Rajasthan High Court

Smt. Sushila Kumari And Ors. vs State Of Rajasthan And Ors. on 17 May, 1995

Equivalent citations: 1996 (1) WLC 96, 1995 (2) WLN 377
Author: J Chopra
Bench: J Chopra, P Palli

JUDGMENT J.R. Chopra, J.

1. By this writ petition, the erstwhile Ruler of the Covenanting State of the Bikaner Dr. Kami
Singh who has now expired during the pendency of the writ petition and has been succeeded
by his legal representatives brought on record vide order of this Court dt. 21.8.89 have sought
following reliefs;

(i) "Section 6(2) along with the proviso to the said Section may he declared unconstitutional
and void.

(ii) Constitution 40th Amendment Act, 1976 may be declared unconstitutional and void in so
far as it makes provision for item No. 163.

(iii) The Sub-Divisional Officer (South) Bikaner may be restrained from proceeding to
acquire the agricultural lands in possession of the petitioner.

(iv) Any other appropriate Writ, Direction or order that may be deemed expedient for the
ends of justice may be issued.

(v) Cost be awarded.

2. The contention of the petitioner Dr.Karni Singh now succeeded by his legal representatives
was that he was erstwhile Ruler of Bikaner at the time of the merger of the State of Bikaner at
with the Union of India and an inventory of the personal and private properties of the Ruler
of Bikaner was prepared in pursuance of Article XII of the Covenant and that inventory
stands finally approved by the Central Government. The petitioner thus, became the owner of
the properties, the particulars of which were given in the inventory, approved by the Central
Government, the copy of that inventory has not been produced in the writ petition.

3. The Rajasthan State Legislature enacted Act No. 11 of 1964 named as 'Rajasthan Land
Reforms and Acquisition of Landowners' Estates Act 1963' which received the assent on
sixth day of April, 1964. This Act later came to be amended by an Act No. 15 of 1975
receiving the assent of the President of India on 26th March, 1975. The petitioner has referred
in the writ petition to the definition of land as mentioned in Section 2-F as originally
incorporated in the Act of 1963 as also the definition of "Land" after the 1975 amendment
Act came into force and has also referred to the definition of the "Estate", "Landowner" etc.
and has further contended as per the amended Act the estate of landowner vested in the
Government from appointed dated which was notified as 1.9.1964 and from the date of
vesting the right, title and interest of the landowner in the Estate shall vest in the Government
free from all encumbrances, The combined effect of Sections 7 and 8 of the 1963 Act is that
the Estate and the land of the landowner shall vest in the State Government from 1.9.64
except the land referred to Sub-section 1 of 10.

4. Section 6(2) of the Act 1963 provides that out of the lands covered by Section
10(1)(a)(i) the lands which are in the personal cultivation of the landowner and in which there
are no tenants, the landowner shall, as from the date of vesting, be the Khatedar tenant
thereof. The petitioners have admitted that they have lands under their cultivation on which
there are no tenants but these lands are included in the inventory of the private properties of
the petitioners prepared in pursuance of Article XII of the Covenant. The petitioner does not
possess any Other agricultural land which is not included in inventory as aforesaid. On
account of the notification issued by the State Government in exercise of powers conferred on
it under Section 7 of the Rajasthan Land Reforms and Acquisition of Landowner's Estates
Act, 1963 (Rajasthan Act No. 11 of 1964) fixing first day of September as the date of vesting
of the landowners' Estate in the Government. As regards the Estate of the late Dr. Karni
Singh, the Collector, Bikaner commenced proceedings for acquisitions of certain properties
vide notice dated 31.10.1975 and passed an order Annex. 1 dt. 19.12.75 in respect thereof.
Certain properties have been exempted from acquisition but it is alleged that in respect of
some properties, the matter has been referred by the Collector to the Compensation
Commissioner for decision and the Compensation Commissioner has not finally decided the
matter. No final order declaring the petitioner as the Khatedar tenant of the lands covered
by Section 6(2) of the 1964 Act has also been passed. However, the Sub-Divisional Officer
has issued a notice to him for acquisition of his agricultural lands as per provisions of Chapter
IIIB of the Rajasthan Tenancy Act, 1955. The petitioner challenged the jurisdiction of the
S.D.O. (South), Bikaner to proceed in the matter but that contention has been rejected and he
has passed an order for acquisition of agricultural lands in possession of the petitioner except
305 bighas and 12 biswas of the Banjar land. The copy of that order dt. 28.10.71 has been
filed as Annex. 2. The appeal preferred by the petitioner before the Revenue Appellate
Authority was disposed of vide order dt. 13.9.76, whereby, the R.A.A. sustained the order of
the S.D.O. (South), Bikaner that he has jurisdiction to proceed against the ex-Ruler under
Chapter IIIB of the Rajasthan Tenancy Act. The revision petition preferred against that order
before the Board of Revenue was also failed vide order Annex. 4 dt. 5.9.80 and the review
petition was also dismissed vide Annex. 5. dt. 16.9.82. The petitioner has, therefore,
challenged these orders and has sought the aforesaid reliefs through this writ petition.

