1. As common issues have been raised in all the petitions mentioned-above, the same are being disposed off by a common judgment.
2. In all the aforesaid petitions the Board of Revenue has refused to entertain second appeal/revision of the petitioners on the ground that petitioners have not deposited 25% of the reserved price of land allotted to the petitioners as per the requirement of the relevant rule of the Rules under which the application for allotment of land of the petitioners were refused or allotment already made under the said rules in favour of the petitioners have been cancelled.
3. The relevant Rule 10A of the Rajathan Colonisation (Allotment of Government Land to Pong Dam Oustees in Rajasthan Canal Colony Area) Rules 1972 (in short hereinafter called as the 'Pong Dam Rules') and Rule 23 A of the Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules 1975 (in short hereinafter called as the 'Rules of 1975), which was inserted in the said rules framed under the Rajasthan Colonisation Act, 1954 on different dates read as under: --
'Any person against whom an order cancelling his allotment of land has been passed or whose application for allotment of land has been rejected by the allotting authority and such order or decision of the allotting authority has been upheld in the first appeal, shall, if he prefers a second appeal or a revision to deposit 25% of the reserved price of such land as security in the Government treasury and furnish a copy of the challan with the memo of appeal, revision or review. In case of his failure to make such deposit, the second appeal or revision or the review shall not be entertained.'
Rule 23A in the Rules of 1975 was inserted on 21-4-1984 and Rule 10A in Pong Dam Rules was inserted on 18-1-1985.
In all these petitions the validity of the aforesaid rule has been challenged. Firstly, on the ground that the rule is ultra vires provisions of the Act and it was therefore, not within the competence of the rule making authority to have at all framed such rule and, secondly, the rule is otherwise ultra vires Article 14 of the Constitution being requirement to deposit to the extent of 25% of land price entertain appeal/ revision/ review has no nexus to the purpose sought to be achieved and is otherwise arbitrary.
4. Before proceeding further, we may briefly notice relevant facts in each case: --
CASES UNDER PONG DAM RULES
(1) D.B. Civil Writ Petition No. 2552/87 Mehar Chand v. State of Raj. and Ors.
Smt. Samjhodevi, since deceased and grand-mother of the petitioner Mehar Chand, was allotted 25 bighas of land on 30th April, 1971 under the Pong Dam Rules. The possession in pursuance of the allotment was delivered on 13th March, 1971. The said allotment made in favour of Samjhodevi was cancelled by Allotting Authority on 22-11-1974 for alleged breach of allotment condition. However, the allottee remained in possession of the land. By Notification dated 22nd April, 1982, Rule 8A was inserted in the Pong Dam Rules for reviewing the order for cancellation of allotment. An application under Rule 8A was submitted by said Smt. Samjhodevi. Before the application could be decided, Smt. Samjhodevi expired on 25-9-1982. On 29-8-1984 petitioner field an application before Allotting Authority as grandson and heir of Samjhodevi that Samjhodevi's application under Rule 8A may be decided. After the said application on 29-10-1984 Rule 8AA was inserted in the said rules. Ultimately, the application under Rule 8A was rejected for reviewing the order of cancellation of allotment on 28-6-1985. The appeal against the said order dated 28-6-1985 was also rejected by the Revenue Appellate Authority on 29-5-1986. Aggrieved against the said order petitioner filed a revision before the Board of Revenue, which the Board of Revenue refused to entertain vide its order dated 28-7-1988, Annexure 4, for want of failure on the part of the petitioner to deposit 25% of the reserved price of the land in question in view of the fact that in the meantime Rule 10A was inserted in the aforesaid rules vide Notification dated 18-1-1985.
(2) D.B. Civil Writ Petition No. 2066/90 Hukam Chand v. State of Raj. and others.
The petitioner who claims himself to be a resident of Himachal Pradesh and the Pong Dam Oustee, was allotted land under the Pong' Dam Rules. The said allotment was cancelled by the Sub-Divisional Officer vide its order dated 22-3-1988 for alleged breach of the conditions of the allotment. The appeal against the said order was dismissed by Revenue Appellate Authority on 13-3-1989, Annexure 2. The Board of Revenue refused to entertain the revision against the said order vide its order dated 2-1-1990, Annexure 3 on the ground that petitioner failed to deposit security amount under Rule 10A of the said Rules.
3. D.B. Civil Writ Petition No. 5915/91
Smt. Sewati v. State of Rajasthan and others Petitioner Smt. Sewati was allotted land measuring 25 bighas in Chak No. 24 M Dr in 1973 as Pong Dam Oustees in terms of the Pong Dam Rules and possession was delivered to the petitioner. The allotment made in favour of Smt. Sewati was cancelled. However, pursuance of insertion of Rule 8A in the Rules the cancellation order was recalled. On an application by one Kartar Singh, respondent No. 5 that the petitioner sold her allotted land to the respondent No. 6 by an agreement dated 28-6-1985 in breach of the conditions of the allotment, the allotment made in favour of the petitioner was again cancelled by order dated 23-5-1988. The appeal against which was dismissed on 20th February, 1991. The revision of the petitioner before the Board of Revenue has not been entertained on the ground that petitioner has not deposited 25% of the reserved price as security deposit in terms of Rule 10A in the Pong Dam Oustees Rules.
5. CASES UNDER RULES OF 1975.
(1) D.B. Civil Writ Petition No. 973/85 Bood Singh v. State of Rajasthan and Ors.
In this case the land in dispute was allotted to the petitioner on temporary cultivation lease in Samvat 2013-14 (1956-57 A.D.) which was renewed from time to time. The petitioner applied for permanent allotment of the land under the Rules of 1971 which were repealed and replaced by the Rules of 1975. The petitioner's application for permanent allotment was rejected while the Rules of 1971 were in force. By the time matter reached the Board of Revenue the Rules of 1971 were struck down by their Lordships of the Supreme court and Rules of 1975 have come into force on 8-8-1975, the petitioner's revision petition was partly accepted on 17-9-1975 and case was remanded back to the Allotting Authority for re-deciding the case in the light of Rules of 1975. The application of the petitioner was again dismissed on 17-9-1976. The petitioner's appeal under Rule 23(i) of the Rules of 1975 was allowed and case was again remanded for deciding the application de-novo after a fresh inquiry. Again the petitioner's application was dismissed on 16-4-1984 by the Allotting Authority, which order was again set aside by the Revenue Appellate Authority, Bikaner on 10-7-84 and was remanded back to the Allotting Authority for making inquiry into the bona fide residence of the petitioner since before 1 -4-55. Against the said order petitioner preferred a revision before the Board of Revenue under Rule 23(2) of the Rules of 1975. This revision was refused to be entertained by the Board in view of Rule 23-A.
(2) D.B. Civil Writ Petition No. 1295/90, Ashvini Kumar v. State of Rajasthan and Ors.
