Rajasthan High Court - Jaipur
Khema Ram vs State Of Rajasthan And 71 Ors. on 28 May, 1997
Equivalent citations: 1997(3)WLC233, 1997(1)WLN657
JUDGMENT B.R. Arora, J.
1. This appeal and the appeals mentioned in the Schedule arise out of the judgment dated 14.1.97 passed by the learned Single Judge, by which the learned Single Judge struck down the proviso to Clause (viii) of Sub-rule (5) of Rule 13-A of the Rajasthan Colonisation (Allotment and Sale of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 and held that these Rules shall apply to all the allottees inclusive of the allottees prior to the date the amended Rules, 1996 were brought into force. The learned Single Judge further observed that the order of cancellation of the allotment under the proviso to Clause (iii) of Sub-rule (5) of Rule 13-A of the Rules, 1995 shall be passed after giving an opportunity of hearing to the allottees and Sub-rule (5) of the Rule 13-A shall come into operation from the date the order under proviso to Clause (iii) of Sub-rule (5) of Rule 13-A is passed.
2. Since the facts and the controversy raised in all these appeals are the same, all these appeals are, therefore, disposed of by this common judgment.
3. The appellants, in pursuance to the Notification issued by the State Government in the year 1992 inviting ''applications for Special Allotment under Rule 13-A applied for the allotment of the land. The details of the land were given in the applications. The applications were considered by the Appropriate Authority and the appellant-petitioners were allotted the land by the Allotting Authority under Rule 13-A of the Rules, 1975. The appellants, as per the Rules, deposited 35% of the amount and the possession over the land were thereafter handed over to them.
4. Rule 13-A of the Rules, 1975 deals with the sale of land by Special Allotment, Sub-Rule (5) of Rule 13-A deals with the manner in which the payment of the price of the land is to be made by the allottees. This Sub-rule (5) was amended by the State Government vide Notification No. P. 4 (2) C-1/92 dated 1.3.96. By this amendment, proviso to Clause (iii) and a new Clause (viii) in Sub-rule (5) of Rule 13-A were added. Proviso to Clause (iii) of Sub-rule (5) of Rule 13-A makes a provision for "deemed cancellation if any allottee fails to deposit the amount of the instalment on the due date as prescribed in the order; while Clause (viii) to Sub-rule (5) of Rule 13-A makes the provision for the restoration of the allotment on payment of unpaid price in lump-sum with interest @ 18% per annum. The appellants (writ petitioners) failed to deposit the amount of subsequent instalments and, therefore, the allotments made in their favour were deemed to be cancelled though no specific order for cancellation was passed in the files.
5. The appellant-petitioners filed the writ petitions challenging the order of deemed cancellation as well as the validity of the amended provisions. The learned Single Judge allowed the writ petitions filed by the petitioners in part, upheld the validity of the proviso to Clause (iii) and Clause (viii) of Rule 13A (5) but struck down the proviso appended to Clause (viii) of Sub-rule (5) of Rule 13-A of the Rules, 1975. The learned Single Judge, also, set-aside the order of deemed cancellation and directed the respondents to pass an order of cancellation after giving an opportunity of hearing to the allottees. It is against this order that the appellants have filed the present appeals.
6. It is contended by the learned Counsel for the appellants that (i) there was no provision in the existing Rule 13-A (5) when the allotments were made to the appellants for taking any action on non-deposit of the amount of instalments; (ii) proviso to Rule 13-A(5)(iii) is ultra-vires of the provisions of the Constitution as well as of Section 14 of the Rajasthan Colonisation Act; (iii) the amendment cannot be given retrospective operation and, thus, cannot be made applicable to the allotments made prior to the date the amendment came into force; (iv) the alteration in the conditions cannot be made without the consent of the contracting parties; (v) interest cannot be charged under Rule 13-A(5)(viii) of the Rules as. there was no such provision in Rule 13-A when the allotment was made; and (vi) as per Rule 16(3) read with Condition 9 of the General Conditions, 1996, the allotments conferred Khatedari rights on the petitioner appellants.
7. Learned Counsel for the respondents, i.e., the State and Ors., on the other hand, have supported the order of deemed cancellation and also submitted that (1) the allotment of the land was made on certain conditions; (ii) the appellants made the applications for allotment with a clear understanding that they will abide by the Conditions of Allotment; (ill) Clause (ix) of the Application for Allotment; clearly shows that the allotment, if any, will be governed by the Rules framed; (iv) the Condition of deemed cancellation is not violative of any of the provisions of the Constitution or the Act; (v) the added provisions are in conformity with the provisions of the Act and there is no violation of any of the provisions of the Constitution; (vi) the notices will, now, be issued to the respondents only with respect to determine the cases whether the allottees were the defaulters or not and consequential order regarding "deemed cancellation" are to be followed; and (vii) Section 14 of the Act has no application to the present case because Section 14 applies only in the cases of breach of Conditions as specified in Section 11 and not in the cases of Special Allotment made under Rule 13-A of the Rules, 1975.
8. We have considered the submissions made by the learned Counsel for the parties.
9. The controversy raised in these appeals centres round to adjudge the validity of the added provisions in Rule 13-A (5) of the Rules, 1975. Rule 13-A (5) of the Rules deals with the manner in which the price of the land allotted is to be paid by the allottees of the land, the allotment of which has been made under Rule 13-A of the Rules.
10. Clause (i) of Sub-rule (5) of Rule 13-A provides that initially a sum of Rs. 500/- shall be deposited by the applicant as earnest money before his application is taken-up for consideration by the Appellate Authority. Clause (ii) of Sub-rule (5) of Rule 13-A casts an obligation upon the allottee to deposit 25% of the notified price at the time of issue of the allotment order and 10% of the notified price shall be paid by the allottee before taking the actual possession over the land allotted to him and the remaining 60% of the price shall be recovered from the allottee in three equal instalments in the manner provided in this Clause.
11. Clause (iii) further provides that the earnest money of the applicant who retracts and does not deposit the notified price as prescribed under the Rules, at the time of allotment, shall be forfeited by the State Government, Clause (iv) provides that in case more than one eligible persons apply for allotment of the same plot of land then the allotment shall be made by auction amongst these persons but the highest bid shall not be sanctioned by the Allotting Authority if it is less than the notified price. Clause (v) to Sub-rule (5) of Rule 13-A stands deleted with effect from 13.7.1989. Clause (vi) of Sub-rule (5) of Rule 13-A provides that after completion of the allotment-proceedings, the earnest money of the non-allottees (applicants) shall be returned immediately. Clause (vii) makes a provision that if after the allotment the uncommand land becomes the command land, the allottee or the transferee in possession of the land, shall pay the State Government the price fixed for the nearest command land notified under Rule 13-A (1) at the time of initial allotment of the uncommand land.
12. At the time of allotment of the land to the appellants, there was no provision for any action to be taken in case the instalments are not paid. By the Notification dated 1.3.96, a proviso was added to the existing Clause (iii) of Sub-rule (5) of Rule 13-A and after Clause (vii) the new Clause (viii) was added. Clause (iii), after its amendment and Clause (viii) of Sub-rule (5) of Rule 13-A read as:
13-A(S)(i) A sum of Rs. 500/- of the notified price shall be deposited by the applicant as earnest money before his application is taken up for consideration by the allotting authority.
(ii) XXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXX
(iii) The remaining 60% shall be recovered in three equal instalments. If the allotment order is issued before 30th June of the year, the first instalment shall fall due on the first day of January of the year immediately following and if the allotment order is issued in between 1st July and 31st December of the year, the first instalment shall fall due on 1st July of the year immediately following the second and third instalments shall fall due one year after the preceding instalment respectively.
Provided that if any allottee fails to deposit the instalment on due date, as prescribed in the allotment order, the allotment shall be deemed cancelled without any notice.
(viii) If the allotment of land to the allottee has been cancelled for non-payment of price of land under provision of these rules and if the allottee applies within Six months from the date of cancellation or the date of deemed cancellation of the allotment, the allotment shall be restored on payment of unpaid price in a lump-sum with 18% interest p.a. Provided that benefits of the proviso shall be available to the applicant for the maximum period of three years from the date of allotment.
13. The controversy raised in these appeals, therefore, centres round the questions (i) whether the provisions have been made within the competence of the delegated authority and whether these are intra-vires of the Constitution; and (ii) whether the provisions can be given retrospective effect and can be made applicable to the cases of appellants?
