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PETITIONER: THAKUR RAGHUBIR SINGH AND OTHERS

       Vs.

RESPONDENT: THE STATE OF AJMER (NOW RAJASTHAN) AND OTHERS(and connected

DATE OF JUDGMENT: 14/11/1958

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. SUBBARAO, K.

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)

ACT: Land  Reform-Abolition of Intermediaries-Validity of  Enact- ment-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.

HEADNOTE: 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

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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,  subserve  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.

JUDGMENT: 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 1956. 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.  230- 238, 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

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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  peti- tions.  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 seriatim. 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

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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  land- owners 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 a fraud-  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  land- owner 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

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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 the Act. 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

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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  Constitution. 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 now- that 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 11. Re.  Jagirdars. 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

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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

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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.                        Petitions dismissed.