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2013 DIGILAW 758 (RAJ)

Ram Kumar v. State of Rajasthan

2013-04-15

AMITAVA ROY, V.K.MATHUR

body2013
Hon'ble ROY, CJ—The petitioner, who is allottee of land under the Rajasthan Colonization (Allotment and Sale of Government Land in Indira Gandhi Canal Colony area) Rules, 1975 (hereinafter referred to as “the Rules”) has hereby impeached the validity of Rule 17(4) thereof as ultra vires. Interference with the letters/notices dated 14.3.2011 (Annex.9 and 10 to the writ petition) raising demands of arrears payable by him for conversion of uncommand land to command land, is also sought for. 2. We have heard the learned counsel for the petitioner. 3. For the order proposed to be passed in the instant petition, it is not considered essential to issue any formal notice to the respondents. 4. The petitioner's pleaded case is that he had been in all allotted uncommand land measuring 49-1/2 bighas under the Rules in instalments of 24-1/2 bighas, 10 bighas and 15 bighas (10 + 5), following which the khatedari sanad was also issued in respect thereof. The petitioner has clarified that the status of the land i.e. command or uncommand land is declared by the Irrigation Department of the State depending upon the level thereof and suitability for irrigation thereon. According to the petitioner, uncommand land is to be treated as Barani land, which is not fertile and is difficult to be irrigated, so much so, that 2 bighas of uncommand land is construed to be equal to 1 bigha of command land. 5. The petitioner has averred that he, by his own efforts over the years, improved the quality of the land so allotted to make it of an command category by making huge investments. He, thereafter, deposited necessary fee for the survey of the land and got it declared fit to obtain necessary facilities for irrigation. He was also granted the irrigation connection on deposit of necessary fees. Thereafter, impugned notices/letters were issued asking him to deposit payment for conversion of his uncommand land to command land. Whereas by the first notice/letter, he was asked to deposit a sum of Rs.46,368/- for converting 24 bighas of uncommand land to command land, by the latter, amount of Rs.1,50,402/- was demanded for conversion of 6 bighas of uncommand land to command land. Apart from questioning the validity of Rule 17(4) of the Rules, the petitioner has asserted that his legal notice in refutation of the demand did not meet with positive response. Apart from questioning the validity of Rule 17(4) of the Rules, the petitioner has asserted that his legal notice in refutation of the demand did not meet with positive response. He has alleged as well that the respondents have not charged at uniform rates for conversion of uncommand land into command land and has provided individual instances to this effect. 6. The learned counsel for the petitioner with particular reference to Rule 17(4) of the Rules has argued that it is violative of Articles 14, 19 and 21 of the Constitution of India, as not only thereby an arbitrary and highhanded provision for exactions for transformation of uncommand land to command land even on individual efforts and investments of the allottee, has been made, the rate of realization is also wholly irrational, unreasonable and unjust. The very omnibus nature of the provision makes it wholly unconstitutional, he urged. He reiterated that this provision imposes unreasonable restriction on the exercise of right to freedom of occupation envisaged in Article 19 of the Constitution and is thus, liable to be adjudged ultra vires the same. 7. We have examined the pleaded facts, the documents annexed and also have evaluated the arguments advanced. 8. The Rules have been framed in exercise of the powers conferred by Section 7 read with Section 28 of the Rajasthan Colonisation Act, 1954 (for short, hereinafter referred to as “the Act”). The Act, as the preamble would disclose, is to provide better provision for the colonization and administration of land in the State of Rajasthan. “Colony” has been defined in Section 2(ii) to mean any area to which the enactment would apply vide notification in the Official Gazette or in respect of minor irrigation projects, by an order of the Collector authorized by the State Government in this behalf. Section 7 thereof empowers the State Government to grant any person land in a colony on such conditions as may be prescribed. Section 7(2) gives liberty to the State Government to issue statement or statements of the conditions on which it is willing to grant land in a colony to any person. Section 28 confers power upon the State Government to make rules to carry out the provisions and purposes of the Act and in particular for all matters which are required thereby to be prescribed or which may be prescribed thereunder. Section 