forms or does not form part of the Fort, Palace-Building or building-plots and is specified in the inventory, then the Compensation Commissioner will decide that dispute but this does not authorise the Compensation Commissioner to decide whether any particular land which is in the personal cultivation to the ruler whether enclosed or unenclosed, Khatedari land will form part of his estate as defined in Sec. 2 (b) of this Act of 1963 and therefore, will not vest in the Government as per Section 7. (12). Mr. Purohit has placed reliance in this respect on Single Bench decision of this Court rendered in Prajapati Garh Nirman Samiti vs. State of Rajasthan (1). In that case, it was categorically admitted that a particular land forms part of Umaid Bhawan Palace and is situated with the red boundary line by which boundaries of Umaid Bhawan Palace have been marked out. The learned Judge categorically held that it is not an agricultural land and therefore, it was not emenable to ceiling proceedings because that was an Abadi Land. This authority has no relevancy and application to the facts of this case. The same is the position as regard the decision of their Lordships of the Supreme Court rendered in Adhunik Grah Nirman Sahakari Samiti Ltd. vs. State of Raj. (2), in which the view of the learned Single Judge of this Court Shri M.L. Jain as regards the land of the Chhitar Palace (Umaid Bhawan Palace) was upheld. Thus it too has no application to the facts of the present case. Reliance has been placed on a decision of the Supreme Court rendered in Waman Rao vs. Union of India (3). In this case the controversy raised was whether the Acts which are included in IXth Schedule are emenable to challenge on the basis of Chapter III of the Constitution. Reliance has been placed on a decision of the Supreme Court rendered in Waman Rao vs. Union of India (3). In this case the controversy raised was whether the Acts which are included in IXth Schedule are emenable to challenge on the basis of Chapter III of the Constitution. That challenge has already been given up by Mr. Purohit and as such this authority too has little application to the facts of this present case. Reliance was also placed on the decision of this Court rendered in State of Rajasthan vs. Mahendra Singh (4). In this case, it was held that the property in respect of which the ruler has not entered into any covenant, the Ruler cannot be treated as landowner of that property and such a property held by the Ruler is not an `estate within Section 2(b) of the Act, 1963 and, therefore, this authority also is totally inapplicable to the facts of the present case as it is an admitted case of the petitioner here that all the lands which are held by him or his legal representatives are lands which are included in the inventory which has been approved by the Central Government. In this case the copy of the inventory has not been filed to show which particular lands form part of the forts, Palace-Buildings and building-plots. Even if, it is held that there are some open enclosures and they are used for agricultural purposes and are in personal cultivation of the Ruler then those enclosures become his Khatedari land by operation of law as per Section 6(2) of the Act of 1963. The petitioners have categorically admitted in para 14 of the writ petition that they have certain lands under their personal cultivation but these lands are included in the inventory of their private properties. Even if, they are included in the inventory, if such lands are in their personal cultivation, they form part of the landowners Estate and are liable to vest in the State Govenrment as per provisions of Sec. 7 and 8 of the Act of 1963. Even if, they are included in the inventory, if such lands are in their personal cultivation, they form part of the landowners Estate and are liable to vest in the State Govenrment as per provisions of Sec. 7 and 8 of the Act of 1963. However, as their lands are in the personal cultivation of the Ruler, they will be saved from acquisition as per Section 6(2) of the Act, 1963 and they will not be distributed to landless persons in order to augment agrarian reforms, as they form part of the Khatedari land of the Ex-ruler being cultivated personally by him such lands whether they form part of enclosures or not enclosed they become his khatedari lands and, therefore they will be governed by the provisions of the Ceiling Law. (13). Ceiling are a has been defined in Section 5(6-A) of the Rajasthan Tenancy Act, 1955 and provides that ceiling area in relation to land held anywhere throughout the State by a person in any capacity whatsoever shall mean, the maximum area of land that may be fixed as ceiling area under Sec. 30(c) in relation to such persons. Thus ceiling area comprises of the land held by the landowner or Khatedar tenant anywhere throughout the State of Rajasthan and this definition is very much applicable to the Act of 1963 because of Sec. 2 (i) of the Aforesaid Act which says that the `word and expressions defined in Rajasthan Tenancy Act and in the Raja- sthan Land Revenue Act but are not defined in the Act shall wherever used herein be construed to have the meaning respectively assigned to them by that Act. Thus the definition of `ceiling area mentioned in Rajasthan Tenancy Act will be very much applicable to the proceedings that are taken under Chapter IIIB of the Rajasthan Tenancy Act or under the Ceiling Law of 1973 which has repealed and substituted by Chapter IIIB of the Rajasthan Tenancy Act. Section 5(23) of the Act, 1955 defines Khudkasht to mean land in any part of the State Cultivated by an estate holder and shall include land recorded as Khudkasht sir Hawala, Nijijot Garkher in statement recorded at the commencement of this Act in accordance with the law in force at the time when such record was made. Section 5(23) of the Act, 1955 defines Khudkasht to mean land in any part of the State Cultivated by an estate holder and shall include land recorded as Khudkasht sir Hawala, Nijijot Garkher in statement recorded at the commencement of this Act in accordance with the law in force at the time when such record was made. Thus the Khudkasht or Khatedari land of an Ex ruler is emenable to ceiling proceedings whether they are included in the inventory or not. It is only that land which is a part of a fort Palace buildings or building plots and are specified ceiling area because they do not form part of the land as defined in Sec. 2 (f) of the Act of 1963. Once they form part of the land as defined in Sec. 2 (f) read with Sec. 2 (b) of the Act of 1963 ceiling proceedings about them can very well be initiated by S.D.O. (South) Bikaner Acquisition of Khatedari rights over such land is not referable to the Compensation Commissioner. A particular piece of land which is an open enclosure and is cultivated personally by the landowner can very well be claimed by him as his private land under Sec. 10 (1) (a) of the Act and if there is any dispute about that land to the effect that whether it forms part of a fort, palace building or buildings plot and is not an agricultural land such a dispute can be referred to the Compensation Commissioner but if no such dispute is raised and it is admitted that petitioner have some agricultural lands in their cultivation and are shown in the inventory then too such lands as from the date of vesting these will vest in the State Government as per Sec. 7 and 8 of the Act of 1963 and as they are in personal cultivation of the landowner they will become his Khatedari lands as from the date of vesting i.e. 1.9.64 and therefore once they become his lands, ceiling proceedings can always be taken about such lands because the Act it self clearly carves out a proviso to Sec. 6 (2) of the Act of 1963 that nothing in sub section (2) shall affect the provision contained in Chapter IIIB of the Rajasthan Tenancy Act, 1955 which now stand substituted by the Ceiling Act of 1973 and Rules framed thereunder. Thus, the third relief sought by the petitioner cannot be granted to him. (14). It is not his case that the land about which ceiling proceedings are initia- ted are not agricultural lands and are not cultivated by them personally. Although, late Dr. Karni Singh the original petitioner has claimed that he does not possess any land except the land mentioned in the inventory but the copy of that inventory has also not produced before us and, therefore, no blanket order can be passed in favour of the petitioner that the land which is mentioned in inventory, even if, it is covered by the definition of word ``land and does not from part of fort, palace-buildings or building plots will be exempted from ceiling proceedings. No other point was pressed before us. In the result, this writ petition has no force and it is hereby dismissed.