14. There is no dispute that the allotments to the appellants were made under Rule 13-A of the Rules, 1975 and at the time when the allotments were made, in the existing rules there was no provision for cancellation or deemed cancellation of the allotment for non-payment of the instalments. Even there was no provision relating to any action to be taken against the defaulting allottee. Rule 16(3) which deals with the Terms and Conditions of Allotment provides that the allotment of the Government land under these Rules shall be made on permanent 'basis and the allottee shall ultimately be eligible for conferment of the Khatedari right in the land so allotted. Condition 9 of the Conditions provides the procedure for acquisition of khatedari right and states that khatedari right can be conferred upon the allottee after the allottee pays to the Government the purchase-money of the land in the manner provided in the allotment order. Form XIX, appended to the Rules, is the Form in which the Application for Allotment of Government Land, as per Rule 13-A(3)(i) of the Rules, is to be made. It was in this Form that the appellants made the applications for allotment of the land Clause 9 of this application reads as under:
The applicant hereby agrees to abide by the provisions of (I) Rajasthan Colonisation Act; (ii) Rajasthan Colonisation (General Colony) Conditions, 1955, and (Hi) the Rajasthan Colonisation (Allotment and Sell of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 and further undertakes to pay the price of Government land fixed by the Government and land development charges, if any, under Rule 17 of the aforesaid Rules.
15. The allotment of the land, thus, made to the allottees, were to be govern by the provisions of the Rules, 1975. Section 2(ix) of the Rajasthan Colonisation Act states that a 'tenant* means any person holding land in a colony and includes his predecessor and successor in interest and transferees. The allotments of the land to the appellants were made as special allotments under Rule 13-A of the Rules and their cases are, therefore, governed by the Conditions set-out under Rule 13-A for the Special Allotment of the land and not by the General Conditions of the Rules as this is the rule, under which the allotments have been made to the allottees as the special case.
16. Now, we have to adjudge the validity of these amended Rules enacted by the State Government. These Rules are made by the State Government as the delegated authority under Section 28 read with Section 7 of the Rajasthan Colonisation Act. The validity of the delegated legislation can be adjudged on two counts, i.e. (i) whether the Rules enacted by the delegated authority are within its legislative competence; and (ii) whether it violates any of the provisions of the Constitution of India?
17. Normally, there is a presumption regarding constitutionality and competency of the legislative authority to frame the law but that is a rebuttable presumption. A liberal attitude in holding the validity is to be taken. The legislation is normally actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problem faced by the legislative authority or on the information derived from the past or from the present experience. These were defaults in making payment of the instalments of the price of the land in several cases of allotments, which actuated the State Government to enact these provisions. The enactment of these provisions is, thus, informed by the reason and guided by the public interest. It is not a case where a particular allottee has been singled-out, but it has been made applicable to all the allottees, to whom the land have been sold by way of special allotment under Rule 13-A of the Rules who made defaults in the payment of the price. The proviso to Clause (iii) of Sub-rule (5) of Rule 13-A has, thus, been enacted in exercise of the powers conferred by the Act. This provision has been made in order to provide the speedier procedure for the recovery of the State's dues in an effective manner. Section 14 of the Act itself makes a provision for resumption of the tenancy in certain circumstances in case of breach of certain conditions. The provision made in this Rule, which governs the cases of the appellants, therefore, cannot be said to be beyond the scope of Section 14 of the Act. The power to take any action includes in itself the power to take action to cancel an order of allotment so passed if the amount of instalment or the price of the land is not paid.
18. Similar controversy came-up for consideration before the Hon'ble Supreme Court in Tej Singh v. State of Rajasthan and Ors. . In Tej Singh's Case, the allotment was made under the Rajasthan Colonisation (Medium and Minor Irrigation Government Allotment Project) Rules, 1968. There was no Rule regarding cancellation under those rules at the time when the allotment was made. Rule 17-A, which deals with the cancellation of the allotment, was inserted in those Rules, which was challenged by the petitioner before the Supreme Court. The Supreme Court, while dealing with the controversy and the authority of the Government to enact this Rule, held that:
It is true that the Rule was inserted on 23-5-72 and it was not given retrospective effect. However, under Section 23 of the Rajasthan General Clauses Act, 1955, the power to pass an order or to issue notification includes the power to take action to cancel the order so passed or the notifications issued from time to time. Therefore, the power to issue notification or orders would include the power to cancel. This is the general power prescribed in the authority.
19. The appellants can acquire Khatedari rights only after depositing the amount of the price of the land and not before it. Without the price of the land being deposited, no Khatedari right, in view of the provisions of Section 16(3) read with Condition 9 of the General Conditions, can be conferred upon the allottees. These provisions, enacted by the delegated authority, thus, are within its competence and have been made by the delegated authority within its delegated powers under Section 28 read with Section 7 of the Act.
20. In Babaji Kondaji Garad v. Nasik Merchants Cooperative Bank Ltd. Nasik and Ors. , reliance on which has been placed by the learned Counsel for the appellants, it has been held that "where there is any conflict between a statute and a subordinate legislation and if the subordinate legislation is not in conformity with the stature then the statutory provisions will have precedence." This judgment has no application to the present controversy as there is no conflict between Section 14 of the Act and Rule 13-A (5) of the Rules, 1975.
21. So far as the other judgments relied-upon by the learned Counsel for the respondents are concerned, they only provide that Section 14 of the Act is applicable only in the cases of breach of conditions enshrined in Section 11 and not applicable to any other case, but it does not mean that the General Powers of the Delegated Authority cannot be invoked for making a provision regarding cancellation of the allotment if the instalments are not paid.
22. Now, we have to adjudge the validity of these provisions on the touch-stone of the Constitution. For judging the constitutionality of a particular provision, we have to see: whether there is any violation of any Article of the Constitution of India? The proviso added to Clause (ill) of Sub-rule (5) of Rule 13-A provides that if any allottee fails to deposit the amount of instalment on the due date, as prescribed in the allotment order, the allotment shall be deemed to be cancelled without any notice. This Rule makes the total exclusion of the principle of audi alteram partem. According to this Rule, no opportunity, at all, is to be afforded to the allottees whose allotments is to be cancelled. Acting fairly is one of the facts of natural justice. In the quest of justice, principle embodied in the maxim "audi alteram partem" is the most acceptable principle. Article 14 is the Constitutional Guarantee of fairness in the State Action. In the facts and circumstances of the case, when the civil vested rights of a person is sought to be divested by State action, fairness demands that the affected person should have an opportunity of hearing. The audi alteram fact of natural justice is a requirement of Article 14. Application of the Rule of "audi Alteram partem" in exceptional circumstances can be expressly excluded but the proviso to Clause (iii) of Rule 13-A (5) of the Rules, 1975 does not cover any of the situations which would justify the total exclusion of the principle of audi alteram partem: Though the provision has been made to effectuate the recovery of the State's dues without any delay but the amended provision has been made in clear violation of the principles of natural justice. Making a provision for deemed cancellation without giving any notice or opportunity of hearing to the concerned person, is neither based on any public policy nor is it in public interest or public good and offends Article 14 of the Constitution. A post-decisional hearing has been provided for restoration of allotment in Clause (viii) of Sub-rule (5) of Rule 13-A but it can not be said to be a compliance of the requirement of the principle of natural justice and the rights of the allottees have not been sufficiently safe-guarded. The deemed cancellation without opportunity of hearing is violative of the basic requirement of the principle of natural justice. Every action of the State and the enactment of a provision must be informed by reasons and guided by public interest. If it fails to qualify the test of reasonableness it offends Article 14 of the Constitution of India and becomes unconstitutional. Taking the over-all picture and the circumstances of the case, we are of the opinion that this Rule is violative of the basic requirement of the principle of natural justice and offends Article 14 of the Constitution and, therefore, deserves to be struck-down.
