BHARGAVA, J. - (1.) THIS is an application under Art. 226 of the Constitution of India praying for writ of prohibition or other appropriate writ, order or direction against the State of Rajasthan and respondents No. 2 and 3 who are Director of Industries, Government of Rajasthan and the District Industrial Officer respectively from interfering with the petitioner's rights as a lessee of Khasra Nos. 299 to 305 situate in the village of Baori within the estate of the temple of Shri Gopinathji.
(2.) THE petitioner claims to have obtained a lease from the Mahant of the said temple on 2nd July, 1958 for a period of five years for Svt. years 2016 to 2020 on an annual rental of Rs. 999/- for the preparation of 'khar'. His case is that he was in peaceful enjoyment of his rights under the aforesaid settlement until he received a notice on 15th March, 1959, issued by the respondent No. 3 informing him that the area of the village Baori including the area covered by Khasra Nos. 299 to 305 will be publicly auctioned on 30th March, 1959. He made representations to the Director of Industries and the Government of Rajasthan but he was informed by the former that the land in question has been resumed free from all encumbrances to the State from 1st January, 1959 when the jagir of the temple was resumed and the lease granted to the petitioner by Thikana Shri Gopinathji was unauthorised. The petitioner submits that the interpretation given by the Government to the provisions of sec. 25 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1951 (hereinafter called the Act) is not correct and that he is entitled to remain in possession of the land covered by the lease for the full period of his lease and the respondents have no right to interfere with his possession. The petitioner further contends that under the Act the rights of third parties created in the Jagir lands before the date of resumption were not intended to be affected. In support of his contention be relies on sec. 24 which existed in the original Act (but has been deleted by Act No. 13 of 1954) and sec. 26 A which has been newly added. The contention is that transfers which are mentioned in sub-clauses (a), (b) and (c) of sec. 26 A are not to be recognised for the purpose of compensation if they are not made or entered into in the normal course of management but in anticipation of the legislation for the resumption of jagir lands. In all other respects the rights of the transferee are not affected. On behalf of the State it is urged that the consequences of resumption of jagir lands are mentioned in sec. 22 of the Act and the petitioner's case is covered by sub-clause (a) and (b) of the said section. In view of these provisions, the lease in question granted by the Mahant of the temple is not binding upon the State and has ceased to be operative from the date of resumption i. e. , 1st January, 1959. According to the submission of the State, the scope of sec. 26 A is quite different and it does not abridge or limit the consequences which follow on resumption and only deals with the question of compensation payable to the estate holder. We, therefore, proceed to examine the effect of the provisions of sec. 22 (1) (a) and (b), sec. 24 and sec. 26a on the rights of the petitioner in the light of the above contentions. Sec. 22 (1) (a) and (b), 24 and 26 A run as under: - "section 22 (1) - As from the date of resumption of any jagir lands notwithstanding anything contained in any existing jagir law 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, trees, fisheries, wells, tanks, ponds water channels, ferries, pathways village sites, hats, bazars and melagrounds and mines all minerals whether being worked or not, shall stand resumed to the Government free from all encumbrances; (b) All rights, title and interests created in or over the jagir by the jagirdar or his predecessor-in-interest shall, as against the Government cease and determine. Sec. 24 - Where a Jagirdar has on or after the 1st day of January, 1949 (a) granted a lease of his jagir land or any part thereof for any non-agricultural putpose for a period of three years or more; or (b) granted a lease of, or entered into a contract relating to any forest in his jagir land for a period of three years or more; and the Jagir Commissioner is satisfied that such lease or contract was not made or entered into in the normal course of management but in anticipation of the legislation for the resumption of jagir lands, the Jagir Commissioner may, according to the rules, made by the government in this behalf, by order in writing cancel the lease or the contract as the case may be. Sec. 26-A.