Thakur Raghubir Singh & Ors Vs.
The State of Ajmer (Now Rajasthan) & Ors  INSC 114 (14 November 1958)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
CITATION: 1959 AIR 475 1959 SCR Supl. (1) 478
CITATOR INFO :
R 1960 SC 796 (3,6) R 1962 SC 50 (5) R 1962
SC 137 (8) R 1962 SC1044 (12) RF 1992 SC1277 (22)
Land Reform-Abolition of
Intermediaries-Validity of Enactment-Competency of Legislature-Liability to
resumption of jagir estates-Ajmer Abolition of Intermediaries and Land Reforms
Act,1955 (Ajmer III of 1955) ss. 8, 38-Constitution of India, Seventh Schedule,
List I, entry 33, List II, entry 36, List III, entry 42.
Section 4 Of the Ajmer Abolition of Intermediaries
and Land Reforms Act, 955, provided for vesting of all estates held by
intermediaries, as defined in the Act, in the State from a date to be notified,
and the petitioners who were affected thereby filed petitions under Art. 32 Of
the Constitution of India challenging the validity of the Act and, in
particular ss. 8 and 38 of the Act on the grounds that (1) entry 36 of List 11
of the 479 Seventh Schedule to the Constitution gave power to the State
legislature to acquire property for purposes other than the purposes of the
Union, while the property acquired under the Act vested in the President and
therefore the Union after its acquisition, and the Act was really for the
acquisition of property for the purposes of the Union and could not have been passed
by the, Ajmer legislature, (2) s. 8 provided for retrospective cancellation of
leases granted at a time when the land-owner had a right to dispose of his
property as he liked under Art. 19(1)(f) of the Constitution and there was no
restriction on such right, and (3) s. 38 which fixed a maximum rent was an
unreasonable. restriction on the right of the land-owner to let his holding. It
was also contended for some of the petitioners who were assignees of land
revenue as also owners of land that, under the Act, -an intermediary included a
jagir and that as a jagirdar was merely an assignee of land revenue, only that
assignment could be said to have been acquired under the Act.
Held, (1) that the purposes for which the
estates were acquired were purposes of the State of Ajmer and, consequently,
the Act was within the competency of the Ajmer legislature as it fell within
entry 36 of List II of the Seventh Schedule to the Constitution, and it was not
necessary to consider where the property should vest after acquisition in
deciding the ambit of the competence of the legislature under the entry ;
(2) that the provisions in s. 8 of the Act
which gave power to the Collector to cancel leases which were found to have
been made in anticipation of legislation for abolition of intermediaries and
which were, consequently, a fraud upon the Act, sub serve the purposes of the
Act and would, therefore, be an integral part of the Act, though ancillary to
its main object, and were protected under Art. 31-A(1)(a) of the Constitution ;
(3)that the intention of the Act was that the
intermediaries who were allotted lands should cultivate them personally and the
object of s. 38 was to discourage them from letting the land and becoming a new
kind of intermediaries, and, consequently, the section being an ancillary
provision necessary for the purposes of carrying out the objects of the Act,
was protected under Art. 31-A(1)(a) of the Constitution; and (4)that in view of
the origin of the title of the holders of these estates who were called
jagirdars, a distinction could not be made between jagirdars as assignees of
land revenue and the same persons as land owners, and therefore, the State
could take over the entire interest in the estate under s. 4 Of the Act.
ORIGINAL JURISDICTION: Petitions Nos.
230-239, 241, 249-251, 256, 257, 290, 303, 306-349, 351, 352, 355-357 of 1955
and Nos. 33 & 36 of 1956.
Petitions under Article 32 of the
Constitution of India.
480 Achhru Ram and Naunit Lal, for the
petitioners in Petitions Nos. 239, 241 & 251 of 1955.
Naunit Lal, for the petitioners in Petitions
Nos. 249 & 250 of 1955.
B.D.. Sharma and K. L. Mehta, for the
petitioners in Petitions Nos. 290, 303, 306-349, 351, 355-357 of 1955 and 36 of
B. D. Sharma, for the petitioner in Petition
No. 33 of 1956.
