Full Judgment Text
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PETITIONER:
JAILA SINGH & ANR.
Vs.
RESPONDENT:
STATE OF RAJASTHAN AND ORS.
DATE OF JUDGMENT02/05/1975
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
BHAGWATI, P.N.
GOSWAMI, P.K.
CITATION:
1975 AIR 1436 1975 SCR 428
1976 SCC (1) 602
CITATOR INFO :
F 1983 SC 130 (54,60)
ACT:
Rajasthan Colonisation (Rajasthan Canal Project Pre-1955
Temporary Tenants Government Land Allotment) Conditions,
1971, Condition No. 3, and Rajasthan Colonisation (Allotment
of Government Land to Post-1955 Temporary Cultivation Lease
Holders and other landless persons in the Rajasthan Canal
Project Area) Rules, 1971, Rules 2(1)(xiii) and
3(2)--Permanent allotment of land to tenants--Pre-1955 and
post-1955 tenants, if form different classes--Section, 15
and 15-A of Rajasthan Tenancy Act, 1955, if provide any
basis for classification
Rajasthan Colonisation Act, 1954, Sections 7 and 29--Scope
of.
HEADNOTE:
The Rajasthan Colonisation (Bhakra Project Government Land
Allotment and Sale) Rules, 1955 made under the provisions of
the Rajasthan Colonisation Act, 1954, came into effect on
25th December, 1955. Under these Rules the difference
between pre-1947 and post-1947 tenants is negligible. Under
tile Rajasthan Colonisation (Gang Canal Lands Permanent
Allotment and Sales) Rules, 1956, the scale of allotment is
uniform without any discrimination between various classes
of persons to whom land may be allotted. Under the
Rajasthan Colonisation (Rajasthan Canal Project Government
Land Allotment and Sale) Rules, 1967 all post-1955 temporary
cultivation leases in the Colony area were terminated and
all the lands covered by such leases reverted to the
Government.
Jaila Singh. the appellant in Civil Appeal No. 1704 of 1974
was allotted 50 bighas of ’uncommand land’ in the years
1956-57 and 1957-58 in the Ganga nagar District of the
Rajasthan State. The area in which the land is situated was
declared a Colony Area of the Rajasthan Canal Project tinder
the Rajasthan Colonisation Act in 1960. In 1967 the
Rajasthan Canal Colonisation (Rajasthan Canal Project
Government Land Allotment and Site) Rules, 1967 were pro-
mulgated and applications were invited for allotment of land
under those rule,--,. Jaila Singh’s application for
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allotment was disposed of on 27-12-1969 by allotting, 14
bighas and 14 bighas of land on permanent basis,. In State
v. Ramdhan A.i.R. 1973 Raj. 71, the latter part of Rule 16
and Rule 19(a)(iii) i-eid with little 7(x) and (xi) of the
1967 Rules were struck down. Thev were struck down on the
ground that both the Bhakra Canal Project Rules and the
RIjasthLn (’anal Rules framed under the Act. had treated the
unit of family differently and cannot therefore be
justified. Thereafter, two sets of rules called,
respectively Rajasthan Colonisation (Rajasthan Canal Project
Pre-1955 Temporary Tenants (government Land Allotment)
Conditions, 1971 ind the Rajasthan Colonisation (Allotment
of Government Land to Post-1955 Temporary Cultivation Lease
’Holders ind Other- Landless Persons in the Rajasthan Canal
Project Area) Rules. 1971 were promulgated. Applications-
were again invited for allotment of land under- the Post-
1955 Rules and Jaila Singh was allotted another 10 bights of
land. The rest of the land originally allotted to him
reverted to the State. He filed a writ petition before the
Rajasthan High Court challenging the Post-1955 Rules ,is
violative of Article 14 of the Constitution.
Sahi Rant, the husband of the appellant in Civil Appeal No.
