ons 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 362382 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 section 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
section 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
section C Isaacs section D Sekhri with him for the Petitioner in Petition No 392 of 1954
K section Hajela Advocate General for the State of Rajasthan and G section 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
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 section 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 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
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 vs State of Rajasthan1
The present applications have been filed under article 32 impugning the Act on the following grounds IThe Rajpramukh had no competence to enact law and the Act in question is therefore not a valid piece of legislation
The Bill was not prepared by the Rajpramukh as required by article 212 A2 and therefore the law was not validly enacted
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
The Act does not provide for adequate compensation nor is there any public purpose involved in it and so it contravenes article 312 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 seriatim
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 AIR 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 Union
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 legisla 314 ture and judiciary by the name of the United State of Rajasthan
Article VI2 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 ex ercisable 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 X3 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 X3 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 modifi cation 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 matter
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 X3 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 VII3 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 X3 expressly provides that the legislative authority of the State shall vest in the Rajpramukh
The meaning of this provision is clear and unambigu 316 ous but it is argued for the petitioners that it is con trolled and cut down by the expression Ordinance in article X3 and by the terms of article VII3 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 X3 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 Ox 317 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 X3 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 VII3 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 2d includes also custom that such a law was directly opposed to what was authorised by article VII3 that the legislative powers conferred under article X 3 must be exercised subject to the restrictions under article VII3 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 VII3 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 X3
The fields covered by the two articles are distinct and separate and there can be no question of article VII3 operating as a restriction on the legislative power under article X3
Indeed article VII3 expressly provides that it is subject to any legislation on the subject whereas article X3 is not made subject to article VII3
Even if the petitioners are right in their contention that article VII3 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 Consti tution 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 VII3 of the Covenant must accordingly fail
It was next argued that the powers of the Rajpramukh under article X3 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 2387 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 A1 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 2387 is under the Constitution Removal of Difficulties Order sub ject 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 A1 imposes by implication a limi tation 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 challenge
IIThe 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 A2 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 1663 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 President
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 A2 have been complied with
Article 212 A2 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 A2 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 1663 approved by the Council of Ministers and sent on to the Rajpramukh for his assent
These allegations they con tend 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 A2 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 secondly leaving 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 A2 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 A2 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 therefrom 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 A2
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 therefrom 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 A2 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 A2 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 A1 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 1 1952 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 2 1952 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 non compliance with article 212 A2 or for other procedural defects must be rejected
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 221 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 221g 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 261 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 pro perty   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 221 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 circumstances
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 VII3 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 VII3
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 261 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 being an 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 221a 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 221a 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 colonization
It was argued that the heads of legislation mentioned in the Entries should receive a liberal construction and the decision in The United Provinces vs Atiqa Begum1 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 that Entry
IVNow we come to the contentions special to some of the petitioners that with reference to the 1  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 312 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 312 of the Constitution IVA
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 BadenPowell on Land Systems of British India Volume 1 page 257 as supporting him 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 treasury
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 land revenue
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 2h 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 and includes 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 2h of the Act It was argued that though the extended definition of jagirs in section 2h 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 ancient tenures
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
1a Bhomicharas This is the subject matter of Petitions Nos
462 579 630 638 and 654of 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 AD 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 itself there
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 10000 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 might yield
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 overlord 335 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 themand exacted annual payments from them what was their status thereafter In Vajesingji Joravar Singji and others vs Secretary of State1 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 1924 LR 51 IA 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 vs Sardar Rustam Khan1
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 vs Secretary of State1 and Secretary of State vs Sardar Rustam Khan1 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 grant
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 1941 LR 68 IA 109
2 1924 LR 51 IA 357360
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 independent
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 Governor General 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 vs United Provinces1 which was cited by Mr Pathak as authority in support of the above propo sition 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 vs The State of U P and Another1
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 2  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 ex pressed 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 quasicontracts 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 Bhomi charas 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 31 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 39 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 4iii of Act No XL of 1949 and that therefore it fell within the purview of article 31 A Under section 4iii estate means a mahal or mahals held by the same landlord
Section 4v 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 4iv as any sum payable to the Govern 44 344 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 10000 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 10000 for an area of the extent of 36000 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 article 31 A 1b 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 Bhum Barar 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
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 42 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 1061 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 legis 347 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 non Khalsa lands and the result of that law was clearly to impress on the Bhom tenure the characteristics of grant