23. The next contention raised by the learned Counsel for the appellants is that this Rule has been given retrospective effect. The Rules are in the form of procedural law and made in order to expedite the recovery of the State's dues or the price of the land which was not otherwise paid by the allottees. The procedural law applies to the proceedings which are pending on the date when the aw was enacted. Though the allotments in the present cases were made under Rule 13-A and at that time neither these amended provisions were applicable nor was there any such provision for providing a penalty if the instalments are not paid. For the recovery of the instalment or the balance price of the land, which was allotted to the appellants, if a provision has been made for recovery of those amount then that will be applicable to all the transactions in which the recovery has to be made. The earlier transactions, in which the payments have not been made, cannot be excluded so far as the recovery of the amount is concerned. The applicability of these provisions made for effecting the recovery of the State's dues, cannot be treated as having given retrospective effect to these amended law. The contention raised by the learned Counsel for the appellants that these Rules are made retrospective, is bereft of any substance. They are applicable, to all those proceedings for the recovery of the amount In which the amount of instalment or the balance price of the land has not been paid, whether the allotment has been made earlier or after the enactment of the proviso,
24. In Mani Gopal Mitra v. State of Bihar the question regarding applicability of the change in the procedural law during the pendency of the cases instituted under the old procedural law, came-up for consideration before the Supreme Court. In that case, the trial was completed and the Judgment was pronounced. The appeal against that judgment was pending before the Supreme Court and, therefore, the Supreme Court held:
The effect of application of this provision is that pending cases although instituted under the old Act but still pending, are governed under the new procedure under the amended law but wherever the procedure was correctly adopted and concluded under the old law, cannot be opened again for the purpose of applying the new procedure.
The trial in that case already stood completed and the matter was pending in the appeal and, therefore the Supreme Court held that "in the appeal, the new procedure cannot be applied." While in the present case, the proceedings regarding recovery of the arrears of instalments are pending and the special procedure has been provided and, therefore, these provisions are clearly applicable and there is no question of any retrospective operation being given to this proviso.
25. In Sri Vijaylakshmi Rice Mills New Contractors Co. v. State of Andhra Pradesh the amendment order, by which the claim for recovery of the difference between the controlled price specified in the earlier order and the amount order to paid in the new order. The Supreme Court held that "there was no deemed clause or such provision in the order to indicate that it was intended to give retrospective effect." Therefore, it was held by the Supreme Court that" the amended statute, unless it may have retrospective effect, cannot create new disability or right or duty in respect of the transactions which were completed at the time when the amending Act came into force." No price more than the agreed price can be charged in the transaction which has already been completed. The controversy in the present case is different from that in the aforesaid case and, therefore, the ratio of that judgment is not applicable to the present case.
26. The other judgments, on which reliance has been placed by the learned Counsel for the appellants are clearly distinguishable and are not applicable to the present controversy.
27. Now, coming to the validity of Clause (viii) of Sub-rule (5) of Rule 13-A; Clause (viii) makes a provision that if the allotment of the land made in favour of the allottee has been cancelled on non-payment of the price of the land under the provisions of these Rules and if the allottee applies within Six months from the date of cancellation or the date of deemed cancellation, the allotment shall be restored on payment of the price in lump-sum with interest @ 18% per annum. The validity of this provision has been up-held by the learned Single Judge. This provision has been made for the benefit of the allottees. It makes a provision for restoration of the allotment on payment of unpaid price in a lump-sum alongwith interest @ 18% per annum if the allottee applied within six months from the date of cancellation or the date of deemed cancellation of the allotment. If the allottee shows the sufficient cause and applies within six months from the date of cancellation or deemed cancellation then the allotment can be restored in his favour. After perusal of this provision, we are of the opinion that this provision does not suffer from any infirmity. Neither it is out-side the authority of the Delegated Authority in framing the Rules nor it infringes any of the provisions of the Constitution. Rule 13-A(5)(viii) making provision for the restoration of allotment or setting-aside cancellation of defaulting allottee on the payment of unpaid price in lump-sum with interest @18% per annum does not offend any of the provisions of the Constitution nor it can be said to be harsh or beyond the competence of the State to legislate. The validity of this provision has been rightly up-held by the learned Single Judge. So far as the proviso is concerned, that has been struck down by the learned Single Judge and no appeal against that order has been filed by the State. Even otherwise, we do not see any infirmity in the judgment passed by the learned Single Judge on this Court.
28. In the result, the appeals filed by the appellants are partly allowed. The proviso appended to Sub-clause (vii) of Sub-rule (5) of Rule 13-A is declared ultra-vires of the Constitution and is quashed and set-aside. However, Clause (viii) to Sub-rule (5) of Rule 13-A is held to be intra vires of the Constitution.
Per Hon'ble Mr. Justice A.K. Singh
29. This appeal and the appeals mentioned in the Schedule are directed against the judgment dated 14.1.97 passed by the learned Single Judge in writ petitions filed by the appellants. In the writ petitions, the appellants challenged the constitutional validity of the following rules of the Rajasthan Colonisation (Allotment and Sale of Government land in the Indira Gandhi Canal Colony Area) Rules, 1975:
(a) The proviso added below Clause (iii) of Sub-rule (5) of Rule 13 A, which provides that if any allottee fails to deposit the instalment on due date, as prescribed in the allotment order, the allotment shall be deemed cancelled without any notice;
(b) Clause (viii) of Sub-rule (5) of Rule 13 A, which provides that if the allotment of land to the allottee has been cancelled for non-payment of price of land under provision of these Rules and if the allottee applies within six months from the date of cancellation or the date of deemed cancellation of allotment, the allotment shall be restored on payment of un-paid price in a lump-sum with 18% Interest p.a.; and
(c) the proviso given below Clause (viii) of Sub-rule (5) of Rule 13 A, which provides that the benefit of the provision (contained in Clause viii) shall be available to the applicant for the maximum period of three years from the date of allotment.
30. The learned Single Judge held that the proviso given below Clause (iii) of Sub-rule (5) of Rule 13 A of the aforesaid Rules is valid. But, the learned Single Judge held that it was mandatory to hear the allottee before passing an order of cancellation of allotment on the ground of allottee's failure to deposit the instalments due under the allotment order. Clause (viii) of Sub-rule (5) of Rule 13A of the said Rules was also held to be constitutionally valid, but it was held by the learned Single Judge that Clause (viii) of Sub-rule (5) of Rule 13A shall come into operation after the order of cancellation of allotment is passed against the allottee by the authority. The proviso given below Clause (viii) of Sub-rule (5) of Rule 13A of the Rules of 1975 was struck down by the learned Single Judge as violative of the guarantee of equality.
31. The State has not filed any appeal against the order passed by the learned Single Judge, so far as the order declared the proviso given below Clause (viii) of Sub-rule (5) of Rule 13A as ultra vires and imposed the condition of giving an opportunity of hearing to the allottee before passing an order of cancellation of allotment on the grounds of allottee's failure to deposit the instalments due under the allotment order and further laid down that Clause (viii) of Sub-rule (5) of Rule 13A shall come into operation after the order of cancellation of allotment was passed against the allottee by the authority. It may, therefore be inferred that the State is not aggrieved by the judgment given by the learned Single Judge.
32. The appellants have filed these appeals against the order passed by the learned Single Judge, because their prayer to declare the proviso added below Clause (iii) and Clause (viii) of Sub-rule (5) of Rule 13A as ultra vires was rejected by the learned Single Judge. The crucial question to be decided in these appeals is whether the proviso added below Clause (iii) of Sub-rule (5) of Rule 13A and Clause (viii) of Sub-rule (5) of Rule. 13A are ultra vires, and therefore, void and inoperative. These two provisions shall be referred to hereinafter as the impugned provisions.
33. The impugned provisions i.e. (a) the proviso given below Clause (ill) of Sub-rule (5) of Rule 13A and Clause (viii) given below Sub-rule (5) of Rule 13A are reproduced below:
(a) Proviso added below Clause (iii) of Sub-rule (5) of Rule 13A-" provided that if any allottee fails to deposit the instalment on due date, as prescribed in the allotment order, the allotment shall be deemed cancelled without any notice."
(b) Clause (viii) of Sub-rule (5) of Rule 13A "if the allotment of land to an allottee has been cancelled for non-payment of price of land under provision within six months from the date of cancellation or the date of deemed cancellation of allotment, the allotment shall be restored on payment of unpaid price in a lump sum with 18% interest p.a.