1705 of 1974. had been allotted 241 bighas of land for
temporary cultivation in Rajasthan Canal Area in Ganganagar
District. He had also been allotted 12-1 bighas 2 command
land’ in the year 1952 on a permanent basis and 6 bighas and
12 biswas of ’command land" and 4 bigha-, and 11 biswas of
’uncommand land’ for permanent cultivation. These lands
were included in the Colony Arei of the Rajasthan Canal
Project in 1960.
429
After the post-1955 Rule come into force the 24-1/2 bighas
of land was ordered to be resumed on the ground that Sahi
Ram was not a landless person In the writ petition filed by
the appellant, the order of resumption was challenged as
discriminatory.
In both the writ partitions the contention on behalf of the
State of Rajasthan was that, owing to the insertion of s.
15A in the Rajasthan Tenancy Act, 1955 Khatedari rights
could not accrue to the tenants under s. 15(1) of the said
Act and ’the possession of such tenants was given protection
who were holding since 15,10-53 and thereafter upto the
commencement of the Pre-1955 Conditions by making permanent
allotment under the Pre-1955 conditions". The Single Judge
of the High Court accepted this contention and upheld their
validity of the Pre-1955. Conditions as well as the Post-
1955 Rules. He took the view that the question of
discrimination can arise only in respect of persons who are
similarly situated, that the pre-1955 tenants cannot be said
to stand on the same footing as the post-1955 tenants in as
much as the two classes of tenants came into temporary
cultivation at different periods of time and cannot be said
to be similarly situated. On appeal, the Division Bench of
the High Court dismissed the appeals even at the admission
stage. These appeals have been preferred by special leave
granted by this Court.
It was: contended for the appellants that discrimination
between the pre-1955 and post-1955 tenants is based on the
fact that (1) In the case of the former, pet-sons having
more than 25 bighas could keep all the lands they had up to
the ceiling limit and had to pay only for the; land in
excess of 25 bighas ; (2) Even among them persons having
less than 25 bighas, whether below 15 or above 15 bighas
could get land to enable them to have 25 bighas and they
need pay only for the excess over what they had. (3) Post-
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1955 tenants could not get anything if they had over 15
bighas and the%, had to pay for the land allotted to them to
make up 25 bighas.
Allowing the appeals,
HELD : There is no nexus between the pre-1955 Conditions and
post-1955 Rules and the Rajasthan Tenancy Act which came
into force on 15-10-1955. Both sets of leases had been
cancelled by the relevant pre-1955 Condition and post-1955,
Rules and there is no dispute that the pre-1955 leases
cannot be cancelled while post-1955 leases could be
cancelled. The Rajasthan Tenancy Act is not concerned with
that question. Proviso to section 15 of that Act
specifically provides that no Khatedari rights shall accrue
under that section to any tenant, to whom land is or has
been let out temporarily in Gang Canal, Bhakra, Chambal or
Jawai project area, or any other area notified in that
behalf by the State Government. Admittedly the Rajasthan
Canal area has been included within the scope of this
proviso by a notification. To make matters more clear
section 15A also provides that the land in the Rajasthan
Canal area leased out on any terms whatsoever shall be
deemed to have been let out temporarily within the meaning
of the poviso and no khatedari lights shall accrue or shall
be deemed ever to have accrued in any such land leased Out.
