Thakur Amar Singhji Vs. State of
Rajasthan  INSC 27 (15 April 1955)
VENKATARAMA AIYYAR, T.L. VENKATARAMA
MUKHERJEE, BIJAN KR. (CJ) DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER
CITATION: 1955 AIR 504 1955 SCR (2) 303
Rajasthan Land Reforms and Resumption of
Jagirs Act (Rajasthan Act VI of 1952)-Validity-Rajpramukh-Competence to enact
the law-Covenant of the United State of Rajasthan, arts. VII (3), X
(3)-"Ordinance", meaning of-Bill, whether prepared by the Rajpramukh
as required by the Constitution Resumption of jagir lands -Legislative
competence-Pith and substance of legislation-Acquisition or resumption-Jagir,
meaning of-Legislative practice-Implied grant-Legislative grants-Constitution
of India, Arts. 14,, 31-A, 31(2), 212A(2), 385, Sch. VII, List II, entries 18,
36-Marwar Land Revenue Act , (XL of 1949), s. 169-Mewar Government Kanoon Mal
Act (V of 1947), s. 106-Bhomicharas, Bhomias, Tikanadars, Subeguzars,
Mansubdars, holders of other tenures.
The Bill which came to be enacted as the
Rajasthan Land Reforms and Resumption of Jagirs Act was prepared in the
Ministerial Department of the Government of Rajasthan. It was approved by the
Rajpramukh on 8-2-1952, and reserved for the consideration of the President,
who gave his assent to it on 13-2-1952. By notification issued on 16-2-1952, the Act came into force on 18-2-1952. In pursuance of s. 21(1) of the Act, the
State of Rajasthan issued notifications resuming the jagirs specified therein,
whereupon petitions under Art. 226 of the Constitution were filed by the
persons aggrieved challenging the validity of the Act before the Rajasthan High
Court. The petitions were dismissed and thereupon they filed petitions before
the Supreme Court under Art. 32 of the Constitution of India, impugning the
Act. They contended inter alia that the Rajpramukh had no competence to enact
the law, that the Bill was not prepared by the Rajpramakh as required by Art.
212-A(2), that resumption was 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 that the Act was therefore ultra vires the powers of the
State, that the Act did not provide for adequate compensation nor was there any
public purpose involved in it and therefore it contravened Art. 31(2), and that
as the Act was discriminatory it contravened Art. 14. There were some special
contentions that the Act was not saved by Art. 31-A, because the lands resumed
were neither estates nor jagirs nor grants similar to jagirs, inams or muafi
and that some of the properties sought to be resumed were not jagirs as defined
in the Act and therefore the notifications under s. 21 of the Act in so far as
they related to them were illegal.
39 304 Held that, (1) the Rajpramukh was
competent to enact the impugned law, under Art. 385, as he was the authority
functioning immediately before the commencement of the Constitution as the
legislature of Rajasthan under art. X (3) of the Covenant of the United State
of Rajasthan. The expression "Ordinance" in art. X (3) must be
construed as meaning "Law". Article VII (3) of the Covenant has
reference to the executive power which the Rulers had to resume jagirs and does
not operate as a restriction on the legislative powers under art. X (3). The
Legislature of the corresponding State mentioned in Art. 385 refers not to the
legislature under the Constitution, but to the body or the authority which was
functioning as the legislature of the State before the commencement of the
Constitution and under Art. X (3) of the Covenant of the United State of
Rajasthan, that authority was the Rajpramukh.
Article 385 does not require that that
authority should have had absolute and unlimited powers of legislation. If it
was functioning as the legislative authority before the Constitution, it would,
under the article, have all the powers conferred by the Constitution on the
House or Houses of legislature of the States.
(ii) Article 212-A(2) which provides that the
Rajpramukh should prepare the Bill, does not require that he should himself
draft it. It is sufficient if he decides questions of policy which are of the
essence of the legislation. It is open to the Rajpramukh to adopt a Bill
prepared by his ministers and the only matter that will have to be considered
is whether in fact he did so. There is no provision in Art. 212-A(2) for the
Rajpramukh approving of a Bill and an endorsement of approval on the Bill
prepared in the ministerial department must therefore signify its adoption by
him. 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.
(iii) The impugned Act is not ultra vires the
powers of the State Legislature as the subject-matter of thelegislation is in
substance acquisition of properties falling under entry 36 of List II of the
Resumption and acquisition connote two
different concepts, but whether the impugned Act is one for acquisition of
jagirs or for their resumption must be determined with reference to the pith
and substance of the legislation, the name given to it by the legislature not
being decisive of the matter. The resumption for which the Act provides is not
in enforcement of the rights which the Rulers had to resume jagirs in
accordance with the terms of the grant or the law applicable to it, but in
exercise of the sovereign rights of eminent domain possessed by the State.
Under the circumstances, the taking of the properties is in substance
acquisition notwithstanding that it is labelled as resumption.
The payment of compensation to the Jagirdars
is consistent only with the taking being an acquisition and not resumption in
305 accordance with the terms of the grant or the law applicable to it. Though
the legislation also falls under entry 18 of List II of the Seventh Schedule,
there being an entry 36 dealing with acquisition, it must be held that the Act
falls under that entry and is valid.
(iv) The word 'jagir' connoted originally
grants made by Rajput Rulers to their clansmen for military services rendered
or to be rendered. Later on grants made for religious and charitable purposes
and even to non-Rajputs were called jagirs, and both in its popular sense and
legislative practice, the word jagir came to be used as connoting all grants
which conferred on the grantees rights in respect of land revenue, and that is
the sense in which the word jagir should be construed in Art. 31-A.
The object of Art. 31-A was to save
legislation which was directed to the abolition of intermediaries so as to
establish direct relationship between the State and the tillers of the soil.
Construing the word in that sense which would achieve that object in full
measure, it must be held that jagir was meant to cover all grants under which
the grantees had only rights in respect of revenue and were not tillers of the
soil. Maintenance grants in favour of persons who were not cultivators such as
members of the ruling family would be jagirs for purposes of Art. 31-A.
(v) Bhomicharas. The Bhomicharas are the
representatives of Rajput Rulers who conquered the. country and established
their sovereignty over it in the thirteenth century. Later on the Ruler of
Jodhpur imposed his sovereignty over the territory but permitted the previous
rulers to continue in possession of the lands on payment of an annual sum. The
question was whether they held the lands as jagirs.
Held that, there could be a jagir only by
grant by the Ruling power but that such a grant need not be express, and could
be implied and when the Ruler of Jodhpur imposed his sovereignty over the
territory of the Bhomicharas but recognised their possession of the lands, it
is as if there was annexation by him and re-grant to them of these lands.
Vajesinghji Joravar Singji and Others v.
Secretary of State [(1924) L.R. 51 I.A. 357] and Secretary of State v. Sardar
Bustam Khan [(1941) L.R. 68 I.A. 109], referred to.
Though the Bhomicharas enjoyed large powers,
their status was only that of subjects. 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
Even if the Bhomicharas did not prior to the
enactment of the Marwar Land Revenue Act XL of 1949 hold the lands as grantees
306 from the State, they must be deemed to have become such grantees by force
of s. 169 of the Act which provides that all lands in the State vest in the
Maharajah and all proprietary interests therein are deemed to be held under a
grant from him. The Bbomicharas bad by long usage and recognition and by the
legislative practice of the State come to be recognised as jagirdars and their
tenure is a jagir within the intendment of s. 169.
For the purposes of Art. 31-A, it would make
no difference whether the grant is made by the sovereign in the exercise of his
prerogative right or by the legislature in the exercise of its sovereign
rights, Grants which are the creatures of statutes called legislative grants
are equally within the operation of that article.
Bhomicharas are, accordingly, within the
operation of Art. 31-A.
(vi) The position of Bhumias in Mewar is
similar to that of Bhomicharas in Marwar and in addition it was a condition of
the terms on which their title to the lands was recognised by the rulers of
Chittoor and Udaipur, that they had to render military service when called upon
and also pay quit rent. Their title to the lands therefore rested on an implied
grant and their tenure would be jagir even in its stricter sense.
Section 27 of the Mewar Government Kanoon Mal
Act (V of 1947) enacts that all lands belong to His Highness and that no person
has authority to take possession of any lands unless the right is granted by
His Highness. Section 106 (1) of the Act declares that a Tikanadar, Jagirdar,
Muafidar or Bhumia shall have all such revenue rights in the lands comprised in
his jagir, muafi, or Bhom under this Act, as are granted to him by His
Highness". The effect of these provisions was to impress on the Bhom
tenure the characteristics of a grant.
Article 13, Clause (1) of the Constitution of
Mewar 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 within the territories of Mewar". It was contended for the
petitioners that the impugned Act was void as contravening the above
Held that, as the authority which enacted the
Constitution of Mewar was His Highness, it could be repealed or modified by the
same authority, and the impugned Act must be held to have repealed the
Constitution to the extent that it was inconsistent with it.
(vii) The Tikanadars of Shekwati got into
possession of lands as ijaradars or lessees and were subsequently treated as
jagirdars. Their tenure was, if not jagirs, at least other "similar
grants" within Art. 31-A. It is included in Schedule I to the impugned Act
as item 6.
The nature of the tenures of lands held by
Subeguzars, Mansubdars, maintenance holders (Lawazma and Kothrikarch),
Tikanadars and of Naqdirazan, Sansan grants, etc., considered, 307 (viii) The
Khandela estate was granted in 1836 on a permanent lease. The definition of
jagir in s. 2(h) includes the tenures mentioned in Schedule I to the Act and
Istimrari tenure is item 2 therein. The question was whether the Istimrar-ijara
was within item 2.
Held that, the essential features of
Istimrari tenure are that the lands are assessed to a nominal quit rent, and
that it is permanent. The amount of Rs. 80,001 fixed as assessment under the
deed of 1836 cannot be said to be nominal. The grant is, therefore, not an
Istimrari tenure, but a permanent Izara.
(ix) Objections raised as to the validity of
the Act on the ground that it did not provide for payment of compensation, that
there was no public purpose involved in the resumption and that therefore it
contravenes Art. 31(2) or that the provisions of the Act offend Art. 14, are
barred by the provisions of Art. 31-A of the Constitution.
Even apart from Art. 31-A, the impugned Act
must be held to be supported by public purpose and is not in contravention of
Art. 31(2). Nor is there a contravention of Art. 14, as under the Act all
jagirs are liable to be resumed, no power having been conferred on the
Government to grant exemption.
State of Bihar v. Maharajadhiraja Sir
Kameshwar Singh of Darbhanga and Others ( S.C.R. 889) and Biswambhar
Singh v. The State of Orissa and Others ( S.C.R. 842), referred to.
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.
ORIGINAL JURISDICTION: Petitions Nos. 354 to
359, 362, 370 to 385, 387 to 469, 471 to 475, 477 to 479) 482 to 486, 488) 490,
491 , 493 to 497, 502, 503, 510, 511 to 521, 525, 527 to 529, 535 to 563, 570,
572 to 575, 577 to 584, 586 to 588, 592 to 595, 597, 600@ 602, 603, 606 to 610,
613 to 619, 624, 626 to 634, 637 to 645, 653, 654, 656 to 659, 661, 662, 668,
672, 675, 679, 684 to 688 of 1954 and I to 14, 17, 20, 21, 25 to 27, 35 to 37,
45, 47, 49, 52, 55 to 57 and 61 to 66 of 1955.
Petitions under Article 32 of the
Constitution for the enforcement of fundamental rights.
Dr. Bakshi Tek Chand, (O. C. Chatterjee and
K. L. Mehta, with him) for 'the petitioners in Petitions Nos. 354, 362,382 to
385, 511 to 516, 519, 537, 308 541, 543 to 547, 550, 553, 556, 558 to 562, 570,
573 to 575, 582 to 584, 587, 588, 593 to 595, 597, 602, 603, 607 to 609, 613,
614, 616 to 619, 626, 628, 631 to 633, 637, 640 to 642, 644, 645, 653, 657 to
659, 661, 662) 6795 684 to 688 of 1954 and 2 to 7, 9 to 14, 21, 25 to 27, 35,
37, 45, 47, 49, 52, 55) 57, 63 and 65 of 1955.
H. L. Mordia and K. L. Mehta for the
Petitioners in Petitions Nos. 55 and 65 of 1955.
Frank Anthony and K. L. Mehta, for the
Petitioners in Petitions Nos. 56 and 64 of 1955.
U. M. Trivedi, (K. L. Mehta, with him), for
the Petitioners in Petitions Nos. 615 of 1954 and 20 of 1955.
R. K. Rastogi and K. L. Mehta, for the
Petitioner in Petition No. 634 of 1954.
K. L. Mehta, for the Petitioner in Petition
No. 36 of 1955.
Dr. Bakshi Tek Chand, (O. C. Chatterjee and
Naunit Lal, with him), for the Petitioners in Petitions Nos. 356 to 359, 370,
372, 373, 374, 376 to 378, 380,, 389, 390, 393 to 400, 415, 4175 463, 469, 482,
484, 521, 563, 577, 578, 586, 592, 606, 610, 627 and 656 of 1954.
Achhru Ram, (Naunit Lal, with him) for the
Petitioner in Petition No. 391 of 1954.
Naunit Lal, for the Petitioners in Petitions
Nos. 355, 371, 375, 379, 416, 455, 468, 483, 485, 488, 491, 493 to 497, 517,
525, 529, 538, 540, 542 and 551 of 1954.
