# ·THAKUR AMAR SINGHJI v. STATE OF RAJASTHAN

- **Citation:** [1955] 2 S.C.R. 303
- **Court:** Supreme Court of India
- **Decided:** 1952-02-08
- **Bench:** MUKHERJEA c. ], s. R. DAS, Bhagwati, Venkatarama Ayyar, ]Afer Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-amar-singhji-v-state-of-rajasthan-1495
- **Pages:** 72

## Headnote

Rajasthan Land Reforms and Resumption of /agirs Act (Rajasthan Act VI of 1952)-Validity-Rajpramukh-Competence to enact
the law-Covenant of the United State of Rafasthan, arts. Vil (3), X
(3)-"0rdinance", meaning of-Bill, whether prepared by the Rafpramukh as required by the Constitution-Resumption of jagir lands
-Legislative competence-Pith and substance of legislation-Acquisition
or resumption-/agir, meaning of-Legislative practice-Implied grant-Legislative ,grants-Constitutions of India, Arts. 14,
31-A, 31(2), 212-A(2), 385, Sch. Vil, List II, entries 18, 36-Marwar Land Revenue Act (XL of 1949), s. 169-Mewar Governmenl
Kanoon
Mal
Act (V of 1947), s. 106-Bhomicharas, Bhomias
Tikanadars, Subeguzars, Marsubdars holders of other tenures.
The Bill which came to be enacted as the Rajasthan Land Reforms and Resumption of Jagirs Act was prepared in the Ministerial
Department of the Government of Rajasthan. It was approved by the
Rajpramukh on 8-2-1952, and reserved for the consideration of the
President, who gave his assent to it on 13-2-1952.
By notification issued
on 16-2-1952, the Act came into force on 18-2-1952. In
pursuance of s. 21 ( 1) of the Act, the State of Rajasthan issued notifications
resuming the jagirs specified therein, whereupon petitions
under Art.
226 of the Constitution were filed
by the persons
aggrieved challenging the validity of the Act before the Rajasthan
High Court. The petitions were dismissed and thereupon they filed
petitions before the Supreme Court under Art. 32 of the Constitution
of India, impugning the Act.
They contended inter alia that the
Rajpramukh had no competence to enact the law that the Bill was
not prepared by the Rajpramukh as required by Art. 212-A(2), that
resumption was not one of the topics of legislation enumerated either
in the State List or in the Concurrent List in the Seventh Schedule
of the Constitution and that the Act was therefore ultra vires the
powers of the State, that the Act did not provide for ad~quate compensation nor was there any public purpose involved in it and
therefore it contravened Art. 31(2), and that as the Act was discriminatory it contravened Art. 14. There were some special contentions
that the Act was not saved by Art. 31-A, because the lands resumed
were neither estates nor jagirs nor grants similar to jagirs, inams or
muafi and that some of the properties sought to be resumed were
not jagirs as defined in the Act and therefore the notifications
under s. 21 of the Act in so far as they related to them were illegal.
1955
TAal;ur AMM
Sinf/fii
"·
,,.,, of /IJj<UtMn
304
SUPREME COURT REPORTS
[1955]
Held that, (i) the Rajpramukh was competent to enact the im·
pugned law (under Art. 385 as
he was the authority functioning
immediately before the commencement of the Constitution as the
legislature of Rajasthan under art. X (3) of the Covenant of the
United State of Rajasthan. The expression "Ordinance" in art. X
(3) must be construed as meaning "Law".
Article VII (3) of the
Covenant has reference to the executive power which the Rulers had
to resume jagirs and does not operate as a restric_tion on the legisla·
tive powers under art. X (3).
The Legislature of the corresponding
State mentioned in Art. 385 refers not to the legislature under the
Constitution, but to the body or the authority which was function·
ing as the legislature of the State before the commencement of the
Constitution and under Art. X (3) of the Covenant of the United
State of Rajasthan, that authority was the Rajpramukh.
Article 385 does not require that that authority should have had
absolute and unlimited powers of legislation. If it was functioning as
the legislative authority before the Constitution, it would, under the
article, have all the powers conferred by the Constitution on the
House or Houses of legislature of the States.
(ii) Article 212·A(2) which provides that the Rajpramukh should
prepare the Bill, does not require that he should himself draft it. It
is sufficient if he dec

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'
Ii
2 S.C.R.
SUPREME COURT REPORTS
·THAKUR AMAR SINGHJI
v.
STATE OF RAJASTHAN
(AND OTHER PETITIONS)
303
[MUKHERJEA c. ]., s. R. DAS, BHAGWATI, VENKATARAMA AYYAR AND ]AFER IMAM JJ.]
Rajasthan Land Reforms and Resumption of /agirs Act (Rajasthan Act VI of 1952)-Validity-Rajpramukh-Competence to enact
the law-Covenant of the United State of Rafasthan, arts. Vil (3), X
(3)-"0rdinance", meaning of-Bill, whether prepared by the Rafpramukh as required by the Constitution-Resumption of jagir lands
-Legislative competence-Pith and substance of legislation-Acquisition
or resumption-/agir, meaning of-Legislative practice-Implied grant-Legislative ,grants-Constitutions of India, Arts. 14,
31-A, 31(2), 212-A(2), 385, Sch. Vil, List II, entries 18, 36-Marwar Land Revenue Act (XL of 1949), s. 169-Mewar Governmenl
Kanoon
Mal
Act (V of 1947), s. 106-Bhomicharas, Bhomias
Tikanadars, Subeguzars, Marsubdars holders of other tenures.