This provision thus applies to both pre-1955 as well as
post-1955 leases. Both these leases stand on the same
footing and; therefore (lo not form different classes. The
reference to sections 15 and 15A of the Rajasthan Tenancy
Act is wholly irrelevant. Nor can it be said that the
lengthy occupation of the lands provides any proper
criterion for the distinction between pre-1955 and post-1955
tenants. There is nothing to show how long before 15th
October 1955 pre-1955 tenants were given temporary leases
and in the absence of such material, it is impossible to see
how any differentiation can be made between pre-1955 and
post-1955 tenants in the matter of permanent allotment of
land. Even in 1967 when the 1967 Rules were made no
distinction was sought to be made between pre-1955 and post-
1955 tenants. By that time many of post-1955 tenant:, would
have been in possession for about 12 years ,Ind in 1971 they
would have beer, in possession for about 16 years. It is
difficult lo appreciate how it should make any difference
from the point of view of allotment of land, whether a
tenant has been in occupation for 16 years or 18 or 20 years
and why differentiation should be made with reference to the
date when the Rajasthan Tenancy Act came into force. The
classification must
430
have a nexus with the object sought to be achieved. There
is no such nexus in this case. As a result Condition No. 3
of the Pre-1955 Conditions and the definition of landless
person as contained in Rule 2(1)(xiii) as well as Rule 3(2)
of the Post-1955 Rules are void as they are discriminatory
under Art. 14 of the Constitution and they are struck down.
[435 D-H, 436A-C, 437F, 438E]
Observation:Rajasthan Colonisation Act, 1954, practically
provides no guidance with regard to the principles to be
applied in the matter of land. [432F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1704-1705
of 1974-.
Appeal by special leave from the judgment and order dated 1-
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8-1974 of the High Court of Rajasthan in D. B. Civil Special
Appeal No. 415 and 237 of 1974.
G. L. Sanghi S. R. Srivastava, Manmohan Mridul and Badri
Dass Sharma for the appellants (in C. As. Nos. 1704-
1705/74).
Niren De, Attorney General of India, S. T. Desai, G.
Kashliwal and S. M. Jain, for the respondents (in C. As.
Nos. 1704-1705/74).
J. B. Badachanji and K. J. John, for the intervener (In C.
As. Nos. 1704-1705/74).
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. These appeals raise the question of the
validity of certain rules made under the Rajasthan
Colonisation Act, 1954. The facts necessary for the
decision of this case are as follows.
Jaila Singh, the appellant in Civil Appeal No. 1704 of 1974
%,as allotted 50 bighas of ’uncommand land’ in the years
1956-57 and 1957-58 in the Ganganagar District of the
Rajasthan State. The area in which the land is situate was
declared a Colony Area of the Rajasthan Canal Project under
the Act in 1960. In 1967 the ’Rajasthan Colonisation
(Rajasthan Canal Project Government Land Allotment and Sale)
Rules, 1967 were promulgated and applications were invited
for allotment of land under those rules. Jaila Singh’s
application for allotment was disposed of on 27-12-1969 by
allotting 14 bighas and 14 biswas of land on permanent
basis. These 1967 Rules were the subject matter of certain
writ petitions before the Rajasthan High Court which ended
with the decision of that Court in State v. Ramadhan (AIR
1973 Raj 71) striking down certain of those Rules.
Thereafter two sets of rules called respectively Rajasthan
Colonisation (Rajasthan Canal Project Pre-1955 Temporary
Tenants Government Land Allotment) Conditions, 1971 and the
Rajasthan Colonisation (Allotment of Government Land to
Post-1955 Temporary Cultivation Lease Holders and Other
Landless Persons in the Rajasthan Canal Project Area) Rules,
1971 were promulgated. Applications were again invited for
allotment of land under the Post-1955 Rules and Jaila Singh
was allotted another 10 bighas of land. The rest of the
land originally allotted to him reverted to the State. He
filed a writ petition before the Rajasthan High Court
challenging the Post-1955 Rules as violative of Article 14
of the Constitution. He prayed that Rajasthan Coloni-
431
sation Act, 1954 may be declared to be illegal or in the
alternative the Post-1955 Rules may be declared to be
violative of Article 14 of the constitution and for an
appropriate order in respect of the lands allotted to him.
Sahi Ram, the husband of the appellant in, Civil Appeal No.