Dr. Bakshi Tek Chand, (Ganpat Rai, with him),
for the Petitioners in Petitions Nos. 381, 387, 388, 402 to 410, 412, 413, 418
to 423; 425, 426, 428 to 454, 456 to 459, 464 to 466, 477, 478, 486, 503, 510,
520, 548, 552, 557, 572, 580, 600, 624, 639, 668 of 1954 and 8 and 17 of 1955.
N. C. Chatterjee, (Ganpat Rai and S. K.
Kapur, 309 with him), for the Petitioners in Petitions Nos. 462, 536, 549, 579,
630, 638 and 654 of 1954.
U. M. Trivedi, (Ganpat Rai, with him), for
the Petitioners in Petitions Nos. 629, 643, 672 of 1954 and 66 of 1955.
Achhru Ram, (Ganpat Rai, with him), for the
Petitioner in Petition No. 424 of 1954.
Frank Anthony and Ganpat Rai, for the
Petitioners in Petitions Nos. 401, 414) 460) 5023 518, 535 and 539 of 1954.
S. K. Kapur and Ganpat Rai, for the
Petitioners in Petitions Nos. 411 and 675 of 1954.
R. K. Rastogi and Ganpat Rai, for the
Petitioners in Petitions Nos. 427 and 461 of 1954.
O. C. Chatterji and Ganpat Rai, for the
Petitioner in Petition No. 62 of 1955.
J. B. Dadachanji and Rajinder Narain, for the
Petitioners in Petitions Nos. 473, 479, 490, 527, 528, 554 and 581 of 1954 and
Nos. 1 and 61 of 1955.
C. L. Aggarwal and Rajinder Narain, for the
Petitioners in Petitions Nos: 471, 472, 474 and 475 of 1954.
K. P. Gupta, for the Petitioners in Petitions
Nos. 467 and 555 of 1954.
S. C. Isaacs, (S. D. Sekhri, with him), for
the Petitioner in Petition No. 392 of 1954.
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 (State of Rajasthan) in
all the petitions.
1955. April 15. The Judgment of the Court was
delivered by VENKATARAMA AYYAR J.-These are applications under Article 32 of
the Constitution impugning the validity of the Rajasthan Land Reforms and
Resumption of Jagirs Act No. VI of 1952, hereinafter referred 310 to as the
Act. The history of this legislation may be briefly stated. On 20-8-1949 the
Government of India appointed a Committee presided over by Sri C. S.
Venkatachar to examine and report on the jagirdari and land tenures in
Rajputana and Madhya Bharat, the object avowedly being to effect land reforms
so as to establish direct relationship between the State and the tillers of the
soil and to eliminate all intermediaries between them. By its report dated
18-12-1949 the Committee recommended inter alia the resumption of jagirs and
payment of rehabilitation grants in certain cases. (Vide report, page 62). The
question of legislation on the subject was taken up by the Government of
Rajasthan in 1951, and eventually a Bill called the Rajasthan Land Reforms and
Resumption of Jagirs Bill was prepared, and on 31-12-1951 it was approved by
the Rajpramukh and reserved for the consideration of the President. On 21-1-1952
the President with held his assent from the Bill, and in communicating this
decision, the Deputy Secretary to the Government of India informed the
Rajasthan Government that if certain amendments were made in the Bill as
presented and a fresh Bill submitted, the President would be willing to
reconsider the matter. In accordance with these suggestions, a fresh Bill was
prepared in the Ministerial Department incorporating certain amendments, and it
was approved by the Rajpramukh on 8-21952, and reserved for the consideration
of the President, who gave his assent to it on 13-2-1952. By notification
issued on 16-2-1952 the Act came into force on 18-2-1952.
Section 21 (1) of the Act provides that:
"As soon as may be after the
commencement of this Act, the Government may by notification in the Rajasthan
Gazette, appoint a date for the resumption of any class of jagir lands and
different dates may be appointed for different classes of jagir lands".
Acting under this provision, the State of
Rajasthan issued notifications resuming the jagirs specified therein, whereupon
petitions under Article 226 of the Constitution were filed by the persons
aggrieved challenging the validity of the Act. These petitions were 311 heard
by a Full Bench of the Rajasthan High Court, which held overruling the
contentions of the petitioners, that the Act was valid. (Vide Amarsingh v.
State of Rajasthan(1).
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
III. Resumption is not one of the topics of
legislation enumerated either in the State list or in the Concurrent List in
the Seventh Schedule of the Constitution, and the Act is therefore ultra vires
the powers of the State.
IV. The Act does not provide for adequate
compensation; nor is there any public purpose involved in it, and so it
contravenes article 31(2) It is discriminatory, and therefore contravenes
article 14. And the legislation is not saved by article 31-A, because the lands
resumed are neither estates nor jagirs nor grants similar to jagirs, inams or
muafi This contention is special to some of the petitioners, and has reference
to the specific properties held by them.
V. The properties sought to be resumed are
not jagirs as defined in the Act, and the notifications under section 21 in so
far as they relate to them are illegal. This again is a special contention
urged in some of the petitions.
These contentions will now be considered
1. On the first question as to the competence
of the Rajpramukh to enact the law, it is necessary to notice the events which
led up to the formation of the State of Rajasthan and the constitution of the
Rajpramukh as its head. During the 12th and 13th Centuries, the Rajput rulers
who were then reigning (1) A.I.R. 1954 Rajasthan 291.
40 312 over various parts of Hindusthan were
compelled by pressure from the victorious Muhammadan invaders to retreat to the
regions to the southwest guarded by the Aravali Hills and interspersed with
deserts which if less hospitable were also less vulnerable, and there
established several independent kingdoms. The period which followed the
foundation of these States was marked by incessant wars, the powerful Sultans
of Delhi making determined efforts to subjugate the Rajput princes and the
latter offering stubborn and more or less successful resistance thereto. The
annals of Rajputana especially of this period, present a story of heroic deeds
of men and women and are among the most inspiring and fascinating chapters in
the history of this country. The Moghul Emperors who established themselves
later saw the wisdom of conciliating the Rajput rulers, and recognised their
position as Chiefs getting in return an acknowledgment of their suzerainty from
them, and a promise to send troops in support of the Imperial arms whenever
required. When the power of the great Moghul waned and the British established
themselves as masters of this country, they in their turn recognised the Rajput
princes as Sovereigns, and entered into treaties with them during the Period
between 1803 to 1818. (Vide Aitchison's Treaties, Volume III). By these
treaties, the British Government accepted their status as independent rulers
reserving to themselves Defence, External Relations and Communications and such
other matters as might be agreed upon. The relationship thus created was one of
"subordinate union" as it was termed by Mr. Lee Warner, the princes
being recognised as Sovereigns and they acknowledging the suzerainty of the
British. (Vide Protected Princes of India,, Chapter VI).
On 15-8-1947 India became independent, and
the paramountcy of 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 313 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
One of the Unions thus newly formed was
Rajasthan. There were at that time 18 independent rulers functioning over
different parts of Rajasthan. Nine of them, rulers of Banswara, Bundi,
Dungarpur, Jhalawar, Kishengarh, Kotah, Pratapgarh, Shahpura and Tonk-entered
into an agreement in March -1948 merging their States in a single unit called
the United State of Rajasthan. The ruler of Mewar joined this Union on
18-4-1948, and the rulers of Jaipur, Jodhpur, Bikaner and Jaisalmere on
30-3-1949. The rulers of Alwar, Bharatpur, Dholpur and Karauli who bad formed
themselves on 18-3-1948 as Matsya Union dissolved that Union and acceded to the
Rajasthan Union on 15-5-1949. With that, the full strength of the State of
Rajasthan was made up.
The constitution of the United State of
Rajasthan as it finally emerged is to be found in the Covenant entered into by
the 14 rulers on 30-3-1949. As the authority of the Rajpramukh to enact the
impugned legislation was founded on this Covenant, it is necessary to refer to
the material provisions thereof bearing on the question. Under Article II, the
Covenanting States agreed "to unite and integrate their territories in one
State with a common executive legisla314 ture and judiciary, by the name of the
United State of Rajasthan". Article VI(2) provides that the ruler of each
Covenanting State shall "make over the administration of his State to the
Rajpramukh, and thereupon all rights, authority and jurisdiction belonging to
the ruler which appertain or are incidental to the Government of the
Covenanting States shall vest in the United State and shall thereafter be exercisable
only as provided by this Covenant or by the Constitution to be framed
thereunder. Article VII (3) provides:
"Unless other provision is made by the
Act of the Legislature of the United State, the right to resume Jagirs or to
recognise succession, according to law and custom, to the rights and titles of
the jagirdars shall vest exclusively in the Rajpramukh". Them comes
article X(3) which is as follows:
"Until a Constitution so framed comes
into operation after receiving the assent of the Rajpramukh, the legislative
authority of the United State shall vest in the Rajpramukh, who may make and
promulgate Ordinances for the peace and good Government of the State or any
part thereof, and any Ordinance so made shall have the like force of law as an
Act passed by the legislature of the United State". Article X(3) was
subsequently modified by substituting for the words "Until a Constitution
so framed comes into operation after receiving the assent of the Rajpramukh",
the words "Until the Legislative Assembly of Rajasthan has been duly
constituted and summoned to meet for the first session under the provisions of
the Constitution of India". This modification was necessitated by the fact
that the idea of convening a Constituent Assembly for framing a Constitution
for the State as contemplated in article X (1) was dropped, and the
Constitution as enacted for the Union of India was adopted. This amendment,
however, is of a formal character, and does not affect the substance of the
Then, there is article XIX under which the
Rajasthan Government was to act "under the general control of and comply
with such particular directions, 315 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 House or Houses of the
Legislature of a State specified in Part B of the First Schedule has or have
been duly constituted and summoned to meet for the first session under the
provisions of this Constitution, the body or authority functioning immediately
before the commencement of this Constitution as the legislature of the
corresponding Indian States shall exercise the powers and perform the duties
conferred by the provisions of this Constitution on the House or Houses of the
Legislature of the State so specified".
It is the contention of the respondent that
the Rajpramukh was by reason of article X(3) of the Covenant "the
authority functioning immediately before the commencement of the Constitution
as the Legislature" of Rajasthan, and that he could under article 385
exercise the powers which the Legislature of the State could. It is conceded by
the petitioners that at the time of the impugned legislation. no House of
Legislature had been constituted and summoned, and that to that extent the
requirements of that Article are satisfied; but their contention is that on a
true construction of the articles of the Covenant the Rajpramukh was not an
authority functioning as Legislature within the meaning of article 385, and
further that article VII(3) of the Covenant imposed a prohibition on his power
to enact a law of the kind now under challenge, and that the prohibition had
not been abrogated by the Constitution.
The question then is which was the body or
authority which was functioning as the Legislature of the United State of
Rajasthan under the terms of the Covenant. Article X(3) expressly provides that
the legislative authority of the State shall vest in the Rajpramukh. The
meaning of this provision is clear and unambigu316 ous; but it is argued for
the petitioners that it is controlled and cut down by the expression
"Ordinance" in article X(3) and by the terms of article VII(3) and of
article XIX. It is contended by Mr. N. C. Chatterjee that the legislative
authority of the Rajpramukh was only to "make and promulgate Ordinance"
that it is a limited power conferred on him to be exercised in case of
emergency pending the constitution of popular legislature, and that accordingly
he was not a "legislative authority" for the purpose of article 385.
But this is to import into the word "Ordinance" what it connotes
under the Government of India Act, 1935 or the Constitution of India. Sections
42 and 88 of the Government of India Act conferred on the Governor-General and
the Governor respectively power to promulgate ordinances when the Legislature
was not in session. Similar power is conferred on the President and the
Governors by articles 123 and 213 of the Constitution.
That is a legislative power exercisable by
the head of the State, when it is not possible for the Legislature to exercise
it. But the United State of Rajasthan had then no Legislature, which had yet to
be constituted, and therefore in its context, the word "Ordinance" in
article X (3) cannot bear the meaning which it has under the Government of
India Act or the Constitution. It should be remembered that before the
formation of the United State, the Covenanting rulers enjoyed sovereign rights
of legislation in their respective territories; and under article VI (2) (a),
they agreed to surrender those rights and vest them in the United State. It was
therefore plainly intended that the State of Rajasthan should have plenary.
legislative authority such as was formerly exercised by the rulers; and where
was it lodged, if not in the Rajpramukh? If we are to construe article X(3) in
the manner contended for by the petitioners, then the anomalous result will
follow that there was in that State no authority in which the legislative power
was vested. This anomaly would disappear if we are to construe
"Ordinance" as meaning law.
That indeed is its etymological meaning.
According to the Concise Ox317 ford Dictionary, "to ordain" means
"to decree, enact"; and "Ordinance" would therefore mean
"decree, enactment". In Halsbury's Laws of England, Volume XI, page
183, para 327 it is stated that when the Governor of a colony which has no
representative assembly enacts legislation with the advice and consent of the
State council, it is designated ordinance or law. That clearly is the sense in
which the word is used in article X(3), and that is placed beyond doubt by the
words which follow, that the Ordinance is to have "the like force of law
as an Act passed by the Legislature of the United State".
It was next urged that under article VII(3)
the Rajpramukh was given authority to resume jagirs only in accordance with law
and custom, that he had no authority to enact a law for the resumption of
jagirs on grounds other than those recognised by law and custom, that section
22 of the Act provided that the resumption was to take effect notwithstanding
any jagir law which as defined in section 2(d) includes also custom, that such
a law was directly opposed to what was authorised by article VII(3), that the
legislative powers conferred under article X (3) must be exercised subject to
the restrictions under article VII(3), and that the Act was therefore beyond
his competence. This contention is, in our opinion, untenable. The words
"according to law and custom" cannot be held to qualify the words
"right to resume jagirs", because they are wedged in between the words
"right to recognise succession" and the words "to the rights and
titles of Jagirdars", and must be construed as qualifying only "the
right to recognise succession to the rights and titles of Jagirdars". But
this may not, by itself, be of much consequence, as the power to resume
provided in this article is what the grantor possesses under law and custom.