The petitioner in this case was allotted agricultural land measuring 25 bighas in Khasra No. 355/2, 25 bighas in Khasra No. 444/2 under the Rajasthan Colonisation (Temporary Cultivation) Lease Conditions, 1955. Up to 1966 the temporary cultivation lease was renewed. However, in 1966 the renewal was refused by the Tehsildar. The appeal 'of the petitioner against the said order was dismissed by the Revenue Appellate Authority on 28-6-66. On further revision the Board of Revenue remanded the case back to the allotting authority on 4-9-75, as in the meantime the Rules of 1975 has come into force under which the application of the petitioner was to be decided. While the proceedings were pending, the area in which the land in dispute was situated was de-notified as Canal Colony and the area was declared to be a Revenue Area for which Allotting Authority was Sub-Divisional Officer and not the authorities under the Colonisation Act. While it was pending, on 21-1-77, the petitioner filed an application for permanent allotment of the land under the Rules of 1975, which was rejected on 6-11-81 by the Assistant Colonisation Commissioner. The appeal against the said order was also rejected by the Revenue Appellate Authority on 25-4-85. Aggrieved, the petitioner filed a revision before the Board of Revenue which has not been entertained in view of the provisions of 33-A of the Rules of 1975 for want of non-deposit of 25% of the reserved price of the land in question.
(3) D. B. Civil Writ Petition No. 2495/89, Rajendra Singh and Ors v. State of Rajasthan and Ors.
In this case petitioner was allotted 17 bighas of land by Assistant Colonisation Commissioner, Gharsana on 18-5-76 as a landless person. The allotment in favour of the petitioner was cancelled by allotting authority on 19-12-80 allegedly without notice. He preferred an appeal against the order of cancelling his allotment which was rejected by Additional Colonisation Com-missioner-cum-Revenue Appellate Authority on 16-6-84. The revision against the said order has been refused to be entertained by the Board of Revenue vide its order dated 31st March, 89, Annexure 3 for want of the fulfilment of the condition of depositing 25% of the reserved price of the land in terms of Rule 23-A of the 1975 Rules.
(4) D. B. Civil Writ Petition No. 1993/90, Kalu Ram v. State of Rajasthan and others.
The petitioner was allotted 9 bighas of irrigated land vide its order dated 30th October, 82. Thereafter, vide order dated 18th April, 83, the Allotting Authority cancelled the allotment made in favour of the petitioner. The order is alleged to have been passed without serving the notice on the petitioner. Therefore, the petitioner did not come to know about the cancellation order. In the year 1984, Colonisation Department was wound up in Hanumangarh (Nohar) Tehsil and the records Were handed over to Revenue authorities. The petitioner approached Revenue Authorities for depositing the instalment, but the records were not available. In March, 1989 when the petitioner came to know about the alleged order of cancelling allotment made in his favour, he preferred an appeal before the Revenue Appellate Authority along with the application under Section 5 of the Limitation Act for condoning delay. The petitioner also applied before the Sub-Divisional Officer who accepted the application and passed an order to accept the payment of amount due plus interest plus Rs. 100 as penalty on 18-12-89. In pursuance of that order the Tehsildar accepted a sum of Rs. 45,525/- as price of the land and Rs. 100/- as penalty. Interest amount of Rs. 22,370/- was also recovered from the petitioner. However, the appeal of the petitioner was dismissed vide order dated 18-3-1989 by the Revenue Appellate Authority. Against the order dated 18-3-1989 the petitioner preferred a revision before the Board of Revenue and an interim order was issued by the Board of Revenue protecting the possession of the petitioner. The revision of the petitioner was ultimately dismissed on 26-4-1990 vide Annexure: 10 on the ground of non-deposit of 25% of the reserved price of the land as security deposit in terms of Rule 23-A of the Rules of 1975.
(5) D.B. Civil Writ Petition No. 1023/87, Maghar Singh v. State of Rajasthan and Ors.
In the aforesaid case the petitioner was allotted 24 bighas and 10 biswas of agricultural land in the Chak No. 4 PG Tehsil Anoopgarh as a landless person and bona fide agriculturist. The allotment made in favour of the petitioner was cancelled on 10-1-1986. The petitioner filed an appeal before the Additional Colonisation Commissioner which was rejected on 21st October, 1986. The revision against the aforesaid order was not entertained by the Board of Revenue for want of deposit as security 25% of the reserved price of the land as required under Rule 23-A of the Rules of 1975.
(6) D.B. Civil Writ Petition No. 944/93, Bhant Singh v. State of Rajasthan and Ors.
According to petitioner he was a bona fide agriculturist and was a tenant of the land in dispute, since before 1955, before the commencement of the Rajasthan Colonisation Act. After the commencement of the Act he continued to cultivate the land as temporary tenant. The petitioner applied for permanent allotment of land under the Rajasthan Colonisation (Rajasthan Canal Project Pre-1955) Temporary Tenants Government Land Allotment) Conditions, 1971. The application of the petitioner was allowed on 31st March, 1972 and a lease deed was also executed in favour of the petitioner. Vide its order dated 13th November. 1973 the Allotting Authority cancelled the allotment order. The petitioner appealed before the Revenue Appellate Authority. During the pendency of the said appeal the Rules of 1971 were repealed as a result of being declared ultra vires and replaced by Rules of 1975. Therefore, the case was remanded back to the Allotting Authority for deciding the matter afresh. The Allotting Authority again vide its order dated 22nd October, 1980 maintained the cancellation of the allotment. The appeal against the said order was dismissed by the Revenue Appellate Authority on 30th March, 1984. A revision preferred against the said order under Rule 23(2) of the Rules of 1975 has not been entertained by the Board of Revenue vide its order dated 22nd July, 1992, Annexure 5 on the ground that the petitioner has not deposited 25% of the reserved price of the land as security in terms of Rule 23-A.
(7) D.B. Civil Writ Petition No. 3455/89, Yashin Khan v. State of Rajasthan and Ors.
In this case the petitioner was allotted six bighas agricultural land on 6-11-1976 and possession thereof was delivered. The petitioner deposited instalments in due time. On the report of Patwari that the petitioner has sold the land by way of an agreement and committed a breach of Section 13 of the Colonisation Act, the proceedings for cancellation of allotment was instituted on 29-8-1985. Petitioner alleges that he did not receive the notice which was issued to him, an ex parte order was passed by holding that petitioner has not sold the land but is not cultivating the land personally and on that ground the allotment made in favour of the petitioner was cancelled against the petitioner on 24-11-1987. This order on appeal was confirmed by the Revenue Appellate Authority on 30th May, 1989 vide Annexure 2. The Board of Revenue by its order dated 26-7-1989, Annexure 3 refused to entertain revision on the ground that the petitioner has not deposited 25% of the reserved price of the land as security amount in terms of Rule 23-A of the Rules of 1975.
