Wanchoo, C. J. - (1.) THIS is an application by Rao Sahib Mahonar Singhji, Jagirdar of Bedla under Art. 226 of the Constitution of India against the State of Rajasthan for the issue of writ of mandamus or such further and other writ direction or order as may seem fit and proper.
(2.) THE case of the applicant is that he is the owner of the Jagir of Bedla which is situate in the former State of Mewar, now included in the State of Rajasthan. THE former State of Mewar was integrated in 1948 to form what was known as the former United State of Rajasthan. THEre was a further integration in April and May 1949 by which the former United State of Rajasthan was amalgamated with the former State of Bikaner, Jaipur, Jaisalmer and Jodhpur and the former Union of Matsya to form the present United State of Rajasthan. THE former State of Rajasthan passed three Ordinances : No. XXVII of 1948, No. X and No. XV of 1949 in connection with the Jagirs there. By virtue of the powers under these Ordinances, the former State of Rajasthan assumed management of the Jagirs including the Jagir of Bedla. THE applicant alleged that these three Ordinances were ultra vires of the Constitution of Mewar which was continued by the Administration Ordinance No. 1 of 1948 of the former United State of Rajasthan. It is further contended that these Ordinances, in any case, became void under Art. 13 (1) of the Constitution of India read with Arts. 14 and 31. After the present State of Rajasthan came into existence finally in May 1949, these Ordinances remained in force in a part of the area of the present State with the result that while the management of the Jagirs was taken by the State in that area, the Jagirs in the rest of Rajasthan remained with the Jagirdars. Consequently, there was discrimination as between Jagirdars and Jagirdars and the Jagirdars of the area covered by the former State of Rajasthan were denied equality before the law and the equal protection of the laws in view of the continuance of these Ordinances. THErefore, the Ordinances became void on the coming into force of the Constitution of India on the 26th of January, 1950. It was also alleged that the State had taken possession of the property of the applicant by virtue of the provisions of these Ordinances and no compensation was provided for the taking of such possession and, therefore, these Ordinances were ultra vires and void. The application was opposed on behalf of the State. It was denied that the applicant was the owner of the Jagir though it was admitted that he was the holder of it. The Jagir was a State grant and was held at the pleasure of the ruler. Such a Jagir automatically reverted to the ruler on the death of the holder and was re-granted to the successor after the ruler had recognised the succession The rights of the holder of the Jagir were not heritable or transferable nor could the Jagir be partitioned amongst the lawful heirs of the Jagirdars. There could be no adoption also by the Jagirdar without the approval of the ruler and it was always open to the State to resume the grant or vary the terms on which it was held and thus the Jagirdar had no proprietary right in the Jagir. Therefore, even if it be held that the State took possession of the Jagir of the applicant, he is not entitled to compensation under Art. 31 and, therefore, the Ordinances, on the basis of which the State acted, were not void under Art. 13 (1) read with Art. 31 (2) of the Constitution of India. In the alternative, it is urged that with the merger of the State of Mewar in the former United State of Rajasthan and thereafter in the present State of Rajasthan, there was change of sovereignty twice and even if the applicant had any rights in pursuance of any grant by the Ruler of Mewar, that was not binding against the successor States. In any case, the impugned Ordinances did not deprive the Jagirdars of their property and had merely the effect of transferring the management of Jagirs to the Government and, therefore, they were not hit by Art. 31 (2 ). It was also denied that the Ordinances became invalid on the ground that they were hit by Art. 14 of the Constitution. Finally it was urged that no writ should be granted in the applicant's favour as he had approached this Court with a good deal of delay and that, in any case, he had an alternative remedy open by way of a civil suit. We shall first dispose of the question of delay. There was obvious delay in the presentation of the petition inasmuch as the Constitution of India had come into force about a year before the petition was presented. The applicant was, therefore, asked to explain the delay in the presentation of the petition even before its admission. The explanation he has given is that the interference with his possession took place when Ordinance No. X of 1949 was passed and the Government of the former State of Rajasthan took over the collection of rent on the 2nd of February, 1949. A