The real difficulty in the way of the petitioners is that article VII(3) has
reference to the power which rulers of States had as rulers to resume jagirs,
and what it provides is that it should thereafter be exercised by the
Rajpramukh. That power is purely an executive one, and has nothing to do with
the legislative power of the ruler, which 318 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 authority previously possessed or they
might be narrower.
But they are the powers which are allowed to
it under article 385, and the extent of the previous authority is wholly
immaterial. The contention that the Act is incompetent by reason of article
VII(3) of the Covenant must accordingly fail.
It was next argued that the powers of the
Rajpramukh under article X(3) were subject to the general control of the
Government of India under article XIX, and that he could not therefore be
regarded as legislative authority for the purpose of article 385. We see no
force in this contention.
Article 385 provides that the authority which
was to exercise legislative powers in the interim period under that Article
should be the authority which was functioning as the Legislature of the State
before the commencement of the Constitution. It does not further require that
that authority should have possessed absolute and unlimited powers of
legislation. It could not be, and it was not, contended that the effect of
article XIX 319 was to vest the legislative authority of the State in the
Government of India, and that being so, the Rajpramukh was the legislative
authority of the State, whatever the limitations on that authority.
it was finally contended that article 385 has
no application to the present case, because under article 168 the Legislature
is to consist of both the Governor and one or more Houses, that article 238(7)
extends article 168 to Part B States substituting the Rajpramukh in the place
of the Governor, that accordingly the Rajpramukh cannot by himself constitute
the Legislature, and that when article 385 refers to the body or authority
functioning as Legislature, it could only refer to both the Rajpramukh and the
House functioning in conjunction. Support for this contention was sought in the
terms of article 212-A(1) of the Constitution (Removal of Difficulties) Order
No. 11, which excluded in relation to Part B States only the first proviso to
article 200, but not the body of it. If this contention is sound, then article
385 must be treated as a dead letter as regards such of the Part B States as
had no House of Legislature.
But, in our opinion, this contention is
untenable, because article 385 refers not to Legislatures under the
Constitution but to the body or authority which was functioning as the
Legislature of the State before the commencement of the Constitution., and
article 238(7) is, under the Constitution (Removal of Difficulties) Order subject
to article 385. Nor can any argument be founded on the exclusion of the first
proviso to article 200 but not of the body of that article under article 212-A
(1), because it lays down the procedure to be followed when a Bill has been
passed by a Legislative Assembly or Legislative Council of a State, and is by
its very terms inapplicable when there is no House of Legislature. The
contention of Mr. Frank Anthony that the non-inclusion of the body of article
200 among the articles excluded from application to Part B States under article
212-A(1) imposes by implication a limitation on the power of the Rajpramukh to
enact laws unless they are passed by Legislative Assemblies is 320 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
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 enacted. The facts material for the
purpose of this contention are that the Bill was first prepared in the
Ministerial Department in accordance with the rules framed under article 166(3)
for the "convenient transaction of the business of the State". It was
approved by the Council of Ministers on 27-12-1951 and sent to the Rajpramukh
with the following note by the Secretary:
"The Bill is submitted for gracious
approval and signature and for reserving it for the consideration of the
Then there is firstly an endorsement
"approved" signed by the Rajpramukh and dated 31-12-1951, and then
follows another endorsement, "I hereby reserve this Bill for the
consideration of the President" similarly signed and dated.
On 21-1-1952 the President endorsed on the
Bill, "I withhold my assent from the Bill". Thereafter, a fresh Bill
was prepared and submitted to the Rajpramukh on 6-2-1952 with the following
note by the Chief Secretary:
"The Bill as finally agreed to is now
submitted to His Highness the Rajpramukh for his approval and for reserving the
same for the consideration of the President".
The Rajpramukh gave his approval on 8-2-1952,
and by a further order he reserved the Bill for the consideration of the
President who gave his assent on 13-2-1952. Now, the question is whether on
these facts the requirements of article 212-A(2) have been complied with.
Article 212-A(2) was enacted by the
Constitution (Removal of Difficulties) Order No. 11, and is as follows:
321 "The Rajpramukh or other authority
exercising the legislative powers in any such State as aforesaid under article
385 shall prepare such Bills as may be deemed necessary, and the Rajpramukh
shall declare as respects any Bill so prepared either that he assents to the
Bill or that he withholds assent therefrom or that he reserves it for the
consideration of the President".
The contention of the petitioners is that as
the Bill was prepared by the Ministers and not the Rajpramukh, article 212-A(2)
had been contravened, and that, in consequence, the law had not been properly
enacted. It is conceded that under this article the Rajpramukh has not himself
to draft the Bill, and that be might delegate that work to others.
But they insist-and in our opinion,
rightly-that questions of policy which are of the essence of the legislation
should at least be decided by him, and that even that had not been done in the
present case. They rely strongly on the statements in the affidavit of Sri
Joshi, the Jagir Commissioner, that the Bill was drafted in the Ministerial
Department in accordance with the rules framed under article 166(3), approved
by the Council of Ministers and sent on to the Rajpramukh for his assent. These
allegations, they contend, preclude any supposition that the Rajpramukh had any
part or lot in the settlement of the policies underlying the Act, and the Bill
must be held therefore not to have been prepared by him.
Taking it that such are the facts, what
follows? Only that at the inception the Bill was not prepared by the
Rajpramukh. But that does not conclude the question whether there bad been
compliance with article 212-A(2), unless we hold that it was not open to the
Rajpramukh to adopt a Bill prepared by the Ministers as his own, or if it was
open, he did not, in fact, do so. It cannot be disputed that whether a Bill is
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
adoption 322 should be clearly and unequivocally established, and that the
records do not establish it. It was argued that when the Bill was sent to the
Rajpramukh, he was not called upon to apply his legislative mind to it but to
merely assent to it on the executive side; that when the Rajpramukh endorsed
his approval he was, as admitted by Sri Joshi, merely assenting to it, that
assent implied that the Act assented to was not that of the person assenting,
and that therefore there was nothing to indicate that the Rajpramukh had
adopted the Bill prepared by the Ministers as his own. It was argued by Mr.
Agarwala that when the word " approve" was used in the Constitution
as in articles 146 and 147, it signified that there were two authorities, one
of which was authorised to confirm or sanction what the other had authority to
do, and that when the latter was not authorised to do the act, there could be
no approval of it by the former; and he also relied on the statement of the law
in Corpus Juris, Volume I, page 1365 that the word 'approve' does not mean the
same thing as 'adopt'.
The fallacy in this argument lies in
isolating the word "approved" from out of its setting and context and
interpreting it narrowly. It will be noticed that under article 212-A (2) the
Rajpramukh has to do two distinct acts: Firstly he has to prepare the Bill, and
secondlyleaving out of consideration the first two alternatives, namely,
assenting to, or with holding assent from, the Bill as not material for the
present discussion-he has to reserve it for the consideration of the President.
When he himself prepares the Bill, he has, in order to comply with article
212-A(2) merely to reserve it for the consideration of the President. In such a
case, no question of approval to the Bill by him can arise, but when the Bill
has not been prepared by him, he has firstly, if he thinks fit, to adopt it
before he could pass on to the second stage and reserve the Bill for the
consideration of the President; and the very purpose of his endorsing his
approval on the Bill is to show that he has thought fit to adopt it. There is
no provision in article 212-A(2) for the Rajpramukh approving of a Bill, and in
323 the context, therefore, an endorsement of approval on the Bill must signify
its adoption by him. We are unable to follow the subtle distinction sought to
be made by Mr. Frank Anthony between the Legislative mind of the Rajpramukh and
his executive mind. If it is open to the Rajpramukh to adopt a Bill prepared by
his Ministers, the only matter that will have to be considered is whether, in
fact, he did so.
And when the Bill is produced with an
endorsement of approval under his signature, the question must be held to be
concluded, and any further discussion about the legislative or executive state
of mind of the Rajpramukh must be ruled out as inadmissible.
It must be mentioned in this connection that
Mr. Pathak for the respondent took up the position that the function of the
Rajpramukh at the stage of preparation of the Bill was purely executive, and
that it became legislative only when he had to decide whether he would assent
to the Bill or withhold his assent there from, 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 his assent there
from, or reserves it for the consideration of the President. When there is no
Legislative Assembly in a State, the matter is governed by article 212-A(2),
and there is substituted under that article in the place of the passing of the
Bill by the Legislature, the preparation thereof by the Rajpramukh, and then
follows the provision that he has to declare whether he assents to or withholds
his assent from the Bill or reserves it for the consideration of the President.
The position under article 212-A(2) has thus been assimilated to that under
article 200, the preparation of the Bill by the Rajpramukh taking the place of
the passing of the Bill by the Legislative Assembly, and the one is as much a
legislative function as the other.
One other contention attacking the Act on the
324 ground of procedural defect may now be considered. It was argued by Mr.
Trivedi that under the proviso to article 201, the President bad no power to
return a Money Bill for further consideration by a House of Legislature, that
his order dated 21-1-1952 returning the Rajasthan Land Reforms and Resumption
of Jagirs Bill for further consideration was ultra vires as it was a Money
Bill, that the subsequent presentation of the Bill to him on 8-2-1952 was
unauthorised, and that the impugned Act had therefore not been duly passed.
This argument is clearly erroneous.
Under article 212-A(1), the proviso to
article 201 has no application to those Part B States where there was no House
of the Legislature; and we are unable to follow the argument of the learned
counsel that even so, the limitation imposed by the proviso is implicit in the
body of the article itself. Moreover, the order of the President dated 21-11952
is not one returning the Bill for further consideration by the House but one
refusing assent. It is true that the Deputy Secretary sent a communication to
the Rajasthan Government suggesting some amendments. But this does not alter
the character of the order of the President as one withholding assent. And
finally the Bill which was submitted again to the President for consideration
on 6-21952 was a fresh Bill, the previous Bill having been modified as regards
the scales of compensation. The contention, therefore, that the Act is bad for
noncompliance with article 212-A(2) or for other procedural defects must be
III. We may now consider the third contention
of the petitioners that the Act in so far as it provides for resumption of
jagir lands is ultra vires the powers of the State Legislature, as it is not
one of the topics mentioned either in List II or List III of the Seventh
Schedule to the Constitution. The contention of the respondent is that the Act
is in substance a law relating to acquisition, and is covered by Entry No. 36
in the State List. On the other hand, the petitioners maintain that the
subject-matter of the legislation is what it avows itself to be, viz.,
resumption of jagirs, that resumption is in law totally different from 325
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 for their resumption; and to determine that, we must
see what the pith and substance of the legislation is, the name given to it by
the Legislature not being decisive of the matter.
The provisions of the Act relating to
resumption may now be noticed. Chapter V deals with resumption of jagir lands.
Section 21 authorises the State to issue
notifications for resumption of jagirs, and section 22(1) enacts:
"As from the date of resumption of any
jagir lands, notwithstanding anything contained in any existing jagir
legislation applicable thereto but save as otherwise provided in this Act,(a)
the right, title and interest of the jagirdar and of every other person
claiming through him .... in his jagir lands including forests, etc .... shall
stand resumed to the Government free from all encumbrances".
Section 22(1)(g) is as follows:
"the right, title and interest of the
jagirdar in all buildings on jagir lands used for schools and hospitals not
within residential compounds shall stand extinguished, and such buildings shall
be deemed to have been transferred to the Government".
Section 23 exempts certain properties from
the operation of section 22, and provides that they are to continue to belong
to the jagirdars or to be held by them. Chapter VI deals with compensation.
Section 26(1) enacts:
326 "Subject to the other provisions of
this Act, the Government shall be liable to pay every jagirdar whose Jagir
lands are resumed under section 21 such compensation as shall be determined in
accordance with the principles laid down in the second schedule".
Chapter VII prescribes the procedure for the
determination of compensation and for payment of the same. The second Schedule
to the Act contains the principles on which compensation is to be determined.
That was the scope of the Act as it was passed in 1952. In 1954 certain
amendments were introduced by Act No. XIII of 1954, the most important of which
was the provision for payment of rehabilitation grant in accordance with the
principles enacted in Schedule III to the Act.
Now, the contention of the petitioners is
that the basic assumption on which the Act is framed is that jagirdars have no
right of property in the lands themselves, but that they possess some ancillary
rights in relation thereto, that the State is therefore entitled to resume the
lands without compensation, and that it is sufficient to pay for the ancillary
rights. These, it is argued, were the views expressed by the Venkatachar
Committee in its Report on Land Tenures in Rajasthan, and they formed the basis
of the impugned Act. Thus, it is pointed out that the Committee had held that
"jagirs are not the property of the jagirdars" (vide page 47, para
5), that '-'if the jagir system is abolished, jagirdars would not be entitled
to any compensation on the ground of the jagirs being private property",
and that "even though jagirs are not property................ those rights
which have in many cases been enjoyed for centuries have acquired around them
an accretion of rights by long custom and -prescription which are entitled to
due recognition", and that a rehabilitation grant might be given to the
jagirdars. (Page 47, para 6).