K. L. Mehta, for the petitioner in Petition
No. 352 of 1955.
I. N. Shroff, for the petitioners in
Petitions Nos. 230238, 256-257 of 1955.
H. N. Sanyal, Additional Solicitor-General of
India, M. N. Kaul and T. M. Sen, for the respondents.
1958. November 14. The Judgment of the Court
was delivered by WANCHOO, J.-These sixty-nine petitions under Art. 32 of the
Constitution by various land-owners in the former State of Ajmer attack the
validity of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955
(Ajmer III of 1955) (hereinafter called the Act). The petitions disclose a
large number of grounds on which the validity of the Act is impugned; but
learned counsel, Mr. Achhru Ram and Mr. B.
D. Sharma, appearing for various petitioners,
have confined their arguments only to certain grounds raised in the petitions.
We propose, therefore, to consider only the grounds urged before us.
The Act was passed by the Ajmer Legislative
Assembly and received the assent of the President on May 29, 1955.
Section 4 of the Act provided for vesting of
all estates held by intermediaries, as defined in the Act, in the State
Government from a date to be notified. The Act came into force on June 23,
1955, and August 1, 1955, was notified as the date on which the estates held by
intermediaries would vest in the State Government. The present petitions
followed on the fixing of this date.
It is not disputed that the Act is protected
under Art. 31 A(l)(a) of the Constitution inasmuch as it is a 481 piece of
legislation for acquisition by the State of any estate or of any rights
therein. The argument is that in spite of this protection, either the whole Act
or certain provisions of it are invalid, for reasons urged by learned counsel
on behalf of the petitioners. Mr. Achhru Ram attacks only ss. 8 and 38 of the
Act. Mr. Sharma attacks the competency of the Ajmer legislature to pass the Act
and also urges that in any case it does not apply to the case of jagirdars, one
of whom is a petitioner before us in Petition No. 33 of 1956. These four are
the only grounds that have been urged before us, and we shall deal with them
Re. s. 8.
Section 8 is in these terms" Where an
intermediary has on or after the 1st day of June, 1950, (a) granted a lease of any
land in the estate or any part thereof for any non-agricultural purposes other
than mining for a period of three years or more; or (b) granted a lease or
'entered into a contract relating to any forest, fishery or quarry in his
estate for a period of three years or more ; Or (c)granted a lease for the
cultivation of any area of bir or pasture or waste land ;
and the Collector is satisfied that such
lease or contract was not made or entered into in the normal course of
management but in anticipation of legislation for the Abolition of
Intermediaries, the Collector may, subject to any rules made under this Act, by
order in writing, cancel the lease or the contract as the case may be." It
provides for cancellation of certain leases granted on or after June 1, 1950,
where the lease is for a period of three years or more with respect to matters
dealt with in cls. (a) and (b) and where the lease is for any period in respect
of matters dealt with in cl. (c). The Collector has been given the power to
cancel such leases if they are not, made in the normal course of management but
in " anticipation of legislation for abolition of intermediaries. The
argument is that 61 482 there can be no retrospective cancellation of leases
granted at a time when the land-owner had a right to dispose of his property as
he liked under Art. 19(1)(f) and there was no restriction on such right. It is
said that in certain contingencies the cancellation of a lease might expose the
land-owner to the risk of paying compensation to the lessee, particularly in
cases where the land-owner might have realised the entire lease-money in one
lump sum for a lease of more than three years' duration. We are of opinion that
there is no force in this contention. The legislature was certainly competent,
under entry 18 of List 11 of the Seventh Schedule to the Constitution relating
to Land, to make this provision. It cannot be disputed that the legislature has
power in appropriate cases to pass even retrospective legislation. Provisions
for cancellation of instruments already executed are not unknown to law; for
example, the Insolvency Acts provide for setting aside transfers made by
insolvents under certain circumstances.
