- (1.) DR. Purshottam Singh and 160 other persons, whose particulars are given in the Schedule annexed to this order, have submitted identical writ petitions challenging the validity of the Rajasthan Colonisation (Allotment of Government Land to Pong Dam Oustees in the Rajasthan Canal Colony) Rules, 1972 (hereinafter referred to as 'the Rules') and for quashing the demand notices issued to the petitioners under the Rules and for ancillary reliefs.
(2.) AS all these writ petitions arise in similar circumstances and raise common questions, it would be proper to dispose them of by a common order. The petitioners are oustees of Pong Dam area, which once formed part of the bigger State of Punjab and now forms part of the State of Himachal Pradesh. Before dealing with the various submissions made by the learned counsel, it would be proper to narrate briefly the circumstances in which the lands in dispute came to be allotted to the petitioners It appears that near about the year 1965, it was decided to construct a dam on the river Beas, which came to be known as 'the Beas Dam' or 'the Pong Dam'. At that time the site selected for the construction of the aforesaid dam lay within the then State of Punjab and the petitioners were amongst the persons who were holding the agricultural lands, which were required to be acquired for the purposes of the construction of the Pong Dam. Consequently, the State Government of Punjab initiated action for acquisition of the land of the petitioners and other persons for the construction of the aforesaid dam After the formation of the State of Himachal Pradesh, the lands belonging to the petitioners and which were required to be used for the construction of the Pong Dam fell in that State and, as such, the incomplete proceedings for acquisition of such lands were carried on and completed by the Government of the State of Himachal Pradesh. The petitioners and other land owners were paid due compensation for the acquisition of their lands, in accordance with the awards made by competent Land Acquisition Authorities in Himachal Pradesh. However, as the petitioner and some other persons were likely to be displaced from their hearths, as well as from their agricultural holdings as a result of the acquisition of their lands for the purposes of the construction of the Pong Dam, the matter relating to their re-settlement was considered by a High Power Committee consisting of the Union Minister for Irrigation and Power as the Chairman and the Cheif Ministers of Rajasthan, Punjab & Himachal Pradesh as Members. Initially the matter was considered at the meeting held on Dec, 13, 1965 at which the Union Minister for Irrigation and Power and the Chief Ministers of Rajasthan and Punjab alongwith their advisers and the Administrator of the Rajasthan Canal Project were present and it was decided that Rajasthan would set apart a total of 3. 25 lac acres of land in the Rajasthan Canal Project area for allotment to the oustees of the Pong Dam area, belonging to the Punjab and Himachal Pradesh, and that out of such area about 15. 625 acres of land would be allotted to each oustee. It was also decided at the aforesaid meeting that the price of the land to be allotted to such oustees may be charged at the following rates: - S. No Type of land Rate per acre. 1. Nali bed. Rs. 800/- 2. Light loam. Rs. 576/- 3. Sandy loam. Rs. 408/- 4. Uncommand. Rs. 80/- It was also agreed that the payments would be received in 20 yearly instalments without interest. It was on the basis of the aforesaid decision taken by the above mentioned High Power Committee, which was known as 'the Committee of Direction, Rajasthan Canal Project' (hereinafter called 'the Committee') that the petitioners were allotted lands in the Rajasthan Canal Project area. It appears that in accordance with the procedure agreed upon by the Committee, the petitioners submitted applications for allotment of land in the Rajasthan Canal Project area to the Deputy Commissioner, Rehabilitation, Beas Dam, Talwada Township, Punjab, who verified the claims of the respective petitioners as to whether they were bona fide oustees, whose, lands were acquired for the purpose of the construction of the Pong Dam. The Deputy Commissioner thereafter prepared a list of all such oustees, who were entitled to allotment of land in accordance with the aforesaid decision of the Committee. The list so prepared was forwarded by him to the Deputy Commissioner, Colonisation, Rajasthan Canal Project, Bikaner, who issued orders of allotment in favour of the petitioners and other allottees, on the basis of the aforesaid list received by him from the Deputy Commissioner, Rehabilitation, Beas Dam, Talwada. In the case of petitioner, Purshottam Singh such an order of allotment was issued on April 24, 1967 and after reciting the fact that an allotment was made to the petitioner of 25 bighas of irrigated land in Chak 3 FSN in Tehsil Suratgarh, District Sri Ganganngar, on the basis of his name appearing in the list of the first batch of oustees received from the aforesaid Punjab Authority, the allotment order enumerated five conditions on which such allotment was made and of which conditions No. 