It is contended that it is these views that
have been adopted in section 22 of the Act, and that when 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 327 properties acquired belong to the person from
whom they are acquired, whereas the basis of the legislation was that the
jagirdars bad no property in the lands, and there could be no acquisition of
what did not belong to them. Reference is made by way of contrast to the
language of section 22(1) (g) under which certain buildings standing on jagir
lands presumably constructed by jagirdars should stand transferred to the
Government and not resumed as under section 22 (1) (a).
This argument proceeds on an inadequate
appreciation of the true nature and scope of the right of resumption under the
general law and of the power of resumption which is conferred on the State by
the impugned Act. Under the law, a jagir could be resumed only under certain
It can be resumed for breach of the terms of
the grant, such as failure to render services or perform the obligations
imposed by the grant. It can be resumed for rebellion or disloyalty or for the
commission of serious crimes. And again, jagir was originally only a life grant
and when the holder died., it reverted back to the State and succession to the
estate was under a fresh grant from the State and not by inheritance, even when
the successor was the heir of the deceased holder. The right to resume jagirs within
the limits aforesaid was founded on grant and regulated by general law. To
exercise that right, there was no need to enact any legislation. It was a right
which every ruler of the Covenanting State had as a grantor, and that right had
become vested in the Rajpramukh under article VII(3) of the Covenant. The
contention of the petitioners that resumption was not an acquisition would
strictly be accurate, if the resumption was in exercise of the power conferred
by that article.
But the resumption for which the Act provides
is something different from the resumption which is authorised by article
VII(3). It was a resumption not in accordance with the terms of the grant or
the law applicable to jagirs but contrary to it, or in the words of section 21 "notwithstanding
anything contained in 42 328 any existing jagir law applicable thereto".
It was a resumption made not in enforcement of the rights which the rulers had
as grantors but in exercise of the sovereign rights of eminent domain possessed
by the State. The taking of properties is under the circumstances, in
substance, acquisition notwithstanding that it is labelled as resumption. And
this conclusion becomes irresistible when regard is had to the provisions for
payment of compensation.
Section 26(1) imposes on the Government a
liability to pay compensation in accordance with the principles laid down in
the second Schedule, and as will be presently shown, it is not illusory. The
award of compensation is consistent only with the taking beingan acquisition
and not with its being a resumption in accordance with the terms of the grant
or the law applicable to it, for in such cases, there is no question of any
liability to pay compensation.
It was argued for the petitioners that the
provision for the payment of rehabilitation grant was an indication that what
was paid as compensation was in reality ex gratia. But the rehabilitation grant
was in addition to the compensation amount, and it was provided by the
amendment Act No. XIII of 1954. Nor are we impressed by the contention that the
Act had adopted the findings of the 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 payment
of compensation therefor. Moreover, the opinions in the report of the
Venkatachar Committee on the rights of the jagirdars are clearly inadmissible
for the purpose of deciding what the pith and substance of the impugned
legislation is. That must be decided on an interpretation of the provisions of
the statute, and that decision cannot be controlled or guided by the opinions
expressed in the report. Reading the provisions of the Act as, a whole, it is
abundantly plain that what was meant by resumption was only acquisition.
Indeed, if the Act purported to be one for 329 acquisition of jagirs, its
provisions could not have been different from what they are.
Such being the true character of the
legislation, not much significance could be attached to the use of the word
"resumption" in the Act. It should be remembered that the State has a
reversion in jagir lands, and when it takes them back in accordance with the
terms of the grant or the law applicable thereto, its action is properly termed
resumption. When the statute enacted a law authorising the taking of jagir
lands, it is natural that it should have adopted the same term, though the
resumption was not made on any of the grounds previously recognised as valid.
In view of the peculiar relationship between the jagirdar and the State, it
cannot be said that the word "resumption" is inadmissible to signify
acquisition. Section 22(1)(a) further enacts that the lands shall stand resumed
"to the Government", which words are more appropriate for acquisition
by the Government than resumption simpliciter.
It was also contended for the respondent that
the Act is one relating to land and land tenures, and that it would fall under
Entry No. 18 in the State List:
"Land, that is to say, rights in or over
land, land tenures including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural land; land
improvement and agricultural loans;
It was argued that the heads of legislation
mentioned in the Entries should receive a liberal construction, and the
decision in The United Provinces v. Atiqa Begum(1) was quoted in support of it.
The position -is well settled and in accordance therewith, it could rightly be
held that the legislation falls also under Entry No. 18. But there being an
Entry No. 36 specifically dealing with acquisition, and in view of our
conclusion as to the nature of the legislation, we hold that it falls under
IV.Now we come to the contentions special to
some of the petitioners that with reference to the (1)  F.C.R. 110, 134,
330 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 tenure in Rajasthan. It has been already
mentioned that during the period of the Muhammadan invasion the Rajput princes
of Hindusthan migrated to Rajputana and founded new kingdoms. The system of
land tenure adopted by them was that they divided the conquered territories
into two parts, reserved one for themselves and distributed the other in blocks
or estates among their followers. In general, the grantees were the leaders of
the clan which had followed the King and assisted him in the establishment of
the kingdom or his Ministers. Sometimes, the grant was made as a reward for
past services. The lands reserved for the King were called Khalsa, and the
revenue therefrom was collected by him directly through his officials. The
lands distributed among his followers were called jagirs and they were
generally granted on condition that the grantee should render military service
to the rulers such as maintaining militia of the specified strength or guarding
the passes or the marches and the like. The extent of the grant would depend on
the extent of the obligations imposed on the grantee, and it would be such as
would enable the grantee to maintain himself and the troops from out of the 331
revenues from the jagir. It was stated by Mr. Pathak that the grants would in
general specify the amount of revenue that was expected to be received from the
jagir, and that if the jagirdar received more, he was under an obligation to
account to the State for the excess. And he quoted the following passage in
Baden Powell on Land Systems of British India, Volume 1, page 257 as supporting
"While a strict control lasted, the
jagirdar was bound to take no more than the sum assigned; and if more came into
his hands, he had rigidly to account for the surplus to the State
This statement has value only as throwing
light on the jural relationship between the State and the jagirdar, for it does
not appear that it was ever observed in practice. It may be deduced from the
foregoing that all the lands of the State must fall within one or the other of
the two categories, Khalsa or jagir, and that the essential features of a jagir
are that it is held under a grant from the ruler, and that the grant is of the
Some of the incidents of the jagir tenure
have been already touched upon. It was a life grant and succession to it
depended on recognition by the ruler. It was impartible, and inalienable. But
in course of time, however, grants came to be made with incidents annexed to
them different from those of the jagirs, Some of them were heritable, though
impartible; a few of them were both heritable and partible. While originally
the jagirs were granted to the Rajput clansmen for military service the later
grants were made even to non-Rajputs and for religious and charitable purposes.
These grants were also known as jagirs. "The term 'jagir' is used",
it is observed in the Report of the Venia-tachar Committee, page 18, para 2,
"both in a generic and specific sense. In its generic sense it connotes
all non-khalsa area". The stand taken by the petitioners in their argument
was also that the word 'jagir' bad both a wider and a narrower connotation.
Thus, after quoting from the Rajputana Gazetteer the passage that "the
rest of 332 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 Mallani, with conspicuous ability, argued that jagir was used in
the passage in its specific sense, and that in its generic sense, it would
comprise all the other tenures mentioned above. In the impugned Act also, jagir
land is defined in section 2(h) as meaning "any land in which or in
relation to which a jagirdar has rights in respect of land revenue or any other
kind of revenue andincludes any land held on any of the tenures specified in
the First Schedule", and in the Schedule' jagir is mentioned as the first
of the items. It also appears that in the laws enacted in the States of
Rajputana to which our attention has been drawn, the word `jagir'is generally
used in its extended meaning. Thus, both in its popular sense and legislative
practice, the word 'jagir' is used as connoting State grants which conferred on
the grantees rights "in respect of land revenue". (See section 2(h)
of the Act.) It was argued that though the extended definition of jagirs in
section 2(h) of the impugned Act might govern questions arising under that Act,
the word 'jagir' in article 31-A must be construed as limited to its original
and primary meaning of a grant made for military service rendered or to be rendered,
and that accordingly other grants such as maintenance grants made in favour of
near relations and dependents would not be covered by it. We do not find any
sufficient ground for putting a restricted meaning on the word 'jagir' in
article 31-A. At the time of the enactment of that article, the word had
acquired both in popular usage and legislative practice a wide connotation, and
it will be in accord with sound canons of interpretation to ascribe that connotation
to that word rather than an archaic meaning to be gathered from a study of
Moreover, the object of article 31-A was to
save legislation which was directed to the abolition of intermediaries so as to
333 establish direct relationship between the State and the tillers of the soil,
and construing the word in that sense which would achieve that object in a full
measure, we must hold that jagir was meant to cover all grant under which the
grantees bad only rights in respect of revenue and were not the tillers of the
soil. Maintenance grants in favour of persons who were not cultivators such as
members of the ruling family would be jagirs for purposes of article 31-A.
We may now proceed to consider the
contentions of the several petitioners with reference to the specific
properties held by them, and they may be grouped under two categories: (1)
those relating to the tenures on which the properties are held, and (2) those
relating to particular properties. Under category (1) fall the estates held by
(a) Bhomicharas of Marwar, (b) Bhomats of Mewar, (c) Tikanadars of Shekhwati,
and (d) Subeguzars of Jaipur.
(1)(a) Bhomicharas: This is the
subject-matter of Petitions Nos. 462, 579, 630, 638 and 654,of 1954. The
Bhomichara tenure is to be found in Jaisalmere, in Shekhawati in Jaipur and in
Marwar. (Vide Report of the Venkatachar Committee, page 19, para 13). But we
are concerned here only with the Bhomichara tenure in the State of Marwar. Its
history goes back to the year 1212 A.D. when the clan of 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
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 established the kingdom of
Jodhpur. The elder branch which continued in Mallani, Yeshwantpura and Sanchora
gradually sank in power. The descendants of Mallinath went on partitioning the
lands treating them as their personal properties and the principality thus came
to be broken up into fragments, and its holders became weak and disunited.
Their internecine disputes led to the
intervention of Jodhpur which had grown to 334 be a powerful kingdom, and they
were compelled to accept its ruler as their suzerain and to pay him an annual
tribute of Rs. 10,000 called "Foujbal". Thereafter, they continued to
hold lands subject to the payment of this tribute, and came to be known as
Bhomicharas. The area continued to be distracted by disputes and dissensions
among its leaders, and -fell into so much anarchy and confusion that in 1835
the British had to intervene to restore order. It should be remembered that
they had entered into a treaty of alliance with Jodhpur in 1818, and their
intervention was presumably by virtue of their obligations under the treaty.
Thereafter, the territory was put under the
charge of a British superintendent and latterly of the Resident at Jodhpur. The
annual tribute was, during this period, collected by the British and paid to
the Jodhpur State.
Writing on the status of the Bhomicharas
during this period, Major Malcolm remarked in his report dated 1849 thus:
"...... though the British Government
had established a claim to the District themselves, consequent on having
reduced them to order and obedience, it was willing, out of kindness and
consideration to His Highness, to waive its just rights and to acknowledge His
Highness as entitled to sovereignty over those districts, and the tribute they
In 1891 the British withdrew from the
administration of the Province, and handed it over to the Maharajah of Jodhpur
who thereafter continued to govern it as part of his Dominions.
On these facts, it is contended by Mr. N. C.
Chatterjee and Shri Amar Singh that Bhomicharas are not holders of jagirs or
other similar grants within the meaning of article 31-A, because a jagir could
be created only by grant by the ruler, and that the petitioners could not be
said to hold under a grant from Jodhpur, because they had obtained the
territory by right of conquest long before Jodhpur established its suzerainty,
and even prior to its foundation as a State, and that though they lost their
political independence when Jodhpur established its overlord335 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.
This, however, does not mean that the grant
must be express.
It may be implied, and the question for
decision is whether on the facts of this case a grant could be impiled.
What then are the facts? We start with this
that the ancestors of the petitioners acquired the lands in question by
conquest and held them as sovereigns.
Then Jodhpur came on the scene, imposed its
sovereignty over them,and exacted annual payments from them, what was their
status thereafter? In Vajesingji Joravar Singji and others v. Secretary of
State(1) Lord Dunedin observed:
"When a territory is acquired by a
sovereign State for the first time that is an act of State. It matters not how
the acquisition has been brought about. It may be by conquest, it may be by
cession following on treaty, it may be by occupation of territory hitherto
unoccupied by a recognised ruler. In all cases the, result is the same. Any
inhabitant of (1)  L.R. 51 I.A. 357, 360.
43 336 the territory can make good in the
municipal Courts established by the new sovereign only such rights, as that
sovereign has, through his officers recognised. Such rights as he had under the
rule of predecessors avail him nothing".
Vide also the judgment of the Privy Council
in Secretary of State v. Sardar Rustam Khan(1). Applying these principles when
Jodhpur as a sovereign State imposed its sovereignty over the territory, and
permitted the ex-rulers to continue in possession of their lands on payment of
an annual sum, the position is that there was, in effect, a conquest of the
territory and a re-grant of the same to the ex-rulers, whose title to the lands
should thereafter be held to rest on the recognition of it by the ruler of
Jodhpur. It may be noted that both in Vajesingji Joravar Singji and others v.
Secretary of State(1) and Secretary of State
v. Sardar Rustam Khan(1) the question was whether a subject of the former State
could enforce against the new sovereign the right which he had against the
former ruler, and it was held that he could not. But here, the claimants are
the representatives of the former rulers themselves, and as against them, the
above conclusion must follow a fortiori.
