Wanchoo, C.J.
1. These are two connected applications under Article 226 of the Constitution No. 69 has been filed by Rao Sangram Singh of Deogarh, while, No. 19 has been filed by Naharsingh of Kotri. We propose to deal with these two petitions by one judgment as the point raised in them is the same.
2. Briefly speaking the case of the two petitioners as it has emerged eventually is this:
3. Rao Sangramsingh holds village Raila and pays Rs. 800/- a year for it to the Dargah- Khwajah Sahib, Ajmer. Naharsingh holds village Kotri, and pays Rs. 60/- per year to the same Dargah. Their case is that they were granted a permanant lease (Ijara Istamrar of Patta Istamrar) by the Dargah sometimes in the l9th century. By virtue of that Patta Naharsingh has to pay Rs. 60/- per year to the Dargah which is the Maufidar of these two villages, while Rao Sangramsingh has to pay Rs. 800/-. They have thus been holding these two villages for the Dargah for a very long time now.
Their grievance is that in 1955 proceedings were taken by the State to resume these two villages under the Rajasthan Land Reforms and Resumption of Jagirs Act (No. VI) of 1952 (hereinafter called the Act) under notifications issued under Section 21 of the Act. They contend that these villages were granted to file Dargah for its maintenance as a place of religious worship, and as the income from the villages is still being utilized for the maintenance of the said Dargah, these two jagirs were exempt from being resumed in view of Section 20 of the Act. They, therefore, pray that the State be restrained from resuming these two villages.
4. The application was originally filed only against the State of Rajasthan, but as the interest of the Dargah was also involved it was later added as a party.
5. The application has been opposed on behalf of the State, and it is contended by them that the applications themselves are jagirdars wihin the meaning of Section 2(g) of the Act, and that their interest in the land is distinct from the jagir of the Dargah, and therefore it is open to the State to resume the jagirs of the applicants even though the jagirs granted to religious institutions for the maintenance of a place of religious worship, or for the performance of any religious service may be exempt under Section 20 of the Act.
6. There is thus a short point for decision in this case, namely whether the rights and interests of sub-grantees from a jagirdar, whose jagir is exempt from resumption under Section 20 of the Act, are liable to resumption. Before we consider the relevant provisions of the Act applicable to this, we should like to refer to the scheme of the Act.
7. The Act was passed as a measure of land reform, and the intention was to bring to an end all jagirs in the interest of the tillers of the soil. In order, however, to bring within its scope all kinds of jagirs prevalent in Rajasthan, the definition of the 'Jagirdar' was very widely worded, and included not only grantees from the State, but also sub-grantees from the jagirdar.
Provision was also made in Section 4 for separating the sub-jagirs from the parent jagirs out of which they sprang up, and for treating these sub-jagirs as separate jagir. But, at the same time, though the legislature was providing for a comprehensive legislation for resumption of all jagirs it yet made an exemption for one class of jagirs, and that exemption is to be found in Section 20 which provides for the resumption of all jagirs. That section, as it now reads, is in these terms.
'The provisions of this chapter apply to all Jagirs except those which were originally granted or were or are deemed to have been granted, end the income of which is being utilized for the maintenance of any place of religious worship or for the performace of any religious service.'
Though, therefore, the legislature was providing for resumption of all jagirs, it still left what we may colloquially call 'religious jagirs' out of the scope of the Act. It is with this background that we have to consider the relevant provisions of the Act dealing with this matter.
8. The main provisions, which have to be considered in this connection, are Section 2(g), (h) & (j), Section 4, and Section 20 of the Act.
9. So far as Sections 2(g), (h) and (j) are concerned they are definitions and it is not disputed in this case that according to the definitions given in these sub-sections, the two applicants will be jagirdars of there two villages for they are either Istamrars or Ijara Istamrars, and these kinds of jagirs are included in the first schedule to the Act. The mere fact, however, that the two applicants are jagirdars within the meaning of Section 2(g) would not, in our opinion, lead to the necessary conclusion that their jagir was liable to be resumed.