1705 of 1974, had been allotted 24 1/2 bighas of land for
temporary cultivation in Rajasthan Canal Area in Ganganagar
District. He had also been allotted 12 1/2 bighas of
’command land’ in the year 1952 oil a permanent basis and 6
bighas and 12 biswas of ’command land’ and 4 bighas and 11
biswas of uncommand land’ for permanent cultivation. These
lands were included in the Colony Area the Rajasthan Canal
Project in 1960. After the post-1955 Rules came into force
the 24-1/2 bighas of land was ordered to be resumed on the
-round that Sahi Ram was not a landless person. In the writ
petition filed by the appellant the contentions and prayers
were the same as in Jaila Singh’s case. We shall deal with
them at the appropriate places in so far as they related, to
matters raised in the appeal.
In both the writ petitions the contention on behalf of the
State of Rajasthan was that owing to the insertion of
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section 15A in the Rajasthan Tenency Act, 1955 Khatedari
rights could not accrue to the tenants under section 15(1)
of the said Act and ’the possession of such tenants was
given protection who were holding since 15-10-55 and
thereafter upto the commencement of the Pre-1955 Conditions
by making permanent allotment under the Pre-1955 Conditions.
The various impugned rules were contended not to be
discriminatory.
Justice Gupta of the Rajasthan High Court who heard the two
writ petitions filed by Jaila Singh and Dhapi Bai, in a
batch of 340 writ petitions, upheld the validity of the Pre-
1955 Conditions as well as the Post-1955 Rules. He took the
view that the question of discrimination can. arise only in
respect of persons who are similarly situated, that the pre-
1955 tenants cannot be said to stand on the same footing as
the post-1955 tenants inasmuch as the two classes of tenants
came into temporary cultivation at different periods of time
and cannot be said to be similarly situated. The fact that
the pre-1955 tenants had been continuously in possession for
a longer period was held to make them a separate class from
the temporary cultivators who came into possession after
October 15, 1955. The contention of the Rajasthan State on
the basis of section 15A of the Rajasthan Tenancy Act was
also accepted. On appeal against the decision of Justice
Gupta a Division Bench of the Rajasthan High Court dismissed
the appeals even at the admission stage.
Before we proceed to consider the various contentions it is
necessary to set out certain important provisions of the Act
and the Rules.
The Rajasthan Colonisation Act, 1954 came into force on 17th
December, 1954. It defined ’tenant’ as meaning any person
holding land in a colony and including predecessors and
succcssors-in-interest and transferees. ’Colony’ was
defined as meaning any area 1 to which the Act shall be
applied. Section 7 of the Act reads
432
.lm15
"7. Issue of statement of conditions of tenancy.-
(1) The State Government may grant land in colony to any
person on such conditions as may be prescribed.
(2) The State Government may issue a statement or
statements of the conditions on which it is willing to grant
land in a colony to tenants.
(3) Where such statements of conditions have been issued,
the Collector may, subject to the control of the State
Government, allot land to any person, to be held subject to
such conditions contained in the statement issued under sub-
section (2) of this section as the Collector may, by written
order declare to be applicable to the case.
(4) No person shall be deemed to be a tenant, or to have
any right or title in the land allotted to him until such a
written order’ has been passed and he has taken possession
of the an with the permission of the Collector, and after
possession has been so taken, the (,rant shall be held
subject to the conditions declared applicable thereto."
Section 28 reads
"28. Power to make rules.-The State Government may, by
notification in the Official Gazette make rules generally
for carrying into effect the provisions and purposes of this
Act and in particular for all matters which are prescribed
thereunder."
It would be noticed that there is practically no guidance
provided in the Act with regard to the principles to be
applied in the matter of allotment of land.
Under the provisions of that Act the Rajasthan Colonisation
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(Bhakra Project Government Land Allotment & Sale) Rules,
1955 were made and came into effect on 25th December, 1955.
The extent of land which could be allotted to those
cultivating Government lands since before December 31, 1947
was 50 bighas if the Joint family consists of adult male
members not exceeding five and 15 bighas of additional area
per additional member if the number of members is in excess
of five. In the case of those cultivating lands since after
31st December 1947, 25 bighas could be allotted for a joint
family consisting of three adult male members and 15 bighas
for every adult male members in excess of three. Thus the
difference between pre-1947 and post-1947 tenants is
negligible.
