Modi, J. - (1.) THIS is a petition under Art. 226 of the Constitution by Bhopal Singh against. the Rajasthan State and certain officers concerned, who are opposite parties Nos. 2 and 3 for a direction, order or writ in the nature of mandamus, and arises under the following circumstances.
(2.) IT is common ground between the parties that the petitioner is a pasaita jagirdar (holder of a jagir in lieu of certain services in the past) from thikana Kuchaman. The land held by him is situate in village Kuchaman and bears khasra Nos. 119, 120, 10, 18, 12, 16, 1,3, 134, 135, 139, 23 and 23/1. There is also no dispute before us that the income of the land held by the petitioner is Rs. 477/9/- per annum. The jagir of Kuchaman was resumed by the State some time ago under the Rajasthan Land Reforms and Resumption of Jagirs Act (No. VI) of 1952 (hereinafter referred to as the Rajasthan Act ). The case of the petitioner is that the State has so far resumed jagirs of the annual income of Rs. 1,000/- or above only and that his jagir is obviously outside the class of the jagirs notified to be resumed up to date. The grievance of the petitioner is that in spite of that, a demand for payment of bigodi amounting to Rs. 477/9/- plus a certain amount as interest has been served on him by the Tehsildar, Nawa, and the Collector, Nagaur (opposite parties Nos. 3 and 2 respectively) and his representation that such demand was illegal has been turned down. The contention of the petitioner is not that his jagir is irresumable, but that no notification for the resumption of jagirs below the income of Rs. 1000/- his so far been issued by the State under sec. 21 of the Rajasthan Act, and, therefore his jagir was not and cannot be resumed in the absence of such a notification and that the stand of the Collector and his subordinate officers that it was automatically resumed along with the jagir of Kuchaman is unconstitutional being in violation of the provisions of Art. 19 (f) of the Constitution taken with sec. 21 of the Rajasthan Act. Consequently, the petitioner prays for a suitable order restraining the opposite parties from resuming his land or giving effect to the so called resumption and recovering any bigodi or any other incidental charges with respect thereto on the footing last-mentioned. The application is opposed by the State, and the principal contention raised on its behalf is that the petitioner is a pasiatedar of Thikana Kuchaman and the lands held by him are part and parcel of that jagir and stand ipso facto resumed along with the resumption of the parent estate and that no separate notification for the resumption of the estate of sub-grantees from a jagir was or is necessary under sec. 21 of the Rajasthan Act before us is whether the lands held by the petitioner from the jagirdar of Kuchaman stand resumed along with the resumption of the jagir of Kuchaman or they constitute a separate unit the resumption whereof cannot be said to have taken place as its income is below Rs. 1,000/- per annum and jagirs of the annual income below Rs. 1,000/- have not yet been ordered to be resumed by the State. In other words, the question is whether the lands held by grantees from a jagirdar are part and parcel of the main jagir or should be treated as separate entities by themselves for the purposes of resumption under the Rajasthan Act. Our attention was invited in this connection by the learned Deputy Government Advocate to certain provisions of the Marwar Land Revenue Act (No. XL) of 1949 (hereinafter referred to as the Marwar Act), and we propose to dispose of them at the outset. Sec. 191 of the Marwar Act provides that no grant shall be transferable except to the extent provided in this Act. Sec. 192 provides for the grant of a lease or ijara of a jagir or any part thereof, and sec. 193 provides for mortgage of the rents and profits, provided that the duration of such lease of mortgage does not exceed twenty four years. Sec. 195 then provides that a holder of a scheduled jagir (a list of such jagirs is appended to the Act in the first schedule thereof and contains thikana Kuchaman) may assign a part of the jagir to a lineal male descendant of his own or of the previous holder who does not succeed to the jagir provided that the part so assigned shall not be more than what is reasonable, as a provision for his maintenance. Considerable emphasis is laid on the next three secs. 196 to 198, which provide that the part assigned under the next preceding section shall continue to be part of the jagir, and that the assignee shall be a sub-proprietor who shall be liable to pay to the landlord the land-revenue and other public demands or village cesses and expenses relating to the part of the jagir held by him, and lastly that any transfer of 1and in contravention of the provisions of this Act shall be void and the land so transferred shall be resumable by the State The contention which was sought to be advanced on the basis of the above-mentioned provisions of law was that Pasaitedar in the present case had no legal existence whatever being a grantee from the jagirdar of Kuchaman because the jagirdar could not have granted such a jagir ; and secondly, that in any case it was part and parcel of the jagir of Kuchaman and had no separate legal existence as a sub-grantee and, therefore, taking the most lenient view of the case, such jagir must be deemed to have been resumed along with the parent Thikana. We have carefully examined these contentions and are of the opinion that they lack substance. In the first place, the provisions mentioned above must, on any reasonable interpretation in accordance with the well established canons of interpretation of statutes be held to be prospective and not retrospective. The petitioner's case is that he and his forefathers have been in possession of the lands in question for the last seven generations and that they had been granted to his forefathers by the jagirdar of Kuchaman in appreciation of their services. The State in its reply has admitted that the petitioner is a Pasaitedar of thikana Kuchaman and has not disputed his long and ancient possession over the lands in question. In these circumstances, we are not prepared to accept the