Therefore, the Ajmer Legislature certainly
had the power to enact such a provision, and in the circumstances in which this
provision has been made in the Act, it cannot be said that it is not protected
under Art. 31-A. The provision is not an independent provision; it is merely
ancillary in character enacted for carrying out the objects of the Act more
effectively. The intention of the legislature was to give power to the
Collector after the estates vested in the State Government to scrutinise leases
of this kind made after June 1, 1950, which was apparently the date from which
such legislation was under contemplation and to see whether the leases were
such as a prudent land-owner would enter into in the normal course of
management. Such leases would be immune from cancellation ; but if the
Collector found that the leases were entered into, not in the normal course of
management but designedly to make whatever the landowners could before the
estate came to be transferred to the State Government, he 'Was given the power
to -cancel the same, as they would obviously be afraid upon the Act.
Such, cancellation would subserve the
purposes of the Act, and 483 the provision for it would therefore be an
integral part of the Act, though ancillary to its main object, and would thus
be protected under Art. 31-A (1)(a) of the Constitution.
Re. s. 38.
Section 38 reads as follows Notwithstanding
any agreement, usage, decree or order of a court or any law for the time being
in force, the maximum rent payable by a tenant in respect of the land leased to
him shall not exceed one and half times the revenue payable in respect of such
land." This section provides for fixing the maximum rent at fifty per
cent. above the land revenue, and it is urged that this is an unreasonable
restriction on the right of the landowner to let his holding. The object of this
legislation is to do away with intermediaries, and for that reason the estates
held by intermediaries have been' made to vest in the State Government tinder
s. 4. Chapter VI of the Act, however, provides for allotment of lands for
personal cultivation to intermediaries whose estates have been taken over upto
a certain limit and the intermediaries who have been allotted lands under s. 29
of the Act are called Bhuswamis or Kashtkars according to the nature of the
lands allotted to them; (see s. 30). Bhuswamis and Kashtkars hold land directly
from the Government and pay revenue to the Government; (see s. 32). The
intention of the Act, therefore, is that intermediaries who have been allotted
lands should cultivate them personally. But s. 37 permits Bhuswamis to let the
whole or any part of the land allotted to them, while Kashtkars are forbidden
from letting any part of their land except in certain circumstances when they
are suffering from some disability. In order, however, that the main object of
the Act (namely, that the land should be cultivated by the person to whom it is
allotted and that there should be no rackrenting) is attained, s. 38 has been
provided fixing the maximum rent at 50 per cent. above the land revenue. Thus
the profit which a Bhuswami 484 can make by letting his land is so reduced
compared to what he would earn if he cultivated it himself as to discourage him
from letting the land and becoming a. new kind of intermediary. Section 38,
therefore, is another ancillary section, like s. 8, and is meant to subserve
the purposes of the Act, namely, the abolition of all intermediaries and
encouragement of self-cultivation of the land. We are, therefore, of opinion
that s. 38 is also protected under Art. 31-A(l)(a) of the Constitution as an
ancillary provision necessary for the purposes of carrying out the objects of
Re. The competency of the Ajmer Legislation.
The argument in this behalf is put in this
way. The Act is a piece of legislation for the acquisition of estates.
Before the Constitution (Seventh Amendment)
Act, 1956, came into force on November 1, 1956, there were two entries relating
to acquisition of property in the Seventh Schedule, namely, entry 33 of List 1
(acquisition or requisitioning of property for the purpose of the Union) and
entry 36 of List II(acquisition or requisitioning of property, except for the
purposes of the Union, subject to the provisions of entry 42 of List 111). The
argument continues that the Act was passed by the Ajmer legislature under the
power it was supposed to have under entry 36 of List 11 read with s. 21 of the
Government of part C States Act, 1951 (XLIX of 1951).
But entry 36 of List 11 only gives power to
the State legislature to acquire property for purposes other than the purposes
of the Union. As, however, the property aquired under the Act vested in the
President and therefore the Union after its acquisition, the Act was really for
the acquisition of property for the purposes of the Union and could not have
been passed by the Ajmer legislature.
In support of this argument Mr. Sharma
referred us to various Articles of the Constitution in Part XII thereof
relating to Finance, Property, Contracts and Suits, and also Arts. 73 and 239.