It must accord ingly fall within the operation of article 31 A either as jagir or as other similar grant
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 111 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 ap proval 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 vs The State of Orissa and others1 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 occu pied 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  870
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 sometime 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 pro perties 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
1c 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 415 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 415 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 the State
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 20000 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 Tikana consists 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 reve nue of Rs 1681 and it is therefore an estate both under section 47 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 jagirdar
2We 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 aPetitions 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 2a 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 33 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 2k 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 221a 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 2g 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 2h 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 221 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 jagirdar
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 2h 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 there fore 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 221a 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 Petition No 391 of 1954 that they are not an estate within article 31 A
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 213 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 31 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 com pounded for or redeemed and that therefore the properties are not estates within section 31 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
cPetition 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 41 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 dPetition 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 ePetition 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 31 A fPetitions 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 article 31 A 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 1947 1948 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 uncon stitutional 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 section K Kapur who appeared for the petitioner put forward a special con tention 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 lifetime
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 res 361 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 2f 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
gPetitions 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 applies
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 213 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 213 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 17e 19 and 213 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
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 admissible
Rule 43 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 262 the compensation amount carries interest at 21 per cent
from the date of resumption and under section 35 it is payable in instalments
Under section 35A 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 vs Bela Banerjea1 where it was held that the compensation guaranteed under article 312 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 vs Maharajadhiraja Sir Kameshwar Singh1 and Visveshwar Rao vs The State of Madhya Pradesh1 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 312 and that it was barred when the impugned legislation fell within articles 314 31 A and 31 B
It was further held in Raja Suriya Pal Singh vs The State of Uttar Pradesh1 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 thereunder is inadequate if that is calculated on the basis of the market value of the properties
But that 1  3 2 4 365 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 vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and others1
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 con tention
But this is an objection to the quantum of compensation and that is not justiciable under article 31 A 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 312 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 vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga 1  946 948 366 and others1 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 vs The State of Orissa and others1 that a similar 1 2   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 8A 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 vs Rao Manohar Singhji1 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 sec tion 8A did not apply and article 14 had been contravened
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 No392 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  47 368 was settled by the Maharajah of Jaipur on Raja Abayasingh and Raja Lakshmansingh on izara istimrar on an annual assessment of Rs 80001
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 Raisalot holders 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 rendered or 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 in vestigated 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 4 1939
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 80001 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 2h 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 2h 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
bPetition 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 4xiii defines javad  as a jagir con fiscated 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 4xiii 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 claim
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 the Act
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 the schedule
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 succeed
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 impugned Act
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


Summary:
The Bill which came to be enacted as the Rajasthan Land Re forms 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 section 211 of the Act 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 before the Rajasthan High Court
The petitions were dismissed and thereupon they filed petitions before the Supreme Court under article 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 article 212 A2 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 article 312 and that as the Act was discrimi natory it contravened article 14
There were some special contentions that the Act was not saved by article 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 section 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 im pugned law under article 385 as he was the authority functioning immediately before the commencement of the Constitution as the legislature of Rajasthan under article X 3 of the Covenant of the United State of Rajasthan
The expression Ordinance in article 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 article X 3
The Legislature of the corresponding State mentioned in article 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 article 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 A2 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 con sidered is whether in fact he did so
There is no provision in article 212 A2 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 the legislation is in substance acquisition of properties falling under entry 36 of List II of the Seventh Schedule
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 ref erence 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 article 31 A
The object of article 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 article 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 Rul ing 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 vs Secretary of State 1924 LR 51 IA 357 and Secretary of State vs Sardar Bustam Khan 1941 LR 68 IA 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 subject
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 section 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 section 169
For the purposes of article 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 article 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 charac teristics 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 provisions
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 in consistent 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 article 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 section 2h 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 80001 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 article 312 or that the provisions of the Act offend article 14 are barred by the provisions of article 31 A of the Constitution
Even apart from article 31 A the impugned Act must be held to be supported by public purpose and is not in contravention of article 312
Nor is there a contravention of article 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 vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others 1952 SCR 889 and Biswambhar Singh vs The State of Orissa and Others 1954 SCR 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