As already stated, it is as if the Maharajah
of Jodhpur annexed all the territories and re-granted them to the former
rulers. They must accordingly be held to derive their title under an implied
It is argued that notwithstanding that the
Bhomicharas had acknowledged the sovereignty of the ruler of Jodhpur, his hold
over the country was slight and ineffective, and even the payment of
"Foujbal" was irregular, and that in substance therefore they enjoyed
semi-sovereign status, and that their relationship to the Jodhpur ruler
resembled that of the rulers of Native States to the British Crown. We are
unable to accept this argument. The status of a person must be either that of a
sovereign or a subject. There is no tertium quid. The law does not recognise an
intermediate status of a person being partly a sovereign (1)  L.R. 68
(2)  L.R. 51 I.A. 357,360.
337 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
accepted principles of international law was itself a question on which
juristic opinion was adverse to such recognition. (See Mr. Lee Warner,
Protected Princes of India, 1894 Edn., Chapter XIII, sec. 150, pages 373-376).
But those States at least had each a distinct persona with a ruler who
possessed executive, legislative and judicial power of a sovereign character;
but the Bhomicharas had ceased to have a distinct person. There was no State
with a ruler acknowledged as its head, but a number of persons holding lands
independently of each other. This is what Major Malcolm remarked of them in his
report in 1849:
"It is uncertain how long the Rawats of
Kher continued to exercise any control over the rest of the Chiefs, or to be
considered as the head of a principality; but at the period when we first
become acquainted with them, all traces of such power had long ceased and each
Chief of the principal families into which the tribe is divided, claimed to be
When the British handed over the
administration of the territory to the State of -Jodhpur in 1891, it was in
recognition of its rights as sovereign, and on the footing that Bhomicharas
were its subjects. It is true that in the agreement by which the British handed
over the administration they inserted a condition that the appointment of the
chief officers for Mallani and imposition of any new tax or cess other than
Foujbal by the State of Jodhpur should be made 338 with the approval of the
Resident or Agent to the GovernorGeneral of Rajputana, but that was a matter
between the high contracting parties, and did not affect the status of the
Bhomicharas. On the other hand, it emphasises that they were themselves without
any semblance of independence.
That the status of the Bhomicharas was that
of subjects will also be clear from the subsequent course of legislation in
Marwar. In 1922 an Excise Act was passed for the whole of Marwar including this
area. On 24-11-1922 "The Marwar Court of Wards Act, 1923" was passed,
and that applied to the estates of Bhomicharas. In 1937 rules were framed for
the maintenance of the wives of jagirdars, and Bhomicharas also were subject to
that Act. In 1938 the Marwar Customs Act was passed, and that applied to these
territories. In 1947 rules for assessment of rents on jagir estates were passed
and they applied to lands held on Bhomichara tenure. There was again a Customs
Act in 1948, and it applied to the whole of Marwar including this area. In 1949
a Tenancy Act was passed, and that applied to the Bhomicharas. It is thus plain
that the State of Marwar was exercising full legislative control over the
Bhomichara area. This alone is sufficient to differentiate the position of the
petitioners from that of the rulers of the Native States. The British
Government never exercised legislative authority over those States.
In the argument before us, Sri Amar Singh
conceded the authority of the State of Marwar to legislate for Mallani.
But he contended that the definition of
jagirdars as including Bhomicharas in the several Acts .referred to above was
only for the purpose of those Acts, and bad no bearing on their true status,
and referred to the 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 Was that of 339 subjects, and if that is their position, and
if they are allowed to continue in possession of lands held by their ancestors
as sovereigns, it could only be on the basis of an implied grant, and that is
sufficient to attract the operation of article 31-A to their estates.
It was also contended for the respondent that
even if on the facts aforesaid a grant from the State could not be implied and
the status of the petitioners was different from that of jagirdars, that status
had at least been modified by section 169 of the Marwar Land Revenue Act No. XL
of 1949, which had the effect of putting them in the same position as State
grantees, and that therefore their tenure fell within the operation of article
31-A either as a jagir or other similar grant. Section 169 runs as follows:
"The ownership of all land vests in His
Highness and all Jagirs, Bhoms, Sasans, Dolis or similar proprietary interests
are held and shall be deemed to be held as grants from His Highness".
Under this section, all lands in the State
vest in the Maharajah and all proprietary interests therein are deemed to be
held under a grant from him. It cannot be disputed that it is within the
competence of the Legislature in the exercise of its sovereign powers to alter
and abridge rights of its subjects in such manner as it may decide, subject of
course to any constitutional prohibition. In Thakur Jagannath Baksh Singh v.
United Provinces(1) which was cited by Mr. Pathak as authority in support of
the above proposition, it was held by the Privy Council that a law of the State
curtailing the rights which a talukdar held under a sanad from the Crown was
intra vires. This decision was followed by this Court in Raja Suriya Pal Singh
v. The State of U. P. and Another(1). But these cases are not exactly in point,
because the present contention of the respondent arises only on the hypothesis
that the petitioners did not hold under a Crown grant express or implied. But
the proposition for which Mr. Pathak contends is itself not open to exception,
and it must be held that it was competent (1)  F.C.R, 111.
(2)  S.C.R. 1056, 340 for the
legislative authority of Marwar to define and limit the rights which the
petitioners possessed in Bhomichara lands. It was also contended by Mr. Pathak
that if the effect of the legislation was to impress on the tenure the
character of a grant, that would be sufficient to attract article 31-A, the
argument being that a grant like a contract could be not merely express or
implied but also constructive. He quoted the following statement of the law in
Halsbury's Laws of England, Volume VII, page 261, para 361:
"Contracts may be either express or
implied, and of the latter there are two broad divisions, the term 'implied
contract' in English law being applied not only to contracts which are inferred
from the conduct or presumed intention of the parties, of which examples have
already been given, but also to obligations imposed by implication of law,
quite apart from and without regard to the probable intention of the parties,
and sometimes even in opposition to their expressed or presumed intention.
Strictly speaking, the latter class, or 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 statement of the law in Halsbury's Laws of England would be known as
quasi contracts under the Indian Contract Act. It will be more appropriate to
term grants which are the creatures of statutes as legislative grants.
We, however, agree with the respondent that
for the purpose of article 3 1 -A, it would make no difference Whether the
grant is made by the sovereign in the exercise of his prerogative right or by
the Legislature in the exercise of its sovereign rights. They were both of them
equally within the operation of that article. The question then is, assuming
that the Bhomicharas did not prior to the enactment of Marwar Act No. XL of 341
1949 hold the lands as grantees from the State, whether they must be deemed to
hold as State grantees by force of section 169 of that Act; and that will
depend on whether they fall within the purview of that section. The language of
the section, it will be admitted, is general and unqualified in its terms, and
would in its natural sense include them. But it is argued for the petitioners
that they are outside its scope, because 'jagir' in that article must be
interpreted in a specific sense as otherwise there was no need to mention
tenures like Bhom, Sasan and Dolis, which would be jagirs in a generic sense,
and that -further Bhomicharas could not be brought within the category of
similar proprietary interests, because in the context 'similar interests' must
mean interests held under a grant.
Having considered the matter carefully, we
are not satisfied that there is any ground for cutting down the scope of the
section in the manner contended for by the petitioners. We are of opinion that
by long usage and recognition and by the legislative practice of the State
Bhomicharas had come to be regarded as jagirdars, and that their tenure is a
jagir within the intendment of section 169. In the Gazetteer of Mallani by
Major Walter published prior to 1891 the Bhomicharas are referred to as
jagirdars. (Vide page 94). In the official publication called Brief Account of
Mallani, the title given to the history of Bhomicharas is "Brief history
of the jagirdars". In Sir Drake Brockman's Report of the Settlement
Operations, 1921 to 1924, he refers to the Bhomichara jagir as "survival
from a time antecedent to the establishment of the Raj". Turning next to
legislation in Marwar, its general trend was to include Bhomicharas in the
definition of jagirdars. Vide section 3(1) of the Marwar Court of Wards Act,
1923; rule 4 of rules regulating claims for maintenance by ladies against
jagirdars, 1937. In the Customs Act, 1938, section 64 and Appendix E refer to
the Bhomicharas as jagirdars of Mallani. In Marwar Tenancy Act No. XXXIX of
1949, section 3(9) defines landlord as including a "Bhomichara
jagirdai,", and in view of the fact that 342 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 similar proprietary interests falling within section 169. The
scheme of the Act is that for purposes of succession and partition, jagirs are
divided into three groups, scheduled jagirs, listed jagirs and other jagirs.
Scheduled jagirs are those which are governed by the rule of primogeniture.
Section 188 and the following sections lay down the procedure for settling
succession to them. Listed jagirs are those which are held by co-heirs but are
impartible, and section 131 provides that they should not be partitioned but
that the income therefrom should be divided among the co-sharers. Then there is
the third category of jagirs which devolve on heirs under the ordinary Hindu
law, and are partible. Section 172 applies to these jagirs. As the Bhomichara
tenure descends like personal property and is divisible among the heirs, it
will be governed by section 172, and cannot find a place in the schedule of
listed or scheduled jagirs.
It was contended that the Act was one to
declare and consolidate the law, and that such an Act should not be construed
as altering the existing law; further that clear and unambiguous language was
necessary before a subject could be deprived of his vested rights, and that in
case of doubt the statute should be construed so as not to interfere with the
existing rights; and the statements of law from Maxwell on Interpretation of
Statutes, 10th Edition, pages 20 and 24 343 and Craies on Statute Law, 5th
Edition, pages 106, 107 and Ill were quoted in support of the above
propositions. These rules of construction are well settled, but recourse to
them would be necessary only when a statute is capable of two interpretations.
But where, as here, the language is clear and the meaning plain, effect must be
given to it. It must also be added that the Act is one not merely to
consolidate the law on the subject but also to amend it. On the language of the
section, therefore, we must hold that Bhomichara tenure is comprehended within
the term 'jagir' in section 169.
We are also of opinion that it will, in any
event, be "similar proprietary interests" within the language of the
section. It is argued that the only feature common to jagirs, Bhoms, Sasan and
Dolis is that they are held under grant, and that therefore "similar
proprietary interests" must mean interests acquired under a grant. It is true
that Bhom, Sasan and Doli are held under grant from the State.
(Vide Rajasthan Gazetteer, Volume III-A,
Chapter XIII); but section 169 enacts that the proprietary interests to which
it applies, shall be held or deemed to be held as grant from His Highness. The
word "deemed" imports that in fact there was no grant, and therefore
interests which were held otherwise than under a grant were obviously intended
to be included. Therefore, if Bhomichara is a proprietary interest, it cannot
be taken out of the section because its origin was not in grant. In the result,
it must be held to fall within section 169, and therefore within the operation
of article 31-A.
The respondent further contended that
Bhomichara tenure was also an estate as defined in section 4(iii) of Act No. XL
of 1949 and that therefore 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 Govern44 344 ment on
account of an estate or survey number and includes rekh, chakri and
bhombab". It is common ground that the -annual payment which is made by
the Bhomicharas to the estate is the sum of Rs. 10,000 called
"Foujpal". The petitioners contend that this amount is really in the
nature of tribute and not land tax. If it is a military cess, it is difficult
to say that it is revenue paid on account of land. It is argued for the
respondent that Bhomicharas are allowed to continue in possession of the land
only on condition that they pay this amount annually and that it is therefore
payment made in respect of lands held by them. If this contention is right,
every tribute must per se be held to be land revenue, and that appears to us to
be too wide a proposition. Mr. Pathak relied on the description of this amount
in the Administration Report of 1883-1884 in Hindi as "Kar"
"Tax' but that is not decisive of the true character of the payment.
The petitioners also contend that even if
Foujbal is revenue, there has been no separate assessment of the mahals to it,
as what is paid is a consolidated sum of Rs. 10,000 for an area of the extent
of 36,000 sq. miles comprised in 550 villages and held by different holders. It
appears from the Gazetteer of Mallani by Major Walter at page 94 that the
Foujbal amount has been apportioned among the several holders, and it is
contended for the respondent that as this apportionment has been communicated
to the Jodhpur Durbar and accepted by it and acted upon, there has been
separate assessment of revenue. In the view taken by us that Bhomichara is a
jagir or other similar grant within the meaning of article 31-A, we do not think
it necessary to express any opinion on the above contentions, especially as the
materials placed before us are meagre. In the result, it must be held that the
legislation in so far as it relates to Bhomichara tenure is protected by
(1)(b) Bhomats: This tenure is to be found in
Mewar, and of this, the Report of the Venkatachar Committee has the following:
"In Mewar those holding on the Bhom
tenure 345 may be classed under two groups, namely, the Bhomats who pay a small
tribute to the State and are liable to be called for local service and Bhumias
who pay a normal quit-rent (BhumBarar) and perform such services as watch and
ward of their villages, guarding the roads, etc." (vide page 19, para 10).
Earlier, the Report had stated that Bbom tenure
was to be found in Jodhpur, Mewar and Bundi, and that its holders were always
Rajputs. The origin of Bhom tenure is thus stated by Tod in his Annals and
Antiquities of Rajasthan:
"It is stated in the historical annals
of this country that the ancient clans had ceased on the rising greatness of
the subsequent new divisions of clans, to hold the higher grades of rank; and
had, in fact, merged into the general military landed proprietors of this
country under the term bhumia, a most expressive and comprehensive name,
importing absolute identity with the soil: bhum meaning 'land These Bhumias,
the scions of the earliest princes, are to be met with in various parts of
Mewar These, the allodial tenantry of our feudal system, form a 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 appear from this account that the
position of the Bhumias in Mewar is in many respects similar to that of
Bhomicharas in Marwar. They represent presumably a section which had occupied
the territory by conquest at an earlier stage and when later the rulers of
Chittoor and Udaipur established their sovereignty over Mewar, they were
allowed to continue in possession of their lands as subjects of the new State.