The Bill which came to be enacted as the Rajasthan Land Reforms and Resumption of Jagirs Act was prepared in the Ministerial
Department of the Government of Rajasthan. It was approved by the
Rajpramukh on 8-2-1952, and reserved for the consideration of the
President, who gave his assent to it on 13-2-1952.
By notification issued
on 16-2-1952, the Act came into force on 18-2-1952. In
pursuance of s. 21 ( 1) of the Act, the State of Rajasthan issued notifications
resuming the jagirs specified therein, whereupon petitions
under Art.
226 of the Constitution were filed
by the persons
aggrieved challenging the validity of the Act before the Rajasthan
High Court. The petitions were dismissed and thereupon they filed
petitions before the Supreme Court under Art. 32 of the Constitution
of India, impugning the Act.
They contended inter alia that the
Rajpramukh had no competence to enact the law that the Bill was
not prepared by the Rajpramukh as required by Art. 212-A(2), that
resumption was not one of the topics of legislation enumerated either
in the State List or in the Concurrent List in the Seventh Schedule
of the Constitution and that the Act was therefore ultra vires the
powers of the State, that the Act did not provide for ad~quate compensation nor was there any public purpose involved in it and
therefore it contravened Art. 31(2), and that as the Act was discriminatory it contravened Art. 14. There were some special contentions
that the Act was not saved by Art. 31-A, because the lands resumed
were neither estates nor jagirs nor grants similar to jagirs, inams or
muafi and that some of the properties sought to be resumed were
not jagirs as defined in the Act and therefore the notifications
under s. 21 of the Act in so far as they related to them were illegal.
1955
TAal;ur AMM
Sinf/fii
"·
,,.,, of /IJj<UtMn
304
SUPREME COURT REPORTS
[1955]
Held that, (i) the Rajpramukh was competent to enact the im·
pugned law (under Art. 385 as
he was the authority functioning
immediately before the commencement of the Constitution as the
legislature of Rajasthan under art. X (3) of the Covenant of the
United State of Rajasthan. The expression "Ordinance" in art. X
(3) must be construed as meaning "Law".
Article VII (3) of the
Covenant has reference to the executive power which the Rulers had
to resume jagirs and does not operate as a restric_tion on the legisla·
tive powers under art. X (3).
The Legislature of the corresponding
State mentioned in Art. 385 refers not to the legislature under the
Constitution, but to the body or the authority which was function·
ing as the legislature of the State before the commencement of the
Constitution and under Art. X (3) of the Covenant of the United
State of Rajasthan, that authority was the Rajpramukh.
Article 385 does not require that that authority should have had
absolute and unlimited powers of legislation. If it was functioning as
the legislative authority before the Constitution, it would, under the
article, have all the powers conferred by the Constitution on the
House or Houses of legislature of the States.
(ii) Article 212·A(2) which provides that the Rajpramukh should
prepare the Bill, does not require that he should himself draft it. It
is sufficient if he decides questions of policy which arc of the essence
of the legislation. It is open to the Rajpramukh to adopt a Bill prepared by his ministers and the only matter that will have to be considered is whether in fact he did so. There is no provision in Art.
212-A(2) for the Rajpramukh approving of a Bill and an endorsement of approval on the Bill prepared in the ministerial department
mu.<t therefore signify its adoption by him. When the Bill is produced with an endorsement of approval under his signature the
que<tion must be held to be concluded and any further discussion
about the legislative or executive state of mind of the Rajpramukh
must be ruled out as inadmissible.
(iii) The impugned Act is not ultra vires the powers of the
State Legislature as the subject-matter of the legislation is in subs.-
tance acquisition of properties falling under entry 36 of List II of
the Seventh Schedule. Resumption and acquisition connote two
different concepts, but whether the impugned Act is one for acquisition of jagirs or for their resumption must be determined with reference to the pith and substance of the legislation, the name given
to it by the legislature not being decisive of the matter. The resumption for
which the Act provides is not in enforcement of the rights
which the Rulers had to resume jagirs in accordance with the terms
of the grant or the law applicable to it, but in exercise of the sovereign rights of eminent domain possessed by the State. Under the
circumstances, the taking of the properties is in substance acquisition notwithstanding that it is labelled as resumption.
The payment of compensation to the Jagirdars is consistent
only
with the taking being an acquisition and not resumption in
2 S.C.R.
SUPREME COURT REPORTS
305
accordance with the terms of the grant or the law applicable to it.
Though the legislation also falls under entry 18 of List II of the
Seventh Sched1de, there being an entry 36 dealing with acquisition,
it must be held that· the Act falls under that entry and is valid.
(iv) The word 'jagir' connoted originally grants made by Raj put
Rulers to their clansmen for military services rendered or to
be
rendered.
Later on grants made for religious and charitable purposes and even to non-Rajputs were called jagirs, and both in its
popular sense and legislative practice, the word jagir came to be used
as connoting all grants which conferred on the grantees rights in
respect of land revenue, and that is the sense in which the word
jagir should be construed in Art. 31-A.