1 and 2 are important for our present purpose. The said conditions were as follows: - "condition No. 1 - All the Rules issued under the Rajasthan Colonisation Act, 1954 and which may be issued in future from time to time shall be applicable to the land so allotted and shall be binding on the allottee. Condition No. 2 - The allottee shall be liable for making payment at the proper time of such price in respect of the land allotted to him as may be fixed by the State Government" Similar orders of allotment containing identical conditions were issued to other petitioners as well. It is the agreed case of both the parties that as soon as such orders of allotment were issued, the oustees occupied the agricultural lands so allotted to them and they also started cultivating the same. It is also not disputed by any one of the parties that the petitioners, who were the allottees of lands as oustees from the Pong Dam area, have not made any payment whatsoever towards the price of the lands allotted to them, upto this time. Obviously, the reason appears to be that at the time when orders of allotment of such lands were issued in favour of the petitioners, the State Government did not fix the price in respect of the allotted lands nor it gave any intimation to the allottees concerned as to what price was fixed by it for the lands allotted to them. Another meeting of the Committee attended by the Governor of Haryana, The Chief Ministers of Himachal Pradesh and Punjab, the Minister for Rajasthan Canal Project on behalf of the Chief Minister of Rajasthan and the Administrator, Rajasthan Canal Project and presided over by the Union Minister for Irrigation and Power took place at new Delhi on Jan. 28, 1968. In this meeting it was stated by the then Union Minister of Irrigation and Power, Dr. K. L. Rao that 3 25 lac acres of land had been earlier agreed to be earmarked for the oustees from the Beas and connected Projects, on the basis of 78% intensity of irrigation, but as the intensity of irrigation was then going to be increased in the command area of the Rajasthan Canal Project to 110%, the Rajasthan Government was of the view that the area reserved for the oustees should be decreased proportionately and the price of the land should also be increased in view of the increase in the intensity of irrigation, which would result in larger supply of water to the cultivators. After discussion, it was ultimately decided by the Committee that the area of land reserved for the oustees of the Beas and connected projects may remain as 3 25 lac acres. It was, however, agreed that the rates of the different categories of land be increased by 40% in view of the increase in the intensity of irrigation form 78% to l10% and that the new rates should accordingly be as follows: - S. No. Class of land. Rate per acre. 1. Nali Rs. 1,120/- 2. Light loam Rs. 806/- 3. Sandy loam Rs. 647/- 4. Uncommand Rs. 112/- It was further agreed that the recoveries would be made from the allottees annually at the rate of l/20th of the price settled earlier, on the basis of 78% intensity until arrangements were made for the supply of water on the basis of the enhanced intensity of irrigation and that the difference would be recovered annually at the rate of l/20th of the new rates when arrangements for enhanced supply of water were made. At a later meeting of the Committee, which took place at Suratgarh on December 14, 1968 the problem of re-settlement of the oustees was again discussed. It was clarified at this meeting again that the price would be charged from oustees in the first instance, at the rates settled earlier on the basis of 78% intensity of irrigation and that higher prices agreed in the meeting dated January 28, 1968 would come into force only when arrangements were made for the supply of water on the basis of enhanced intensity of irrigation. It appears that subsequently the intensity of irrigation in the Rajasthan Canal Project area was actually increased frorn 78% to 110% as was proposed. Another meeting of the Committee, in which the Chief Ministers of Punjab, Rajasthan, Haryana and Himachal Pradesh took part, was held under the Chairman ship of Dr. K. L. Rao, the then Union Minister for Irrigation and Power on September 3/4, 1970 and the matter was further reviewed. It was agreed that in view of the urgency of settling the oustees of Pong Dam Reservoir area, they would be given priority for allotment to lands in the Rajasthan Canal Project area and an area of 3. 