34. It has also been submitted on behalf of the appellants that the impugned provisions were added to Rule 13A of the Rules of 1975 on 1.3.96, and therefore, they have no retrospective application. In other words, the submission made on behalf of the appellants is that the impugned provisions cannot apply to allotments made before 1st March, 96. It has also been submitted on behalf of the appellants that before impugned provisions were added to Rule 13A of the Rules of 1975, there was nothing in Rule 13A empower the State Government to charge interest @18% p.a. on the unpaid price, and therefore, the appellants, whom lands were allotted before coming into force the aforesaid proviso, cannot be required to pay interest @ 18% p.a. on the unpaid price of the land. It has also been submitted that the limit of three years prescribed in Proviso given below Clause (viii) of Sub-rule (5) of Rule 13A can also not be applied to the appellants because the impugned provision does not have the retrospective application.
35. Before I deal with the arguments made by the counsels of the appellants and the respondent, it would be proper to state the facts which are necessary for the disposal of these appeals. The appellant case is that he is allottee under Rule 13A of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 (in short the Rules of 1975). Rule 13A provides for sale by special allotment and after allotment of the land to the appellant, the allotment order was issued in a proforma provided for allotment under Rule 13. The appellant was put in possession of the land and he continues to be in possession of the land. The date on which the appellant was allotted the land under Rule 13A of the Rules of 1975 and the date on which he was put in possession the land allotted to him, there was no provision in Rule 13A for cancellation of allotment on account of default in payment of the instalment of unpaid price/premium, and there was no provision for charging any interest on the amount of the instalment, which was not made in time by the allottee. On 1st March, 96, the State Government amended Rule 13A of the Rules of 1975 by promulgating Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) (Amendment) Rules, 1996, which were published in the Official Gazette on 1st March, 96. Three new provisions were added in Rule 13A. The first addition was the proviso below Clause (iii) of Sub-rule (5) of Rule 13A, which provided that if any allottee fails to deposit the instalment on due date, as prescribed in the allotment order, the allotment shall be deemed cancelled without any notice. The second addition was below Clause (viii) of Sub-rule (5) of Rule 13A, which provided that if the allotment of land to the allottee has been cancelled for non-payment of price of land under the provision of these Rules and if the allottee applied within six months from the date of cancellation of the date of deemed cancellation of allotment, the allotment shall be restored on payment of un-paid price in a lump-sum with 18% interest p.a. The third addition was the proviso below Clause (viii) of Sub-rule (5) of Rule 13A, which provided that the benefits of Clause (viii) of Sub-rule (5) of Rule 13A shall be available to the applicant for the maximum period of three years from the date of allotment. As a consequence of these amendments made by the State Government in Rule 13A of the Rules of 1975 w.e.f. 1st March, 96, following consequences occurred:
(1) Cancellation of allotment of land became not only mandatory, it became automatic by operation of the proviso given below Clause (iii) of Sub-rule (5) of Rule 13A, if the allottee fails to deposit any instalment of unpaid price on the due date. Since the cancellation of allotment was made mandatory and automatic by operation of the impugned proviso, the necessity of giving an opportunity of hearing to the allottee, before the allotment made in favour was cancelled, became unnecessary and the impugned provision, therefore expressly provided that the allotment shall be deemed cancelled "without notice". The aforesaid cancellation of allotment, brought about by the impugned proviso added below Clause (iii) of Sub-rule (5) of Rule 13A, not only deprives the defaulting allottee of the opportunity to avail of principles of natural justice, if also deprives him/her of the beneficial provisions of Section 14 and 19 of the Rajasthan Colonisation Act, 1954. The appellants were therefore left with no alternative but to challenge the Constitutional validity of the impugned proviso added below Clause (iii) of Sub-rule (5) of Rule 13A.
36. Clause (viii) added in Sub-rule (5) of Rule 13A empowered an allottee whose allotment had been cancelled for non-payment of price of land under the provisions of the Rules to get allotment restored on payment of unpaid price in lump-sum with 18% interest p.a. The necessary consequence of Clause (viii) added in Sub-rule (5) of Rule 13A was (a) to confer on the former allottee whose allotment was cancelled his allotment restored; and (b) the above right was conferred on the allottee subject to the condition that the unpaid price was paid in lump-sum, which means that the benefit of making payment by instalments was denied and that interest @ 18% p.a. was to be paid by him on the unpaid price. Clause (viii) of Sub-rule (5) of Rule 13A thus visited the defaulting allottee with the liability to pay the unpaid price in lump-sum with the interest @ 18% p.a. According to appellants there was no provision before 1.3.96 in Rule 13A to empower the State Government to charge interest on unpaid price @ 18% per annum. The appellants, therefore, challenged the Constitutional validity of Clause (viii) added to Sub-rule (5) of Rule 13A of the Rules of 1975.
37. The proviso given below Clause (viii) of Sub-rule (5) of Rule 13A provided that the benefit of Clause (viii) shall be available to the defaulting allottee for the maximum period of three years from the date of allotment. Since the amendment came into force on 1st March, 96, all those persons to whom land was allotted on 1st March, 96 or subsequent to 1st March, 96, became entitled to avail of the right to get allotment restored within a period of three years. But, those whom lands were allotted prior to 1st March, 93 were "denied the benefit of availing of the right under Clause (viii) of Sub-rule (5) of Rule 13A during a period of three years from the date of allotment. As a result persons whom lands were allotted on or before 1st March, 93 became dis-entitled to avail of the right under Clause (viii) of Sub-rule (5) of Rule 13A. This obviously created a very unjust and unreasonable distinction between the allottees of land. The appellants, therefore, challenged the proviso given below Clause (viii) of Sub-rule (5) of Rule 13A. The learned Single Judge has held that the proviso given below Clause, (viii) of Sub-rule (5) of Rule 13A of the Rules of 1975 is violative of the guarantee of equality and is, therefore ultra vires. In our opinion, the State has taken a right step by not filing an appeal against the above mentioned decision of the learned Single Judge.
38. The consequences arising from the impugned provisions, which were added on 1st March, 96 by amendment of Rule 13A of the Rules of 1975, deprived the allottees of the land of the benefit of the provisions contained in Section 14 of the Rajasthan Colonisation Act, which is reproduced below:
14. Penalty for breach of conditions. - When the Collector is satisfied that a tenant in possession of land in a colony has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objection,
(i) impost on the tenant a penalty not exceeding to two thousand rupees, or
(ii) order the resumption of the tenancy:
Provided that, if the breach is capable of rectification, the Collector shall not impose any penalty or order the resumption of the tenancy, unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month to be stated in the notice and the tenant has failed to comply with such notice.
39. The crucial questions to be decided in these appeals are:
(1) whether the impugned provisions i.e. Proviso added below Clause (iii) of Sub-rule (5) of Rules 13A are ultra-vires of Section 14 of the Rajasthan Colonisation Act, 1954.
(2) in the event the impugned provisions are held to be intra-vires, whether they apply to persons whom lands were allotted under Rule 13A of the Rules of 1975, prior to 1st March, 96.
(3) whether the provisions of Clause (viii) of Sub-rule (5) of Rule 13A are inconsistent with the alleged implied agreement between the State Government and the appellants by authorising the State Government to charge interest @ 18% p.a. on the unpaid price of the land.
40. Submission of the learned Counsels of the appellants is that the above mentioned provision the vires of which were challenged by them before the learned Single Judge, dispenses with the procedure laid down in Section 14 of the Rajasthan Colonisation Act, 1954 for cancellation of grant of land on breach of any condition subject to which grant was made and automatically cancels the allotment without any notice to the tenant, as soon as default is committed in payment of any instalment on the date prescribed in the allotment letter. The grounds on which the vires of the proviso in question were challenged, were:
(1) That the proviso in question is in-consistent with and in derogation of the provisions contained in Section 14 of the Rajasthan Colonisation Act, and is therefore, ultra-vires of Section 14 of the Colonisation Act 1954.
(2) That the proviso in question dispenses with the necessity of observing the principles of natural justice, by issuing notice to the tenant, who is alleged to have committed default in payment of one or more instalments of unpaid price due against him, and is therefore, in contravention of the principles of natural justice.
(3) That the proviso in question purports to apply the allotments made before the amendment Rules of 1996 came into force as well as to allotments made after coming into force of the above mentioned Rules, and on the general principles that a Rule cannot be applied retrospectively, unless expressly provided by the Statute, the proviso in question is in-effective and in-operative in respect of allotments made before coming into the force of amendment Rules of 1996.
(4) That the petitioners being allottees under the special provisions of Rule 13 A of the Rules of 1975 are governed by the terms and conditions, which were applicable on the date of allotment made to them and these terms and conditions cannot be altered unilaterally, by the State Government after the allotment has been made to them, and therefore, there can be no automatic cancellation of the allotment, if default is committed in payment of any instalments of the unpaid price of the land.