5. A return has been filed on behalf of the State in which it was contended that the S.D.O. has
full authority to proceed against the land which is in personal cultivation of the Ex-ruler of
Bikaner State and Chapter IIIB of the Rajasthan Tenancy Act which has now been
superceded by the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973
(hereinafter referred to as the Act of 1973), read with the provisions of the Act, 1963 clearly
authorised the S.D.O. (South), Bikaner to proceed in the matter.

6. We have heard Shri B.L. Purohit appearing for the petitioners who are legal representatives
of late Dr. Kami Singh and Shri C.R. Jakhar, for the State, Notices were issued to the
Advocate General as also to the Attorney General, but none has appeared.

7. Mr. Purohit has challenged the validity of 40th Amendment of the Constitution as also the
validity of Section 6(2) of the 1963 Act (Act No. 11 of 1964). It appears that he has
abandoned both these reliefs as he has not canvassed a word about these two reliefs. It is
stated that the validity of the 40th Amendment of the Constitution has already been upheld
and this Act having been included in Schedule IX of the Constitution at No. 163, the validity
of Section 6(2) of the Act of 1963 i.e. Rajasthan Act No. 11 of 1964 cannot be challenged on
the basis of the infringement of fundamental rights. This is the effect of the inclusion of this
Act in the IX Schedule and thus, so far as the first two reliefs are concerned. There are no
more res-integra. Thus, we are to consider the third relief sought by the petitioners as to
whether S.D.O., Bikaner has any jurisdiction to proceed in the ceiling matter of the Ex-ruler
of covenanting State of Bikaner. Chapter MB of the Tenancy Act, 1955 imposed certain
restrictions on holding of lands in excess of ceiling area. This chapter was later repealed and
was superceded by the aforesaid Act of 1973. The Act of 1963 defines "Estate" to mean land
or right, title or interest in land held by the landowner. Section 2(d) of the aforesaid Act
defines "Inventory" to mean the inventory of the private properties of the Ruler prepared in
pursuance of Article XII of the Covenant and finally approved by the Government of
India. Section 2(e) defines "Khudkasht" to mean any land cultivated personally by the
landowner and includes any land recorded as .the landowner's sir or Khudkasht. Section
2(f) defines "Land" and reads as under land means the land held or let for purposes of
agriculture or for purposes ancillary thereto including waste land, forest land.land for pasture
or sites of buildings and other structures occupied by cultivators of land, agricultural
labourers and village artisans and includes-

(a) tanks,lakes ponds,river and water channels-held for purposes of irrigation,

(c) landing grounds or strips, and

(d) shikargarh but does not include forts,palace buildings and building plots, specified in the
inventory.

Section 2(g) defineds "Landowner". Section 2(i) provides that the "words and expressions"
defined in Rajasthan Tenancy Act, 1955 and Rajasthan Land Revenue Act 1956 but not
defined in this Act shall wherever used herein be construed to have the meanings respectively
assigned to them by those Acts. Section 3 provides for liability of the estates to pay land
revenue and Section 4 pertains to determination of rental income from estates. Section 6(2) of
the Act provides that in respect of land under the personal cultivation of the landowner and in
which there are no tenants, the landowner shall, as from the date of vesting be the Khatedar
tenant thereof. Its proviso reads as under; -

Provided that nothing in this Sub-section shall affect the provisions contained in Chapter IIIB
of the Rajasthan Tenancy Act, 1955 (Raj. Act 3 of 1955).