argument that the gram in this case is in contravention of the terms of the Marwar Act and is, therefore, legally ineffective So far as the second question is concerned, namely, whether the part of the jagir held by the present petitioner is a part of the jagir which was resumable or has been resumed along with the principal estate out of which it was carved, we are of opinion that the matter rightly falls to be governed by the provisions of the Rajasthan Act for the purposes of resumption and not by the Marwar Act. We now proceed to examine the provisions of the Rajasthan Act with a view to see whether the lands held by the petitioner Bhopal Singh constitute a separate unit so that it has not been or cannot be resumed along with the principal estate or that it is only part and parcel of the bigger estate and has ipso facto been resumed with the latter estate. This Act came into force on the 18th February, 1952 Sec. 2 (h) defines jagir land as - "any land in which or in relation to which a jagirdar has rights in respect of land revenue or any other kind of revenue and includes any land held on any of the tenures specified in the first schedule. " Turning to the first schedule we find that Item 35 mentions Pasaita. We may also point out at once that there are no limiting words attached to this item so as to require that it covers a pasaita from the State only and not from a jagirdar. In cause (g) of the same section the term jagirdar has been defined as "any person recognised as a jagirdar under any existing Jagir Law and includes a grantee of jagir land from a jagirdar. " We wish to draw special attention to the inclusive part of this definition which expressly covers the case of a grantee from a jagirdar - of course in respect of his jagir land. The inference is clear that the word "jagirdar" includes a sub-grantee from him. The most important provision in this connection is obtained in sec. 4, the material portion whereof reads as follows: "all lands liable to pay land revenue - Notwithstanding anything contained in any existing jagir law or any other law, all jagir lands shall, as from the commencement of this Act, be liable to payment of land revenue to the Government; and as from such commencement, the liability of - (a) all Jagirdars to pay tribute to the Government under any existing Jagir Law shall cease, and (b) any grantee of jagir land from a Jagirdar to pay any sum to the Jagirdar in respect of such grant shall likewise cease. " This section makes it quite clear that so far as the grantees of jagir land from a jagirdar are concerned, they would not be required after the commencement of the Act to pay any sum to the holder of the present jagir in respect of the grant and a direct relationship is established between him and the State. This changed relationship, in our opinion, between the jagirdar and the sub-proprietor on the one hand and the sub proprietor and the State on the other is an irrefutable indication on the part of the legislature that after the Rajasthan Act came into force, such sub proprietors would no longer be subordinate holders under the principal estate but would have an independent existence by themselves. Putting the whole thing tersely we may say that these grantees from the jagirdars have been invested with the status of a jagirdar for purposes of resumption under the Rajasthan Act. Then follow secs. 5, 6 and 7 which provide that the land revenue payable in respect of the jagir lands of every jagirdar shall be assessed by the Collector in accordance with the principles laid down in secs. 6 and 7, and under these latter sections, the rental income of the present estate is evidently calculated by excluding the lands held by the grantees from the jagirdar. We may also in this connection refer to explanation to clause (b) of sec. 8 which lays down that for the purpose of calculating the amount of land revenue payable by a jagirdar in respect of his jagir land for the years 1952-53 to 1956-57, the amount of tribute payable by a jagirdar to the Government for the agricultural year 1950-51 shall be deemed to be the amount of any tribute less the amount of any tribute payable to such jagirdar by any person to whom the jagirdar may have granted any of his jagir lands. The effect of this provision is that in assessing the land revenue payable by a jagirdar to the State for the years in question the amount of any tribute payable to the jagirdar by a grantee from him must be excluded, and this was obviously provided because such grantees soon after the Rajasthan Act came into force were under a liability to pay land revenue on the portion of the estate held by them direct to the Government and not to the jagirdar. From a discussion of the aforesaid provisions, the conclusion that irresistibly emerges is that grantees of jagir land from a jagirdar such as "chhutbhaies" or "pasaitedars" or other persons mentioned in the first schedule of the Rajasthan Act, to all intents and purposes, are invested with the status of a jagirdar under the Act and stand in direct relationship with the State immediately after the coming into operation of the Rajasthan Act. We may further point out that this position is not and cannot be held to be affected in any way by the provisions contained in the Marwar Act (or for that matter any other Act) to which we have already made reference in the foregoing part of our judgment. We next turn to the sections dealing with the resumption of jagirs in the Rajasthan Act. The relevant portion of sec. 21 runs as follows: Resumption of jagir lands - (a) As soon as may be after the commoncement of this Act, the Government may, by notification in the Rajasthan Gazette, appoint a date for the resumption of any class of jagir lands and different dates may be appointed for different classes of jagirs lands. This section clearly must be read in the light of the definition of the expression "jagir land" and "jagirdar" which we have discussed above, and it is of course open to the Government to resume any class of jagir lands (subject to the provisions of sec. 20 with which we are not concerned) including those held by grantees from jagirdars by a proper notification in the State Gazette appointing a date