J. S. VERMA, C. J. - (1.) THIS appeal is against the common judgment of a learned Single Judge in a bunch of writ petitions by which the writ petitions were partly allowed. The common judgment is Kumari Jani Bai v. State of Rajasthan and others (1 ). The State has preferred appeals against the relief granted in the writ petitions while the petitioners have preferred appeals against refusal of remaining reliefs. One similar writ petition has also been connected with these matters. All these matters are, therefore, disposed of by this common judgment.
(2.) AT the hearing of the above matters only two points were raised. We shall mention these points before stating the material facts and the statutory provisions on which these points arise. The first point relates to the validity - of the expression "since before 1st day of April 1955" occurring in Rule 7 (2) and Rule 2 (XV) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Rajasthan. Canal Colony Area) Rules, 1975 which has been struck down as violative of Article 14 of the Constitution by the learned Single Judge. The other point relates to the construction of Rule 4 (4) and Rule 13 (5) (b)of the 1975 Rules relating to which petitioner's contention has been rejected. The State of Rajasthan has preferred appeals against the decision of the learned Single Judge striking down as invalid a part of Rules 7 (2) and 2 (XV ). The petitioners have preferred appeals against rejection of their con-tention relating to Rules 4 (4) and 13 (5) (b ). The only material fact common to all these matters is that petitioners claim allotment of land under the provisions of the aforesaid 1975 Rules not only for the adult son under Rule 13 (5) (b) but also for the adult daughter who is otherwise equally eligible like the adult son for allotment of the land. The eligibility in Rule 7 (2) and Rule 2 (XV) with reference to 1st April, 1955 is challenged as arbitrary classification. The back ground in which the Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules, 1975 (hereinafter referred to as 'the 1975 Rules') came to be made is detailed in the judgment of the learned Single Judge in Janibai's case (supra ). We shall, therefore, refer only to the salient features for ready reference. It may be mentioned that the earlier set of Rules framed on the subject were struck down by the Supreme Court in Jaila Singh vs. State of Rajasthan (2) and thereafter these 1975 Rules came to be framed. These Rules are framed under the Rajasthan Colonisation Act, 1954 (for brevity 'the Act') which was enacted to make better provision for the colonisation and administration of lands. Section 7 of the Act enables the State Government to grant land in a colony to any person on such conditions as may be prescribed. The State Government is also empowered to issue a statement of the conditions on which it is willing to grant land in a colony to tenants. The remaining part of the section provides for allotment of land by the Collector subject to the control of the State Government and subject, to the conditions contained in the statement issued by the State Government. Section 28 of the Act contains the general power of the State Government to make Rules by issue of notification for the purposes of the Act and in particular for all matters which are required by the Act to be prescribed thereunder. Section 29 requires every Rule made and every state-ment of conditions or notification issued by the State Government under any provision of this Act to be laid before the house of the State Legislature which has power to rescind or modify the same. This is how the ultimate power of control is retained with the State Legislature under section 29 of the Act. The Rajasthan Colonisation (Allotment and Sale of Government Land in the Rajasthan Canal Colony Area) Rules, 1975 have been made by the State Government in exercise of the powers conferred by Section 7 read with section 28 of the Rajasthan Colonisation Act, 1954 for allotment and sale of govern-ment land in the Rajasthan Canal Colony Area after a part of the 1971 Rules were held to be discriminatory and, therefore, violative of Article 14 of the Constitution by the Supreme Court in Jaila Singh's case (supra ). These Rules prescribe the procedure for allotment of land to eligible person. Rule 2 contains the definitions. Rules 3 repeals the earlier 1971 Rules. Rule 4 provides for disposal of pending applications Rule 5 enumerates the person eligible for allotment of government land and the extent of allotment to each of them. Rule 5-A prescribes the disqualification. Rule 6 provides for reservation of land for allotment to each category of eligible persons. Rule 7 prescribes the priorities for allotment. Rule 10 provides for making an application for allotment. Rule 11 deals with enquiry and report on applications. Rules 8 and 9 relate to procedure. Rules 12 and 12-A deal with allotment to agricultural graduates and ex-service men. Rule 13 deals with the allotment of land to other category of persons. Rule 13-A deals with special allotment. The remaining Rules deal with ancillary matters including provision for appeal and revision. It is not necessary to refer in detail to the remaining provisions contained in these Rules. We shall now quote these Rules which are relevant for decision of the point involved. These are as under: "2 (XVII) 'temporary Cultivation lease holder' means a person who is resident of Rajasthan and who has been a bonafide agriculturist by profession and to whom land was granted, in the Rajasthan Canal Colony area on a valid temporary lease under the Rajasthan Colonisation (Temporary Cultivation Lease) Conditions, 1956 or to whom land is deemed to have been let out temporarily in such area by virtue of the provisions of any law for the time being in force and who is validly recorded as a Ghair Khatedar tenant or as a temporary lease holder in respect thereof in the land records including in the relevant revenue records of the former Jagirdars, in case of resumed Jagirs; and who despite the determination of his temporary lease is continuously holding over such land by payment and acceptance of rent and is cultivating it personally upto the extension of these rules to any area of the Rajasthan Canal Colony: 4. Disposal of pending applications:- (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) While deciding an application in the case of a temporary cultivation lease holder under sub-rule (3), if the allotting authority finds that an adult son of such lease holder is otherwise eligible for allotment of land under these rules, he shall serve a notice providing an opportunity to such adult son for presenting an application for allotment of land as a landless person within a period of 30 days from the date of service of such notice and if the adult son presents an application in pursuance of such notice, the same shall be heard and decided in accordance with the provisions of these rules. 