The object of Art. 31-A as
to save legislation which
was
directed to the abolition of intermediaries so as to establish direct
relationship between the State and the tillers of the soil. Construing
the word in that sense which would achieve that object in full
measure, it must be held that jagir was meant to cover all grants
under which the grantec!s had only rights in respect of revenue and
were
not tillers of the soil. Maintenance grants in favour of persons
who were not cultivators such as members of the ruling family would
be jagirs for purposes of Art. 31-A.
( v) Bhomicharas. The Bhomicharas arc the representatives of
Rajput Rulers who conquered the country and established their
sovereignty over it in the thirteenth century. Later on the Ruler
of Jodhpur imposed his oovereignty over the territory but permitted
the previous rulers to continue in possession of the lands on
payment of an annual sum.
The question was whether they held the
lands as jagirs.
Held that, there could be a jagir only by grant by the Ruling power but that such a grant need not be express, and could be
implied and when the Ruler of Jodhpur imposed his sovereignty
over the territory of the Bhomicharas but recognised their possession
of the lands, it is as if there was annexation by him and re-grant
to them of these lands.
Vajesinghji /oravar Singhji and Others v. Secretary of State
[ (1924) L.R. 51 I.A. 357] and Secretary of State v. Sardar Rustam
KhatJ [(1941) L.R. 68 I.A. 109], referred to.
Though the Bhomicharas enjoyed large powers, their status was
only that of subjects. The status of a person must be either that of
a sovereign or a subject. There
is no tertium quid. The law does
not recognise an intermediate status of a person being partly a sovereign and partly a subject. And when once it is admitted that the
Bhomicharas had acknowledged the sovereignty of Jodhpur their
status can only be that of a subject.
Even if the Bhomicharas did not prior to the enactment of the
Marwar Land Revenue Act XL of 1949 hold the lands as grantees
1955
TMkwASingfiii
...
Slcll of RajiutMll
1955
Tiullalr Amar
Singhji
v.
' of Rajasthan
306
SUPREME COURT REPORTS
[1955]
from the State, they must be deemed to have become such grantees
by force of s. 169 of the Act which provides that all lands in the
State vest in· the
Maharajah and all proprietary interests therein are
deemed to be held under a grant from him. The Bhomicharas had
by long usage and recognition and by the legislative practice of the
State come tO be recognised as jagirdars and their tenure is a jagir
within the intendment of s. 169.
For the purposes of Art. 31-A, it would make no difference
whether the grant is made by the sovereign in the exercise of his
prerogative right or by the legislature in the exercise of its sovereign
rights. Grants
whi~h are the creatures of statutes called legislative
grants are equally within the operation of that article.
Bhomicharas are,
accordingly, within the operation of Art.
31-A.
(vi) The position of Bhumias in Mewar is similar to that of
Bhomicharas in Marwar and in addition it was a condition of the
terms on which their title to the lands was recognised by the rulers
of Chittoor and Udaipur, that they had to render military service
when called upon and also pay quit rent. Their title to the lands
therefore rested on an implied grant and their tenure would be jagir
even in its stricter sense.
Section 27 of the Mewar Government Kanoon Mal Act {V of
1947) enacts that all lands belong to His Highness and that no person
has authority to
take possession
of any lands unless the right is
granted by His Highness.
Section 106( I) of the Act declares that
a "Tikanadar, Jagir<lar,
Muafidar or Bhumia shall have all such
revenue rights in the lands comprised in his )agir, muafi, or Bhom
under this Act, as are granted to him by His Highness". The effect
of these provisions \Vas to impress on the Bhom tenure the characteristics of a grant.
Article 13, Clause (1) of the Constitution of Mewar provided
that,
"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".
It was contended
for the petitioners that the impugned Act was void as contravening
the above
provisions. Held that, as the authority whirh enacted
the Constitution of Mewar was His Highness, it could be repealed
or modified by the same authority, and the impugned Act must be
held to have repealed the Constitution to the extent that it was inconsistent with it.
(vii) The Tikanadars of Shekwati got into possession of lands
as ijaradars or lessees and were
subsequently treated as jagirdars~
Their tenure was; if not jagirs, at least other usimilar grants" within
Art. 31-A. It is included in Schedule I to the impugned Act as
item 6.
The nature of the tenures of lands held by Subeguzars, Mansubdars, maintenance holders (Lawazma and Kothrikarch), Tikanadars
and of Naqdirazan, Sansan grants, etc., considered.
2 S.C.R.
SUPREME COURT REPORTS
307
(viii) The Khandela estate was granted in 1836 on a permanent
lease.
The definition of jagir in s. 2(h) includes the tenures mentioned in Schedule I to the Act and Istimrari tenure is item 2 therein. The question was whether the Istimrar-ijara was within item 2.
Held that, the essential features of lstimrari .tenure are that the
lands are assessed to a nominal quit rent, and that it is permanent.
The amount of Rs. 80,001 fixed as assessment under the deed of
1836 cannot be said to be nominal. The grant is, therefore, not an
Istimrari tenure, but a permanent Izara.
{ix) Objections raised as to the validity of the Act on the
ground that it did not provide for payment of compensation, that
there was no public purpose involved in the resumption and that
therefore it contravenes Art. 31(2) or that the provisions of the Act
offend Art.