(8) D.B. Civil Writ Petition No. 3635/89, Sarup Singh v. State of Rajasthan and others.
This petition relates to Khasra No. 237 of village Sardarpura Bika. Petitioner's father Basant Singh was entered as temporary cultivation lease-holder in Samvat 2012. On a complaint against the petitioner's father along with 39 other persons who had entered into possession of various other lands of the same village an inquiry was held and by order dated 13-11-1964, Dy. Commissioner, Colonisation held that some of the pattas issued in favour of the persons complained against him were genuine and their possession may be protracted (protected). The pattas in favour of the petitioner's father inrespect of Khasra No. 237 was found to be genuine. In the year 1971 he applied for permanent allotment under the Pre-1955 Conditions, 1971. By order dated 31st March, 1972 the land in Khasra No. 237 was permanently allotted in favour of the petitioner's father. The said allotment order was set aside on a review vide order dated 13-11-1973. During the pendency of the appeal against the order dated 13-11-1973, the Rules of 1971 were struck down and the case was remanded back to the Dy. Commissioner, Colonisation. During the period petitioner's father died. The Dy, Commissioner again maintained the cancellation of permanent allotment vide order dated 22-10-1980. Appeal against which was dismissed by the Revenue Appellate Authority on 30th March, 1984 and the revision against the said order was not entertained by the Board of Revenue vide its order Annexure 3, dated 4-11-1988 in view of the provisions of the Rule 23-A of the Rules of 1975.
(9) D.B. Civil Writ Petition No. 3636/89, Smt. Dalip Kanwar v. State of Rajasthan and Ors.
This petition relates to Khasra No. 237 of village Sardarpura Bika. Petitioner was entered' as temporary cultivation lease-holder in Samvat 2012. On a complaint against the petitioner along with 39 other persons who had entered into possession of various other lands of the same village an inquiry was held and by order dated 13-11-1964, Dy. Commissioner, Colonisation held that some of the pattas issued in favour of the persons complained against whom were genuine and their possession may be protected. The pattas in favour of the petitioner in respect of Khasra No, 237 was found to be genuine. In the year 1971 he applied for permanent allotment under the Rajasthan Pre-1955 Conditions, 1971. By order dated 31st March, 1972 the land in Khasra No. 237 was permanently allotted in favour of the petitioner. The said allotment order was set aside on a review vide order dated 13-11-1973. During the pendency of the appeal against the order dated 13-11-1973 the Rules of 1971 was struck down and the case was remanded back to the Dy. Commissioner, Colonisation. The Dy. Commissioner again dismissed the application for permanent allotment vide order dated 22-10-1980 by maintaining the order recalling the allotment. Appeal against which was dismissed by the Revenue Appellate Authority on 30th March, 1984 and the revision against the said order was not entertained by the Board of Revenue vide its order Annexure 3 dated 4-11-1988 in view of the provisions of the Rule 23-A of the Rules of 1975.
(10) D.B. Civil Writ Petition No. 2068:90. Budhar Ram v. State of Rajasthan and Ors.
This petition also arises out of an order of cancelling the allotment made in favour of the petitioners. The allotment was made in favour of the petitioners on 5-12-1975. On 19-1-1982 the aforesaid allotment order was set aside on the ground that the petitioners had not disclosed the land held by the petitioner's father. The appeal against said order was dismissed by the Revenue Appellate Authority on 24-1 -1985. The revision against that order was not entertained by the Board of Revenue vide its order dated 21st March, 1990. Annexure on the ground of non-compliance of Rule 23-A of the Rules of 1975.
(11) D.B. Civil Writ Petition No. 6492/91 Santu Ram v. State of Rajasthan and others.
Land in dispute in this case was allotted to father of the petitioner on 29-9-1980. It is alleged by the petitioners that by order dated June, 1982 the allotment made in favour of the petitioner's father was cancelled and appeal against that order was dismissed by the Revenue Appellate Authority on 22-1-1987. The Board of Revenue refused to entertain the revision vide Annexure for not depositing the 25% of the reserved price of the land as security deposit under Rule 23-A of the Rules of 1975. During the pendency of these proceedings father of the petitioner had expired.
(12) D.B. Civil Writ Petition No. 2171/91, Bhadar Ram v. State of Rajasthan and others.
In this case land was allotted to the petitioner on 2nd February, 1974. By order dated 21st February, 1983 the allotment made in favour of the petitioner was cancelled inter alia on the ground that the agriculture is not main source of his livelihood. Appeal against the said order was rejected on 3rd February, 1986 by the Revenue Appellate Authority. The revision before the Board of Revenue was not entertained vide Annexure on the ground of non-deposit of security amount in terms of Rule 23-A of the Rules of 1975.
(13) D.B. Civil Writ Petition No. 1329/87, Dulla Singh v. State of Rajasthan and Ors.
The land was permanently allotted in favour of the petitioner's mother Mangibai as a landless person and bona fide agriculturist prior to 1979. On 2nd February, 1979 notice was issued in the name of the petitioner's mother on the ground that the allottee has not disclosed correct facts about her being landless. The order was finally set aside on 21st January, 1986 and appeal against which was also dismissed by the Revenue Appellate Authority on 7th October, 1986. The petitioner preferred a revision before the Board of Revenue, which was dismissed vide impugned order dated 30th January, 1987 for non-compliance of Rule 23-A of the Rules of 1975.
6. From the aforesaid brief resume' of facts of each case, it is apparent that the common grievance of the petitioners in all the cases is that their revision applications before the Board of Revenue arising out of cancellation of allotments made in their favour have not been entertained and dismissed on the ground that the petitioners have not deposited 25% of the reserved price of the land, allotment of which has been cancelled, as security. The cause for cancellation of allotment is varying in each case.
