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Rajasthan High Court, Jaipur Bench
Wanchoo C.J. & Sharma, J.
Sardar Inder Singh - Appellant
Versus
The State Of Rajasthan - Respondents
D.B.C. Writ Petition No. 133 of 1953
Decided On : January 29, 1954
The Constitution makers seem to have been very anxious to use as far as possible very clear and unambiguous expressions in the various Articles of the Constitution, and therefore, wherever they intended to apply a particular provision to any person or authority they clearly said so. In Art. 226 they intended the term "authority" to include "Government" in appropriate cases and they did not hesitate to say so clearly. They did not stop at the expression "authority" leaving it for courts to decide whether that term included "Government" or not. Similarly, in Art. 227, they did not rest satisfied with using the word court" alone leaving it for courts to interpret whether the term "court" included the term "tribunal" also. This being the case, it can hardly be believed that in Art. 228, they would have been satisfied with using word, "court" alone, although they intended to apply it to courts as well as tribunals. Consequently, power of withdrawal in Art. 228 has been given only in respect of cases pending before courts alone, which were subject to appellate or ordinary revisional jurisdiction of High Court, and not before tribunals. The High Court has been given power to dispose of the case itself or only to decide the substantial question of law and return the record to subordinate court for disposal of the case- This, as well as the use of the word "subordinate" with court shows that the High Courts can withdraw that case only which it has power to dispose of after withdrawal, and has been given the option of either disposing it of finally or to decide only the substantial question of law as to the interpretation of the Constitution, and that, from a court only which is subject to its appellate or ordinary revisional jurisdiction.
The Anti-Ejectment Officer dealing with cases under sec. 7 of the Rajasthan Protection of Tenants Ordinance, 1949. cannot be said to be a court subordinate to the High Court" within the meaning of Art. 228 of the Constitution. He constitutes only a tribunal invested with quasi-judicial functions. (Para 10)
2. The petitioners case is that the petitioner No. 1 leased the whole of his land 582 bighas to the petitioner No.2 for a period of 10 years in connection with the "Grow More Food Campaign", and got the patta registered before the Tehsildar, Bayana on the 1st of March, 1952, and the possession of the land was tranferred by the petitioner No.1 to the petitioner No.2 by the date of registration of the patta. The respondents Nos. 4 to 26 filed separate applications in the Court of S.D.O., Bayana, under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, lv49, for reinstatement on different parcels of above mentioned land, saying that they were in possession of it and were dispossessed by the petitioners. The Sub-Divisional Officer, Bayana, on the 7th of July, 1952, ordered that the respondents Nos. 4 to 26 be reinstated on the lands mentioned in their applications. Against this order of the S. D. O., the petitioner No. 2 filed 23 revision applications, one in each of the 23 cases, before the Board of Revenue under sec. 10(2) of the ordinance, and the Revenue Board remanded these cases on the 10th of January, 1953, by one judgment, for disposing them of according to law after giving notice to the petitioner No. 2. It has been averred that the Anti-Ejectment Officer, Bayana, was now proceeding to make enquiry in these cases without jurisdiction, and hence the necessity of this petition under Art. 226 of the Constitution of India.
3. The grounds, on which the jurisdiction of the Anti-Ejectment Officer is questioned, are as follows:—
(1) There is no relationship of landholder and tenants between the petitioner No. 2 and the respondents Nos 4 to 26, and, therefore, the provisions of the Rajasthan (Protection of Tenants) Ordinance, 1949, do not apply, and the Anti-Ejectment Officer, Bayana, and the Board of Revenue have wrongly assumed jurisdiction to give protection to the respondents Nos. 4 to 26 under sec. 7 of the Ordinance,
(2) The said Ordinance is ultra vires, and infringes the provisions of Arts 13,14, 15 and 19 (1) (f) of the Constitution of India.
(3) Under sec. 1 (3) of the Ordinance: power could not be delegated to the Rajpramukh (who was not the Legislature at the time of extension of the life of the Ordinance) to extend the life of the Ordinance, as the extension of the period amounted to legislation, and it could not be delegated to the Rajpramukh. The Ordinance and the extension of time for another two years were ultra vires on the ground. The extension was also not published in the Gazette by the Rajpramukh or under his orders, but was published by the Government of Rajasthan who was never delegated these powers.
(4) When sec. 7 of the ordinance was amended on 5th May, 1952, the whole of the Act, and not the amendment, should have been placed before the Legislature, as the extension of the life of the Ordinance was ultra vires the powers of the Rajpramukh, and when the Ordinance had expired by lapse of time, the amendment was without any meaning and without any jurisdiction. The Ordinance together with the amendment was, therefore, ultra vires, and the respondents Nos. 4 to 26 could not get protection under it.
(5) The Ordinance was arbitrary and not based on reasonable classification, and there was no evidence that in the Bharatpur State the Ordinance should have been promulgated.
(6) The Ordinance was ultra vires also on this ground that it was not put before the Legislature within six weeks when the first Rajasthan Assembly came in Session.
4. It has been prayed that a write of certiorari be i
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