28 confers power upon the State Government to make rules to carry out the provisions and purposes of the Act and in particular for all matters which are required thereby to be prescribed or which may be prescribed thereunder. Whereas Rule 16 of the Rules embodies the terms and conditions of allotment, Rule 17 prescribes the scale of price and mode of payment. The price for each soil class, as sanctioned by the Collector, is fixed as enumerated in the scale under Rule 17(1), which includes amongst others uncommand/Barani land. That different scales of price are contemplated for the classes of lands as mentioned in the proviso to Rule 17(1), is also, however, evident therefrom. Rule 17(4), the vires whereof has been challenged, is quoted hereinbelow for ready reference:- “17. Scale of price and mode of payment.-.. (4) If at any time after allotment, any Government land allotted as uncommand land becomes command land, then for the first 25 bighas of command land under his allotment, the allottee shall pay to the State Government the reserve price of command land at the above mentioned rates, less the price which he has already paid in terms of uncommand land. Thereafter for the remaining command land, if any, he shall pay the prevalent market price less the price which he has already paid in respect thereof.” A plain perusal of this extract would bring out the following salient features thereof: (a) if the land allotted as uncommand land becomes command land, then for the first 25 bighas of command land, the allottee shall pay to the State Government the reserve price of command land at the mentioned rates, less the price which he has already paid in terms of uncommand land. (b) for the remaining command land, if any, he has to pay the prevalent market price less the price which he has already paid in respect thereof. 9. Admittedly, allotments in favour of the petitioner have been made under the Rules and the orders to this effect disclose in unequivocal terms that the same had been made subject to the provisions of the Rules and that any breach thereof would entail cancellation of such allotment. The petitioner has thus accepted the allotment on such terms and conditions as is the mandate of Section 7 as aforementioned. The petitioner has thus accepted the allotment on such terms and conditions as is the mandate of Section 7 as aforementioned. Apart therefrom, as Rule 17(4) would demonstrate the payment by the allottee at the reserve price of command land has been limited to the area of 25 bighas of uncommand land which has become command land and the market price is realizable only in respect of remaining command land. In both the eventualities, the amounts already paid by the allottee would stand adjusted. Having regard to the fact that the land involved is a Government land and the same has been allotted subject to the terms and conditions as enumerated by the Rules, the besieged provision would be liable to be declared ultra vires or unconstitutional if it is patently violative of any fundamental right or any other constitutional provisions. 10. In our comprehension, reading the scheme of the Act and the Rules, as a whole, Rule 17(4) is only a regulatory provision contingent on the event of uncommand land becoming command land. Noticeably, by this provision market price has not been made realizable for the entire area of command land, inferably contemplating the possibility of contribution of the allottee in the process of transformation of the uncommand land to the command category. Rule 17(4) thus cannot be, in our estimate, repudiated to be wholly arbitrary and oppressive vis-a-vis an allottee of a Government land. This provision per se cannot be proscribed to be unconstitutional, having regard to the potential of the command land at the disposal of the allottee and its aggrandizing prospects for him for the future. The investments claimed to have been made by the petitioner even if accepted, though do not detailed in the petition, in our opinion, does not outweigh the valid considerations of the rule making authority to legislate Rule 17(4). This provision at best imposes a reasonable restraint on the right to carry on occupation, trade or business as envisaged under Article 19 of the Constitution and also cannot be jettisoned to be transgressive to right to equality enshrined in Article 14 thereof. The plea of realization at varying rates also does not weigh with us, the eventuality even if real being contingent on various factors including those envisaged in the proviso to Rule 17(1). 11. The plea of realization at varying rates also does not weigh with us, the eventuality even if real being contingent on various factors including those envisaged in the proviso to Rule 17(1). 11. In the wake of the above, the challenge to Rule 17(4) of the Rules fails and the writ petition is dismissed.