7. The first contention of counsel for the petitioners has been that in providing deposit of 25% of the reserved price of the land as security as condition for entertaining the appeal, revision or review by inserting Rule 10-A in the Rajasthan Colonisation (Allotment of Government Land to Pong Dam Oustees in Indira Gandhi Canal Colony) Rules, 1972 with effect from 18-l-1985 and Rule 23-A in the Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules, J975 w.e.f. 21-8-1984 was beyond the competence of State Government as delegated legislative authority for framing' the Rules under the Rajasthan Colonisation Act. It was contended that the Colonisation Act by itself does not make any provision for appeal or revision or review, as the case may be. But such right is conferred on the aggrieved party against any order passed by any authority under the Colonisation Act or Rules framed thereunder, in accordance with the provisions of the Rajasthan Tenancy Act, Rajasthan Land Revenue Act which is the law generally applicable to agricultural tenancies in Rajasthan. Substantive right of appeal, revision or review flows from the provisions of Rajasthan Land Revenue Act and Rajasthan Tenancy Act which is unfettered and is not circumscribed by any condition of pre-deposit. The right so conferred by an Act of legislation cannot be restricted or circumscribed by having recourse to subordinate legislation by delegated authority. The petitioners rely on the general principle that no rule or subordinate legislation can be framed to override or restrict the ambit and scope of the main statute. Reliance in this connection has been made on Collector of Customs and Excise, Cochin v. M/s. A.S. Bava, AIR 1968 SC 13. It was also contended that in the present case though right of appeal to the Revenue Appellate Authority has been conferred under the relevant rules referred to above which have been framed under the Colonisation Act, 1954, yet no right of revision has been conferred under the Rules. Right of first appeal is governed by the Rules, the right of the revision is still governed by the provisions of the Land Revenue Act, Rajasthan Tenancy Act, there being no provisions of revision made in the Colonisation Act or the Rules in question. That being so, at any rate, right of preferring revision and get the order of subordinate authority reviewed by the Board of Revenue cannot be circumscribed by Rule-making authority restricting the ambit and scope of the said right conferred under the main statute.
8. It will be necessary to notice Section 5 of the Colonisation Act which reads as under: --
Section 5(1) -- 'Applicability of tenancy and land, revenue laws: (1) Except as otherwise provided in this Act, the laws relating to agricultural tenancies, land, the powers, duties, jurisdiction and procedure of revenue Courts, the survey and record operations, the settlement and collection of revenue, rent and other demands and the partition of estates and tenancies, for the time being in force in a colony, shall, in so far as may be applicable, apply to tenancies held and to proceedings conducted under this Act.'
Section 5(2) 'Nothing in such laws shall, however, be so construed as to vary or invalidate any rule made, or any condition entered in any statement of conditions issued, by the State Government under this Act.'
From the perusal of Section 5(1) it is apparent that the powers, duties, jurisdiction and procedure of Revenue Courts relating to agricultural tenancies under the Colonisation Act in relation to the land in Colony area are to be governed by the general laws relating to agricultural tenancies in that respect and so far as the same may be applicable except in the field covered by the provisions of the Colonisation Act. As noticed above the Colonisation Act, 1954 does not make any provision for appeal or revision or review of any of the orders made under the Act. However, under various Rules framed under the Act provision for appeals have been made. Sub-Section (2) of Section 5, however, makes it clear that provisions of such laws, namely, the laws relating to agricultural tenancies, land and the laws relating to the powers, duties, jurisdiction and procedure of revenue Courts which are for the time being in force referred to in Sub-Section 5(1) shall not be construed as to vary or invalidate any rule made by 'the State Government under the Colonisation,; Act. That is to say under Sub-Section (2) of Section 5 any provision of the Rules framed under the Colonisation Act cannot be construed, as invalid merely because it is inconsistent with the laws referred to in Sub-Section 5(1).
9. It is true that a legislature cannot delegate its powers to subordinate authority in a manner so as to abdicate its essential legislative function enabling the delegate to repeal a law or even to modify it in essential feature. Yet it is well settled on high authority of the Apex Court that when the legislature giving power to make delegated legislation, declares that the same shall have effect even if inconsistent with any existing law, the delegated legislation has that effect. The principle is that the overriding effect to law made by the delegate is not given effect to by the will of delegate but it is by the will of the legislature that the delegated legislation becomes effective even if inconsistent with its own act.
10. In Harishanker Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 : (1954 Cri LJ 1322) their Lordships while dealing with the provisions of Essential Supplies (Temporary Power) Act, 1946, in the context of Cotton Textiles (Control of Movements) Act, 1948, were posed with the same question. Section 6 of the Essential Supplies Act said that any order made u/Section 6 of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. The contention was raised that this provision permits the delegated authority to legislate in a manner which may result in repealing the existing law. The contention was repelled in the following words : --
'In our opinion the construction placed on Section 6 by the High Court is not right. Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those laws remain untouched and uneffected so far as the statute book is concerned.'
11. It was further observed that even if it be assumed that in so far as the delegated legislation is inconsistent with the existing law in the field, the existing law is repealed, it is so by the act of Parliament and not by the delegated authority when it said : --
'Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made u/Section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any act of the delegate, but the repeal is by the legislative act of the Parliament itself. By enacting Section 6 Parliament itself has declared that an order made u/Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the legislature itself has declared its will that way in Section 6.'
12. This principle was again reiterated by their Lordships in PSR Motor Service, Raipur v. RTA, Raipur, AIR 1966 SC 1318: (1966 Cri LJ 960).
13. The contention raised in the aforesaid case was that Rule 63 framed under the Motor Vehicles Act, 1939 being repugnant to Section 63 cannot supersede the provisions of the main Act. Their Lordships observed as under: --
'The legislature has by providing in the opening part of Sub-Section (1) of Section 63 'except as may be otherwise prescribed' made the provisions subject to the rules framed by the State Govt. u/Section 68 of the Motor Vehicles Act. The provisions of Rule 63, therefore, must supersede (he direction contained in Section 63(1) of the statute.'
14. In Meghraj Kothari v. Delimitation Commission, AIR 1967 SC 669, their Lordships again reiterated the principle enunciated in Hari Shanker Bagela's case (supra).
15. In view of the principle enunciated by their Lordships referred to above and in view of clear provisions of Section 5(2), the contention of the learned counsel for the petitioners that the Rules in question may be held ultra vires, the provisions of the Rajasthan Land Revenue Act cannot be sustained. It may be stated that no challenge has been made to the validity of Section 5(2) of the Act being suffering from the vice of excessive delegation by abdication of essential legislation function of the delegating authority or that the delegation of authority is unguided and uncanalised.
16. Decision relied on by the learned counsel for the petitioners is of little assistance to the petitioners so far as their first contention is concerned. It was a case where Section 35 of the Central Excises and Salt Act, 1944 had conferred unfettered right of appeal to a person aggrieved by any decision or order made thereunder. Section 12 of the Central Excise Act permitted the Central Government to declare that any provision of the Sea Customs Act, 1978 relating to the levy and exemption from Custom duties draw back of duty etc. and procedure relating to offences and appeal shall with such modifications and alteration as it may consider necessary or desirable to adopt them to the circumstances, be applicable in regard to like matters in respect of duties imposed by Section 3 of the Central Excise Act. In exercise of this power Central Government issued Notification declaring that Section 129 of the Customs Act shall apply to the appeals preferred under the Central Excise Act. While there was unfettered right of appeal under the Excise Act, Section 129 of the Customs Act required the appellant to deposit the duty or penalty pending appeal. The question which arose for consideration before their Lordships whether such a provision effecting substantially the right of appeal is a provision relating to procedure of appeal or substantive right of appeal. It was in this context their Lordships held following its earlier decision in M/s. Hussain Kasam Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1953 SC 221.