Under the Rajasthan Colonisation (Gang Canal Lands Permanent
Allotment and Sale) Rules, 1956 the scale of allotment is
uniform without any discrimination between various classes
of persons to whom land may be allotted.
433
Under the Rajasthan Colonisation (Rajasthan Canal Project
Government Land Allotment and Sale) Rules, 1967 all post-
1955 temporary cultivation leases in the Colony Area were
terminated and all the lands covered by such leases reverted
to the Government. Rule 16 reads :
"16. A joint family shall, for the purposes
of existing holding and of allotment of land
under these Rules, be deemed to be one person
and dealt with accordingly. No separation or
partition affected after the 15th October,
1955 will be taken into consideration."
Under Rule 19 Bhakra landless persons were entitled to 15
bighas in each case ; so also landless tenants. Tenure
tenants who held land less than 15 bighas in their khatas
and the whole or part thereof was with a sub-tenant, not
liable to ejectment, were entitled to allotment of so much
of Government land as would render their khatas equal to 15
bighas. Here again there was no discrimination in the
matter of allotment of land among the various classes of
persons to whom land may be allowed. After Rule-, 16 and 19
read with Rule 7(x) and (xi) were struck down by the
Rajasthan High Court, these Rules were repealed and the Pre-
1955 Conditions and Post-1955 Rules were promulgated.
The Rajasthan Colonisation (Rajasthan Canal Project Pre-1955
Temporary Tenants Government Land Allotment) Conditions,
1971 came into effect on 3-2-1971. A ’pre-1955 temporary
tenant’ was defined as a person who is resident of Rajasthan
since before the 1st day of April, 1955 and who has been
holding and been in possession of temporary cultivation land
continuously since before the 15th day of October, 1955,
upto the date of commencement of these Conditions (portion
not necessary for the purposes of this case omitted). All
temporary leases of Government lands of pre-1955 temporary
tenant-, were cancelled. A temporary tenant holding more
than 25 bighas of command temporary cultivation land could
be allotted up to the ceiling limit, the ceiling limit being
50 bighas. A temporary tenant holding less than 25 bighas
may be allotted the land in his possession as well as
further extent of land making the total upto 25 bighas. In
the case of persons having more that 25 bighas no price was
chargeable for allotment upto 25 bighas. But persons having
less than 25 bighas bad to pay the price for lands allotted
to them to make up 25 bighas, that is, land in excess of
what they already had. The effect of these provisions was,
to take a concrete example, that if a man had 30 bighas of
land the whole of it would be allotted to him. If he had 60
bighas of land 10 bighas will be taken away. He will have
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to pay the value of the land in excess of 25 bighas. Where
a person had less than 25 bighas-whether it is 14 or 16
bighas-he will be given another 1 1 or 9 bighas as the case
may be and he need not make any payment for the land he
already had- but need pay only for the land newly allotted.
Thus a person holding lands in excess of 25 bighas was at a
distinct advantage in that he could keep the land in excess
of 25 bighas and upto 50 bighas by paying the value only for
the excess, compared to the man who had
434
less than 25 bighas who could be given land upto 25 bighas.
The discrimination between the two classes is obvious and no
justification has been put forward nor can be put forward
for this discrimination.
The Rajasthan Colonisation (Allotment of Government Land to
Post-1955 Temporary Cultivation Leases Holders and Other
Landless Persons in the Rajasthan Canal Project Area) Rules,
1971, which came into effect on 4-5-1971 described a
landless person in r. 2(1 xiii) as follows
" ’Landless Person’ means a person which is
resident Rajasthan since before the 1st day of
April, 1955 and is by profession a bona fide
agriculturist or bona fide agricultural
laborer and whose primary source of income is
agriculture.