representation was then made to His Highness the Raj-pramukh of the former State of Rajasthan in March 1949 but before anything could be done, the present State of Rajasthan came into existence. Thereupon representation was made to His Highness the Rajpramukh of the present State of Rajasthan and in particular it was said that the Government officials were taking possession of the private property also. Thereupon a letter was issued by the Administration forbidding the officials from doing anything beyond what was permitted by law. Thereafter, representation was made to the then Chief Minister of Rajasthan. Then in August I949, a representation was made to Shri V. P. Menon, Secretary to the States Ministry and thereafter a Jagir Commission was appointed by the Government of India to report on the Jagir-dari system. The matter was represented to this Commission, the report of which was published in April 1950. Thereafter representations were again made to the Chief Minister in May 1950 and then again before Shri V. P. Menon in September and October, 1950. These discussions continued right up to December 1950 and when the applicant was convinced that nothing would be done, he made the present application in January 1951. We consider that the delay in this case has been satisfactorily explained and there is no reason for refusing the writ simply on the ground of delay. The next point is whether the applicant has an adequate alternative remedy. It is urged that he can file a suit against the State if he thinks that he has been illegally deprived of his property. Normally a person who is deprived of his property has a right to file a suit and should go to the Civil Court and should not invoke the extraordinary jurisdiction of this Court. But the only point which would arise for decision if a suit were to be filed in this case is whether these Ordinances which have been mentioned above are void in view of the Provisions of Part III of the Constitution. By a recent amendment to sec. 113 of the Code of Civil Procedure, the following proviso has been added : - "provided that where the court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court. " We are of opinion that even if a suit had been filed by the applicant in the proper civil court, the question whether the three Ordinances were valid or otherwise would have been referred to this Court under this proviso. Under these circumstances, we do not think that we should dismiss the present petition now after we have heard the arguments only because a suit was not filed, for, if the suit were filed, the matter would still be referred to this Court for decision. We may also point out that such reference would usually be at the initial stage before other questions arising in the case are decided and, therefore, we would not have more material before us even if the matter had come before us on a reference. In this view of the matter, even though the applicant might be in a position to file a suit as there is no bar in any law against his filing a suit, we are not disposed to dismiss the petition on this ground alone. We now turn to the question whether the three impugned Ordinances are invalid under Art. 13 (1) of the Constitution read with Art. 31 (2 ). So far as Ordinance No. XXVII of 1948 is concerned it merely abolishes certain powers of the Jagirdars in respect of certain matters which are in modern times normally under the control of the Government but which on account of certain historical reasons into which we need not go were vested in the Jagirdars in the former State of Rajasthan. So far, therefore, as this Ordinance is concerned we find nothing in it which affects the property rights of Jagirdars. It seems that the applicant has mentioned this Ordinance because the other two Ordinances, namely, Nos. X and XV of 1949 which affect his rights are amendments to this original Ordinance. By sec. 3 of Ordinance No. X of 1949, a new sec. 8 (A) was added to the original Ordinance and it was provided therein that the revenue which had till then been collected by the Jagirdars would in future be collected by the State and the State will, after deducting collection and other charges, pay the balance to the Jagirdar. Then followed the second amendment by Ordinance No. XV of 1949 which defined "jagirdars" and "revenue" under sec. 2 and included under sec. 3 taxes, cesses and other revenue from forests also among the revenue to be collected by the State. The main attack of the applicant is on the provisions of the two Ordinances of 1949 by which the State took over the management of the Jagirs and started collecting revenue of all kinds through State agency. The contention of the applicant is that by so doing, the State took possession of his immovable property and the law which authorised the State to take such possession neither provided for compensation nor fixed the amount of compensation or the principles on which and the