He contends that these provisions show that before the Government of Part C
States Act was passed, the legislative power with respect to the areas
comprised in Part C States 485 was in the Union which also through the
President had executive power over the subjects over which the Parliament could
legislate with respect to what were Part C States.
After the passing of the Government of Part C
States Act, by virtue of the power conferred on Parliament by Art. 240, there
was no change so far as the executive power in Part C States was concerned and
it is still vested in the President. Any property acquired for the purposes of
Part C States vests in the President or the Union. Therefore, according to him,
the Ajmer legislature would have no power to enact a law for acquiring estates
under entry 36 of, List 11; for the property so acquired would really be for
the purposes of the Union and no law under that, entry could be made for
acquiring property for the purposes of the Union.
We are of opinion that the argument, though
plausible, must be rejected. Assuming, without deciding. that even after the
passing of the Government of. Part C States Act, any property acquired for a
Part C State vested in the Union Government by virtue of the provisions of Part
XII of the Constitution, the question still remains whether the Ajmer legislature
could make a law under entry 36 of List II acquiring estates even though the
estates when acquired may legally vest in the Union Government. Now, entry 33
of List I refers to acquiring of property for the purposes of the Union. It
does not lay down in whom the property should vest after it has been acquired.
Similarly, entry 36 of List 11 speaks of acquisition of property, except for
the purposes of the Union, and makes no mention in whom the property should
vest after it has been acquired. Entry 42 of List II which deals with
compensation for such acquisition as well as for acquisition for any other
public purpose, also does not speak where the property should vest after
acquisition. It is not necessary, therefore, to consider where the property
should vest after acquisition in deciding the ambit of the competence of the
legislature under those two entries. The key to the interpretation of these two
entries is not in whom the property would vest after it has been acquired 'but
whether the 486 property is being acquired for the purposes of the Union in one
case or for purposes other than the purposes of the Union in the other. It is
in this context that the competency of the Ajmer legislature to enact this law
under entry 36 of List 11 is to be judged.
Section 21 of the Government of Part C States
Act created a Legislative Assembly for Ajmer and gave that legislative assembly
power to make laws for the whole or any part of the State with respect to any
of the matters enumerated in List II or List III of the seventh Schedule to the
Ajmer legislature was thus given power to
pass laws with respect to acquisition of property for purposes other than those
of the Union. In other words, it bad the power to make law to acquire property
for the purposes of the State of Ajmer or for any other public purpose. The
question then is whether the Act was passed acquiring estates in the State of
Ajmer for the purposes of the State of Active of where the title may vest. The
answer to this question to our mind can only be one; the Act was passed by the
State legislature for acquiring estates within the State and it could only have
been for the purposes of the State. There is no reason to limit the meaning of
these general words, namely, 'the purposes of the State', by importing in them
the idea of where the property would vest after its acquisition. That the
purposes for which the estates were acquired were purposes of the State of
Ajmer would be quite clear from the fact that nowthat the State of Ajmer is
part of the State of Rajasthan, the estates acquired under the Act have gone to
Rajasthan and have not been kept by the Union on the ground that the title
vested in the Union. Therefore, as the estates were acquired in this case for
the purposes of the State of Ajmer the Act would be within the competency of
the Ajmer legislature as it falls within the plain words of entry 36 of List
The contention on behalf of the petitioner in
petition No. 33 of 1956 is that under the Act the word intermediary includes a
jagirdar. The Act also provides that the definitions in the Ajmer Tenancy and
Land 487 Records Act, 1950 (Ajmer XLII of 1950), will be imported where the
words used in it are not defined. The word I jagirdar is defined in the Ajmer
Tenancy and Land Records Act as a person to whom the revenue of any land has
been assigned under a sanad issued by the Chief Commissioner before the
commencement of the Ajmer Land and Revenue Regulation, l877 ; (see s. 2 (15) ).