41. The learned Additional Advocate General and the learned Counsels appearing for the respondents have submitted that Section 14 of the Rajasthan Colonisation Act, 1954 is not applicable to the allotments made under Rule 13 A of the Rules of 1975, because; (a) the allottees cannot be described as tenants for the purpose of Section 14 of the Rajasthan Colonisation Act, as no Khatedari rights can be conferred on them unless the whole of the notified price is paid by them and all the terms and conditions subject to which allotment was made are duly complied with, and; (b) the allotment under Rule 13A of the Rules of 1975, being a special allotment, the general provisions contained in Section 14 of the Rajasthan Colonisation Act, 1954 do not apply to it. Regarding the ground that the proviso under challenge is against the principles of natural justice, the learned Additional Advocate General has submitted that the order passed by the learned Single Judge makes it very clear that before an order of cancellation is made, a notice will have to be served on the allottee, and therefore, if there was any defect in the proviso under challenge, the defect stands removed. Regarding the fourth ground of challenge, the learned Additional Advocate General and the learned Counsels of the respondents have submitted that under Section 28 of the Rajasthan Colonisation Act, 1954, the State Government has been given the power to make Rules and every part of the Rules of 1975 can be altered or amended by the State Government without the consent of the allottee. It is further submitted by the learned Additional Advocate General and the learned Counsels for the respondents that the proviso under challenge was intended to enforce the payment of unpaid price of lands allotted to the appellants and other allottees, who have committed default in payment of instalments, and there is nothing in the Rajasthan Colonisation Act, 1954 or any other law for the time-being in force to show that State Government is denied the power to enforce the payment of unpaid price of land by allottees who have committed default in payment of notified price under the Rules of 1975. In other words, the submission of the learned Advocate General and the learned Counsels for the respondents that even if the proviso under challenge is held to be retrospective, it would not be ultra-vires on any ground.
42. I have carefully considered the submissions made by the learned Counsels appearing for the appellants and the respondents and the reasons given by the learned Single Judge for upholding the validity of the proviso under challenge.
43. For the disposal of these appeals the relevant sections are; Section 5, which deals with the applicability of tenancy of Land Revenue Laws to the lands covered by the Act, Section 7, which deals with issue of statement of conditions of tenancy, Section 13, which deals with transfer of rights in land, Section 14 which deals with penalty for breach of conditions subject to which allotment is made. Section 19 which gives power to the State Government to abrogate the conditions laid down for allotment of land and Section 283, which confers power on the State Government to make Rules under the Act.
44. In exercise of the power conferred by Section 28 of the Rajasthan Colonisation Act, 1954, the State Government has made several Rules. For the purpose of deciding, these appeals the relevant Rules are (1) Rajasthan Colonisation (Allotment and Sale of Government Land In Indira Gandhi Canal Colony Area) Rules, 1975 and (2) Rajasthan Colonisation (General Colony) Conditions, 1955. Before discussing the submissions of the learned Counsel for the parties and the provisions relevant for the disposal of these appeals, it may not be out of place to point out that Rajasthan Tenancy Act, 1955 and Rajasthan Land Acquisition Act, 1956, which have been referred to in Section 5 of the Rajasthan Colonisation Act, 1954 are in force and the provisions thereof apply to the lands, which were allotted to the petitioners appellants under Rule 13 A of the Rules of 1975, subject of course to the provisions contained in Section 5 of the Rajasthan Colonisation Act, 1954.
45. The learned Counsels for the appellants have submitted that the Rule making power conferred on the State Government under Section 28 of the Rajasthan Colonisation Act, 1954 can be exercised only for the purpose of carrying into effect the provisions and purposes of the Rajasthan Colonisation Act, 1954 and in particular for all matters, which are required by this Act to be prescribed or which may be prescribed therein and for no other purpose. It is further submitted by them that the Rajasthan Colonisation Act, 1954 is a self-contained Act dealing with all the important matters, namely, applicability of tenancy and Land Revenue Law, issue of statement of conditions of tenancy, legal effect of conditions, transfer of rights, power to abrogate conditions and penalty for breach of conditions, and therefore, the Rule making power conferred on the State Government under Section 28 of the Act must be exercised in conformity with the letter and spirit of the various provisions of the Act and the Rule making power cannot be exercised in derogation of any provisions of the Act, nor it can be exercised in a manner, which is inconsistent with any provision of the Act. On the aforesaid premises, the learned Counsels for the appellants have submitted that the proviso under challenge is inconsistent with and in derogation of the provisions of Section 14 of the Colonisation Act, 1954, and therefore, the State Government had no power to enact this proviso. The challenge to the validity of the proviso in question rests on the supposition that provisions of Section 14 are applicable to the lands allotted to persons under Rule 13 A of the Rules of 1975. The Learned Additional Advocate General and the other learned Counsels for the respondents have submitted that Section 14 has no application to the allotments made under Rule 13 A of the Rules of 1975. Their submission prevailed before the learned Single; Judge. In these circumstances we have to decide whether Section 14 of the Act is applicable to allotments made under Rule 13 A of the Rules of 1975, because if the provisions of Section 14 apply to these allotments, there would be no escape from the conclusion that the Rules made by the State Government under Section 18 must be in conformity with the provisions of Section 14 of the Act. On the other hand, if it is held that provisions of Section 14 do not apply to the special allotments made under Rule 13 A of the Rules of 1975, the challenge to the vires of the proviso in question will have to be rejected on the ground that Section 14 does not apply to allotments made under Rule 13 A of the Rules of 1975.
46. Section 2(9) of the Rajasthan Colonisation Act, 1954 defines the expression "tenant" in the following words:
tenant" means any person holding land In a colony and includes his predecessors and successors-in-interest and transferees.
47. The definition does not require that the tenant must be one who has acquired the Khatedari rights in the land held by him. A bare reading of the definition of the tenant shows that a person would be a tenant for the purpose of Act, if he is holding a land in a colony whether he has or does not have Khatedari rights in the land.
48. The Rajasthan Colonisation(General Colony) Conditions 1955 have been made under Section 28 of the Rajasthan Colonisation Act, 1954. Rule 2(f) defines the expression "Grant" and the expression "Grantee" in the following words:
Grant includes any grant made in respect of land to which the Act has been applied, whether made by way of conferment of any class of rights, whether before or after the commencement of the Act, or by devolution or otherwise.
49. Rule 2(g) defines "Grantee" in the following words-"Grantee" includes any person holding under a grant, whether as a Ghair Khatedar or Khatedar tenant or otherwise, and shall be deemed to include the successors and assigns of the grantee; and when the said term includes co-sharers, any liability imposed by these Conditions shall be the joint and several liability of each co-sharer".
50. The definition of the "Grantee" given in Rule 2(g) makes it very clear that person may be a grantee if he is holding land under the grant whether as a Ghair Khatedar or Khatedar tenant or otherwise. This definition makes it very clear that a grant of land under the Rajasthan Colonisation Act, 1954 and the Rules made thereunder, may be as a Khatedar tenant or as Ghair Khatedar tenant or otherwise. The Rajasthan Colonisation (General Colony) Conditions 1955 are applicable to the Rules of 1975 by virtue of Rule 2(2) of the Rules of 1975, which reads as under:
Words and expressions defined in the Act or in the Rajasthan Colonisation (General Colony) Conditions, 1955 shall wherever used in these Rules but not defined, be construed to have the meanings assigned to them in the said Act or the said Conditions.
51 In view of these definitions, it is difficult to hold that a person cannot be a tenant unless Khatedari rights are donferred upon him.