Their position is not even as strong as that of the Bhomicharas of Marwar,
because it was a condition of the tenure under which they held that 346 they had
to render military service when called upon and also to pay quit rent. Their
title to the lands is thus referable to an implied grant from the State, and
their tenure would be jagir even in its stricter connotation.
It was further contended by Mr. Pathak that
whatever status the Bhomats might have had prior to the Mewar Government Kanoon
Mal Act No. V of 1947, the effect of that enactment was to modify it and to
reduce them to the position of grantees from the State in respect of those
tenures, and that article 31-A would accordingly apply. The relevant provisions
of this Act are sections 27, 106 and 116.
Section 27 enacts that all lands belong to
His Highness, and that no person has authority to take possession of any land
unless the right is granted by His Highness. Section 106 (1) occurs in Chapter
XI which is headed: "The rights of jagirdars, Muafidar, and Bhumias in
Tikana jagir, muafi and Bhom lands", and enacts that a "Tikanadar
jagirdar, muafidar or Bhumia shall have all such revenue rights in the lands
comprised in his jagir, muafi or Bhom under this Act, as are granted to him by
His Highness". Then follow provisions relating to succession and transfer
of their tenures by jagirdars, muafidars or Bhumias. Section 116 provides that
the jagir or bhom is liable to be forfeited in the events specified therein.
The argument of the respondent is that under these provisions the ownership of
the lands vests in the Maharajah and the tenures mentioned therein including
the Bhom are held as grants under him.
It was argued by Mr. Frank Anthony that under
section 4(2) of the Act the lands are divided into two categories, one category
comprising jagirs, muafi and Bhom and the other Khalsa lands, that section 27
applies only to Khalsa lands, and that section 106(1) applies to grants which
may thereafter be made by the State, and that the rights of the persons who
held jagirs, muafi or Bhom before this Act were unaffected by it. We are unable
to accede to this contention. No statute was needed to declare the rights of
the sovereign over Khalsa lands, Nor was resort to legis347 lation 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
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
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 within the territories of
Mewar". (Article XIII, Clause 1), and that Act No. V of 1947 which came
into force on 15-11-1947 was void as being repugnant thereto. Article 11(1) of
the Constitution itself provides that the Maharajah shall exercise "all
rights, authority and jurisdiction which appertain to or are incidental to such
sovereignty except in so far as may be otherwise provided for by or under this
Constitution or as may be otherwise be directed by Shriji", and when
Shriji (the Maharajah) enacted Act No. V of 1947, it must be taken that he had
in the exercise of sovereign authority abrogated the Constitutional provisions
enacted earlier. The authority which enacted the Constitution on 23-5-1947
being His Highness himself, any Act passed subsequently by the same authority
must be taken to have repealed or modified the earlier enactment to the extent
that it is inconsistent with the later. It does not also appear that the
Constitution was ever put into force. It is not known whether any Legislature
was constituted under the Constitution, or any other step taken pursuant
thereto; and though acquiescence is not a ground for giving effect to a law
which is ultra vires, it is not without significance that the validity of Act
348 No. V of 1947 was not challenged on the ground that it was repugnant to the
Constitution dated 23-5-1947 until the present petitions were filed. There is
no substance in this belated contention, and it must be rejected.
Mr. Frank Anthony appearing for some of the
Mewar petitioners contended that their status was that of Chiefs with
semi-sovereign powers, and that it could not be said that they held the lands
under grants from the State. He referred to certain kowls and agreements
brought about by the British Government between their ancestors described
therein as Chiefs and the Maharajah of Udaipur, providing for their jointly
drawing up a code of law subject to approval by the Political Agent and for the
settlement in future of all civil and criminal cases in accordance therewith,
(vide Aitchison's Treaties, Vol. III, pp. 33 and 35) and for compensation being
awarded to them for taking over their right to manufacture salt (vide
Aitchison's Treaties, Vol. III, pp. 38 to 42). He argued that the payments made
by them to the State were not revenue but their contribution for purposes of
common defence, and that that had not the effect of reducing their status as
feudatory chiefs to that of subordinate tenure holders.
Certain observations in Biswambhar Singh v.
The State of Orissa and others(1) 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 (1)  S C.R.
349 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 of the agreements as
narrated in Aitchison's Treaties, Vol. III, pp. 10 to 13 are that for some time
prior to the treaty which was entered into by the Maharajah of Udaipur with the
British in 1818, the authority of the Government of Mewar was rather low.
Taking advantage of it, tile neighbouring States had occupied most of its
territories, and the Chiefs had also become lax in the performance of their
obligations to the Durbar. This led to considerable friction between the
Maharajah and the Chiefs and after the conclusion of the treaty in 1818, the
Political Agent Mr. Tod, with a view to restore good relationship between the
Maharajah and his Chiefs, prevailed upon them to settle their differences, and
the kowls relied on by Mr. Anthony are the outcome of his efforts. These kowls
read in the background of the facts stated above unmistakably establish that
the position of the Chiefs had previously been that of grantees from the State,
subject to certain obligations. If so, the agreements did not bring about a
change in that status. They merely provided for the carrying out of the
obligations arising out of that status.
On this basis, the properties held by them
would be jagirs even according to the original and narrow sense of that word;
and in fact, they are so described in the very kowls relied on by Mr. Frank
Anthony. (Vide Aitchison's Treaties, Volume III, page 35, article 29). They are
clearly within article 31-A. The respondent also contended that the properties
held by the Chiefs would be estates as defined in article 31-A. That would
prima facie appear to be so; but it is unnecessary to express any opinion on
the question, as the resumption would be protected by article 31-A on the
ground that it related to jagirs or other similar grants.
(1)(c) Tikanadars of Shekhwati: The northern
section of Jaipur forming the trans-Aravali region of the State is known as
Shekhwati. It consists of large 350 estates known as Panchpana Singhana, Sikar,
Udaipurwati, Khandela and others. These estates are known as Tikanas and their
holders as Tikanadars. The petitioner in Petition No.
424 of 1954 is one of them, his estate being
the Tikana of Malsisar and Mandrela in Panchpana Singhana. His contention is
that he is a ruler with semi-sovereign status subject only to the obligation to
render military service and to pay tribute called Maumla to the State of
Jaipur, that be is accordingly a Maumlaguzar and not jagirdar, and that he is
not a grantee from the State.
The history of these estates is narrated in
great detail by Mr. Wills in his report on "The Land Tenures and Special
Powers of Certain Tikanadars of Jaipur State, 1933". To state it briefly,
these estates originally formed part of the Khalsa lands of the Moghuls. During
the period of their decline, King Sawai Jai Singh who ruled over Jaipur from
1700-1743 with great distinction acquired them from the Moghul Emperors on
izara, and in his turn granted them on sub-leases or izaras to various persons
mostly his clansmen, on condition that in addition to the payment of izara
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 estate as permanent grantees. Towards the
end of the 18th Century when the power of Jaipur waned and its authority
weakened, the holders of these estates in Shekhwati attempted in their turn to
shake off their allegiance to Jaipur, asserted an independent status in
themselves, and began to seize the territories belonging to the State. Before
their plan succeeded, Jaipur concluded a treaty with the British which
recognised its position as sovereign of the whole State 351 including Shekhwati.
"The first duty urged on the Maharaja after the conclusion of the treaty
was the resumption of the lands usurped by the nobles, and the reduction of the
nobles to their proper relation of subordination to the Maharaja.
Through the mediation of Sir David Ochterlony
Agreements were entered into in 1819 similar to those made at Udaipur.
The usurped lands were restored to the
Maharajah and the nobles were guaranteed in their legitimate rights and
possession". (Aitchison's Treaties, Vol. III, p. 55).
Even after the conclusion of the agreement of
1819 there were disputes between the Maharajah and the Chiefs in respect of
various matters, such as the right of the ruler to revise the amount payable by
the Tikanadars and the right of the latter to minerals and to customs; but this
did not affect the nature of the relationship established between them under
the agreement of 1819. Thus, the true position of the Tikanadars is that they
got into possession of the properties as izaradars under the rulers of Jaipur,
improved that position latterly and became permanent holders of the estates and
were eventually recognised as chiefs subordinate to the Maharajah. They were
not like the Bhomicharas of Marwar or the Bhumias of Mewar the previous
conquerors and occupants of the territory before they were subjugated by
Jaipur, as erroneously supposed by Col. Tod; nor were they the clansmen of the
ruling dynasty who assisted in the establishment of the Raj. They derived their
title to the properties only under grants made by the rulers of Jaipur, and
even if their estates could not be considered, as they shaped themselves, as
jagirs, they were at least " other similar grants" within article 31
_A. That was the view which the State took of their position. Section 4(15) of
the Jaipur State-Grants Land Tenures Act No. I of 1947 defines "State
grant" as including a jagir, muamla, etc.
Muamla is, as already stated, the amount
payable by the Tikanadars of Shekhwati to the ruler of Jaipur. Section 4 (7)
defines an estate as meaning "land comprised in a State grant".
45 352 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
mentioned as item 6 in the schedule, and that is the name under which the
tenure of the petitioner is known. It must accordingly be held that his lands
are within the purview of article 31-A.
(1) (d) Subeguzars: The question as to the
status of subeguzar is raised in Petitions Nos. 471, 472 and 473 of 1954. The
petitioner in Petition No. 473 of 1954 is the holder of the estate of Isarda in
Jaipur. It is stated that in the beginning of the 18th Century his ancestor Mohansinghji
migrated from Bagri, settled in the hilly regions at Sarsop, built a fortress
at Isarda and established an independent principality. In 17-51 the ruler of
Isarda acknowledged the suzerainty of the Maharaja of Jaipur who, in turn,
"recognised the ancestor of the petitioner as Subeguzar", subject to
a liability to pay tribute every year to Jaipur. (Vide para 2 of the petition).
The result of this arrangement was, as in the
case of Bhomicharas, to put the Chieftain in the position of a grantee from the
State, and that is also the position under the Jaipur State-Grants Land Tenures
Act No. I of 1947 Section 4(15) includes within the definition of 'grant 353
" suba" tenure, and the Matmi Rules of 1945 also apply to this
tenure. (Vide Appendix A, Part III). While the tenure is called 'Sube', its
holder is called not Subedar which has a different meaning but Subeguzar. In
the Administration Report of Jaipur 1947-48, Sube is described as follows:
"Suba is a tenure peculiar to Nizamat
Sawai Madhopur. It is analogous to the istimrar tenure in other parts of the
State. The subeguzars pay a fixed annual amount for the grant held by
them". (Vide p. 35).
The position therefore is that the petitioner
who is admittedly a subeguzar holds under a grant from the State and falls
within article 31-A. It was argued that the family of the petitioners had
always enjoyed a special distinction in that the adoption of the ruling house
of Jaipur was always made from among the members in this family. That, however,
would not affect the status of subeguzars who must be held to be grantees from
A special contention was raised with
reference to 12 villages which are stated to have been purchased in 1730 by
Raja Jaisingh the then holder of Isarda for a sum of Rs. 20,000; and it was
argued that these villages at least could not be treated as held under grant
from the State. Isarda was a new State founded by Mohansinghji, and its area
was extended from time to time by incorporation of fresh villages, and when in
1751 the Chief acknowledged the suzerainty of Jaipur and held the estate as
subeguzar under him, that title must have related to the entire estate
including these villages, and there is therefore no ground for treating them
differently from the rest. It must be mentioned that this contention was raised
only in the reply statement. It must be overruled.
Petitions Nos. 471 and 472 of 1954: The
petitioner in Petition No. 471 of '1954 is the Tikanadar of Jhalai. In para 2
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'.
354 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 admitted that the
Tikana is a permanently settled estate paying a fixed annual revenue of Rs.
1,681, and it is therefore an estate both under section 4(7) of the Jaipur
State-Grants Land Tenures Act No.
I of 1947 and article 31-A. This decision
will also govern Petition No. 472 of 1954 in which the petitioner owns the
village of Bagina as "subeguzar" and the village of Siras as
(2)We now come to the second category of
cases wherein the contention is that the particular properties held by the
petitioners do not fall within the purview of article 31-A.
(a)Petitions Nos. 391 and 417 of 1954:
Petition No. 391 of 1954 relates to the estate of Yeshwantgarh in the State of
Alwar. It was settled on 11-8-1941 by its then ruler on his son for
maintenance. The grant is described in the deed as jagir, and the Gazette
Notification dated 25-8-1941 publishing it states:
"We are also faced with the problem of
arranging for our second Maharaj Kumar, a Jagir, which, in the matter of size
and powers, should be on a much higher footing than the existing Jagirs.
Accordingly with the object of creating a new Jagir for him, we have today
gifted to him in perpetuity and from generation to generation, all the villages
included in the Thikana of Thana together with all other properties enjoyed by
the deceased Raja Sahib during his lifetime.
This new Jagir shall remain free from
liability for rates and cesses for all time, and shall also never be required
to maintain any horses".
In 1944 some more villages were added to this
grant, and the resumption relates to all these properties.
The contention of Mr. Achhru Ram for the
petitioner is that the grant is not an estate under the law relating to land
tenures in Alwar, and that it is outside article 31-A.