Section 7 provides that the Estate of the landowner shall be acquired by the Government from
a date to be notified in the Official Gazette and admittedly that date has been notified as
1.9.64. The consequences of acquisition are provided in Section 8 and it provides that right,
title and interest of the landowner and of every other person claiming through him in his
estate, shall stand acquired by and vested in the Government free from all encumbrances and
shall be utilised by it for the purpose of carrying out agrarian reform in accordance with the
provisions of this Act. Section 10 pertains to private lands, buildings, wells, house-sites and
enclosures and it reads as under:

Notwithstanding anything contained in Section 8." (a)(i) all open enclosures in the possession
of the landowner used for agricultural or domestic purpose,

(ii) all private buildings, places of worship, and wells situated in, and trees standing on, lands,
included in such enclosures or house-sites, as are specified in Clause (i) above or land
appurtaining to such buildings or places of worship,

(iii) all groves, wherever situate, belonging to or held by the landowner or any other person,
(b) all private wells and buildings belonging to or held by the landowner or any other person,
and (c) all tanks in the personal occupation of the landowner and used solely for irrigating the
land referred to in Sub-section (2) of Section 6; shall continue to belong to, or be held by,
such landowner or other person, subject in the case of tanks, to the terms and conditions, if
any mentioned in the Covenant.

(2) If any question arises whether any property is of the nature referred to in Sub-section (1),
it shall be referred to the Compensation Commissioner who may, after holding the prescribed
enquiry, make such order thereon as he deems fit.

8. Much stress has been laid on Clause (a)(i) of Sub-section (1) of Section 10 which provides
that all open enclosures in the possession of the landowner used for agricultural or domestic
purposes, if included in the inventory as private lands buildings and wells etc., then they shall
continue to belong to, or be held by, such landowner or other person, subject in the case of
tanks, to the terms and conditions, if any mentioned in the Covenant. It has, therefore, been
claimed that all those opening enclosures which are in possession of the landowner and which
are included in the inventory prepared under Article XII of the Covenant which has been
approved by the Central Government, proceedings under chapter IIIB of the Tenancy Act,
1955 or for that mater under the Act of 1973 cannot be taken by S.D.O. (South), Bikaner.
Now this has to be seen whether this contention can be sustained.

9. Section 7 to Section 11-A from part of Chapter IV and Section 14 to Section 19 from part
of Chapter VI which relate to payment of compensation. It was argued before S.D.O. (South),
Bikaner on behalf of the petitioner that both these chapters have been held to the
unconstitutional ultra-vires by a decision of the Rajasthan High Court. That decision has not
been cited before us nor both the parties have raised any such plea before us that these
chapters are ultra vires. If they are so, then no relief can be claimed under Section
7 or Section 8 read with Section 10 of the Act. But even if, it is assumed that they are on the
statute book and are valid, then too, the interpretation of these provisions is that as from the
specified date i.e. 1.9.64, the Landowner's Estate shall vest in the State Government and
consequences of vesting as provided in Section 8 of the Act, 1963 will follow. However, two
exceptions have been carved out of this vesting and acquisition provided by Section 7 read
with Section 8 of this Act of 1963. The first exception is Section 6(2) of the Act and the
second one is Sub-section (1) is Section 10 of the Act. Section 6(2) provides that although,
the landowner's estate will vest in the State Government as per the provisions of Section
7 and 8 of the Act but as per Section 6(2) in respect of land, under the personal cultivation of
the landowner, in which there are no tenants, the landowner shall as from the date of vesting
be the Khatedar tenant thereof. This is a legal right granted to the Ex-ruler of the covenanting
estate and no formal orders of any authority i.e. either the Collector or Compensation
Commissioner are required. This is a legal right available to a landowner under this Act of
1963 and a corresponding obligation has been cast on the Government that the land which is
its personal cultivation of the landowner and in which there are no tenants, although, it may
forms part of the estate of the landowner and will vest in the Government and the
Government will become its owner but tenancy rights as a Khatedar tenant will accrue to the
Ex-ruler about this land and therefore, that land will vest in the Government only for the
purpose of ownership rights but tenancy rights as a Khatedari tenant will survive in the Ex-
ruler and he will not be required to deliver the possession of that land under Section 9 and 9-
A of the aforesaid Act. This is the precise effect of Section 6(2) of the Act.