manner in which the compensation was to be determined and given. The reply of the State to this contention is that in the first place, the Jagirdar had no right of property whatsoever in the Jagir and the Jagir was under the law held at the pleasure of the State and the State could resume it at any time. In the second place, it was urged that even if the Jagirdar had any property in the Jagir and the State could not resume the Jagir at will, no property of the Jagirdar was in fact taken into possession by the State and, therefore, Art. 31 (2) would not apply. It was urged that merely because the management was taken over, the Jagirdar was not deprived of the possession of the Jagir and in particular of the benefits flowing from it because he was to be given the balance of the income after deducting collection and other charges. We are of opinion that it is not necessary on account of the view we are taking on the second contention on behalf of the State to decide whether the Jagirdar has any property right in the Jagir and whether the State can resume it at will. We are also of opinion that it is not necessary for the same reason to decide whether on account of the integration, first of certain former States into the former United State of Rajasthan and later of the former United State of Rajasthan with certain other former States to form the present State of Rajasthan, there was such change in sovereignty as would deprive the Jagirdar of any rights which he might have had when the former State of Mewar was in existence. We shall assume for present purposes that the Jagirdar has some kind of property rights in his Jagir and that the State cannot resume it arbitrarily and that the change of sovereignty was not of such a nature as would deprive the Jagirdar of whatever rights he originally possessed before the process of integration began. It is enough to say that if it was necessary to decide these questions, our decision might have been in favour of the petitioner; but we shall leave these questions open and assume for present purposes that the applicant has" some kind of property right in his Jagir and that the Jagir could not be arbitrarily resumed by the State and that the change of sovereignty that has taken place has not affected whatever rights the applicant had in the former State of Mewar. The question which then arises is whether the provisions of Ordinances Nos. X and XV of 1949 which we have mentioned above are hit by Art. 31 (2) of the Constitution. Before, however, we deal with this matter, we may dispose of one argument on behalf of the applicant which is based on Part IV Art. 13, clause (1) of the Constitution of the former State of Mewar. The clause reads as follows : - "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. " Learned counsel for the applicant argues that this Constitution continued in force even after coming into existence of the former United State of Rajasthan in 1948. He has cited a number of authorities from the United States of America on the "due process" clause and submits that in view of those authorities, the provisions of Ordinances Nos. X and XV of 1949 which we have mentioned above are void. Learned Government Advocate, however, submits, that on the coming into existence of the former United State of Rajasthan in which the former State of Mewar was merged, the Constitution of Mewar came to an end and, therefore, it is unnecessary to consider this particular provision of the Constitution of Mewar. In this connection our attention has been drawn to Ordinance No. 1 of 1948 of the former State of Mewar which provided in sec. 3 that all laws, Ordinances, Acts, Rules, Regulations, and Notifications having the force of law in any Covenanting State continued to remain in force until repealed or amended by a competent authority or unless otherwise provided in that Ordinance or any other Ordinance. It is urged that Part 1, Art. 1, clause 1 of the Constitution of Mewar says that this Constitution shall be the Supreme Law of Mewar and as such the Constitution of Mewar being a law was saved to the extent mentioned in sec. 3 of the Ordinance No. 1 of 1948. We are, however, of opinion that when the former State of Mewar came to an end by integrating with other States to form the former United State of Rajasthan, the Constitution of the former State of Mewar must by force of circumstances and logic of facts be deemed to have come to an end. Fundamental rights are peculiarly within the province of the Constitution and, therefore, when Ordinance No. 1 of 1948 provided for the governance of the former United State of Rajasthan and did not provide for any fundamental rights, the Constitution of Mewar and particularly that part of it which dealt with the governance of the former State of Mewar and with fundamental rights must be deemed to have been abrogated. The applicant, therefore, cannot found any argument on Part IV, Art. 13, clause 1 of the Constitution of Mewar and his case must rest only on the provisions of the Constitution of India. It is, therefore, not necessary to consider in detail the American cases on the interpretation of "due process of law" for present purposes. .