14, are barred by the provisions of Art. 31-A of the
ConstitutW,n.
Even apart from Art . .31-A, the impugned Act must be held to
be supported by public purpose and is not in contravention of Art.
31(2). Nor is there a contravention of Art. 14, as under the Act all
jagirs are liable to be resumed, on power having been conferred on
the Government to grant exemption.
State of Bihar v. Maharaiadhiraia Sir Ka"!_eshwar Singh of
Darbhanga and Others [(1952) S.C.R. 889] and Biswambhar Singh v.
The State of Orissa and Others ((1954) S.C.R. 842], referred to.
The true scope of the rule of eiusdem generis is that words of a
general nature following specific and particular words
should
be
construed as limited to things which are of the same nature as those
specified and not its reverse, that specific words which precede are
controlled by the general words which follow.
ORIGINAL
JURISDICTION :
Petitions
Nos.
354
to
359, 362, 370 to 385, 387 to 469, 471
to 475,
477 to
479, 482 to 486, 488, 490, 491, 493 to 497, 502, 503,
510, 511 to 521, 525, 527 to 529, 535 to 563, 570, 572
to 575, 577 to 584, 586 to 588, 592 to 595, 597, 600
602, 603, 606 to 610, 613 to 619, 624, 026 to 634, 637
to 645,
653,
654, 656 to 659, 661, 662, 668, 672, 675,
679, 684 to 688 of 1954 and 1 to 14, 17, 20, 21, 25 to
27, 35 to "37, 45, 47, 49 52, 55 to 57 and 61 to 66 of
1955.
Petitions under Article 32 of the
Constitution
for the enforcement of fundamental rights.
Dr. Bakshi Tek Chand (O· C. Chatterjee
and
K. L. Mehta, with him) for the Petitioners in
Petitions Nos. 354, 362, 382 to 385, 511 to 516, 519, 537,
1955
Thakur Amar
Singhji
v.
Slall of Rajasthan
1955
TM.twA.-
Silqlfji
...
Sia# qf &,jlulMa
308
SUPREME COURT REPORTS
[1955]
541, 543 to 547, 550, 553, 556, 558 to 562, 570, 573 to
575, 582 to 584, 587, 588, 593 to 595, 597, 602, 603,
607 to 609, 613, 614, 616 to 619, 626, 628, 631 to 633,
637, 640 to 642, '44, 645, 653, 657 to 659, 661, 662,
679, 684 to 688 of 1954 and 2 to 7, 9 to 14, 21, 25
to 27, 35, 37, 45, 47, 49, 52, 55, 57, 63 and 65
of
1955.
H. L. Mordia and K. L. Mehta, for the Petitioners
in Petitions Nos. 55 and 65 of 1955.
Frank Anthony and K. L. Mehta, for the Petitioners in Petitions Nos. 56 and 64 of 1955.
U. M. Trivedi, (K. L. Mehta, with him),- for the
Petitioners in Petitions Nos. 615 of 1954
~d 20 of
1955.
R. K. Rastogi and K. L. Mehta, for the Petitioner in Petition No. 634 of 1954.
K. L. Mehta, for the Petitioner in Petition No.
36 of 1955.
Dr. Bakshi Tek Chand (0. C.
Chatterjee and
Naunit Lal, with him), for the Petitioners in Petitions
Nos. 356 to 359, 370, 372, 373, 374, 376 to 378, 380,
389, 390, 393 to 400, 415, 417, 463, 469, 482, 484, 521,
563, 577, 578, 586, 592, 606, 610, 627 and 656 of 1954.
Achhru Ram, (Naunit Lal, with him) for the Petitioner in Petition No. 391 of 1954.
Naunit Lal, for the Petitioners in Petitions Nos.
355, 371, 375, 379, 416, 455, 468, 483, 485, 488, 491,
493 to 497, 517, 525, 529, 538, 540, 542 and 551
of
1954.
Dr. Bakshi Tek Chand, (Ganpat Rai with him),
for the Petitioners in Petitions Nos. 381, 387, 388,
402 to 410, 412, 413, 418 to 423, 425, 426, 428
to 454,
456 to 459, 464 to 466, 477, 478, 486, 503, 510, 520,
548, 552, 557, 572, 580, 600, 624, 639, 668 of 1954 and
8 and 17 of 1955.
N. C. Cliatterjee, ( Ganpat Rai and S. K.. Kapur,
2 $.C.R.
SUPREME COURT llEPOR.TS
with him), for the Petitioners in Petitions Nos. 462,
536, 549, 579, 630, 638 and 654 of 1954.
TW.AS'111t/tii
U. M. Trivedi, (Ganpat Rai, with him), for the
St.,, d4i6petitioners in Petitions No. 629, 643, 672 of 1954 and
(J6 of 1955.
Achhru Ram, (Ganpat Rai, with him), for the
Petitioner in Petition No. 424 of 1954.
Frank
Anthony and Ganpat Rai, for the Pctition7rs in
Petitions
Nos.
401, 460,
502,
518,
53'
and 539 of 1954.
S. K. Kapur and Ganpat Rai, for the Petitioners
in Petitions Nos. 411 and 675 of 1954.
R. K. Pastogi and Ganpat Rai, for the Petitioners
in Petitions Nos. 427 and 461 of 1954.