52. Rule 13A of the Rules of 1975 deals with the allotment of land to persons, who were eligible for allotment. Sub-rule (1) of Rule 13 A empowers the State Government to notify in the Official Gazette the lands which may be sold by special allotment to persons, who are eligible for such allotment in the order of preference given in Sub-rule (1) of Rule 7 of the Rules. Sub-rule (2) of Rule 13 A deals with the issue and the publication of notice for special allotment at the notified price. Sub-rule (3) of Rule 13 A prescribes that within the time fixed in public notice issued under sub-rule(2) or within the time specified by the authority from time to time any persons eligible for allotment may present an application to the Allotting Authority. Sub-rule (4) of Rule 13 A deals with the inquiry and report on application. Sub-rule (5) of Rule 13 A requires that sum of Rs. 500/- shall be deposited by the applicant as earnest money and 25% of the notified price shall be paid by the allottee at the time of issue of the allotment order and 10% of the notified price shall be paid by him before taking the actual possession of the land allotted to him and remaining 60% shall be recovered in three equal instalments. Sub-rule (5) of Rule 13 A deals with the payment of price for which allotment is made under Rule 13 A. The provisions of Sub-rule (5) of Rule 13 A clearly indicate that the allotment of land is to be made to an eligible candidate on payment of 30% of the notified price and the possession of the land is to be given to him on payment of further sum equal to 10% of the equal price. This shows that the allotment contemplated by Rule 13A of the Rules of 1975 is complete as soon as 40% of the notified price is deposited by the applicant, to whom allotment is made. This allotment on payment of 40% of the notified price may not be amounting to conferment of any Khatedari rights on any allottee, but it is certainly an allotment of the land to him and is in the nature of grant in favour of the allottee, within the meaning of grant as defined in Rule 2(g) of the Rajasthan Colonisation (General Colony) Conditions 1955. Since, the allotment made under Rule 13A of the Rules of 1975 amounts to a grant of the land allotted to the persons seeking allotment and the possession of the land is also transferred to the allottee as soon as he pays additional amount equal to 10% of the notified price, the possession of the allottee becomes not only lawful, it is a possession under the allotment made in his favour.
53. If the allotment made under Rule 13 A amounts to a grant of land within the meaning of Rule 2(g) and 2(f) of the Rajasthan Colonisation (General Colony) Conditions 1955, there can be no escape from the conclusion that the person to whom land is allotted holds the land as a grantee and in view of the definition of "tenant" given in Section 2(9) of the Rajasthan Colonisation Act, 1954 he must be called as a tenant, because, all that the definition of "tenant" requires is that the person should be holding land in a colony. In other words a person, who is holding land in the colony area under an allotment made in his favour under Rule 13A of the Rules of 1975 must be called a person holding land within the meaning of Section 2(g) of the Rajasthan Colonisation Act, 1954, and therefore, he deserves to be called a tenant for the purpose of the Act of 1954.
54. For the above mentioned reasons, we do not find any force in the submission that the person to whom land is allotted under Rule 13A of the Rules of 1975 is not a tenant as defined in Section 2(9) of the Rajasthan Colonisation Act, 1954, In our view such person is a tenant for the purpose of Rajasthan Colonisation Act, 1954.
55. On behalf of the respondents, it has also been submitted that Section 14 of the Rajasthan Colonisation Act, 1952 applies to those cases where conditions of tenure are breached and non-payment of instalment of the price of the land does not amount to breach a condition within the meaning of Section 14 of the Rajasthan Colonisation Act. In view of the aforesaid submission made on behalf of the respondents, it is necessary to decide whether non-payment of instalment of unpaid price/premium on or before the due date amounts to breach of a condition within the meaning of Section 14. Section 7 of the Rajasthan Colonisation Act, 1954 provides that the State Government may grant land in a colony to any person on such conditions as may be prescribed. Sub-section (2) of Section 7 provides that the State Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to any person. Sub-section (3) of Section 7 provides that where such statements of conditions have been issued, the Collector, may subject to the control of the State Government, allot land to any person, to be held subject to such conditions contained in the statement issued under Sub-section (2) of this section as the Collector, may by written order, declare to be applicable to the case. Sub-section (4) of Section 7 provides that no person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector and after possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto.
56. The argument advanced on behalf of the respondents rests on the premises that payment of notified price/premium for the land, which is allotted, is not a condition of tenure within the meaning of Section 7 of the Act. In our opinion, this argument does not contain any force. In view of Rajasthan Colonisation (General Colony) Conditions 1955 all the grant are initially on a Ghair Khatedari tenancy only and by way of a lease for the period of 10 years from the date of the commencement of the grant, At or after the expiration of five years from the date of the commencement of the land, the grantee having paid to the government the balance purchase money and in the manner herein provided, all sums and outgoings, each and all of them, due to the Government under the provisions of the statement and having duly observed all the stipulations therein contained and to be observed by him shall be entitled at any time to receive from the Government a "Sanand" in form conferring on him a right of a Khatedari Tenancy in the said lands, provided, that thereafter the grantee shall hold and possess land and every pail thereof subject for ever to all provisions and stipulations therein contained and the tenancy shall continue till it is terminated by the operation of law or in accordance with the general or special conditions applicable thereto. First proviso given below Rule 9 of the Rajasthan Colonisation (General Colony) Conditions, 1955 provides that a grantee to whom land is allotted under Rule 13A of the Rajasthan Colonisation (Allotment and Sale of Government Land in Indira Gandhi Canal Colony) Rules 1975, taken on full price by him shall be entitled at any time to receive from the government a "Sanad" in conferring on him a right of a Khatedari right in the said land, provided he has not breached of the conditions of the allotment during the said period. Clause (2) of Rule 9 provides that no grantee shall acquire Khatedari or other rights not conferred on him as a tenant by the conditions of this statement and shall continue to be subject to the conditions herein contained and as a Ghair Khatedar tenant unless and until the whole amount of the purchase price and all other sums and outgoings due to Government for the said land shall have been duly paid and discharged. It is thus very clear that ultimate object of the Rules is to grant Khatedari rights to the Grantees after they have fully paid the notified price and all other dues which they are liable to pay and have fully complied with the conditions laid down in the Act and the Rules. The allotment of Khatedari rights in view of the Rule 9 of the Rules of 1955 can take place after the expiry of a period of five years after the initial grant of land to the allottee on Ghair Khatedari basis. It means that every grantee will have to hold the land for a minimum period of five years after the initial allotment as Ghair Khatedar tenant of the land and during this period of five years he will have to pay the balance of the price or premium as well as other dues and comply with all the conditions of its grant and tenure. Clause (2) of Rule 9 of the Rules of 1955 clearly provides that if the whole amount of the purchase price and all other sums and outgoings due to the Government are not paid by the grantee, the Khatedari or other rights shall not be conferred on him/her. Rule 15 of the Rajasthan Colonisation (General Colony) Conditions, 1955 further provides that the Government may, from time to time, fix such rate or rates of Nazrana or purchase money, payable in lump sum or instalments, at which Government lands will be granted and no such lands shall be allotted to any persons except on pre-payment of the whole payment money thereof or his entering into a written covenants to make its payment, from the date of commencement of his grant by way of a Ghair Khatedari, in such instalments as the Collectory may, in accordance with the general or special orders of the Government direct. Clause (2) of Rule 15 provides that where the grantee elects to pay the purchase money instalments he will deposit at the time when the grant is made such earnest money as the Government or the Collector may, in accordance with the general or special orders of the Government, direct and pay the balance in such instalments and at such intervals as may be prescribed in that behalf and thereafter each instalment of the purchase-price shall continue to be paid with each instalments of the rent or land revenue as the case may be, till the last payment for the completion of the purchase of Khatedari rights has been made. Clause (3) of Rule 9 of the Rajasthan Colony (General Colony) Conditions 1955 provides that in case the grantee falls to pay any of the instalments by the dates fixed therefore i.e. for the payment of the rent or land revenue for the harvest concerned without any reasonable cause he shall be deemed to have defaulted for that harvest and shall be liable to pay an interest thereon at a rate of 6% per. annum and shall suffer, by his own default, by extending the period of his payments and period of Ghair Khatedari tenancy equivalent to the period of default.
57. Rule 22 of the Rajasthan Colonisation (General Colony) Conditions, 1955 provides that if within 15 days from the date of demand made in writing for payment thereof, the grantee falls to pay in the manner hereinbefore provided all sums due to Government under these provisions, and if he at any time fails to duly observe all or any of the stipulations herein contained and to be observed by him then and in every such case the tenant shall pay penalty to be fixed by the Collector, but not exceeding five hundred rupees, or the Government in lieu of demanding such penalty, may, by any officer duly authorised in this behalf, forthwith, without payment of any compensation whatsoever re-enter upon the said lands and resume the possession thereof and immediately thereupon the said tenancy shall absolutely case and determine.