10. Another exception carved out is of Section 10 which says that notwithstanding anything
contained in Section 8 all open enclosures, all private buildings, places of worship, all groves
and private wells and all tanks in the personal occupation of the landowner and used solely
for irrigating the lands referred to in Sub-section (2) of Section 6 shall continue to belong to
or be held by such landowner or other person subject in the case of tanks, to the terms and
conditions, if any mentioned in the Covenant. Thus, all open enclosures in possession of the
landowner and used for agricultural purposes or for domestic purposes will be retained by
him and he will not be required to deliver the possession thereof to the State Government
under the Act of 1963.

11. Section 10 is an exception to Section 7 and Section 8 of this Act of 1963 but it is not an
exception to Section 6(2) of the Act. If there are any lands which are in personal cultivation
of the landowner, he becomes its Khatedar tenant and has to be recorded as such on account
of operation of law and once he becomes a Khatedar tenant of those lands, they become
emenable to ceiling proceedings as provided by the proviso to Section 6(2) of the Act of
1963. It is true that Section 2(f) of the Act which defines land categorically provides that it
will not include fort palaces, buildings and building plots specified in inventory and thus, if
any land forms part of a fort, palace building or building plots and is specified in the
inventory, it will not be treated as land. When it is not treated as land, then it does not become
'estate' as per Section 2(b) of the Act, 1963 and if any question arises about this as to whether
any enclosure forms or does not form part of the Fort, Palace-Building or building-plots and
is specified in the inventory, then the Compensation Commissioner will decide that dispute
but this does not authorise the Compensation Commissioner to decide whether any particular
land which is in the personal cultivation to the ruler whether enclosed or unenclosed,
Khatedari land will form part of his estate as defined in Section 2(b) of this Act of 1963 and
therefore, will not vest in the Government as per Section 7.

12. Mr. Purohit has placed reliance in this respect on Single Bench decision of this Court
rendered in Prajapati Garh Nirman Samiti v. State of Rajasthan reported in 1977 WLN page
426. In that case, it was categorically admitted that a particular land forms part of Umaid
Bhawan Palace and is situated with the red boundary line by which boundaries of Umaid
Bhawan Palace have been marked out. The learned Judge categorically held that it is not an
agricultural land and therefore, it was not emenable to ceiling proceedings because that was
an Abadi Land. This authority has no relevancy and application to the facts of this case. The
same is the position as regard the decision of their Lordships of the Supreme Court rendered
in Adhunik Grah Nirman Sahakari Samiti Ltd. v. State of Rajasthan reported in 1989 Supp.(l)
SCC page 656, in which the view of the learned Single Judge of this Court Shri M.L. Jain as
regards the land of the Chhitar Palace (Umaid Bhawan Palace) was upheld. Thus it too has no
application to the facts of the present case. Reliance has been placed on a decision of the
Supreme Court rendered in Woman Rao v. Union of India . In this case the controversy raised
was whether the Acts which are included in IXth Schedule are emenable to challenge on the
basis of Chapter III of the Constitution. That challenge has already been given up by Mr.
Purohit and as such this authority too has little application to the facts of this present case.
Reliance was also placed on the decision of this Court rendered in State of Rajasthan v.
Mahendra Singh . In this case, it was held that the property in respect of which the ruler has
not entered into any covenant, the Ruler cannot be treated as landowner of that property and
such a property held by the Ruler is not an 'estate' within Section 2(b) of the Act, 1963 and,
therefore, this authority also is totally inapplicable to the facts of the present case as it is an
admitted case of the petitioner here that all the lands which are held by him or his legal
representatives are lands which are included in the inventory which has been approved by the
Central Government. In this case the copy of the inventory has not been filed to show which
particular lands form part of the forts, Palance-Bulldings and building-plots. Even if, it is held
that there are some open enclosures and they are used for agricultural purposes and are in
personal cultivation of the Ruler then those enclosures become his Khatedari land by
operation of law as per Section 6(2) of the Act of 1963. The petitioners have categorically
admitted in para 14 of the writ petition that they have certain lands under their personal
cultivation but these lands are included in the inventory of their private properties. Even if,
they are included in the inventory, if such lands are in their personal cultivation, they form
part of the landowner's Estate and are liable to vest in the State Government as per provisions
of Section 7 and 8 of the Act of 1963. However, as their lands are in the personal cultivation
of the Ruler, they will be saved from acquisition as per Section 6(2) of the Act, 1963 and they
will not be distributed to landless persons in order to argument agrarian reforms, as they form
part of the Khatedari land of the Ex-ruler being cultivated personally by him such lands
whether they form part of enclosures or not enclosed they become his khatedari lands and,
therefore they will be governed by the provisions of the Ceiling Law.