0. C. Chatterji and Ganpat Rai, for the Petitioner
in Petition No. 62 of 1955.
/. B. Dadachanii and Rajinder Narain,
for the
Petitioners in Petitions Nos. 473, 479, 490, 527, ·528,
554 and 581 of 1954 and Nos. 1 and 61 of 1955.
C. L. Aggarwal and Rajinder Narain, for the Petitioners in Petitions Nos. 471, 472, 474 and 475 of
1954.
K. P. Gupta, for the Petitioners, in Petitions Nos.
467 and 555 of 1954.
S. C. ltaacs (S. D. Sekhri, with him), for the
Petitioner in Petition No. 392 of 1954.
K. S. Hajela, Advocate-General for the State of
Rajasthan ·and G. S. Pathak, (Dau/at Ram Bhandari,
Porus A. Mehta, P. G. Gokhale and Kan Singh, with
them), for the Respondent
(State of Rajasthan) in
all the petitions.
.
1955. April 15. The Judgment of the
Court
was delivered by
VENKATARAMA
AYYAit
J.-These are
applications
under Article 32 of the Constitution impugning the
validity of the Rajasthan Land Reforms and Resumption of Jagirs Act No. VI of 1952, hereinafter referred
1955
ThakwASinghji
.,,,
Sl•ll of Rajasllum
Y 111l;ataram11
Apar J.
310
SUPREME COURT REPORTS
[1955]
to as the Act. The history of this legislation may be
briefly stated. On 20-8-1949 the Government of India
appointed a
Committee presided over by Sri C. S .
Venkatachar to examine and report on the
jagirdari
and land tenures in Rajputana and Madhya Bharat
the object avowedly being to effect land reforms so as
to establish direct .relationship between the
State and
the tillers of the soil and to eliminate all intermediaries between them. By its report dated
18-12-1949
the Committee recommended
inter alia
the resumption of j agirs and payment of rehabilitation grants in
certain cases.
(Vide report, page
62).
The question
of legislation on the subject was taken up by the Government of Rajasthan in 1951,
and eventually a Bill
called the Rajasthan
Land
Reforms and
Resumption
of Jagirs Bill was prepared, and on 31-12-1951 it was
approved by the Rajpramukh and reserved for
the
consideration of the President.
On
21-1-1952
the
President withheld his assent from the Bill, and in
communicating this decision,
the Deputy Secretary
to the Government of India informed the Rajasthan
Government that if certain amendments wete made
in the Bill as presented
and
a fresh
Bill submitted,
the President would be willing to reconsider
the
matter. In accordance with these suggestions,
a fresh
Bill was prepared in the Ministerial Department incorporating certain amendments, and it was approved
by the Rajpramukh on 8-2-1952, and reserved for the
consideration of the President, who gave his assent
to it on 13-2-1952. By notification issued on 16-2-1952
the Act
came into force on 18-2-1952.
Section 21(1)
of the Act provides that :
"As soon as may be after the commencement 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 jagir lands".
Acting under this provision, the State of
Rajasthan
issued notifications resuming the jagirs specified therein, whereupon petitions
under Article 226 of the Constitution were filed by the persons aggrieved challenging the validity of the Act. These petitions were
2 S.C.R.
SUPREME COURT REPORTS
311
head by a Full Bench of the Rajasthan High Court,
which held overruling the contentions of the petitioners, that the Act was valid.
(Vide Amarsingh ·· v.
State of Rajasthan (1 ).
The present applications have been filed
under
article 32
impugning the Act on the
following
grounds:
I. The Rajpramukh had no competence
to enact
law, and the Act in question is therefore not a valid
piece of legislation.
II. The Bill
was not prepared
by
the Rajpramukh as required by article 212-A(Z), and therefore
the law was not validly enacted.
III. Resumption is not one of the topics of legislation enumerated either in the State List or in the
Concurrent List in the Seventh Schedule of the Constitution, and the Act is therefore ultra vires the powers
of the State.
IV. The
Act does
not provide for
adequate
compensation; nor is
there any public purpose involved in it, and so it contravenes article 31(2).
It
is
discriminatory,
and
therefore
contravenes
article
14.
And
the
legislation
is
not saved by
article 31-A, because the lands resumed arc neither
estates nor jagirs nor grants similar to jagirs, inams
or muafi.
This contention is special to some of the
petitioners, and has reference to the specific properties
held by them.
V. The properties sought to be resumed arc not
jagirs as defined in the Act, and
the
notifications
under section 21 in so far as they relate to them arc
illegal. This again is a special contention urged in
some of the petitions.
These contentions will now be considered seriatim.
I. On the first question as to the competence of
the Rajpramukh to enact the law, it is necessary to
notice the events which led up to the formation of
the State of Rajasthan and the constitution of the
Rajpramukh as. its head. During the 12th and 13th
Centuries,
the Rajput rulers who were then reigning
( 1) A.I.R. 1854 Rajasthan ~91.
1955
Tlta/wr btlJt
Sing/iii
v.
Stat1 of Rajasthan.
J'mkatarama
""-".1"' J.
•
1955
TlflllatTASingfiji
v.