Provided that such person neither holds any
tenure land anywhere in excess of 15 bighas
nor is he a sub-tenant of any such land (in
excess of 1) bighas) from which lie not liable
to ejectment under the provisions of the
Rajasthan Tenancy Act, 1955 (Rajasthan Act 3
of 1955) or under any other law for
the time
being in force in the in which the land is
situated; nor lie is entitled for permanent
allotment of 15 bighas or more land under
other rules, conditions or law."
A landless person coming under these rules could be allotted
up to 25 bighas provided that if such person holds or is a
sub-tenant of any land anywhere, he will be allotted only so
much Government land as to-either with his existing holding
does not exceed 25 There is a proviso that such land shall
be allotted to him only such land is available adjacent to
his existing holding or in the same village. The result of
this rule read with the definition person is that if lie
holds land anywhere in excess of 15bighas will not at any
further allotment. In other words if he had 14 bighas of
land he may be allotted 11 bighas whereas if he has got 16
bighas of land he will not be allotted any further land. The
discrimination against him as against the pre-1955 tenant
who had less than 25 bighas is apparent. The latter will
get even if he had already 16 bighas. The word ’anywhere’
in the definition of the term ’landless person’ as well as
in the rule relating to eligibility for allotment has been
the subject matter of some controversy but it is not
necessary to resolve it for the purpose of these cases. The
contrast between the Pre-1955 Conditions and the Post 1955
Rules is thus apparent. The only justification put forward
oil behalf of the Government before the High Court was
that15A of the Rajasthan Tenancy Act, 1955 made a difference
and the learned Single Judge of the Rajasthan High Court
held that the length of the occupation of the lands by the
pre-1955 and post-1955tenants provided a basis for
classification.
435
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Before us the only questions argued were regarding the
discrimination between the pre-1955 and post-1955 tenants
based on the fact that
1. In the case of the former, persons
having more than 25 bighas could keep all the
lands they had up to the ceiling limit and had
to pay only for the land in excess of 25
bighas.
2. Even among them persons having less than
25 bighas, whether below 15 or above 15 bighas
could get land to enable them to have 25
bighas and they need pay only for the excess
over what they had.
3. Post-1955 tenants could not get anything
if they had over 15 bighas and they had to pay
for the land allotted to them to make up 25
bighas,
These contentions are so substantial and the discrimination
so striking and the justification at-tempted so feeble that
we have to hesitation in accepting them. We have already
referred to some of them
We are unable to see the nexus between the pre-1955
Conditions and post-1955 Rules and the Rajasthan Tenancy Act
which came into force on 15-10-1955. In these cases we are
concerned with the validity of the rules relating to the
allotment of Government land which had been (riven on
temporary leases to various persons whether before 1955 or after
1955. Both sets of leases had been cancelled by the
relevant pre-1955 Condition and post-1955 Rule and there is
no dispute that the pre-1955 leases cannot be cancelled
while post-1955 leases could be cancelled. The Rajasthan
Tenancy Act is not concerned with that question. Proviso to
section 15 of that Act specifically provides that no
Khatedari rights shall accrue under that section to any
tenant, to whom land is or has been let out temporarily in
Gang Canal, Bhakra, Chambal or Jawai project area, or any
other area notified in that behalf by the State Government.
Admittedly the Rajasthan Canal area has been included within
the scope of this proviso by a notification. To make
matters more clear section 15A also provides that the land
in the Rajasthan Canal area leased out on any terms
whatsoever shall be deemed to have been let out temporarily
within the meaning of the proviso earlier mentioned and no
khatedari rights shall accrue or shall be deemed ever to
’have accrued in any such land leased out as aforesaid.
This provision thus applies to both pre-1955 as well as
post-1955 leases. Both these leases stand on the same
footing and therefore do not form different classes.