It is not in dispute that a sanad was issued to a predecessor of the petitioner
before 1877 ; but it is urged that a jagirdar is merely the assignee of land
revenue and so far as that assignment is concerned it may be said to have been
acquired under the Act. But the petitioner besides being an assignee of land
revenue is also owner of land and that interest of his has not been acquired
under the Act. We are of opinion that there is no force in this argument. The
word I estate' is defined in s. 2(v) of the Act as having the same meaning as
assigned to it in the Ajmer Land and Revenue Regulation, 1877. The Ajmer
Regulation does not define the word 'estate' as such, but it has defined the
word ' Malguzar ' as a person liable under s. 64 for payment of the revenue
assessed upon an estate, under s. 2(d). Further, s. 64 provides that all
persons who are bound by the agreement prescribed by s. 61 and their
successors-ininterest shall, while they continue to be owners of land in the
Estate to which such agreement relates, be jointly and severally liable for the
payment of the whole amount of revenue assessed upon such estate. The Ajmer
Regulation also defines particular types of estates like' Istimrari Estate' and
'Bhum' but the general meaning of the word 'estate' under the Ajmer Regulation is
an area of land separately assessed to revenue, which is payable by the holder
of the estate. I Intermediary' as defined in s. 2 (viii) of the Act is a holder
of an estate and includes a jagirdar. Under s. 4 all the estates held by
intermediaries Vest in the State Government on the issue of a notification.
Therefore, if the jagirdars are intermediaries, that is holders of estates,
their estates will vest in the State Government under s. 4 of the Act. The
distinction which the learned counsel for this petitioner draws between the 488
interest of the jagirdar as jagirdar and as land-owner is in our opinion wholly
unfounded. A perusal of annexures B, C and D, filed by the. petitioner himself,
would make this clear. Anexures B and C are sanads with respect to the jagirs
held by the petitioner. Entry in the remarks column of annexure IS begins with
the words " Grant of this estate lasts... ". Similarly, in annexure C
the opening words in the remarks column are " The Grant is to the
Dudhadhari for the time being. No part of the estate is transferable by sale or
mortgage... ". Therefore, the grants themselves designated these jagirs as
estates. They were assessed to revenue, which was, however, remitted and the
estates thus came to be known as revenue-free jagirs and the estate holder was
designated as jagirdar. It was because of this remission of the land revenue
that the word I jagirdar' was defined in the Ajmer Tenancy and Land Records
Act, 1950, as assignee of land revenue. Annexures B and C also show that when
the grants were made before 1877 a large part of the area covered by the grant
was uncultivated. Annexure D shows that disputes arose between the jagirdars
and the Biswedars in these jagirs about these uncultivated lands, and one such
dispute was decided as late as 1954. In that judgment (annexure D) history of
jagir tenure was traced and it was held that the jagirdar was the owner of
uncultivated land in his jagir and not the Biswedar. Therefore, the distinction
which has been drawn by the learned counsel between the jagirdar as an assignee
of land revenue based on the definition in the Ajmer Tenancy and Land Records
Act, 1950, and the same person as the land-owner is unfounded.
It appears that though the jagirdar may have
been defined as assignee of land revenue because of the peculiar fact that in
the case of a jagirdar there had been remission of land revenue by sanads
granted before 1877, he was the proprietor of his jagir and the grantee of the
estate given to him as jagir There is no question, therefore, of separating the
interest of jagirdar as the assignee of land revenue from, his interest as the
holder of jagir-estate by virtue of a grant before 1877. The petitioner
therefore in petition 489 No. 33 of 1956 is the holder of the jagir-estate and
therefore his entire interest in the estate is liable to resumption under the
Act. In the Ajmer Regulations, (Vol. H to L) at pp. 564-6, these two estates
have been considered and their history is given, and they are called jagirs.
The history of jagirs in Rajasthan was considered by this Court in Thakur
Amarsinghji v. State of Rajasthan (1), at p. 330 onwards, and the word I jagir'
was hold to connote all grants which conferred on the grantees rights in
respect of land revenue. In the case of these two jagirs also, as annexures B
and C show, land revenue was remitted and they were granted as estates for
particular purposes. They are, therefore, clearly estates in view of the origin
of the title of the holder of these estates who is called a jagirdar and therefore
the State could take them over under s. 4 of the Act.
There is no force in any of the points raised
on behalf of the petitioners, and the petitions fail and are hereby dismissed
with one set of costs to the contesting respondent.