'Section 35 of the Excise Act gave a right of appeal but Section 129 of the Customs Act whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within Section 12 of the Excise Act.'
17. In the case of Hussain Kasam Dada (India) Ltd. (supra) the Supreme Court while repelling the arguments that requirement as to deposit of the amount of tax does not effect the right of appeal itself but only introduces a new matter of procedure, had observed as under (at page 225) : --
'There can be no doubt that the new requirement 'touches' the substantive right of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended Section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellant's pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure.'
18. It may be ced that Section 12 of the Excise Act only permitted the delegated authority to apply procedural law relating to appeal as provided under Customs Act to appeals preferred under Excise Act. The Court came to conclusion that provision of deposit was not procedural matter but affected substantive right, which was not permissible under the scope of authority conferred on delegate.
19. In our opinion the decision given in Collector of Customs, Cochin v. A.S. Bawa, does not assist the petitioners on the issue of competence of delegated authority to frame the Rules inconsistent with existing law, when so permitted by parent statute.
20. It was next contended by the learned counsel for the petitioners that even otherwise the impugned Rules are ultra vires Article 14 being wholly arbitrary and unreasonable inasmuch as they result in depriving the petitioners and their likes from free access to higher Courts for redressal of their grievances. The condition of deposit of 25% of the reserved price of the land as security has no rational nexus to the purpose sought to be achieved and are contrary to the very purpose and provisions concerning the scheme of allotment of land under the Act and the Rules.
21. Learned Additional Advocate General appearing for the State urged that a legislation whether made by the legislature or by the subordinate or by the delegated authority cannot be challenged on the ground of unreasonableness. It was further contended by the learned Additional Advocate General that the provision has been clearly made with the object to restrict the litigation by having recourse to hierarchy of superior courts for the review of orders passed by subordinate authorities and requirement of deposit of 25% of the reserved price of the land, allotment of which has been cancelled or application for allotment of which has been rejected has a direct nexus to the object of curtailing litigation. The learned Additional Advocate General referred to Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, 1985 (1) SCC 641 ; (AIR 1986 SC 515) wherein their Lordships said that 'subordinate legislation' cannot be questioned merely on the ground that it is not reasonable.
22. Having carefully considered the rival contention in our opinion this contention that the subordinate legislation cannot be examined on the anvil of Article 14 on the touchstone of unreasonableness is not well founded. It has been well established under the English Law as well as our Constitution that any subordinate legislation can be challenged on the ground of unreasonableness.
23. In Kruse v. Johnson, (1895-90) All ER 105, it has been observed as under: --
'Unreasonableness in what sense! If for instance they were found to be partial and unequal in their operation between different classes, if they were manifestly unjust, if they disclosed had faith, if they involved such oppressive or gratuitous interference with rights of those subject to them as could find no justification in the minds of the reasonable men, the Court might well say parliament never intended to give authority to make such rules and that they are unreasonable and ultra vires.'
24. In Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills, Delhi, AIR 1968 SC 1232, a Constitution Bench of the Apex Court had occasion to examine the issue. The Court approved the aforesaid principle enunciated in the case of Kruse v. Johnson (supra).
25. Chief Justice Wanchoo approving the principle said: --
'In such case of the act of such a body in exercise of the power conferred on it by law is unreasonable, the Court can held that such exercise is void for unreasonableness. This principle was laid down as far back as 1898 in Kruse v. Johnson, (1898) 2 QB 91, in connection with a bye law made by a county council ......The Court held that a bye law could be struck down on the ground of unreasonableness.
Hidayatullah, J. agreed and said : --
'Now the rule regarding reasonableness of bye laws was laid down in (1898) 2 QB 91. The rule has been universally accepted and applied in India and elsewhere.' Sikri, J. Concurred: 'I agree with the learned Chief Justice and Hidayatullah, J. that in suitable cases taxation in pursuance of delegated powers by a Municipal Corporation can be struck down as unreasonable by Courts. If Parliament chooses to delegate wide powers it runs the risk of the bye laws or the rules framed under the delegated powers being challenged as unreasonable.'
26. In Indian Express Newspapers case, (1985) 1 SCC 641 :(AIR 1986 SC 515) relied on by the Additional Advocate General, the position has been explained while making clear what it meant by saying that the subordinate legislation cannot be questioned merely on the ground that it is not reasonable. The principle which enunciated by their Lordships is expressed in the following terms: --
A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.
27. This makes it clear that 'not reasonable' is not to be equated with 'unreasonable'. The later term is used in the sense of being arbitrary.
28. Their Lordships further went on to observe after referring to the position of law as obtaining in England as under : --
'In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to grounds on which plenary legislation may; be questioned .......or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. ...xxx.....
In cases where the power vested in the Government is a power which has got to be exercised in the public interest as it happens to be here, the Court may require the Government to exercise that power in reasonable way in accordance with the spirit of the Constitution,'
29. It will not be inapt to say that the reasonableness or non-arbitrariness in sphere of every state action is necessary to sustain it.
30. In this connection it will be also relevant to notice that power to judicial review of the state action has been held by the Apex Court to be a basic feature of the Constitution which is unalterable, that is to say, a person who is aggrieved by any law or order affecting his right must have right of excess to the Court to get redress. The majority judgment in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 : (AIR 1980 SC 1789) declared:
'Reasonableness of law has not only to be tested with nexus to policy but whether the questioned law in itself is reasonable or not with reference to case.'
31. In Minerva Mills, (1980) 3 SCC 625 :
(AIR 1980 SC 1789) the Court struck down the Article 31C of the Constitution only for the reason that judicial review permitted under that article was only in respect of reasonableness of its nexus with the policy under Article 39, but it did not permit judicial review of reasonableness of law itself.
32. The preamble of the Constitution which is its basic feature and is guiding star in its interpretation sets the goal of our body politic to secure all its citizens justice, social economic, political and equality of status and of opportunity to all. Article 14 of the Constitution recognises equal protection of law to every person in India as a fundamental right. Article 39A ordains a directive to the State to secure the operation of the legal system to promote justice and to ensure that opportunities for securing justice are not denied to any citizen by reason of economic disability.
33. Justice Krishna Iyer speaking for the Court in M/s. Central Coal Fields Ltd. v. M/s. Jaiswal Coal Co., AIR 1980 SC 2125 as under : --
'It is more deplorable that the culture of the magna carta notwithstanding the anglo-lndia forensic system and currently free India's court process should insist on payment of court-fee on such a profitering scale without correlative expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian Republic where equality before the taw is a guaranted constitutional fundamental and the legal system has been directed by Article 39A 'to ensure that opportunities for securing justice are not denied to any citizen by reason of economic ......disabilities.'
The right of effective access to justice has emerged in the Third World countries as the first among the new social rights what with public interest litigation, community based actions and pro bono public proceedings. 'Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right' of a system which purports to guarantee legal rights.'