13. Ceiling are a has been defined in Section 5(6-A) of the Rajasthan Tenancey Act, 1955 and
provides that ceiling area in relation to land held anywhere throughout the State by a person
in any capacity whatsoever shall mean, the maximum area of land that may be fixed as
ceiling area under Section 30(c) in relation to such persons. Thus ceiling area comprises of
the land held by the landowner or Khatedar tenant anywhere throughout the State of
Rajasthan and this definition is very much applicable to the Act of 1963 because of Section
2(i) of the aforesaid Act which says that the "word and expressions" defined in Rajasthan
Tenancy Act and in the Rajasthan Land Revenue Act but are not defined in the Act shall
wherever used herein be construed to have the meaning respectively assigned to them by that
Act. Thus the definition of 'ceiling area' mentioned in Rajasthan Tenancy Act will be very
much applicable to the proceedings that are taken under Chapter IIIB of the Rajasthan
Tenancy Act or under the Ceiling Law of 1973 which has repealed and substituted by
Chapter IIIB of the Rajasthan Tenancy Act. Section 5(23) of the Act, 1955 defines Khudkasht
to mean land in any part of the State cultivated by an estate holder and shall include land
recorded as Khudkasht sir Hawala, Nijijot Garkher in statement recorded at the
commencement of this Act in accordance with the law in force at the time when such record
was made. Thus the Khudkasht or Khatedari land of an Ex-ruler is emenable to ceiling
proceedings whether they are included in the inventory or not. It is only that land which is a
part of a fort palace buildings or building plots and are specified ceiling area because they do
not form part of the land as defined in Section 2(f) of the Act of 1963. Once they form part of
the land as defined in Section 2(f) read with Section 2(b) of the Act of 1963 ceiling
proceedings about them can very well be initiated by S.D.O. (South) Bikaner Acquisition of
Khatedari rights over such land is not referable to be Compensation Commissioner. A
particular piece of land which is an open enclosure and is cultivated personally by the
landowner can very well be claimed by him as his private land under Section 10(l)(a) of the
Act and if there is any dispute about that land to the effect that whether it forms part of a fort,
palace building or buildings plot and is not an agricultural land such a dispute can be referred
to the Compensation Commissioner but if not such dispute is raised and it is admitted that
petitioners have some agricultural lands in their cultivation and are shown in the inventory
then too such lands as form the date of vesting these will vest in the State Government as
per Section 7 and 8 of the Act of 1963 and as they are in personal cultivation of the
landowner they will become his Khatedari lands as from the date of vesting i.e. 1.9.64 and
therefore once they become his lands, ceiling proceedings can always be taken about such
lands because the Act itself clearly carves out a proviso to Section 6(2) of the Act of 1963
that nothing in Sub-section (2) shall affect the provision contained in Chapter IIIB of the
Rajasthan Tenancy Act, 1955 which now stand substituted by the Ceiling Act of 1973 and
Rules framed thereunder. Thus, the third relief sought by the petitioner cannot be granted to
him.

14. It is not his case that the land about which ceiling proceedings are initiated are not
agricultural lands and are not cultivated by them personally. Although, late Dr. Karni Singh
the original petitioner has claimed that he does not possess any land except the land
mentioned in the inventory but the copy of that inventory has also not produced before us and
therefore, no blanket order can be passed in favour of the petitioner that the land which is
mentioned in inventory, even if, it is covered by the definition of word "land" and does not
form part of fort, palace-buildings or building plots will be exempted from ceiling
proceedings.

15. No other point was pressed before us.

16. In the result, this writ petitioner has no force and it is hereby dismissed. No costs.