25 lac acres (precise figure to be worked out) would be allotted to the Pong Dam oustees at the rate of 15 625 acres for each oustee family. It was further agreed at this meeting that the rates per acre to be charged for the land would be the same as the Rajasthan Government was charging from its landless farmers, Scheduled Castes and Scheduled Tribes, namely Rs. 1280/- for Nali land, Rs. 1080/- for light loam, Rs. 800/- for sandy loam and Rs. 240/- for c-command land, with the condition that the recovery would be made from the oustees in 20 equal instalments and no interest would be charged from them. The copies of the minutes of the decisions taken at the meetings of the Committee of Chief Ministers on December 13, 1965, January 28, 1968, December 14, 1968 and September 3/4, 1970 have been placed on record by the learned Government Advocate. In February, 1972 the Teshsildar, Colonisation, Raisingh-nagar gave notices to the allottees demanding payment of the price of the lands allotted to them respectively at the rate of Rs. 1,080/-per acre i. e. Rs. 16,875/-per square consisting of 15 625 acres of light loam command land and threatened to eject them from the land in their occupation in case they failed to make payment of the amount demanded from them. The allottees thereupon filed identical writ petitions in this Court, which were allowed by this Court by its order dated January 11, 1973 on one ground only and it was held that Clause (6) of Rule 7 of the Rules empowered only the Allotting Authority to recover the overdue instalments of the price from the allottees and that the Tehsildar was not empowered in law to recover such amount from the oustees. The other objections raised in those writ petitions, including the questions relating to the validity of the Rules, were not decided then. Thereafter the Allotting Authority namely, the Deputy Commissioner, Colonisation, Bikaner issued identical notices to each one of the petitioners, directing them to deposit the amount of eight instalments, which had already fallen due with the Tehsildar, Colonisation, Raisinghnagar within 15 days of the receipt of the notices by them and it was also mentioned therein that in case the the requisite amount was not deposited within the specified time, then action would be taken for the cancellation of the allotments in favour of the concerned petitioners The petitioners thereupon sent identical notices to the Deputy Commissioner, Colonisation, Bikaner challenging the vires of the Rules and contesting the demand made from them on the basis of Rs. 1080/- per acre for the lands allotted to them. As the Deputy Commissioner, Colonisation did not give any reply, the petitioners have now filed identical writ petitions in this Court challenging the validity of the Rules, the correctness of the amount dem?nded from them towards the price of the land allotted to them and the charging of interest on the sum claimed from them. They have also contested that 8 instalments had not fallen due. The respondents have filed a return and have contested the claim of the petitioners on all counts.
(3.) THE first contention advanced by the learned counsel for the petitioners, Mr. G. M. Lodha, is that the Rules were invalid, more particularly the challenge has been made in respect of Rules 6, 7 and 9. THE principal grounds on which the validity of these Rules have been challenged are two, namely; that the Rules were retrospective in nature and the delegated or subordinate legislative authority had no power to make retrospective legislation and that the Rules were inconsistent with the provisions of the Rajasthan Colonisation Act, 1954 (hereinafter referred to as 'the Act') and the General Colony Conditions made thereunder. In respect of the first ground, the learned counsel for the petitioners argued that the petitioner were allotted lands in the Rajasthan Canal Project area as Pong Dam oustees in the years 1966. 67 on the basis of the agreement arrived at on December 13, 1965 between the Chief Ministers of the concerned States, with the concurrence of the Central Government and that the petitioners should be charged price for the lands allotted to them in accordance with the aforesaid 1965 agreement, which prevailed at the time when the allotments were made in their favour and in that view of the matter, the provisions of Rules 6, 7 and 9 of the Rules, which were made in the year 1972 and provided for the payment of price by the allottees at an enhanced rate were invalid as the Rules wrer retrospectively made applicable to allotments made in the years 1966 and 1967, prior to the coming into force of the Rules. It is submitted that there is no provision in the Act authorising the State Government, which enjoyed merely the delegated power to make rules, to make retrospective legislation and that in the absence of such power, subordinate legislation could not be retrospective. Learned Additional Advocate General, Dr. Tewari, submitted that the Rules were not at all retrospective in nature and they could not be struck down as invalid on the alleged ground of retrospective operation thereof. His further contention is that the Rules operate only prospectively. I have considered the rival contentions of the learned counsel. Rules 6, 7 and 9, so far as relevant for the present discussion are as follows: - "6. Terms and conditions of allotment: - All allotments of land made under these rules shall be made and shall be deemed to have been made under the following terms and conditions: - (1) The allottee shall pay to the State Government the price for the allotted landof such scale and in such manner as laid down in rule 7 of these rules. (2 ). . . . . . . . . . . . (3) Initially an allotment shall be on ghair-khatedari tenure only and to the allottee no khatedari rights, shall accrue in any land so allotted till the expiry of 20 years from the date of allotment and till the full price of the land together with all other dues of the State Govern- ment, if any, has been paid by him to the State Government. . . . . . . . . . . . . 