58. Rule 23 of the Rajasthan Colonisation (General Colony) Conditions, 1955 provides that if any grantee fails to perform or commit any breach of any of the terms or conditions of his grant, or suffers or permits such breach or non-performance the Collector may at any time thereafter suspend for such period as he may deed proper his Khatedari rights in the grant, if he has already acquired them or may determine the grant and resume possession of the land and may pull down any structure existing thereon and may sell the materials thereof and retain the proceeds of the sales, whether these rights may have been waived in respect of any earlier default or not, without prejudice to the powers conferred by the Act, or to any other right or claim; and if the grant is one by way of a grant for agricultural purposes, the grantee shall nevertheless make all the payments which would otherwise be due from him for the whole period of his tenancy. Notice will be given to the former grantee to take refund of the sum that remains payable to him after deduction of expenses.
59. A careful perusal of these provisions clearly shows that the initial grant of land on Ghair Khatedari tenancy basis with the stipulation that after the expiry of a period of five years from the date of initial grant, Khatedari rights will be conferred on the grantee subject to payment of full notified price/premium of the land alongwith all other dues and the fulfillment of all the conditions by the grantee.
60. The Act and the Rules made thereunder clearly contemplate two kinds of tenancies, namely, (1) Ghair Khatedari tenancy, which is created by initial grant for a minimum period of five years subject to the stipulation that if during this period the grantee pays full price/premium alongwith other dues and complies with all the conditions, he will be eligible for the grant of Khatedar rights and (2) the grant as Khatedar tenant after the expiry of the period of five years from the date of initial grant subject to payment of full price and dues. and fulfillment of other conditions of the grant.
61. The grantees of both the categories are liable to pay the rent of the land and all other charges which they will be liable to pay and they are under obligation to comply with the terms and conditions of their tenure. The grantees of the first category, are additionally subject to the legal obligation that they will pay the balance of the notified price/premium in lump sum or in instalments as the case may be on or before the due dates and if they fell to do so, they may be visited with penalties in accordance with law. In view of these provisions, the obligation to pay the balance of notified price/premium must be regarded as a condition subject to which initial grant of land, on Ghair Khatedari tenancy basis is made by the Collector in favour of the person applying for allotment of land. We, therefore, do not find any force in the submission that the obligation to pay the balance of notified price/premium is not a condition of tenancy within the meaning of Section 14 of the Rajasthani Colonisation Act, 1954. On the other hand, we hold that in the case of tenants, who have been granted Ghair Khatedar tenancy rights, the obligation to pay the balance of notified price/premium alongwith all other dues, which may be payable by them to the State Government is a condition of the grant made in their favour and that if they fail to pay one or more instalments of the balance of notified price/premium or other dues on or before the due date, the provisions of Section 14 of the Rajasthan Colonisation Act, 1954 would be applicable to them. It may also be pointed out that under Section 19 of the Rajasthan Colonisation Act, 1954 the limitations and the obligations imposed upon the tenants have been described as part of the conditions of their tenure. Therefore, the provisions of Section 19 of the Act support our conclusion that obligation to pay the balance of notified price/premium by the Ghair Khatedar tenant is a condition of his tenure as Ghair Khatedar tenant.
62. The submissions made on behalf of the respondents is therefore, without merit and deserve to be rejected.
63. Since, we have come to the conclusion that a person, who has been allotted land under Rule 13-A of the Rules of 1975 is a tenant as defined in Section 2(9) of the Rajasthan Colonisation Act, 1954, there can be no escape from the conclusion that the provisions of Section 14 of the Act apply to him. The second question to be decided is whether the proviso under challenge is inconsistent with or in derogation of the provisions contained in Section 14 or any other provisions of the Rajasthan Colonisation Act, 1954. In my opinion, two sections are relevant for the purpose of deciding above questions. These are Section 14 and Section 19. Section 14 reads as under:
14. Penalty for breach of conditions-When the Collector is satisfied that a tenant in possession of land in a colony has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objection:
(i) impose on the tenant a penalty not exceeding two thousand, or
(ii) Order the resumption of the tenancy;
Provided that, if the breach is capable of rectification, the Collector shall be impose any penalty or order the resumption of the tenancy, unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month to be stated in the notice and the tenant has failed to comply with such notice.
64. A bare perusal of the Section 14 makes it clear that resumption of tenancy (as defined in Section 2(9) of the Act) does not automatically occur on the breach of one or more of the conditions subject to which the tenancy was created in favour of any person, nor resumption is mandatory If one or more of the conditions are violated. Under Section 14, the Collector has been given discretion to adopt one of the three course, these are: (a) the course indicated by the proviso given below Section 14. The proviso lays-down that if the breach is capable of rectification, the Collector shall not impose any penalty or resumption of the tenancy, unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month to be stated in the notice and the tenant has to comply with such notice, (b) Subject to the conditions laid down in the proviso, the Collector may impose on the tenant a penalty not exceeding Rs. 2000/-, and (c) Subject to the conditions laid down in the proviso, the Collector may order the resumption of the tenancy, which may in the case of a Khatedar tenant result in resumption of Khatedari rights and in the case of Ghair Khatedary tenant result in resumption of the grant made in his favour under the Rules.
65. It would appear from the language of the proviso given under Section 14 of the Act that in case of breach of any condition/conditions capable of rectification, the Collector is required to serve a notice on the tenant requiring him to rectify the breach within a reasonable time, which shall not be less than one month to be stated in the notice. It means that unless the notice has been served by the Collector on the tenant, who is alleged to have committed breach of one or more conditions capable of rectification, the Collector cannot proceed to impose any penalty on the tenant. Even after the service of notice on the tenant requiring him to rectify the breach within the time prescribed in the notice, the Collector cannot impose any penalty if the tenant rectifies the breach within the time mentioned in the notice. In other words if the tenant rectifies the breach within the time mentioned in the notice, neither he can be penalised by imposition of penalty of Rs. 2000/- nor his tenancy can be resumed. The proviso given below Section 14 of the Colonisation Act, clearly indicates that object of the proviso is to protect the tenancies, which have been lawfully created by or under the Act and not to disturb the lawful tenancies for the commission of breaches of one or more of the conditions subject to which tenancy was created, except in cases mentioned in Section 14. This provision is in the nature of a legislation beneficial to the tenant so that he may not be penalised or deprived of the rights in land for committing breaches of the conditions which are rectifiable.
66. Even in those cases where the breach committed by the tenant is not rectifiable and the cases in which the breach committed by the tenant is rectifiable, but he fails to rectify the same after service of notice upon him under Section 14 of the Act within time the mentioned in the notice, the resumption of tenancy is neither mandatory nor automatic. The Collector has been given a discretion to adopt either of the two courses, namely, imposition on the tenant of a penalty not exceeding Rs. 2000/- or the resumption of the tenancy. This discretion must be exercised on sound principles and in an appropriate case if the discretion is not properly exercised by the Collector, the tenant may move the appropriate Court for remedy. In this connection it would be proper to recall the provisions of Section 19 of the Act, which reads as under:
19. Power to abrogate conditions-The State Government may, at anytime, by notification in the Official Gazette abrogate any of the limitations and obligations imposed upon tenants as part of the conditions of their tenure,
67. Section 19 thus enables the State Government to abrogate any of the limitations and obligations imposed upon the tenants as conditions of their tenure and this power has been conferred on the State Government for the benefit of the tenants so that the tenancy may not be resumed on the ground that they have committed breach of one or more of the conditions.