The reference to sections 15 and 15A of the Rajasthan
Tenancy Act in deciding the questions that arise in these
cases is therefore wholly irrelevant. Nor are we satisfied
that the length of occupation of the lands provides any
proper criterion for the distinction between pre-1955 and
post-1955 tenants. There is nothing to show
436
how long before 15th October, 1955 pre-1955 tenants were
given temporary leases and in the absence of such material,
it is impossible to see how any differentiation can be made
between pre-1955 and post-1955 tenants in the matter of
permanent allotment of land. Even in 1967 when the 1967
Rules were made no distinction was sought to be made between
pre-1955 and post-1955 tenants. By that time many of post-
1955 tenants would have been in possession for about 12
years and in 1971 they would have been in possession for
about 16 years. It is difficult to appreciate how it
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should make any difference from the point of view of
allotment of land, whether tenant has been in occupation
for 16 years or 18 or 20 years and why differentiation
should be made with reference to the date when the Rajasthan
Tenancy Act came into force. The 1967 Rules, no doubt,
provide for cancellation of all post-1955 temporary
cultivation leases but in actual effect it made no
difference. Under those Rules persons eligible for
allotment were landless tenant--,. ’Landless tenant’ was
defined as ’a bona fide agriculturist who is a resident of’
Rajasthan since before 1st April, 1955 and who cultivates or
can reasonably be expected to cultivate land personally but
who does not hold any land in his own name or in the name of
any member of his joint family and who is not a sub-tenant
of any land, owner or land holder holding tenure khatas
under proprietary, mauroosee or khatedari rights and is not
liable to ejectment under the provisions of the Rajasthan
Tenancy Act, 1955 or under any other law for the time being
in force in the area in which the land. is situate or who
holds only a fragment or land measuring 1,5 bighas’. No
distinction was made between pre-1955 and post-1955 tenants
in the matter of allotment. Provided an agriculturist had
less than 15 bighas be was entitled to allotment of land.
The allotment was also to an extent sufficient to make up 25
bighas of ’command land’. Here again no distinction was
made between post-1955 and pre-1955 tenants. Nor was there
any difference in the sale price to be paid by the different
classes of allottees.
In State v. Raindhan (supra) only the latter part of Rule 16
and Rule 19 (a) (iii) read with Rule 7 (x) and (xi) were
struck, clown. Rule 7 (x) reserved land for allotment to
landless tenants belonging to Scheduled Castes and Scheduled
Tribes upto 1 lakh acres to be allotted at the rate of 15
bighas per family and Rule 7 (xi) for other landless tenants
upto 50,000 acres to be allotted at the rate of 15 bighas
per family. They were struck down only on the ground that
both the Bhakra Canal Project Rules and the Rajasthan Canal
Rule-, had been framed under the Rajasthan Colonisation Act,
1954 but they treated the unit of family differently and
cannot therefore be justified. By the same reasoning no
distinction can be made between pre-1955 and post-1955
tenants by Rules made under the same Act.
One of the arguments attempted before us, though it was not
pleaded before the Rajasthan High Court, was that in the
case of the post-1955 tenants a smaller area had to be
allotted because of the pressure for land. We have already
pointed out that the difference in the period of occupation
between the pre-1955 and post-1955 tenants could not be of
such an extent as to justify allotment of larger extent of
437
land to the pre-1955 tenants than to the post-1955 tenants
nor for the discrimination even among the pre-1955 tenants
between those holding more than 25 bighas and those holding
less than 25 bighas. If the Rajasthan Government wanted to
act fairly by all classes of residents of Rajasthan they
could very well have omitted portions in the 1967 Rules
found objectionable by the Rajasthan High Court and there-
fore struck down and there would have been nothing more to
say. The striking down of Rules 16 and 19 of the 1967 Rules
did not necessitate the promulgation of two wholly new sets
of rules. In that case only 15 bighas of land would have
been available to each allottee and there would have been no
discrimination between one class of persons and another.