(3.) WE now turn to Art. 31 (2 ). The crucial point which falls for consideration is whether the State has taken possession of any property of the applicant and whether mere taking over of the management would amount to taking possession of the property. It appears that perhaps in the beginning when Ordinances Nos. X and XV of 1949 came into force, the subordinate officials acted a little too zealously and interfered with all kinds of rights of Jagirdars. But we have to look to the position which has crystallized now to decide whether the Ordinance, of 1949 are hit by Art 31 (2 ). That position will be clear from certain orders which have been passed by the Government from time to time. A book containing such orders has been produced before us on behalf of the applicant and it is not denied that the orders contained in the book are correct. These orders may be divided into two parts. The first set of orders provide what should be done with the revenue that is to be collected. Those orders are contained in two Government Orders, namely No. 1107/x/49 of 20th August, 1949 and Memo No. F. 4 (306) Rev. II/50 dated the 22nd of July 1950. By the first order, which was marked 'confidential', the Jagirdars were allowed a certain percentage out of the amount actually collected minus Chathund Chakri or tribute. The allowances were on the following basis : - Rs. 2000 or below. . . . . . 95% Rs. 2001 to 20000. . . . . . '80% but not less than Rs 1900/- Rs. 20001 to 50000. . . . . . 65% but not less than Rs. 16000/- Rs. 50001 to 100000. . .- 50% but not less than Rs. 32500/- above Rs. 100000. . . . . . 40%" but not less than Rs. 50000/- This order also made it clear that this amount was to be paid pending final decision. The second order was to the effect that the Jagirdars might be informed that provisionally the following percentages (the scale was the same which has been given above) of the amounts actually collected as income from their Jagirs after deducting of Chathund, Chakri or tribute would be paid to them. The amounts to be collected as collection fees or other charges were under the consideration of the Government and as soon as the decision Was arrived at, the Jagirdars would be informed of the same. The contention of the applicant with respect to this set of orders is that by these orders, the Jagirdars were deprived of a substantial amount of their income without any compensation and, therefore, the two Ordinances of 1949 were hit by Art. 31 (2) of the Constitution of India. We are, however of opinion that this is not so. The orders are provisional and accounting will have to be done finally. We have no reason to suppose that the State will fix arbitrary amounts as collection charges or as other charges. We have also no reason to suppose that after these charges have been fixed, if there is any balance which still remains due to Jagirdar, it will not be paid to him. In this connection, our attention was particularly drawn to the words 'other charges' which appear in sec. 8a added by Ordinance No. X of 1949. It is urged that under the cover of these words, the State may deduct any amount from the income and thus practically confiscate it. Here again we see no reason to hold that the State will act in this arbitrary manner and the other charges which are yet to be fixed would not be reasonable. The applicant has not been able to show to us that so far the State has made any unreasonable deductions from the income of his Jagir. On a consideration therefore, of these orders, we are of opinion that it cannot be said that the State is taking away the movable property of the applicant in the form of income from the Jagir without any compensation. The amount which will be finally payable to the applicant is still a matter of accounting and there is no reason to suppose that accounting will be done in an arbitrary manner. These provisions of Ordinances No. X and XV of 1949 cannot be said to be hit by Art. 31 (2) on this ground. The Government has also issued a second set of orders with respect to the management of the Jagirs. The position, as it has finalized, appears in a number of orders of which we may mention the following : - Letter No. P. 4 (305) Rev. 1/50 dated 14th October, 1950 from the Revenue Secretary to the Government of Rajasthan to the Jagir Commissioner, Udaipur, and Letter No. F. 4 (306) Rev. 1/50 dated the 22nd January, 1951 from the Revenue Secretary, Government of Rajasthan to the Jagir Commis-sioner, Udaipur. Letter No. F. 4 (306) Rev. 1/50 dated the 22nd January, 1951 from the Revenue Secretary to the Commissioner of Udaipur & Kotah. There are other letters also in the booklet which has been supplied to us but it is