34. The principle was enuntiated in 192! (257 U.S. 312) while interpreting the due process Clause of the American Constitution, 'reach to the Courts of country for the protection of their persons and property the prevention and redress of wrokings is integral part of due process.'
35. In this connection in the context that the right of the civilian to have effective access to justice vis-a-vis levy of courts fee the Supreme Court in M./s. Central Coal Fields Ltd. v. M/s Jaiswal Coal Co., AIR 1980 SC 2125 expressed its concern that:
'Levy of court fee should have co-relation with expenditure on the administration of civilised justice and should not result in denial of effective excess to justice and the equality before law.'
Their Lordships again opined in AIR 1986 SC 468 while dealing with the absence of appeal against some of the orders and of the principle that 'if the absence of appeal makes the whole procedure oppressive and arbitrary, the same cannot be sustained.'
36. Therefore, from the above discussions, the principle can fairly be called out that an effective access to the courts for seeking redressal of grievance is an essential part of the fundamental right of equality embracing equal protection of law and provision of law, which restricts such free access or makes the path to justice onerous resulting in effective denial of obstensible remedy rather than make the remedy effective and within reach must be held to be unreasonable. To borrow the words of Justice Bhagwati from Royappa's case, AIR 1974 SC 555 : (1974 Lab IC 427) equality and arbitrariness are sworn enemies. Where the act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore, violative of Article 14.
37. The principle was emphatically reiterated in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597) (at p. 624 of AIR):
'Article 14 strikes at arbitrariness in the state action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically is essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.'
38. In the light of the aforesaid principles we have to examine whether the impugned provision satisfy the test of reasonableness or non-arbitrariness.
39. As noticed above that the Colonisation Act itself does not provide for any appeal or revision against the orders passed by the authorities under the Act. However, it adopts the provisions regarding appeal and revision as are applicable to agriculture tenancies generally in Rajasthan for the time being. The general law governing such rights of appeal and revisions and the power exercisible by the Revenue Courts in that regard are the Rajasthan Land Revenue Act and the Rajas-than Tenancy Act and both the Act provide for unfattered right of appeal or revision in the sense that it is not hedged by any precondition of deposit of any security sum.
40. It will also be appropriate to notice in brief the object and the Scheme of the Colonisation Act. It was to make better provisions for the Colonisation and administration system of lands in the Colony area when the Colonisation Act was enacted, it was made applicable to all lands in colony area. Under Section 2 (ii) a Colony means the area to which the Act shall be applicable by order of State Govt. published in the Official Gazette.
41. Section 6 provides for vesting Colonisation Officers with the power of the Revenue Courts. Section 7, makes a provision that the State Government may grant land in a colony to any person on such conditions as may be prescribed. Section 8 excludes the application of transfer of the property Act to the tenancies created under Section 7 of the Act. It also makes conditions framed under the Act effective notwithstanding anything to the contrary contained in any Rules or law. Section 9 provides for rectengularisation of fields and carrying out the maintenance of land development works. Section 10 provides for reservation of area for common needs of the village. Under Section 11 submitting of any false information regarding his qualification is deemed to be a breach of condition of his tenancy. Under Section 14. Collector has been authorised to impose penalty or resume the land for breach of any condition of tenancy and on such order having been passed the power of re-entry has been provided under Section 15. Section 13 puts restrictions at certain transfers of rights or interest vested in tenant under the Act without prior permission of the competent authority. Section 15 and 16 deals with power of re-entry and provisions to compensation in certain cases. Section 17 excludes the land irrigated in the Canal Colony Area allotted before coming into force of the Act from the provisions of Sections 14, 15 and 16 of the Act. Under Section 18 any duties under the Act are recoverable as arrears of land revenue. Section 19 authorises the Government to abrogate any of the limitations and obligation imposed upon the tenant as part of the conditions of his tenure and Section 20 provides for specific conditions in respect of Khatedari rights which were acquired before the commencement of this Act. Section 22 deals with the unauthorised occupation of land and re-entry. Section 23 and 24 deals with levy of penalties and powers of Collector in regard to offences. Section 25 debars the jurisdiction of Civil Courts as regards the matter arising under the Act. Section 26 deals with the indemnity of public servants and Section 27 saves the orders passed previously to the commencement of the Act. Section 28 confer powers on the State Government to frame rules generally for carrying into the effect the provisions and purposes of the Act and Section 29 provides for the procedure for framing the Rule.
42. From the aforesaid brief outline of the Act, it is apparent that primarily the act deals with the provisions of allotment of land within the Colony area and providing for the conditions of acquiring land and holding tenancy in the colony area. For various areas covered under the Act different Rules/conditions have been framed by the State Government for allotment of lands.
43. Under the Rule 5 of the Rules of 1975 only persons eligible for allotment of land are ex-servicemen, Temporary Cultivation Lease 'Holder, Agriculture Graduates Landless persons and Bhakra Landless persons. The definitions of each one of the eligible persons under the Rules make it clear that allotment of land under the Rules is meant for only landless persons as defined; under Rule 2 (xiii) of the Rules. Regarding payment of allotment price Rule 17 provides the scale at which price is to be charged on the basis of soil class and such price is payable in Fifteen Annual Instalments, commencing from the year in which irrigation water is let out for such land. The instalments start with 2% of the price of first year and ends up with maximum of 8% commencing from 7th year. At no point of time full price or instalment to the extent of 25% of the reserved price is required to be paid as one instalment, as required under the impugned Rule. No such amount is required to be paid at the time of application.
44. Likewise under Rule 4 of the Pong Dam Rules such displaced persons as a result of construction of Pong Dam Reservoir, who was permanently residing within the area acquired for construction of the reservoir and in connection with construction of Pong Dam Reservoir where 30% or more land has been acquired if he was holding 20 standard acre or less or more than 50% land has been acquired in case he holds land more than 20 standard acre can only be allotted land. In the latter case the allotment is further subject to condition that he does not hold more than 30 standard acre of land after such acquisition. No member of family of such Pong Dam Oustee is eligible for separate allotment, even if land of such member has been separately acquired. Regarding allotment price of such land Rule 7 of the Pong Dam Rules provides the scale of reserved price on the basis of soil class and such price is payable in Twenty Annual Instalments commencing from the date of taking possession. Under Pong Dam Rules also this land is to be allotted to only such small farmer whose substantial land has been acquired and not left with sufficient land due to construction of Pong Dam Reservoir and price is payable in 20 instalments payable annully. At no point of time 25% of the reserved price is payable by the allotee. These are the relevant provisions for the present purposes under two sets of Rules with which we are concerned. However, a look of other rules will also reveal that in other areas the primary condition of allotment of land is that the person must be landless persons and the price payable for such allotment is dispersed over a period of 10 to 20 years of instalments. In no case the 25% of the reserved price is payable in one instalment on allotment of land. Under Section 14, which 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, after giving the tenant an opportunity to appear and state his objection, (i) impose on the tenant a penalty not exceeding five hundred rupees, or (ii) order the resumption of 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.'