There would also have been greater extent of land available
for allotment to a larger number of persons at the rate of
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15 bighas each. One of the justifications pleaded on behalf
of the State of Rajasthan for the definition of the landless
tenants in the post-1955 Rules as persons holding less than
15 bighas of land was that 15 bighas was a viable unit, In
that case it is all the more reason why all allottees
whether pre-1955 or post-1955 should get 15 bighas. We are
unable to see any justification for treating the pre-1955
and post-1955 tenants differently. What prompted the
Rajasthan State to do so in 1971 when they did not do so in
1967 and the decision of the Rajasthan High Court in regard
to the 1967 Rules did not compel them to do so is beyond our
comprehension. We are not able to accept the contention
that they belonged to two different classes. By that
standard any arbitrary difference could be fixed and it
could be said that persons who get temporary leases before
that date belonged to one class and the persons who had been
allotted land after that date formed another class. We have
already shown that the Rajasthan Tenancy Act has no
relevance at all to the decision of this question and
therefore 15-10-1955, the date on which it came into force,
has no relevance to the classification attempted by pre-1955
and post-1955 tenants. The classification must have a nexus
with the object sought to be achieved. We can see no such
nexus in this case. We thus find that the definition of
the ’landless tenants’ as well as the rules for
allotment in the post-1955 Rules as compared to the pre 1955
conditions are discriminatory and unjustifiable.
As regards the discrimination in the matter of payment of
price between the pre-1955 and post-1955 tenants, it was
urged on behalf of the State of Rajasthan that this was not
urged in the writ petitions of the two appellants and so
cannot be gone into by this Court. The question of price
has been raised in the two writ petitions but it was on a
different aspect and not on the question that the pre-1955
tenants did not have to pay any price while post-1955
tenants had to do so. But it has been argued before the
learned Single Judge, and he has dealt with it apparently
without any objection being taken to it on the part of the
State of Rajasthan. This question of price is not mentioned
as one of the matters which were raised before the Division
Bench which beard the appeal. We find it difficult to
conceive of the appellants having given up that plea before
the Appellate Bench having argued it before the learned
Single Judge. is urged on behalf of the State of Rajasthan
that there may be reasons
438
why pre-1955 tenants arc treated differently in the matter
of payment of price. If there were any, they Were not put
forward before the learned Single Judge. But as materials
regarding it are not available before us, we propose to say
nothing about it. But we may point out that, as the rules
stand, there seems to be some discrimination in the matter
of price between pre-1955 and post-1955 tenants, in that
pre-1955 tenants, who hold land exceeding 25 bighas, have to
pay nothing for land upto 25 bighas, while post-1955
tenants, who hold land less than 15 bighas, have to pay
price for land which may be allotted to them so as to make
up 25 bighas. We are mentioning this only so that the State
may look into the matter of price and set it right to avoid
any discrimination. There seem to be no difficulty at all
in all this because none of the tenants, whether they are
pre-1955 or post-1955 tenants, have any vested rights, It is
the duty of the State to treat fairly all classes of tenants
in the Rajasthan Canal Area whether pre-1955 or post-1955
tenants.
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No arguments were advanced regarding the validity of the Act
and we think rightly so. The arguments were confined to
Condition 3 and proviso to Condition 9 of pre-1955
Conditions and Rules 2(1) (xiii.) and 3(2) of the post-1955
Rules. In effect appellants bad no objection to paying for
extra land to be allotted to them. They object only to the
discrimination against them as compared to the pre-1955
tenants.
In the result we hold that Condition No. 3 of the pre-1955
Conditions and the definition of landless person as
contained in Rule 2(1)(xiii) as well as Rule 3(2) of the
Post-1955 Rules are void as they are discriminatory under
Article 14 of the Constitution and they are struck down. It
is open to the State to frame new rules applying to both
pre-1955 and post-1955 tenants without any discrimination
between them.
The appeals are allowed to the extent indicated above. The
appellants will get their costs from the respondents,
hearing fee one set.
Appeals allowed. V.M.K.
439