Slilll of Rqj011/um
Ym.tatMamd
A.UM]·
•
312
SUPREME COURT REPORTS
[1955)
over various parts of Hindusthan were compelled by
pressure from the victorious Muhammadan invaders
to retreat to the regions to the southwest guarded
by
the Aravali Hills and interspersed with deserts which
if less hospitable were also less vulnerable, and there
established several independent kingdoms. The period
which followed
the foundation of these States was
marked by incessant wars, the powerful Sultans of
Delhi making determined efforts
to subjugate the
Rajput princes and
the latter offering stubborn and
more or less successful resistance thereto.
The annals
of Rajputana especially of this period, present a story
of heroic deeds of men and women and are among
the most inspiring and fascinating chapters in
the
history of this country.
The Moghul Emperors who
established themselves
later saw the wisdom of conciliating the Rajput rulers, and recognised their position as Chiefs getting in return an acknowledgement
of their suzerainty from them, and a promise to send
troops in support of
the Imperial arms whenever required.
When the power of the great Moghul waned
and the British established themselves as masters
o£
this country, they in their turn recognised the Rajput
princes as Sovereigns, and entered into treaties with
them during the period between 1803 to 1818.
(Vide
Aitchison's Treaties, Volume III).
By these
treaties,
the British Government accepted their status as independent
rulers reserving to themselves
Defence, External
Relations and Communications and such other
matters as might be agreed upon. The relationship
thus created was one of "subordinate union" as it
was termed by Mr. Lee Warner, the princes being recognised
as Sovereigns
and
they acknowledging
the
suzerainty of the British. (Vide Protected Princes of
India, Chapter VI).
On 15-8-1947 India became independent, and the
paramountcy of the British Crown over the States
ceased.
The question then arose
as to the status of
the ruling Chiefs.
It was soon realised by them that
in the larger interests of the country and in their own,
they could not afford to keep out of the Indian
Union and must throw
ID their lot with it.
The
...
2S.C.R.
SUPREME COURT REPORTS
313
problem of fitting them within the framework of the
Indian Constitution was beset with considerable difficulties. The number of States which had
been recognised as independent prior to 15-8-1947 was
552
excluding Hyderabad, Junagadh and Kashmir. While
a few of
them were sufficiently large to be able to
function as separate State, many of them were too
small to be administered as distinct units. While some
of them had
representative
forms of
Government,
others had not, the rulers being the sole authority,
executive, legislative and judicial. The solution which
was adopted by the Government
of India was that
while the bigger States were continued as independent
units of the Union, the smaller States were, where
they formed islets within a Province, merged within
that Province, and where they were contiguous, integrated together so as to form a new State called the
Union.
One of the Unions thus newly formed was Rajasthan.
There were at that time 18 independent rulers
functioning
over different parts of Rajasthan.
Nine
of
them,
rulers
of
Banswara,
Bundi, Dungarpur
Jhalawar, Kishengarh,
Kotah, Pratapgarh,
Shahpura
and Tonk-entered
into
an agreement in March 1948
merging their States in a single unit called the United
State of Rajasthan.
The
ruler of Mewar joined this
Union on 18-4-1948, and the rulers of Jaipur, Jodhpur, Bikaner and Jaisalmere on 30-3-1949.
The rulers
of Alwar, Bharatpur, Dholpur and Karauli who had
formed themselves on 18-3-1948 as Matsya Union dissolved
that
Union
and acceded
to the
Rajasthan
Union on 15-5-1949. With that, the full strength of
the State of Rajasthan was made up.
The constitution of the United State of Rajasthan
as it finally emerged is to be found in the Covenant
entered into
by the 14 rulers
on 30-3-1949.
As the
authority of the Rajpramukh to enact the impugned
legislation was founded on this Covenant, it is necessary to refer to the material provisions thereof bearing on the question.
Under Article II, the Covenanting States agreed "to unite and integrate their territories in one State with a common executive legisla2-83 S, C. India/59
1955
Thakur Amar
/higkji
v.
Stot1 of Rajasthan
VenlcaJarama
A)'J'ar J.
1955
T /r4l;ur Amat
5U.ghji
v.
State of Rajast/urn
Vmkatardma
A»•r J.
314
SUPREME COURT REPORTS
[1955]
ture and judiciary, by the
name of the United State of
Rajasthan".
Article VI(2) provides that the ruler of
each Covenanting State
shall "make over the administration
of his State to the Rajpramukh, and
thereupon all rights, authority and jurisdiction belonging to the ruler which appertain or are incidental
to the Government
of
the Covenanting States shall
vest in the United State and shall thereafter be exercisable only as provided by this Covenant or by the
Constitution
to be framed thereunder. Article· VII
(3) provides :
"Unless other provision is made by the Act of
the Legislature of the United State, the
right to
resume
J agirs or to recognise
succession, according to law and custom, to the rights and titles of the
jagirdars shall vest exclusively in the Rajpramc:kh".
Them comes article X(3) which is as follows:
"Until a Constitution so framed
comes into operation
after receiving the assent of the Rajpramukh,
the legislative authority of the United State shall
vest
in the Rajpramukh, who
may make
and
promulgate Ordinances for the peace and good Government of the State or any part thereof, and any
Ordinance so ma.de shall have the like force of law as
an Act passed by the legislature of the United State".