On breach of conditions of tenancy, as on alteration to resumption of land discretion has been left with the Collector to impose a fine. The extent of fine is only upto Rs. 500/-.
45. From the aforesaid brief, peep into the various provisions of the Act and the Rules framed therein, clearly emerges one thing that the Act aims primarily for allotting land in the colony area to the landless persons. Keeping in view the provisions of the Ceiling Laws, the extent of land to be allotted does not exceed the maximum Ceiling area permissible under the Ceiling laws. Keeping in view the basic purpose of allotment of land to the landless person, price of the land also is not recoverable in one whole lump-sum but is payable in instalments spread over number of years. The conditions, breach of which may entail resumption of land, does not necessarily relate to non payment of due instalments. It ranges from furnishing false information concerning qualification for allotment u/Section 11 to transferring the land against the provisions of the Act u/Section 13 and non-cultivating the land personally or such other conditions as have been laid in the General Colony Conditions or Rules. Except in case where more than 25% of the land price has become due as a result of default in payment of instalments, libaility to that extent does not exist under the Rules of allotment.
46. The rule with which we are concerned and which have been reproduced here in above are applicable where application of allotment has been rejected or allotment having been made has been cancelled. In either case a further review of the order passed by the First Appellate Authority has been made subject to condition of deposit of 25% of the reserved price of the land as security before the Board of Revenue or the Second Appellate Authority as the case may be could entertain and hear the revision or appeal or review on merit. The purposes given in the return filed by the respondent and urged in the Court before us for imposing this condition is to narrow entrance of the litigation to the higher Courts by deterring the aggrieved person knocking at the higher Courts with requirement to deposit asubstantive amount of the total price of land as security as per conditions, irrespective of the fact that full price has been paid, or no instalment is due, or total amount that is recoverable has no relation to such deposit.
47. The question called for consideration is whether such condition violates guarantee of equal protection of law and is against the principle of equality enshrined under Article 14. Construing Article 14 in the light of preamble and Article 39A we are of the opinion that ensuring that opportunities and conditions for securing justice are not denied to any citizen by reason of economic or other disabilities is a basic facet of equal protection of law.
48. It is true that any provisions of part IV of the Constitution laying down the directive principles of State policy is not enforceable. But it is one thing to say that State cannot be compelled by a mandamus to make such laws, but it is quite another thing to say that State is making law which is quite opposite to what is envisaged as a goal to be achieved by the Constitution. The provisions of Chapter IV does provide a yardstick with which reasonableness or unreasonableness of a law made by the authority concerned be tested. If the law is found to be contrary to directive principles so ingrained in fundamental right that is to say contrary to objective to be achieved under the Constitution, it must be held 10 be unreasonable in the sense of being manifestly arbitrary. The directive principles of stated policy contained in Part IV are not anethema to fundamental rights guaranteed under Part III. The directive principle is the part of grand scheme of the Constitution to secure its people justice, social economic and political which include securing protection of fundamental rights as well. The condition for exercise and protection of fundamental under Article 14, cannot be ensured in the absence of ensuring that justice is not denied to any citizen by reason of economic or other disability. To attain the goal it is permissible to look into directive principles in interferring scope and ambit of a fundamental right. In other word, a directive principle can be read into fundamental right to make it meaningful and fit in the whole scheme of constitutional goals.
49. In somewhat similar situation dealing with issue relating to equal pay for equal work a goal set for the State to achieve under Article 39(d), Justice Chinnapa Reddy spoke for the Supreme Court in Randhir Singh v. Union of India, (1982) 1 SCC 618 : (AIR 1982 SC 879) at page 881 of AIR : --
'It is true that the principle of 'equal pay for equal work' is not declared to be a fundamental right. But it certainly is a constitutional goal. Article 39 of the Constitution proclaims 'equal pay for equal work' for both men and women' means equal pay for equal work for every one and as between the sexes. Directive principles as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws..... Construing Article 14 and 16 in the light of the Preamble and Article 39, we are of the view that the principle 'equal pay for equal work' is de-ducible from those Articles.'
50. Likewise in Unnikrishnan J. P. v. State of Andhra Pradesh, AIR 1993 SC 2178 the Apex Court held right to education as part of fundamental right of life and liberty guaranteed under Article 21 with reference to directive principles of State policy stated in Articles 41, 45 and 46.
51. Article 14 provides equality before law and equal protection of law. This guarantee of equal protection of law and equality before law takes within its ambit right to be treated fairly and reasonably and embraces within it mandate against arbitrariness in any sphere of state activity. This right further included within its ambit to get redress against any unreasonable and arbitrary action. The right to get redress is part of fundamental right of equality. This right of redressal being meaningful has to be easily accesible to every citizen unobstructed by any obtrusive conditions which have no reasonable purpose to achieve.
52. Viewed from this angle right to get remedy must be such that is within reach of every person and is unhamphered merely on the basis of economic status of claimant in fundamental to equal protection of law. This is also the directives of Article 39A, which state in no uncertain terms that opportunities to secure justice are not denied merely by reason of economic disabilities. This is not only directive principle but essential ingredients of right to equal protection of laws. The purpose to restrict approach to redressal forums provided under the statute cannot by itself be reasonable objective. Any law aimed to achieving for a unreasonable, object must be held unreasonable. The conditions, which have their object not to restrict the approach but to cut at frivolous or vexatious litigation, or to secure compliance of orders which have been passed by competent authority creating existing liability or obligations, and on their removal the successful party can be restituted, or to prevent higher echeolon of courts from being burdened by substantial litigation may furnish basis for providing rational nexus to purpose sought to be achieved which is not in itself violative of equality clause.
53. A law for putting restraint on vexatious or frivolous litigation can be treated reasonable, but the provision under consideration has no such pretentions to check frivolous or vexatious litigation. Its effect and consequence is that doors of higher judicial forum has been kept ajar only on the thickness of purse. It has no relation to merit of cause. If one has money to spare, he can avail the luxury to approach the higher echeolon, whatever be the worth of the cause. At the same time, an ordinary landless, agriculturist, for whose ameleoration the Act and the Rules aim at, cannot ventilate his genuine cause against wrongful rejection of his application for allotment of land or wrongful cancellation of land already alloted to him, if he does not have the price to pay. It smacks of sale of justice, a tendency deprecated by the Supreme Court in Central Coal Fields v. M/s. Jaiswal Coal Co., AIR 1980 SC 2125.
54. The rule does not even envisage any discretion in the Court to relax the condition and entertain the case in such cases.