7. Scale of price and mode of payment: - (1) For the land allotted under these rules, the allot- tee shall pay to the State Government the price at the following scales: - S. No. Soil Class of allotted land. Price per square of 15. 625 acres, 1. Nali Rs. 20,000/- 2. Light loam Rs. 16,875//- 3. Sandy loam Rs. 12;500/- (2 ). . . . . . . . . . . . (3 ). . . . . . . . . . . . (4 ). . . . . . . . . . . . (5) The price under above sub-rule (1)and (2) shall be paid in 20 annual instalments inthe concerned sub-treasury The first instalmentshall be paid and deposited before taking posses-sion of the allotted land under rule 5 (7) of theserules and second and subsequent instalments shallbe paid by him on or before the 15th day of Julyevery year. The development charges, if any,shall be paid together with the 1st instalments. (6) The allotting authority shall preparea demand statement in respect of instalmentswhich may become due and shall proceed to effect recovery of the same till the total price ofthe allotted land has been realised from theallottee. For this purpose soon after the allot-ment of land is made, the allotting authority shallmaintain such ledgers and other accounts registers in respect of each allottee as may be prescri-bed by the Colonisation Commissioner. (7) All dues outstanding against an allot-tee under these rules shall be recoverable asarrears of land revenue. 9. Applicability of rules to old allotments - All allotments of land to the oustees in Rajasthancanal Colony made before the commencementof these rules shall be deemed to have been madeunder these rules and shall be subject to all the provisions, conditions, obligations, rights, liabi-lities and stipulations etc. as mentioned in theserules. " A consideration of the aforesaid Rules does not show that they have any retrospective application. The mere fact that by virtue of Rule 9, the Rules have been made applicable to allotments of land to the oustees in the Rajasthan Canal Colony, made before the commencement of the Rules, does not at all go to show that the Rules were intended to operate retrospectively. A bare perusal of Rule 9 shows that the frames' of the Rules were alive to the fact that some allotments of land had already been made to the oustees, including the petitioners, in the Rajasthan Canal colony prior to the coming into force of the Rules. With a view to validate the allotments made earlier to the petitioners and other oustees and in order that all allotments made to the oustees, either prior or after the coming into force of the Rules, should be governed by the same set of provisions. Rule 9 specifically makes the Rules applicable to the allotments of land made to the oustees before the commencement of the Rules, on the basis that the said allotments would be 'deemed' to have been made under the Rules. Similarly Rules 6 and 7 also apply to allotments made under the Rules after the commencement thereof as also to those allotments which, although made earlier, are deemed to have been made under the Rules by virtue of the application of Rule 9. Merely because certain things or state of facts are 'deemed' to exist, it cannot be inferred that the provisions operate retrospectively. In State of Bombay vs. Pandurarg Vinayak and others (1) Mahajan J. , as he then was, speaking for the Supreme Court observed : "when a statute enacts that something shallbe deemed to have been done, which in fact and truth was not done, the Court is entitled andbound to ascertain for what purpose and betweenwhat persons the statutory fiction is to be resor-ted to and full effect must be given to the statutory fiction and it should be carried to its logicalconclusion. " The Supreme Court in the aforesaid decision relied upon the following of quoted observations of Lord Asquith in East End Dwellings Co. Ltd. vs. Finsbury Borough Council (2) at page 132: - "if you are bidden to treat an imaginary stateof affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putativestate of affairs had in fact existed, must inevi-tably have flowed from or accompanied it. One of these in this case is emancipation from the1939 level of rents. The statute says that youmust imagine a certain state of affairs; it doesnot say that having done so, you must cause orpermit your imagination to boggle when it comesto the inevitable corollaries of that state ofaffairs. " The same observation of Lord Asquith were also relied upon by Venkatarama Aiyar J. in Commissioner of Income-tax, Delhi vs. S. Teja Singh (3 ). In that case their Lordships of the Supreme Court were considering the effect of the legal fiction enacted in Section 18a (9) (b) of the Income tax Act that when a person fails to send an estimate of his income under Section 18a (3), he shall be deemed to have failed to furnish the return of his income. As there could be no failure to make a return unless notice had been issued under Section 22 (2) of the Income Tax Act and there was a default in complying with such a notice, therefore, it was held by the Supreme