for the resumption thereof. It is under this section that the State has from time to time ordered the resumption of jagir lands of the annual income of Rs. 1,000/- or over. From what we have stated above, however, it is clear that the lands held by grantees from jagirdars are also jagir lands and their holders are jagirdars as separate entities and, further, the resumption of such lands where the value thereof is below Rs. 1,000/- per annum cannot automatically arise simply because the principal estates out of which such grants were made already stand resumed being of higher annual incomes. We are categorically of the opinion that in accordance with the scheme of the Act, which we have already discussed, in some detail, a separate notification under sec. 21 for resumption of the class of jagir lands of the annual value involved is necessary as condition precedent to the resumption of such jagirs, and if the value of any such jagir is found to be below the class of jagir lands which have been ordered to be resumed so far, the invitable conclusion is that such resumption his been without proper sanction and must be held to be improper. On behalf of the State, our attention was invited to sec. 22 in this chapter and in particular to clauses (a) and (b) thereof. It was contended that the general effect of these provisions is to cease and determine with effect from the date of resumption the rights, titles and interests of a jagirdar or every other person claiming through him or every right, title and interest created by him or by his predecessor-in-interest in respect of the jagir lands, and the argument was sought to be advanced that being so, the interests of the subordinate grantees from the jagirdar could no longer survive the resumption of the parent jagirdar's own estate. We are unable to accede to this argument because the provisions of sec. 22 must be read in harmony with the other provisions of the Act to which we have invited attention above, and further the introductory part of this section itself provides that the consequences of resumption shall be as mentioned in clauses (a) to (i) of sub section (1) notwithstanding anything contained in any existing jagir, but subject to the other provisions contained in the Act. A discussion of these other provisions, in our opinion, clearly indicates that the grantees from a jagirdar occupy a status on par with the jagirdar himself for the purposes of the Rajasthan Act. It must follow, therefore, that they must be treated on the same footing as the principal jagirdars and the same procedure must be followed for the resumption of such jagirs under sec. 21 as in the case of principal jagirdars, as understood in common parlance. We may also point out in this connection that there is nothing in sec. 26 which conflicts with the conclusion at which we have arrived. All that that section enacts is that the Government shall be liable subject of course to the other provisions of the Act to pay to every jagirdar whose jagir lands have been resumed under sec. 21 such compensation as shall be determined in accordance with the principles laid down in the first schedule. The word 'jagirdar' in this section must include a grantee of jagir land from the principal jagirdar in accordance with the definition in clause (g) of sec. 2. The result is that such grantees will be entitled to compensation in respect of the jagir lands held by them in their own right in accordance with the scheme of the Act. To us, this appears to be eminently just and proper because if that were no so, there would be interminable disputes in the matter of compensation between the principal jagirdar and the grantees from him and the odds would be heavy indeed against the latter getting a fair deal. The only other section to which our attention was drawn by the learned Deputy Government Advocate in support of his case was sec. 37. That section is in these terms: - "questions of title: - If, during the course of an enquiry by the jagir commissioner, any question arises relating to a title to any jagir land resumed under sec. 21 or any right or interest therein and such question has not already been determined by the Government the jagir commissioner shall proceed, to enquire into the merits of such question and refer the matter for decision to the Government whose order thereon shall be final. " We are of opinion that this section has no relevance to the determination of the question which has been canvassed before us. All it says is that if any question of title arises with respect to a jagir which has been resumed under sec. 21, the Jagir Commissioner shall inquire into such question if it has not already been determined by the Government and submit it after inquiry to the Government whose decision shall be final. We fail to see how a question of compensation per se where there is no dispute relating to title between a parent jagirdar and his 'chhutbhais' or any other grantee from him could fall within the four corners of sec. 37. Consequently, we are definitely of the opinion that there is nothing in sec. 37 which negatives the conclusion at which we have arrived above, namely, that a grantee from a jagirdar for purposes of resumption of his jagir lands and compensation therefor under the Rajasthan Act stands on an independent footing like the jagirdar himself and this is his correct position in law under the said Act whatever his position otherwise might have been before the Rajasthan Act came into force. In this view of the matter, we hold that the resumption of the petitioner's pasaita jagir in village Kuchaman of an annual income of Rs. 477/10/- is illegal and of no effect.
(3.) WE accordingly allow this application and hereby restrain the opposite parties from giving effect to the order of resumption passed on the ground that the jagir in question was resumed along with the jagir of thikana Kuchaman. WE also restrain the opposite parties from recovering any bigodi from the petitioner. This order will of course not stand in the way of the State resuming the jagir according 10 law by a valid notification under sec. 21 of the Rajasthan Act. The petitioner will be entitled to receive his costs of this application from the State. .;