55. The issue can be viewed from yet another point of view assuming that the provision is aimed at controlling frivolous or vexatious litigation in higher courts. The rule is applicable only to an applicant for fresh allotment of land or a person whose allotment has been cancelled. Appeal or revision or review is remedy not available to only the applicant or allottee. Such remedy is also available and availed by persons who are aggrieved by such allotments. No such condition is applicable in respect of any such appeal or revision or review that may be preferred by a complainant against an allotment, which is sought to be cancelled. If the object is to control frivolous and vexatious litigation, this classification between appeal against orders of cancellation of allotment or rejection of application on the one hand, and such remedies availed by persons against order granting or refusing to cancel allotments on the other have no rational nexus to the purpose sought to be achieved. It cannot be said that possibility of frivolous or vexatious litigation in latter cases is any less than in the former.
56. The Rule requires deposit as security but it is not at all disernible, security is required for what. A security has always some relation to an obligation to be fulfilled by the person from whom security is required. Such security is ordinarily liable to be appropriated towards liability arising out of non-fulfilment of such obligation by the person concerned. Learned Additional Advocate General has not been able to put forward any such obligation for the fulfilment of which by the person concerned such security deposit is required. If rule has no nexus to secure fulfilment of any obligation arising out of result of lis, as we will presently demonstrate, it has not, it must be held to be unreasonable and arbitrary affecting the right to remedy made available under law by making it unreasonably and harshly onerous.
57. The condition of depositing the fixed percentage of reserve price to get the review of the order of which a person is aggrieved, has no nexus to secure discharge of any liability or obligation of the applicant or allottee under the Rules. It has been noticed above that no amount is payable as price of land with application for allotment of land. Even after allotment of land the price is payable in instalments spread over 15 to 20 years. At no point of time 25% of the price is payable by the person in one lump-sum. In case the application for allotment is refused and order in that regard is upheld by the first appellate court, no liability whatever exists for the payment of money. In such case if his further appeal, revision or review is rejected, then too no liability to pay arises for which security is needed. Even if it is accepted and an allotment is made in his favour, he is even than not required to pay 25% of the price at the time of allotment. Likewise in the case of cancellation of allotment, the cancellation is permissible not only on the ground of default in payment of instalment. In many cases, the allottee may not at all be defaulter and cancellation of such allotment has been made on alleged breaches of other condition in which at no stage any liability of such payment may arise, whether the litigant succeeds or fails. Section 14 further envisage that in case of breach of conditions of colony conditions, the allotment can either be cancelled or breach may be condoned on payment of fine upto Rs. 500/-. The requirement of security deposit under the Rule under consideration has no connection with that either.
58. That apart the rule does not disclose what is to happen of security deposit on decision of such appeal/revision/review, for the entertaining of which it is required. As it cannot be appropriated against any existing or future obligation, is also not envisaged to be forfeited. Perhaps, it could not be merely for the failure of the suitor. The state cannot retain the sum without authority of law as it is neither fee, tax or an amount otherwise due to state. Thus it is liable to be refunded, whatever may be the result of the proceedings in respect of which the same is required to be deposited.
59. In our opinion, there is no disernible policy behind requirement of security deposit except to confine administration of justice to only to those who can afford to part with substantial amount of money in favour of state treasury, to which it has no claim either as fee, tax or on any other ground, to be used by it for indefinite period, during which the matter is pending with authority hearing appeal, revision or review. That too without any return to the owner of such money.
60. The result is per se arbitrary, unjust and unreasonable. It is not only contrary to directive principles of state policy envisaged under Article 39A but cuts at the root of equality and equal protection of law guranteed under Article 14 by subjecting the availablity of remedy to higher courts depending on economic status of the person claiming his right.
61. We may make it clear that we are not. laying down that right of appeal or revision of an order passed by subordinate authority is a matter of right. It depends on the statute conferring such right. Such right can be conferred subject to conditions. But once right is conferred it cannot be subjected to such conditions which are arbitrary irrational and does not conform to constitutional scheme.
62. Even otherwise, we are of the opinion the Board has committed error apparent on the face of order, while refusing to entertain the revision mechanically. Law is well settled that right of appeal of remedy in respect of orders made against a person vest in such person as on the date of institution of proceedings. We have noticed hereinbefore that right of appeal is a part of substantive law and not of procedural sphere and any law cannot affect the said right retrospectively. That is to say the right that has vested with the litigant in respect of appeal/revision/review etc. on the date of institution of proceedings in respect of which such rights are exercisable, remain intact notwithstanding subsequent amendments. Reference in this connection may be made to State of Bombay v. M/s. S.G. Films Exchange, AIR 1960 SC 980, wherein the Court said at page 984:
'It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction there on or imposing a more onerous condition is not a matter or procedure only; it impairs or imperils a substantive right and an enactment which so is not retrospective unless it says so expressly or by necessary intendment.'
Again in Jose Da Costa v. Bascora, AIR 1975 SC 1843, the Court opined: --
'The right of appeal being a substantive right, the institution of a suit carries with it the implication that all successive appeal available under the law then in force would be preserved to the parties to the suit throughout the rest of the careers of the suit.'
The impugned rules deal with laying down the condition of security deposit for persuing remedies after the stage of first appeal, firstly in respect of rejection of application for allotment of land and secondly in respect of cancellation of allotment already made. In the former case the proceedings are instituted on the date when application for allotment of land is made. In the latter case the proceedings come into existence with the issue of notice to allottee. Rights to appeal, revision or review that may arise during such proceedings vest in the applicant or allottee as are existing on the date of such proceedings came into being. In most of the cases at hand, as may be noticed from facts stated above, it is apparent the proceedings came into existence before the impugned rules came into force. Prior to such insertion of rule the right to appeal/revision/ review after first appellate stage was unfattered with any such condition. The rule is not retrospective in operation. Applying the test laid down in AIR 1953 SC 221 and AIR 1968 SC 13 such unfattered right to second appeal revision or review which was already vesting in the petitioner when the impugned rules were inserted remained unaffected. The Board was therefore, otherwise not entitled to refuse to entertain the appeal or revision or review as the case may be with reference to rules under challenge. In the remaining cases also it has not come on record as to when the proceedings were initiated. For this reason also the petitions must succeed.
63. As a result the petitions are allowed. The Rule 10A of the Rajasthan Colonisation (Allotment of Government Land to Pong Dam Oustees in Rajasthan Canal Colony Area) Rules 1972 inserted Vide notification dated 18-1-1985 and Rule 23A of the Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules 1975 inserted by notification dated 21-4-1984 are declared void being arbitrary ultra vires Article 14 of the Constitution. The impugned order of Board of Revenue in each case rejecting appeal/ revision/review for non-compliance of the Rule 10A or 23A of the respective Rules as the case may be is set aside and the Board of Revenue is further directed to decide the case before it in each case on merit in accordance with law.
64. There will be no order as to costs.