Article X(3)
was subsequently modified by substituting for the words "Until a Constitution so framed
comes into operation after receiving the assent of the
Rajpramukh", the words "Until the Legislative
Assembly of Rajasthan has been duly constituted and
summoned to meet for the first session under the
provisions of the Constitution of India". This modifi.
cation was necessitated by the fact that the idea of
conven.ing a Constituent Assembly for framing a Constitution for the State as contemplated in article X(l)
was dropped, and the Constitution as enacted for the
Union of India was adopted. This amendment, however, is of a formal character, and does not affect
the substan~e of the matter.
Then, there is article XIX under which the Rajasthan Government was to act "under the general
control of and comply with such particular directions,
2 S.C.R.
SUPREME COURT REPORTS ·
315
if any, as may from time to time, be given by the
Government of India". These are
the material provisions of the Constitution which was in force in the
United State of Rajasthan before the Constitution of
India came into operation on 26-1-1950.
Article 385 of the Constitution enacts:
"Until the House or Houses of the Legislature of
a State specified in Part B of the First Schedule has
or have been duly constituted and summoned to
meet for the first session under the provisions of this
Constitution,
the
body
or
authority
functioning
immediately before the commencement of this Constitution as the legislature of the corresponding Indian
States shall exercise the powers and perform the
duties conferred by the provisions of this Constitution
on the House or Houses of the Legislature of the
State so specified".
It is
the contention
of the respondent that the
Rajpramukh was
by reason of article X(3) of the
Covenant "the authority
functioning immediately
before the commencement of the Constitution as the
Legislature" of Rajasthan, and that he could under
article 385 exercise the powers which the Legislature
of the State could. It is conceded by the petitioners
that at the time of the impugned legislation no House
of Legislature had been constituted and summoned,
and that to that extent the requirements of that
Article
are satisfied; but their contention is that on a
true construction of
the articles of the Covenant the
Rajpramukh was not an authority
functioning
as
Legislature within
the meaning of article 385, and
further that article VII(3) of the Covenant imposed
a prohibition on his power
to enact a law of the kind
now under challenge, and that the prohibition had
not been abrogated by the Constitution.
The question then is which was the body or authority
which was functioning as the Legislature of the United
State of Rajasthan under
the terms of the Covenant
Article X (3) expressly provides that the legislative
authority of the State shall vest in the Rajpramukh.
The meaning of this provision is clear and unambigu1955
Thakur .ASing/ifi
"·
SlaJ• of Rajulba
Ymkatarama
.War].
1955
Thakur.A.,..,
Singhji
v.
Siok of Rqjastlurn
Y1nkal'11'ama
A>.Par j.
316
SUPREME COURT REPORTS
[1955]
ous; but it is argued for the petitioners that it is controlled and cut down by the expression "Ordinance" in
article X(3) and by the terms of article VII(3) and of
article XIX. It is contended by Mr. N. C. Chatterjee
that the legislative authority of the Rajpramukh
was
only to "make and promulgate Ordinance'', that it is
a limited power conferred on him
to be exercised in
case of emergency
pending the constitution
of popular legislature,
and that
accordingly he was not
a
"legislative
authority"
for
the
purpose
of
article
385.
But this is to import into the word "Ordinance"
what it connotes under the Government of India Act,
1935 or the Constitution of India.
Sections 42 and
88 of the Government of India Act conferred on the
Governor-General
and
the
Governor
respectively
power to promulgate ordinances when the Legislature
was not in session. Similar power is conferred on the
President
and the
Governors by articles 123 and 213
of the Constitution.
That is a legislative power exercisable by the head of the State, when it is not possible for the Legislature to exercise it. But the United
State of Rajasthan had
then no Legislature, which
had yet to be constituted, and therefore in its context,
the word "Ordinance" in article .X(3) cannot bear the
meaning which it has under the Government of India
Act or the Constitution. It should be remembered
that before the formation of the
United
State,
the
. Covenanting
rulers enjoyed sovereign rights of legislation
in their respective territories;
and under
article
VI(2) (a), they agreed to surrender those rights and
vest
them in
the
United State.
It was therefore
plainly intended that the State of Rajasthan
should
have plenary legislative authority such as
was formerly
exercised
by the rulers; and
where was it
lodged, if not in the Rajpramukh
If we are to construe article X(3) in the manner
contended for by the petitioners,
then the anomalom
result
will follow that there
was in that State no
authority
in which the legislative power was
vested.
This anomaly would disappear
if we are to construe
"Ordinance"
as
meaning law.
That
indeed is its
etymological meaning.
According to the Concise Ox-
..
...
2S.C.R.
SUPREME COURT REPORTS
317
ford Dictionary "to ordain" means "to decree, enact";
and "Ordinance" would therefore mean "decree, enact·
ment''.
In Halsbury's Laws of England, Volume XI,
page 183, para 327 it is stated that when the Governor
of a colony which
has no representative
assembly
enacts legislation with the advice and consent of the
State council, it is designated ordinance or law. That
clearly is the sense in which the word is used in arti·
de X(3), and that is placed beyond doubt by the
words which follow, that the Ordinance is to have
"the like force of law, as an Act passed by the
Legislature
of the United State".
lt was next urged that under article VIl(3)
the
Rajpramukh was
given authority to resume
jagirs
only in accordance with law and custom, that he had
no authority to enact a law for the resumption of
jagirs on grounds other than those recognised
by law
and custom, that section 22 of the Act provided that
the resumption
was to take
effect
notwithstanding
any jagir law which as defined in section 2( d) includes
also custom, that such a law was directly opposed to
what was authorised by
article VII(3), that the legis·
lative powers
conferred under article X(3) must be
exercised
subject to the restrictions under
article
VIl(3), and that the Act was therefore beyond
his
competence.