- Certain transfers not to be recognised for the assessment of compensation - where a Jagirdar has on or after the first day of January, 1949. (a) transferred any jagir land by sale or gift or by making a grant, or (b) granted a lease of his jagir land or any part thereof for any non-agricultural purpose for a period of three years or more, or (c) granted a lease or entered into a contract relating to any forest in his jagir land; and the Jagir Commissioner is satisfied that such transfer, grant, lease or contract was not made, granted or entered into in the normal course of management but in anticipation of the resumption of jagir lands, the Jagir Commissioner may direct, that such transfer grant, lease or contract shall not be recognised for the purpose of assessment of compensation or rehabilitation grant payable to the Jagirdar under the provisions of this Act. " Mr. Tyagi learned counsel for the petitioner, urges that by enacting sec. 24 in the Act the intention of the Legislature was to provide an exception in the case of leases granted by a jagirdar for any non-agricultural purpose for a period of three years or more so as to keep them unaffected by the consequences of resumption of the jagir land. Under sec. 24 the Jagir Commissioner was given the powers to cancel the lease only if he was satisfied that it was not made in the normal course of management but in anticipation of legislation for jagir land. In support of his contention he made reference to the speech made by the then Revenue Minister in the Rajasthan Legislative Assembly at the time this section was omitted from the Act and sec. 26 A was added. In our opinion we have to first examine the language of the law i. e. , sec. 22 (1) (a) (b) and 26 A as it existed on 1. 1. 59, the date when the jagir in question was resumed by the State and give it its natural meaning, uninfluenced by the previous state of the law. We think the language of sec. 22 (1) (a) (b) is clear and unambiguous and it is unnecessary to resort to the previous sections of the Act for the purpose of adding to their construction. The Legislature whilst enacting one clause in plain terms might introduce into the same statute other provisions which may qualify or neutralise its effect. But a positive enactment in a statute cannot be qualified or neutralised by indication of intention gathered from previous legislation upon the same subject. Nor can| we regard the speech made by the then Revenue Minister in the course of the debate admissible as extrinsic aid to the interpretation of statutory provisions. We, therefore, cannot take into consideration the provisions of sec. 24 as it existed before the amendment of the Act in 1954 for interpreting sec. 22 (1) (a) (b) and 26-A of the Act. By virtue of sec. 22 (1) (a), the right, title and interest of the jagirdar and of every other person claiming through him in his jagir lands shall stand resumed to the Government free from all encumbrances. Learned counsel contends that a lease is not an 'encumbrance. Encumbrance has not been defined in the Act. In Wharton's Law Lexicon an encumbrance is defined as 'a claim, lien, or liability attached to property. " Bouvier in his Law Dictionary defines an 'encumbrance' as any right to or interest in land which may subsist in a third person, to the diminution of the value of the land and not inconsistent with the passing of the fee in it by a deed of conveyance. " It cannot be denied that a lessee acquires interest in the land by virtue of the lease. It can also not be denied that one who acquires land subject to lease cannot deal with it as he would like to do and in that way its utility and value is certainly diminished. We are therefore disposed to hold that a lease is an encumbrance and on the resumption of the jagirs the leases are not binding upon the State.
(3.) SIMILARLY according to clause (b), all rights, title and interests created by the jagirdar or his predecessor in interest from the date of resumption came to an end against the State. Therefore, the lease in question granted by the Mahant of the temple came to an end on 1. 1. 59. The only exception which sec. 22 (1) speaks of are those which are otherwise provided in the Act. Whether sec. 26 A embodies such an exception is the question. It may be observed that sec. 26-A occurs in Chapter VI which deals with the liability for compensation. According to sec. 26 of the Act "subject to the other provisions of this Act, the Government shall be liable to pay to every jagirdar whose jagir lands are resumed under sec. 21, such compensation as shall be determined in accordance with the principles laid down in the second schedule. " Under the second schedule the gross income of a jagirdar for the basic year consists of the total income under the various heads including the income from other non-agricultural uses of land as for example, market fees, sale of fishing rights and the like, but not including rents from houses on village sites, calculated on the basis of average yield of 3 years preceding the basic year. " The income from leases would be covered under this sub-head. As we see sec. 26a we find no warrant for holding that it limits the scope and extent of sec. 22 (1) (a) (b) or is an exception to the aforesaid provisions in any way. All that sec. 26-A says is that if the transfers described in sub-clauses (a) (b) (c) have been entered into in anticipation of the resumption of jagir lands they shall not be recognised for the purpose of assessment of compensation or rehabilitation grant payable to the jagirdars under the provisions of the Act. This seems to be in accordance with the purpose and object of the Act otherwise the jagirdars in order to defeat the purpose of Act would have transferred their jagirs for long terms in lieu of heavy paid up premiums in anticipation of the legislation for resumption and then demand the inclusion of that income in computation of compensation and rehabilitation grants payable to them. We, therefore, do not see any force in this argument and accordingly hold that the lease in question is not binding on the State and it has a right to auction it. This application, therefore, fails and is hereby rejected with costs. . ;