Court, in the aforesaid case, that the failure to send an estimate is to be deemed to be a failure to send a return, it necessarily involves the fiction that notice had been issued under Section 22 and that had not been complied with. Their Lordships further observed: "it is a rule of interpretation well settled that in construing the scope of a legal fiction it wouldbe proper and even necessary to assume all thosefacts on which alone the fiction can operate. " Thus the effect of the deeming provisions incorporated in Rules 9 and 6 of the Rules is that the allotments to the petitioners, which were in fact not made under the Rules and could not have been so made, because the Rules had not come into force at the time when the said allotments were actually made, yet by applying legal fiction, those allotments were for all purposes to be considered as if they had been made under the Rules. The argument which was canvassed vehemently by Mr. Lodha, on behalf of the petitioners, was that if by virtue of the deeming provision, the allotments made in favour of the petitioners could be considered to have been made under the Rules from the very day such allotments had actually been made, then the Rules would have retrospective effect and in that event they would be void. I am unable to accept this contention of the learned counsel for the simple reason that Rule 1 (c) of the Rules provides that they would come into force on the date to be notified by the State Government and the State Government, by a notification, fixed September 16, 1972 as the date on which the Rules came into force. In view of the aforesaid provision, the allotments which were made in favour of the petitioners during the years 1966 and 1967 could not be considered to have been made under the Rules on the date when such allotments were actually made, because the Rules had not come into force at that time. But we must ascertain the real purpose, incidents and consequences of the legal fiction and must imagine the state of facts as directed by the deeming clauses of of the Rules. Then, it must be held that on the coming into force of the Rules on September 16, 1972 all such allotments, which were made earlier, should be considered to have been made under the Rules, on account of the application of the legal fiction embodied in Rules 6 and 9 and the Rules would certainly become operative in respect of all such allotments made in favour of the oustees from the date of their commencement. A fundamental rule of construction of a statute is that it should not be construed to have retrospective operation unless such a construction appears very clearly in the terms of the enactment or arise by necessary and distinct implication. (See Maxwell on the Interpretation of Statutes (Twelfth Edition) page 215 ). Another well established rule in this respect is that a statute should not be construed so as to have a greater retrospective operation than its language makes it necessary. It would not be proper to construe the rules as retrospective only for the purpose of striking them down, as there is nothing in the rules to suggest that they applied retrospectively. It cannot, therefore, be held that the rules were invalid. Learned counsel for the petitioners drew my attention to clause (5) of Rule 7 and argued that as the first instalment of the price was 10 be paid and deposited before taking possession of the allotted land under Rule 5 (7) of the Rules, the Rules must be considered to have retrospective effect. But as mentioned by me earlier, the deeming provision would make the Rules applicable to that extent, to which they could be made applicable to the allotments, which had already been made long ago and which fact has also been recognised by the Rule making Authority while enacting Rule 9. There is no doubt that as the allotments were made in favour of the petitioners during the years 1966 and 1967 and possession was also handed over to them of the allotted lands during those very years or at least at any time prior to the coming into force of the Rules, literal compliance with the aforesaid part of sub clause (5) of Rule 7 would be impossible in case of all such allotments which were actually made earlier and are deemed to have been made under the Rules, on account of the application of the legal fiction. As such, that part of Rule 7 (5) could not be made applicable to the allotments made prior to coming into force of the Rules. But merely because clause (5) of Rule 7 makes a provision for payment of the first instalment of the price before the delivery of possession of the allotted land it cannot have the effect of making the Rules retrospectively applicable. As Mahajan J. observed in Pandurang's case (1) that it has to be ascertained in each case as to for what purpose the statutory fiction is to be invoked and so, in my opinion, the Rules would be applicable to the allotments made prior to their coming into force from the date the Rules came into force and that portion of Rule 7 (5) which requires payment of first instalment of the price before the delivery of possession of the allotted land should be ignored as not applicable in the case of deemed allotments. ;