unnecessary to refer to them. These three letters which we have mentioned show that only the work of collection of revenue now remains with the State and the rest of the management like granting of Pattas, control over unoccupied lands, realization of irrigation dues for the tanks belonging to the Jagirdars, disposal of lands which fall vacant due to abandonment or death without heirs grant for maintenance of Chhutbhais, rent of building taken from the Jagirdars for Government purposes and so on, have all been left to the Jagirdar. Thus the Government has only taken possession of the management in so far as it relates to the collection of revenue and also the management of forests for which provisionally 35% of the income is being deducted on an ad hoc basis for supervision and administrative charges. Mere taking over of the management of this kind does not, in our opinion, amount to taking possession within the meaning of Art. 31 (2 ). As we have already pointed out, the various rights that go with the possession of the Jagir like the granting of Pattas, control over unoccupied lands which fall vacant due to abandonment or death without heirs and making of grants to Chhut-bhais, etc. all remain in the Jagirdar. The State has only taken over the right to collect the revenue. It cannot, in our opinion, be said that a mere right to collect revenue is property. As has been pointed out in the recent decision by Venkatarama Ayyar, J. of the Madras High Court in Civil Miscellaneous petition No. 894 of 1951 dealing with the validity of the Madras Estates Land (Reduction of Rent) Act (Act No. XXX of 1947 ). "a right to collect rent, even putting it as high as a right to manage the properties, is nothing more than a power. " What the State has done is to take away that power but it has not taken possession of any property of the Jagirdar. The possession of the State is somewhat analogous to that of an agent. If, for example, the Jagirdar appointed an agent to collect rents, there would be no transfer of possession from the Jagirdar to the agent. By this law, therefore, the Government has in a sense become statutory agent of the Jagirdar for the purpose of collection. In this connection, we may refer to the case of Charanjit Lal Chowdhari vs. The Union of India and others (A. I. R. 1951 Supreme Court 41 ). In that case the Government had taken possession of the Sholapur Spinning and Weaving Company and an application for writ was filed by one of the share-holders and it was contended that the act which authorised the Government to take over the management was unconstitutional in view of Art. 31 of the Constitution. Mukherjea, J. dealing with this matter held that though the impugned act had affected some of the rights which the share-holder has to participate in the management of the Company, it could not be said that the petitioner had been dispossessed from his property in the Mills. The analogy, in our opinion, applies to this case also and though one power which the Jagirdars used to have namely, the power to collect rent has been taken away by the impugned Ordinances there has been no dispossession of the Jagirdar from his property by these two Ordinances of 1949. Nor can it be said that taking over of this power of collection is an unreasonable restriction on the fundamental right of the applicant to acquire, hold and dispose of property, for, the main rights, as we have already shown are still in the Jagirdar and merely the right to collect the rent has been taken away. This restriction, cannot, in our opinion, be called unreasonable particularly, as the collection of rent is always made through somebody and in this case the law provides that the State will be the statutory agent of the Jagirdar for that purpose. We are, therefore, of opinion that the two provisions of Ordinances Nos. X and XV of 1949 which have been attacked are not void under Art. 13 (1) of the Constitution read with Art. 31 (2) or of 19 (1) (f ). We now turn to the question whether these provisions of these Ordinances are hit by Art. 14 of the Constitution which provides that the State shall not deny to any person equality before the law or the equal protection of the laws. The argument on behalf of the applicant is that these provisions existed in the former State of Rajasthan and when the present State of Rajasthan was formed in April and May 1949, the Jagirdars of only a part of the present State of Rajasthan could not collect their rents while Jagirdars in other areas which were covered by the former State of Jaipur, Bikaner, Jaisalmer, Jodhpur and the Matsya Union were at liberty to collect their rents. There was thus distinct inequality before the law as between the Jagirdars of one portion of the State and another portion of the State and when the Constitution came into force on the 26th of January 1950, these Ordinances became void under Art. 13 (1) in so far as they were inconsistent with Art. 14. ;