This contention is, in our opinion, un·
tenable.
The
words "according to law and custom".
cannot be held to qualify the words right to resume
jagirs", because they are wedged in between the words
"right to recognise succession" and the words "to the
rights and titles of Jagirdars", and must be construed
as qualifying only "the right to recognise succession
to the rights
and titles of Jagirdars". But this may
not, by itself, be of much consequence, as the power
to resume provided in this article is what the grantor
possesses under law and custom.
The real
difficulty
in the way of the petitioners is that article VIl(3) has
reference to the power which rulers of States had as
rulers to resume jagirs, and what it provides is that
it should thereafter be exercised
by the Rajpramukh.
That power is purely an executive one, and has nothing
to do with the legislative power of the ruler, which
1955
TluzkurAmat
Singhji
"4
State of RqjaJt!ian
Vmkatar111M
.,War J.
1955
T"""'6 ASing/Ui
...
Stall of Rajast/uin
Y mkalorama
..War :J.
318
SUPREME COURT REPORTS
[1955]
L specially provided
for in article X(3)..
The fields
covered by the two articles are distinct
and separate
and there can be no question of article VII(3) operating as a restriction on the
legislative power
under
article X(3). Indeed,
article VII(3)
expressly
provides that it is subject to any legislation
on
the subject, whereas article X(3) is not made subject to
article VII(3).
Even if the petitioners are right in their contention
that
article VII(3)
imposes a limitation on
the
powers of the Rajpramukh, that would not, in view
of article 385, derogate from the power of the Rajpramukh to enact the present law. The scope of that
article
is that the body or
authority which was
functioning before the commencement of the Constitution as the Legislature of the State has first to be
ascertained, and when once that has been done and
the body or . .authority identified, the
Constitution
confides to that body or authority all the powers conferred by
the provisions of the Constitution on the
House or Houses of Legislature of the State. These
powers might be wider than what the body or authority previously possessed
or they might be narrower.
But they arc the powers which are allowed to it under
article 385, and the extent of the previous authority
is
wholly immaterial.
The contention that the Act
is
incompetent by reason of article VII(3) of the
Covenant must accordingly fail.
It was next argued that the powers of the Rajpramukh under article X(3) were subject to the general
control
of
the Government of India under article
XIX, and that he could not therefore be regarded as
legislative
authority for
the purpose of article 385
We see no force in this contention. Article 385 provides that the authority which was to exercise legislative powers in the interim period under that Article
should be
the authority
which was
functioning
as
the Legislature of the State before the commencement
of
the Constitution. It does not further require that
that authority should have possessed
absolute
and
unlimited powers of legislation.
It could not be, and
it was not, contended that the effect of article XIX
2 S.C.R.
SUPREME COURT REPORTS
319
was to vest the legislative authority of the State in
the Government of India, and that being so, the
Rajpramukh
was
the legislative authority
of
the
State, whatever the limitations on that authority.
It was finally contended that article
385
has no
application to the present case, because under article
168 the Legislature is to consist of both the Governor
and one or more Houses, that article 238(7) extends
article 168 to Part B States substituting the Rajpramukh in
the place of the Governor that accordingly
the Rajpramukh cannot by himself constitute
the
Legislature, and that when article 385 refers to the
· body or authority functioning as Legislature, it could
only refer to both the Rajpramukh and the House
functioning in conjunction.
Support for this contention was sought in the terms of article 212-A(l) of
the Constitution
(Removal of Difficulties)
Order No.
II, which excluded in relation to Part B States only
the first proviso to article 200, but not the body of it.
If this contention is sound, then article 385 must be
treated as a dead letter as regards such of the Part B
States as had no House of Legislature. But, in our
opinion, this contention is untenable, because article
385 refers not to Legislatures under th.e Constitution
but to the body or authority which was functioning
as the Legislature of the State before the commencement of the Constitution, and article 238(7) is, under
the Constitution (Removal of
Difficulties)
Order sub.
ject to article 385. Nor can any argument be founded
on the exclusion of the first proviso to article 200 but
not of the body of that article under article 212-A(l),
because it lays down the procedure to be followed
when a Bill has been passed by a Legislative Assembly.
or Legislative Council of a State, and is by its very
terms inapplicable when there
is no House of Legislature.
The contention of Mr. Frank Anthony that
the non-inclusion of the body of article 200 among
the articles excluded from application to Part B States
under article 212-A(l) imposes by implication a limitation on the power of the Rajpramukh to enact laws
unless they are passed by Legislative Assemblies is
1955
T,_,,,~J
SitlP,ii
,,.
S""4 of Rajtutha
VmA:atanmia
.4)!1111' J.
1955
Thalalrbw
Sing/iii
...,.
8144 of Rajastb
Ymkalaramo
4u•1·
320
SUPREME COURT REPORTS
[1955]
not supported by anything in the article, and must be
rejected.
We must accordingly hold that the Rajpramukh had legislative competence to enact the law
under challenge.
II.