5. Eligibility and Extent of Allotment.- (1) The following persons shall be eligible for allotment of Government land for agricultural purposes under these rules, namely:- (i) Ex-service men, (ii) Temporary Cultivation lease holders, (iii) Agricultural graduates, (iv) Landless persons, and (v) Bhakra Landless persons. (2) Each such persons may be allotted government land upto 25 bighas (6. 32 hectares); Provided that if such person holds any land any where in India, he will be allotted only so much Government land as together with his existing holding does not exceed 25 bighas; Provided further that if such person is eligible for allotment of small patch, such small patch shall be allotted to him only if it is available adjacent to his existing holding. xxx xxx xxx 13. Allotment of Land to other category of persons.- (1) All allotment of Government land other than those specified in rule 12 shall be made by Allotting Authority in consultation with an Advisory Committee consisting of: XXX XXX XXX (5) Subject to the availability of land, the Allotting Authority shall, after consulting the Advisory Committee, make reservations-wise allotment of Government land to persons mentioned in the list referred to in sub-rule (4) out of the land entered in the list prepared under sub-rule (3) of rule 8. In doing so, except where any Government land has been reserved for any specific purpose or class of persons under sub-rules (2) to (4) of rule 6, the Allotting Authority shall act in the following manner, namely :- (a) A temporary cultivation lease holder shall be allotted land to the extent to which he is eligible under these rules out of the land comprised in his temporary cultivation lease: Provided that if such lease holder holds such lease land less than 25 bighas, he will seek allotment as a landless person for the balance of land to make up the deficiency in the extent of land to which he is eligible along with other landless persons of the same priority in the manner provided in clauses (c) and (d ). (b) Where an adult son of a temporary cultivation lease holder is eligible for allotment of government land under these rules and if after allotment of land to his father there remains any surplus land out of the land comprised in the temporary cultivation lease of the father, such surplus land may be allotted to the adult son to the extent to which he is eligible. In case, there are more than one such adult son, such surplus land shall be equally allotted between them as co-tenants. The remaining land to which such adult son may be eligible under these rules will be allotted to him along with other eligible persons of the same priority to which he belongs and in the manner provided in clauses (c) and (d ). (c) If a landless person holds or is allotted any land adjacent to the Government land available for allotment, the allotment shall be made to him out of such Government land to the extent available; (d) In case a landless person does not hold any land as mentioned in clause (c) or after allotment of land to him under the said clause he still remains eligible for more land, the allotment of land or more land, as the case may be, shall be made by drawing lots strictly according to the order of priority of landless persons specified in rule 7 and the lots shall be drawn in the manner as may be directed by the Colonisation Commissioner, Provided that allotment of any Johar Paitan land shall not be, made without he prior approval of the State Government; xxx xxx xxx (9) If a temporary cultivation lease holder fails to apply for allotment of land under these rules or if his application for allotment for any land or part thereof is rejected by the Allotting Authority, his temporary cultivation lease in respect of such land or part thereof shall stand terminated on the expiry of the date upto which the application for allotment could be made or on the dale his application for such allotment is rejected, as the case may be, and the Government land covered by such lease shall revert to the State Government free from all encumbrances and he shall be liable to be ejected from such land in accordance with any law for the time being in force. " We shall first deal with the point raised in the State appeals relating to the validity of a part of Rules 7 (2) and 2 (xv ).
(3.) IT has been held by the learned Single Judge that this requirement of possessing necessary qualification 'since before the first day of April 1955' to satisfy the requirement of the definition of 'resident of Rajasthan" is arbitrary and, therefore, invalid. IT has also been held that this part in both these provisions wherein an arbitrary date is specified, is severable from the remaining part and, therefore, the words prescribing first day of April 1955 as the qualifying date have been struck down as invalid. Learned Additional Advocate General who appeared on behalf of the State in the State Appeals, was unable to show us any infirmity either in this conclusion of the learned Single Judge or the reason on which that conclusion is based. There is thus, no occasion for us to take a different view on this point. The State appeals challenging the judgment of the learned Single Judge to this extent alone, are therefore, dismissed. We shall now consider the appeals of the petitioners and the connected writ petition. Two points have been raised in these matters before us. The first point is that section 7 (2) and section 28 of the Act amount to abdication of legislative power which render it invalid. ;