Under section 2(a) of the Alwar 355 State
Revenue Code, `estate' means "an area for which there is a separate record
of rights or which is treated as such under orders of His Highness'
Government". It is stated by the petitioners that there has been no
separate record of rights in the State of Alwar, and that therefore there could
not be an estate as defined in the Code. The respondent, however, does not
admit this, and contends that, in any event, the grants are jagirs and are
therefore within article 31-A. The question is whether the grant is a jagir.
The deed dated 11-8-1941 describes it as a
jagir, and so does the Gazette Notification publishing it; and that is also how
the estate is described by the petitioner himself Section 3(3) of the Alwar
State Jagir Rules, 1939 defines jagir as meaning "grant of land or money
granted is such by His Highness or recognised as such by His Highness".
Section 2(k) of the Alwar Revenue Code
defines "assignee of land revenue" as meaning "a Muafidar or a
Jagirdar". Thus, all the requirements of a Jagir are satisfied, and the
grant would fall within the scope of article 31-A.
It was next argued that even if the 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 several tenures mentioned in the first schedule to the Act. The
contention is that while their estates would be jagirs within the inclusive
portion of the definition, they themselves would not be jagirdars as defined in
the Act, because they were recognised not as jagirdars but as holders of the
specific tenures enumerated in that schedule, and that therefore their
interests could not be resumed under section 22(1) (a) even 356 though their
estates might be notified as jagirs. In other words, for the section to apply,
there must not merely be an estate which is a jagir but also a holder who is a
It is conceded that this contention, if
accepted, would render Chapter V providing for resumption inoperative except as
regards jagirs in the specific sense and mentioned as item I in the first
schedule to the Act. But it is argued that it is a case of casus omissus, and
that it is not within the province of this Court to supply it. But the
definition of jagir in section 2(h) is, as provided therein, subject to any
contrary intention which the context might disclose; and when section 22 (1)
(a) enacts that on the resumption of jagir lands the rights of the jagirdar in
the lands should cease, it clearly means that the holders of jagirs are
jagirdars for the purpose of the section. There cannot be jagirs without there
being jagirdars, and therefore the word 'jagirdar' in section 22 (1) (a) must
mean all holders of jagirs including the tenures mentioned in the schedule to
the Act. Section 20 exempts from the operation of the Chapter properties whose
incomes are utilised for religious purposes. Those properties would be held on
tenures such as Sasan, Doli and so forth which are enumerated in the schedule.
There was no need for exempting them under section 20 if the Legislature did
not understand them as falling within the operation of section 22(1)(a), and
they would fall under that section only if the word 'jagirdar' is interpreted
as meaning all persons who hold properties which are jagirs as defined in the
Act. In the result, the resumption must be held to be valid.
Petition No. 417 of 1954 relates to
properties in Alwar, and the contention raised therein is the same as in
391 of 1954, that they are not an estate within
article 31A. But the petitioner describes himself in the petition as the
"proprietor jagirdar of the jagir known as Garhi", and states in para
(9) that his jagir is unsettled and pays neither revenue nor tribute, and the
prayer in para 21(3) is that the State should be restrained by an injunction
from interfering with the rights of the petitioner. as jagirdar.
357 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
Highness' Government". Then there are provisions for assessment of land
revenue. It is argued for the petitioners that the record of rights as
contemplated by section 28 has not been made, and that the lands have not been
assessed to revenue, nor has it been released, compounded for or redeemed, and
that therefore the properties are not estates within section 3(1) of the
Bikaner Act No.
IV of 1945. The contention of the respondent
is that they are, at any rate, jagirs, and so fall within article 31-A.
The preamble to the Act proceeds on the basis
that whatever is not Khalsa is jagir land. In three of the Petitions Nos.
414, 518 and 535 of 1954 the properties are
described in the schedule as jagirs and the petitioners as jagirdars. In
Petitions Nos. 401 and 539 of 1954 there are no such admissions, there being no
schedules to the petitions. But in the petitions for stay of notification
-filed in all the above petitions, it is alleged that "notification under
the impugned Act with respect to the jagir of the petitioners has not yet been
made". (Vide para 16). ID view of these admissions, we are unable to
accept the contention of Mr.
Frank Anthony based on the narration in Tod's
Annals of Rajasthan, 358 Volume II, pp. 25, 26, 140 and 141 that the properties
of the petitioners are not jagirs.
(c)Petition No. 634 of 1954: In this petition
there are 192 petitioners, some of whom are from Kishangarh. The special
contention urged as regards the petitioners from Kishangarh is that their
properties are not estates according to the law of Kishangarh, and that they
are therefore outside article 31-A. Rule 4(1) of the Jagir Rules for the
Kishangarh State, 1945, defines a 'jagirdar' as a person who has been granted a
village or land as jagir by the Durbar in consideration of his past and future
services, and Rule 5 classifies jagirdars into five categories. The argument of
the petitioners is that they have not been shown to fall within any of these
categories. Not merely is this contention not distinctly raised in the
petitions, but it is admitted in para 1 that "the petitioners' properties
are known as Jagirs, Bhoms, Muafi, etc." which will clearly bring them
within the operation of article 31-A. In the schedule to the petition also, the
petitioners are described as jagirdars, and the particular villages held by
them are noted as jagir villages. The contention that they do not fall within
article 31-A must be rejected. It is stated that the 128th petitioner, Pratap
Singh, does not make any payment in respect of his estate, and that it is not a
jagir. If that is so, then on the admission extracted above, it must be muafi,
and will be within article 31-A.
(d)Petition No. 536 of 1954: The petitioner
is the holder of an estate in Mewar known as Bhaisrodgarh Tikana, and he
alleges that there was a dispute between Rawat Himmat Singhji the then holder
of the estate, and the Maharajah 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, 359 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 petitioner
is a Bhumia holding an estate called "Jawas". Its history is given in
"Chiefs and Leading Families of Rajputana", page 36, and the argument
of Mr, Trivedi based on it is that the Chiefs of Jawas occupied a special
position as feudatories, and that they could not be considered as grantees. But
their position is not different from that of the other Bhomats, and indeed it
is admitted in para 14 that the lands are comprised in the Bhomat area. This
estate is expressly included in the schedule under section 117 in Mewar
Government Kanoon Mal Act No. V of 1947 being item No. 25 and is within article
(f)Petitions Nos. 483, 527, 528 and 675 of
1954 and 1 and 61 of 1955: The question that is raised in these petitions is
whether grants made for maintenance are 'jagirs or other similar grants'
falling within the purview of article 31-A.
In Petition No. 483 of 1954 the grant was
made by the ruler of Uniaara, and in Petition No. 528 of 1954 by the then ruler
of Katauli before it was merged in the State of Kotah.
We have held that maintenance grants would be
jagirs according to their extended connotation, and they are therefore within
In Petition No. 527 of 1954 the grant was
made in favour of certain members of the Ruling House of Jaipur. According to
the respondent, they were illegitimate issue called Laljis, and the grants were
made for Lawazma and Kothrikharch, which expressions mean maintenance of
paraphernalia and household expenses. (Vide the Administration Report of Jaipur
19471948, page 36). The grant in favour of the 33rd petitioner in Petition No.
I of 1955 and the 17th petitioner in Petition No. 61 of 1955 are similar in
character. Apart from the general contention that maintenance grants are not
within article 31-A, the further argument of Mr. Dadachanji on behalf of these
46 860 petitioners is that Lawazma and Kothrikharch are tenures not mentioned
in the first schedule to the Act, and that the resumption of these lands was
therefore without the authority of law. But these expressions meaning
maintenance expenses are indicative of the purpose of the grant and are not
descriptive of the tenure. A grant can both be a jagir and a maintenance grant,
and the fact that it was granted for Lawazma and Kothrikharch does not militate
against its being a jagir. It was suggested that the question whether Lawazma
and Kothrikharch are tenures different from those mentioned in the schedule to
the Act might be left open and that the right of the petitioners to establish
their contention in other proceedings may be reserved. That would undoubtedly
be the proper course to adopt when the point for determination is not whether
the Act itself is unconstitutional and void, but whether the action taken under
it was authorised by its provisions. But then, there are no allegations in the
petition that the properties were held under a tenure, which is 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 Rs.
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 this plea is founded are that on
28-11-1953 the Secretary to the Government wrote to the Collector of Tonk that
the petitioner was not to be disturbed in her enjoyment of the jagir for her
In a later communication dated 24-11-1954,
however, addressed to the petitioner, the Government expressed its inability to
stay resumption, and the argument is that the res361 pondent is estopped from
going back on the assurance and undertaking given in the letter dated
28-11-1953. We are unable on these facts to see any basis for a plea of
estoppel. The letter dated 28-11-1953 was not addressed to the petitioner; nor
does it amount to an assurance or 8undertaking not to resume the jagir. And
even if such assurance had been given, it would certainly not have been binding
on the Government, because its powers of resumption are regulated by the
statute, and must be exercised in accordance with its provisions. The Act
confers no authority on the Government to grant exemption from resumption, and
an undertaking not to resume will be invalid, and there can be no estoppel
against a statute.
One other contention advanced with reference
to this petition might be noticed. It was argued that under rule 2(f) in schedule
II, no compensation is awarded in respect of the abadi lands, which remain in
the possession of the jagirdar, whereas, if they are sold, the income from the
-sale proceeds is taken into account. This, it was argued, is discriminatory.
The principle underlying this provision is that compensation is to be fixed on
the basis of the income which the properties produce, and that while abadi
lands in the hands of the jagirdar yield no income, if they are sold the sale
proceeds are income-producing assets.
Whether this principle of assessing
compensation is open to attack is another question, and that will be considered
in its due place.
(g)Petitions Nos. 371, 375, 379, 416) 455 and
461 of 1954:
These petitions raise in general terms the
contention that the properties to which they relate are not estates as defined
in article 31-A.
Petition No. 371 of 1954 relates to the
estate of Doongri in Jaipur, and it is contended that it is not an estate
because the liability of the holder is only to pay Naqdirazan, and it is argued
that this is not revenue. Naqdirazan is money commutation for the obligation of
maintaining a specified number of horses. This is clearly a grant for military
service, and will be a jagir, and that is admitted in para I where the 362 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
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
within article 31-A.
Petition No. 416 of 1954 relates to an estate
called Sanderao. The payment made by the holder is called Rekchakri, and the
contention is that this is not revenue.
But it is admitted in paras 1, 2, 9 and 21(3)
of the petition that the properties are jagir lands. Petition No. 455 of 1954
relates to properties in Mewar. There are 13 petitioners, and it is argued that
the payments made by them called chakri chatund and Bhom-barad are not revenue,
and their properties are not estates. But they admit that they are "owners
as petty jagirdars" of the properties mentioned in the schedule, and this
statement is followed by others which also contain clear admissions that the estates
are jagirs. (Vide paras 12, 17(e), 19 and 21(3) of the petition and paras 16
and 19 of the stay petition). In Petition No. 461 of 1954 the petitioner admits
that he holds ten villages as jagirs, seventeen as istimrar and two as muafi.
Istimrar is one of the tenures mentioned in the first schedule to the Act, and
is item No. 2 therein, and that would be "other similar grant" 363
within article 31-A, while jagir and muafi are expressly included therein. In
conclusion, we must hold that the petitioners have failed to establish that the
impugned Act, in so far as it relates to properties held by them, is not within
the protection of,' article 31-A.
IV. (B) We may now consider the contention of
the petitioners that the Act is bad on the ground that the compensation
provided therein is inadequate. The provisions of the Act bearing on this
matter may now be reviewed.
The . second schedule to the Act lays down
the principles on which compensation has to be assessed. Rule 2 enacts how the
gross income is to be ascertained, and enumerates the several heads of income
which are to be included therein, and rule 4 mentions the deductions which are
Rule 4(3) provides that 25 per cent. of the
gross income may be deducted for "administrative charges inclusive of the
cost of collection, maintenance of land records, management of jagir lands and
irrecoverable arrears of rent"; and there is a proviso to that rule that
"in no case shall the net income be computed at a figure less than 50 per
cent. of the gross income". Under rule 5 compensation payable is seven
times the net income calculated under rule 4. Rule 6 provides that any
compensation paid to the jagirdar for customs duties during the basic year
shall continue to be payable. Under section 26(2) the compensation amount
carries interest at 21 per cent. from the date of resumption, and under section
35 it is payable in installments. 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 364 mines; and reliance was placed on the decision of this
Court in State of West Bengal v. Bela Banerjea(1) 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
acquisition of properties falling within its purview is open to attack on the
ground that it violates any of the provisions of Part III. It was held by this
Court in State of Bihar v. Maharajadhiraja Sir Kameshwar Singh(1) and
Visveshwar Rao v. The State of Madhya Pradesh(1) that an objection to the
validity of an Act relating to acquisition of property on the ground that it
did not provide for payment of compensation was an objection based on article
31(2), and that it was barred when the impugned legislation fell within
articles 31(4), 31-A and 31-B. It was further held in Raja Suriya Pal Singh v.
The State of Uttar Pradesh(1) that when the acquisition was of the whole
estate, it was not a valid objection to it that the compensation was awarded on
the basis of the income actually received, and that nothing was paid on account
of properties which did not yield an income.
It is argued that the compensation payable
under the rules is so inadequate as to be illusory, and that the Act must be
held to amount to a fraud on the Constitution. We are unable to agree with this
contention. Under the Act, the jagirdar is entitled to compensation equal to
seven years' net income, and in addition to it he is awarded rehabilitation
grant which may vary from 2 to 11 times the net income. Under section 18 of the
Act he will also be allotted a portion of the khudkhast lands in the jagir, the
extent of the allotment being proportionate to the total extent thereof. He is
also to get compensation for loss of customs. The utmost that can be said of
these provisions is that the compensation provided there under is inadequate,
if that is calculated on the basis of the market value of the properties. But
that (1)  S.C.R. 558. (3)  S.C.R. 1020.