68. Keeping in view the provisions of Section 14 and 19 of the Rajasthan Colonisation Act, 1954, it is difficult to say that resumption of tenancy is mandatory or automatic under the Rajasthan Colonisation Act, 1954. On the other hand, the provisions of Section 14 and 19 make it very clear that if the State Government comes to the conclusion that any limitation or obligation imposed on the tenant as a condition of its tenure is unjust in-oppressive or detrimental to the objects of the Act, the State Government may abrogate such limitation or obligation or condition of tenure and if such abrogation occurs, the tenancy would not be liable to be resumed, nor the tenant would be liable to any action against him. Section 14 of the Act as pointed out above requires that in the case of breaches capable of rectification, the Collector is under a legal obligation to serve a notice to the tenant to rectify the breach within the time mentioned in the notice, the time being not less than one months and if the breach is rectified within the prescribed time, neither any penalty can be imposed On the tenant nor his tenancy can be resumed and even in those cases where after due service of the notice issued under Section 14 of the Act, the tenant fails to rectify the breach, the Collector has been given a discretion to adopt either of the two courses, namely, (a) to impose a penalty not exceeding Rs. 2000/-, or (b) to resume the penalty and this discretion is to be exercised judiciously having regard to the object of the Act and the particular facts and circumstances of the case. Section 14 does not permit automatic and mandatory presumption of tenancy one or more conditions of tenure or breached. In my opinion the submission of the learned Counsels for the appellants that the proviso under challenge is in-consistent and in derogation of the provisions of Section 14 of the Colonisation Act, 1954 has substance in it and must be upheld as correct. The proviso under challenge cannot be reconciled with the provisions of Section 14 and 19 of the Act. It deprives the State Government of its right to abrogate the limitations or obligations imposed on the tenant as conditions of tenure. The State Government cannot in exercise of the powers given by Section 28 of the Act deprive itself of the powers which have been conferred upon it under Section 19 of the Act. Besides, the proviso under challenge deprives the tenant of two important rights, namely (a) in the case of breaches capable of rectification, right to receive a notice under Section 14 requiring him to rectify the breach within the prescribed time not being less than one month and the dropping of all proceedings against him if he rectifies the mistake within the prescribed period after the service of notice on him and (b) the right to put up his case before the Collector and raise his objections against the imposition of penalty as well as against the resumption of his tenancy and to request the Collector to exercise his discretion under Section 14 in his favour by adopting a course, which is less dis-advantages to him having regard to the object of the Act and the facts and circumstances of the Case.
69. The proviso under challenge deprives the Collector of his rights given under Section 14, and therefore, there is no way in which the proviso under challenge may be reconciled with the provisions of Section 14 of the Act. We, therefore, hold that the proviso added below Clause III of Sub-rule (5) of Rule 13-A of the Rules of 1975, the vires of which have been challenged in ultra-vires of Section 14 and 19 of the Rajasthan Colonisation Act, 1954 in as much as it is inconsistent with and is in derogation of the express provisions of Sections 14 and 19 of the Act.
70. So far as the Constitutional validity of Clause (viii) added to Sub-rule (5) of Rule 13A is concerned, this clause does hot appear to be ultra-vires of the Rajasthan Colonisation Act, 1954 for the simple reason that it does not deprive the defaulting allottees of any such right as may be available to them under Section 14 of the Rajasthan Colonisation Act, 1954. On the other hand the provisions contained in Clause (viii) of Sub-rule (5) of Rule 13A appear to be in furtherance of the object of Section 14 of the Act of 1954. Under Section 14 of the Act of 1954, in the case of breaches, which can be rectified, the Collector is required to serve a notice to the allottee giving him time of not less than one month to rectify the breach committed by him and if in spite of the service of notice, the allottee does not rectify the breach committed by him within the period prescribed in the notice, the Collector may proceed to take action in accordance with Section 14 and such action may be either to impose a penalty of Rs. 2000/- on the allottee, who has committed a breach of allotment or to make an order of resumption of tenancy, Section 14 gives a discretion to the Collector.
71. Clause (viii) of Sub-rule (5) of Rule 13A, on a careful scrutiny does not appear to be inconsistent with or in derogation of the provisions of Section 14 of the Rajasthan Colonisation Act, 1954. A bare reading of the Clause (viii) show that this Clause would apply after the resumption of tenancy by the Collector under Section 14 of the Rajasthan Colonisation Act, 1954 and so long the tenancy has not been ordered to be resumed in accordance with Section 14 of the act, this Clause will have no application. The impugned Clause (viii) of Sub-rule (5) of Rule 13A obviously gives additional benefits to the defaulting allottees against whom an order of resumption before tenancy has been passed by the Collector under Section 14 of the Act. Since, this Clause does not come into operation before the tenancy is resumed under Section 14 of the Act, this Clause cannot be said to be in conflict with the provisions of Section 14 of the Act. It may be pointed out that under Section 19 of the Rajasthan Colonisation Act, 1954, the State Government has been given power to abrogate any of the limitations/obligations imposed upon tenants as part of the conditions of their tenure at any time by notification in the official Gazetee. The expression "any time" is wide enough to include the person subsequent to the date on which tenancy is ordered to be resumed under Section 14 of the Act. Keeping in view the provisions of Section 19 of the Rajasthan Colonisation Act, 1954. Clause (viii) of Sub-rule (5) of Rule 13-A of the Rules of 1975, gives additional benefits after resumption of tenancy to the defaulting tenants whose tenancies have been ordered to be resumed. Therefore, Clause (viii) added to Sub-rule (5) of Rule 13-A is not liable to be struck down as ultra vires of Section 14 of the Act.
72. The next submission that the impugned provisions should be declared to be in-applicable to the allotments made prior to 1st March, 96 on the ground that the impugned provisions are not retrospective and their operation does not appear to have any force. There is nothing mysterious about the expressions of "prospective" and "retrospective". These expressions are related to time frame and all that they indicate is that what is called "retrospective" can apply to subsequent events as well as to past events and what is only "prospective" can apply only to the events which occurs subsequent to it. These expressions by themselves are neither a Rule of law, nor a maxim of jurisprudence. In every case having regard to the object of the Statute, the means employed by the Statute for achieving the desired object and the consequences occurring from the operation of Statute and other relevant circumstances. If is to be inferred as to what is within the purview of the Statute. Once the scope of the Statute in question is ascertained, in some cases, the inference may be indicated by declaring the Statute to be retrospective or prospective, as the case may be.
73. In view of the fact that a number of allottees, who had not paid the full price of the land allotted to them had committed default in payment of installments, which had fallen due and in view of the possibility that many more allottees to whom the lands may be allotted in future, may also commit default in payment of instalments of the unpaid price of land, the State Government added Clause (viii) to Sub-rule (5) of Rule 13A of the Rules of 1975. If the operation of this Clause is restricted to allotments made subsequent to 1st March, 1996, we are afraid, there would be an unreasonable discrimination between the persons whom lands were allotted prior to 1st March, 96 and those whom lands were allotted on or subsequent to 1st March, 96 and such a discrimination would be violative of the guarantee of the Article 14 of the Constitution for the simple reason that the persons whom lands allotted before 1st March, 96 would not be liable to get their tenancy restored on payment of unpaid price in lump-sum with interest @ 18% p.a. Whereas persons whom lands allotted on or after 1st March, 96 will have the right to get their tenancy restored on payment of unpaid price in lump-sum with interest @ 18% p.a. In our opinion, in view of guarantee of equality enshrined in Article 14 of the Constitution, the impugned provision contained in Clause (viii) of Sub-rule (5) of Rule 13A must be held to be applicable to all tenants, whose tenancy is resumed under Section 14 of the Act of 1954 irrespective of the fact whether the land was allotted to them prior to 1st March, 96 or after coming into force of the impugned provision on 1st March, 96.
74. The next submission of the learned Counsel for the appellants is that Clause (viii) of Sub-rule (5) of Rule 13A is in contravention of the terms of agreement impliedly entered into by the allottees and the State Government when the allotment was made. Since, in our opinion, the provisions contained in Clause (viii) of Sub-rule (5) of Rule 13A confer additional benefit on the defaulting allottees against whom order of resumption of their tenancy has been passed by the competent authority under Section 14 of the Act of 1954, it must be held that it was within the powers of the State Government to lay down such conditions as they deemed fit for conferring the additional benefit of restoration of tenancy even after the passing of the order of resumption of tenancy. The condition imposed by Clause (viii) of Sub-rule (5) of Rule 13A that the defaulting allottee, who wants restoration of his tenancy should deposit the unpaid price of land in lump-sum and pay interest (r) 18% p.a. is neither inconsistent with any provision of the Act, nor it is in contravention of the so called contact between the allottee and the State Government. Consequently, the aforesaid submission must be rejected as devoid of any merit.
75. For the reasons mentioned above, the appeal is partly allowed. The proviso added below Clause (iii) of Sub-rule (5) of Rule 13A of the Rule of 1975 is hereby declared as void and inoperative on account of being ultra-vires of Section 14 read with Section 8 of the Act of 1954. The provisions of Clause (viii) of Sub-rule (5) of Rule 13A of the Rules of 1975 are hereby held to be intra-vires and applicable to all those allottees whose tenancies have been resumed by passing of an order of resumption of tenancy under Section 14 by the competent authority irrespective of the date on which the allotment was made. The appeals are disposed of accordingly.