(2)  S.C.R. 889. (4)  S.C.R.
365 is not a ground on which an Act protected
by article 31-A could be impugned. Before such an Act could be struck down, it
must be shown that the true intention of the law was to take properties without
making any payment, that the provisions relating to,' compensation are merely
veils concealing that intention, and that the compensation payable is so
illusory as to be no compensation at all. (Vide State of Bihar v. Maharajadhiraja
Sir Kameshwar Singh of Darbhanga and others(1). We are clear that this cannot
be said of the provisions of the impugned Act, and the contention that it is a
fraud on the Constitution must, in consequence, fail.
It was argued by Mr. Achhru Ram that the
impugned Act suffered from a fundamental defect in that it treated all the 41
tenures classed as jagirs in the schedule as of the same character, and on that
basis laid down the same principles of compensation for all of them. It is
argued that these tenures differ widely from one another as regards several
incidents such as heritability, partibility and alienability, and that
different scales of compensation should have 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 31-A; and
even on the merits, the question is concluded against the petitioners by the
decision of this Court in State of Bihar v. Maharajadhiraja Sir Kameshwar Singh
of Darbhanga (1)  S.C.R. 889, 946-948.
366 and others(1) that legislation of the
character of the present is supported by public purpose.
It was next urged that the provisions of the
Act offend article 14 and are therefore bad. Even apart from article 31-A which
renders such an objection inadmissible, we are satisfied that it is without
substance. The contention of the petitioners is that the Act according to its
title is one to provide for resumption of jagir lands, not all of them; that
section 21 provides that the Government "may appoint a date for the
resumption of any class of jagir lands", which means that under this
section it is not obligatory on it to resume all jagirs, and that it would be within
its powers in resuming some of them while leaving others untouched, and thus
the Act is discriminatory. The provisions of this Act bearing on this question
are sections 20 and 4. Section 20 enacts that "the provisions of this
Chapter apply to all jagirs except jagirs the income of which is utilised for
the maintenance of any place of religious worship or for the performance of any
religious service". We have held that the Act confers no power on the
Government to grant exemption. All the jagirs therefore are liable to be
resumed under section 20, no option being left with the Government in the
matter. Section 4 of the Act enacts that all jagir lands become liable to pay
assessment from the commencement of the Act, and the liability of the jagirdar
to pay tribute also ceases as from that date.
There cannot therefore be any doubt that it
was the intention of the Legislature that all jagir lands should be resumed
under section 21.
It was also urged that under section 21 the
State is authorised to resume different classes of jagir lands on different
dates, and that must result in the law operating unequally. This provision was
obviously dictated by practical considerations such as administrative
convenience and facilities for payment of compensation' and cannot be held to
be discriminatory. It was held by this Court in Biswambhar Singh v. The State
of Orissa and others(1) that a similar (1)  S.C.R. 889.
(2)  S.C.R. 842, 855.
367 provision in the Orissa Estates Abolition
Act No. I of 1952 was not obnoxious to article 14. The objection must
accordingly be overruled.
Petitions Nos. 629 and 643 of 1954: These are
petitions by jagirdars of Mewar, and the special contention urged on their
behalf by Mr. Trivedi is that their jagirs had been taken possession of by the
State in 1949 under section 8(A) of the Rajasthan Ordinance No. 27 of 1948,
that by its judgment dated 11-12-1951 the High Court of Rajasthan had held that
that enactment was void under article 14, that that judgment had been affirmed
by this court in The State of Rajasthan v. Rao Manohar Singhji(1), 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
There is no substance in this contention. The
Mewar jagirdars having lost possession under a legislation which has been held
to be void, the rights which they had over the jagirs until the date of the
present notifications would remain unaffected, and no unequal treatment could
result therefrom. And, moreover, the present Act makes no discrimination in the
matter, as it applies to all the jagirs in Rajasthan. There is no ground,
therefore, for holding that the Act in any manner contravenes article 14.
V. It now remains to deal with the contention
of some of the petitioners that even if the impugned Act is valid, their
estates do not fall within its mischief, and that their resumption is therefore
unauthorised (a) Petition No.392 of 1954 The subject-matter of this petition is
the estate of Khandela in the former State of Jaipur. By a deed of the year
1836, it (1)  S.C.R. 996.
47 368 was settled by the Maharajah of Jaipur
on Raja Abayasingh and Raja Lakshmansingh on izara istimrar on an annual
assessment of Rs. 80,001. The present petitioner is the successor-in-interest
of Raja Abayasingh, and is entitled to three-fifths share in the estate. The
contention that is urged on his behalf by Mr. Isaacs is that the Act does not
apply to him, because be is neither a Jagirdar nor a holder of any of the
tenures mentioned in schedule I to the Act.
The history of this estate is set out in Mr.
Wills's Report at pp. 75-79. Khandela was an ancient principality held by the
members of the Raisalot family as Mansubdars under the Moghul Emperor. In 1725
Sawai Jaisingh of Amber obtained an izara of Khandela from the Moghul Emperor,
and the Raisalotholders became subordinate to him. In 1797 the Raisalot family
lost possession of the estate, which became incorporated in the Khalsa lands of
Jaipur, and administered as such till 1812. Thereafter, it was leased to the
Chieftain of Sikar and others on short Term leases till 1836 when the grant
under which the petitioner claims was made.
The occasion -for the grant was that there
were negotiations for marrying a princess of the Bikaner royal family to the
ruler of Jaipur, and the Bikaner Durbar insisted that the Khandela estate
should be restored to the Raisalot family.
Though the marriage itself did not eventually
materialise, the princess having in the meantime died, the negotiations which
had been going on with the Jaipur State for the handing over of the Khandela
estate to its old holders resulted in the izara of 1836. Now the question is
whether the grant of 1836 was that of a jagir. It was clearly not a grant for
services renderedor to be rendered, nor was there an assignment of any right to
collect revenue. The grantees -were to enjoy the income from the lands and pay
a fixed annual amount to the Durbar. It is true that the estate had some of the
incidents of a jagir tenure attached to it. It was impartible, it was
inalienable, and in matters of succession it was governed by the Matmi Rules.
All this did not affect the true character of
the grant 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 by a
Committee which submitted its report in 1935. Therein, it was held on an
examination of all the materials that the status of the holders of Khandela
differed from that of other Thikanadars, who paid Muamla and claimed
semi-independent status as "Muamlaguzars", that they held merely as
istimrar Izaradars under a "-permanent and specific izar" and not as
istimrar Muamlaguzars, that the grant of Mal, Sayer, Bhom and Kuli habubayat
under the deed did not add to their status as Izaradars. (Vide para 5).
This report was accepted by the Maharajah of
Jaipur on 14-41939.
Mr. Pathak contends that the effect of the
finding of the Committee that the grantees held as istimrar Izaradars was to
bring them within item 2 of schedule I to the Act, and that therefore the
resumption is within the Act. But the report emphasises that the grantee held
as "istimrar Izaradar" and not as "istimrar Muamlaguzar",
and in the context the word "istimrar" has reference not to the
character of the tenure but its duration as permanent. The precise nature of
the tenure called 'istimrari' is thus set out in Venkatachar's Report:"Permanently
quit-rented estates and lands-These are denoted by various terms as Dumba,
Chukota, Suba and Istimrari. Of these the Istimrari tenure merits some
attention. The largest number of Istimrari estates in Rajasthan lies in
Ajmer-Merwara 370 which area is outside the scope of this report. The original
tenure of the Istimrari estate in Ajmer is exactly like the Jagirs in
Rajasthan. None of the Ajmer estates ever paid revenue till 1755, but were held
on condition of military service................ Under British rule, the estate
holders were made liable to pay an annual fixed and permanent quit-rent and
were converted into Istimrari tenure holders". (Page 22, para 24).
"This quit rent or fixed revenue is a
nominal assessment, not related to the income from the holding, but with the
condition of confirmation of grant; the amount is invariable. This class of
persons are known as 'Istimrardars"'. (Page 24, para 36).
It is clear from the above that the essential
features of istimrari tenure are that the lands are assessed to a nominal quit
rent and that is permanent. The amount of Rs.
80,001 fixed as assessment under the deed of
1836 cannot be said to be a nominal amount, and as found in the report of the
1933 Committee, it was not a permanent assessment. It cannot therefore be held
that what was created by the deed of 1836 was istimrari tenure.
It was argued for the respondent that
Khandela was clearly an estate as defined in article 31-A, that the policy of
the law was to abolish all intermediaries, and that section 2(h) should be so
construed as to comprehend all holders of intermediate tenures. The answer to
this is that whatever 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 371 these lands would therefore be within the
purview of the Act. It is argued by Mr. Rastogi that as the petitioner had
acquired lands from the Bhomias long prior to the Act his rights in them could
not retrospectively be affected by subsequent legislation. We are unable to see
where the question of retrospective operation comes in. If Bhom is a
tenure--and that is what it is under the first schedule to the Act, and if the
intention of the Legislature was to bring it within the operation of the Act,
then the only question to be considered is whether the particular properties
notified under the Act are held under that tenure. And if that is answered in
the affirmative, the Act would clearly apply, and it would make no difference
in the result that the holder derived title to them by purchase and not by
inheritance. On the admission of the petitioner that the lands notified
belonged to his vendors as Bhom, the Act will clearly apply.
With reference to the lands in the village of
Khata, the contention of the petitioner is that it is held on izara tenure, and
that it is therefore outside schedule I to the Act. This village is a Thikana
in Shekhwati, and though the estates in that area were originally held on
izara, they had, as already stated, risen to the status of jagirs and had been
recognised as such. This village is stated to have been granted for maintaining
horses, and is really a Mansab jagir and must be held to be covered by item 1
in schedule I.
The village of Niradun is stated to be held
as Javad, and the contention is that it is not one of the tenures mentioned in
schedule I to the Act. The respondent contends that Javad is not the name of
any tenure, and that it means only a sub-grant. In the petition it is not
stated that Javad is a tenure; nor is there a mention of its incidents.
The word 'javad' is not noticed either in
Wilson's Glossary or in Ramanatha Iyer's Law Lexicon. In the Jagir Rules of
Kishangarh, section 4(xiii) defines 'javad' as "a jagir confiscated by or
reverted to the State", and that has reference to the practice of making a
grant of a small portion of the jagir to the 'jagirdar when it is confiscated
or to the members of the family when it 372 reverts back to the State. We are
satisfied that there is no tenure called Javad, and it will not assist the
petitioner whether Javad is a sub-grant or a grant of jagir of the nature
mentioned in section 4(xiii) of the Kishangarh Rules. We may add that this
contention was raised by the petitioner in a supplemental statement.
(c) Petition No. 468 of 1954: The petitioner
is the holder of an estate known as Jobner. He contends that he is a Mansubdar
and not a jagirdar, and that his tenure is not included in schedule I to the
Act. During the Moghul administration persons to whom assignments of land
revenue were made subject to an obligation to 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 valuable as
showing that Mansub is recognised as a jagir. The estate is therefore covered by
item I in schedule 1.
With reference to one of the villages forming
part of this estate, Jorpura, a special contention was put forward by Mr. Naunit
Lal that it was dedicated for worship of the Devi, and was therefore within the
exemption enacted in section 20. A document is also produced in support of this
The respondent claims that under this deed
the grant is not in its entirety in favour of the Deity, but the petitioner
disputes it. This is not a question which can be determined in this petition.
It will be open to the petitioner to establish in appropriate proceedings that
the 373 village or any portion thereof is within the exemption of section 20 of
(d) Petitions Nos. 474 and 475 of 1954: In
1948 the Maharajah of Jaipur granted to the petitioners, who are his sons, the
Thikanas of Bhagwatgarh and Mangarh consisting of 20 villages revenue-free.
Now, the contention that has been urged before us in these and other similar
petitions is that in the first schedule to the Act., only Thikanas of Dholpur
are mentioned, being item 11, and that therefore Thikanas in other States are
excluded. But the expression 'Thikanadar' is a honorific and 'Thikana' does
not, except in Dholpur, mean anything more than an estate and that estate can
as well be a jagir. The petitioners, in fact,, admit in their petitions that
they are jagirdars. The grant is clearly a jagir, and falls within item I in
(e) Petition No. 488 of 1954: The petitioners
are interested in two of the villages, Dadia Rampur and Tapiplya comprised in
the izara of Khandela of the year 1836, which forms the subject-matter of
Petition No. 392 of 1954, and their title rests on Chhut Bhayas or sub-grant
from the izaradar. Their rights are therefore precisely those of the izaradars,
and for the reasons given in Petition No. 392 of 1954 these petitioners must
(f) Petition No. 36 of 1955: The properties
to which this petition relates are held as "Sansan" which is one of
the tenures mentioned in the first schedule being item 25, and would therefore
fall within the operation of section 21.
The contention of the petitioner is that they
are dedicated for the worship of Lord Shiva and Goddess Shakti, and that he is
a Brahmacharan utilising the income from the lands for the above religious
service. The properties comprised in the grant are said to be of a small
extent, and the dedication is not improbable. There has been no denial by the
respondent of the allegation in the petition, and on the materials placed
before us, we have come to the conclusion that the dedication pleaded by the
petitioner has been established, and that the 374 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
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 claim exemption under section 20 for the village of Jorpura on the ground that it is dedicated for worship of the Deity is reserved, and the
petition is otherwise dismissed.
All the other petitions will stand dismissed.
The parties will bear their own costs in all the petitions.