For this we will have to go to Section 20 to see what jagirs are to be resumed, and what jagirs were intended to be exempted. We have already set out Section 20, and that shows that all jagirs except those which were originally granted or were deemed to have been granted and the income of which was being utilized for the maintenance of a place of worship were resumed. Thus there wag one class of jagirs namely jagirs granted to religious institutions, which if they were still with those institutions and the income of which was still being utilized by those institutions, was exempt from the operation of the Act.
It follows from this exemption granted to this class of jagirs that it was not the intention of the legislature that any land held under this class of jagir should be interfered with under this Act. It also in our opinion, follows from this that no arrangements made by a jagirdar of this kind, namely the religious institution, would be Interfered with by the State. It is to our mind clear that when the State was exempting this class of jagirs, there could not have been any intention on the part of the State to resume sub-grants from a Jagirdar of this kind as separate grants for that would be doing something which was against the exemption granted under Section 20.
10. This view that we take of Section 20 is enforced by the provisions of Section 4. This Section provided for the assessment of land revenue of jagir lands, and further provided that after the land revenue commenced to be paid certain consequences would ensue, namely that the jagirdars would cease to pay tribute to the Government under the exising law, and the grantee of a jagir land from a jagirdar would cease to pay any sum to the jagirdar in respect of such grant.
This Court had occasion to consider the effect of this provision in Bhopalsingh v. Rajasthan State Civil Writ No. 65 of 1955 D/- 15-3-1956 (Raj) (A), and it was there pointed out that Section 4 separated the interest of the sub-jagirdars and converted the sub-jagirdars into jagirdars, and brought them into direct relationship with the State, Learned Government Advocate is relying on that decision; but it is enough to point out that that decision was not concerned with the proviso to Section 4 because that was not a case of a jagir which was exempted under Section 20 of the Act. The proviso to Section 4 is as follows:--
'Provided that nothing contained In this Section shall apply to any jagir land:-- (a) the income of which is utilized for the maintenance of any educational institution or any place of religious worship or for the performance of any religious service, or
b. ..................'
We have already pointed out that Section 20 exempted one particular class of jagirs granted to religious institutions from the operation of the Act. Then comes this proviso which lays down that nothing in Section 4 would apply to that class of jagirs. This enforces our view that the exemption in Section 20 relating to this class of jagirs was absolute, and it was not the intention of the legislature that the lands included in this class of jagirs should be interfered with at all.
The effect of this proviso to Section 4 was that Section 4 did not apply to such jagirs, and land revenue would not be fixed on such jagirs, and in consequence the jagirs would continue to pay the tribute to the Government, if any, under the existing law, and the grantee of jagir land from such a jagirdar would continue to pay any sum to the jagirdar in respect of such grant as he was liable to pay from before. Clearly, therefore, the intention of the legislature was being carried out by this proviso, and there was no intention to interfere with this class of jagirs and the sub-grantees from the jagirdars of this class.
11. It was urged that Section 2(g), (h) and (j), which deal with definition of jagirdar jagir land, and land are very wide in amplitude and the applicants are jagirdars within the meaning of that word as defined in Section 2 (g), and the land is 'jagir land', and therefore liable to be resumed. It is also urged that it is possible to separate the interest of the Sub-grantees from the interest of the religious institution, and the State can resume the interest of the Sub-grantees leaving the interest of the religious institution untouched as required by Section 20 of the Act. We are of opinion that this is not possible, and if the State acquires the interest of the Sub-grantee it is certainly not leaving the interest of the religious institution untouched as is the intention of the exemption under Section 20
12. Let us take these very cases. It is urged that the State, after taking over these two villages, will continue to pay, in one case, Rs.60/-, the other Rs. 800/- to the Dargah and therefore the Dargah's interest in the jagir would remain exempt. We are of opinion that this argument presupposes that the Dargah's interest in the two villages only consists of receiving Rs. 60/- in one case, and Rs. 800/- in the other from the applicants. We are of opinion that this is not all. If, for example, the lines of the two applicants were to fail, tomorrow their interest will come to an end, and the Dargah will be entitled to resume full possession of the two villages, and to enjoy its full income whatever it may be. Thus the interest of the Dargah in these two villages is not merely to receive Rs. 60/- in one case, and Rs. 800/- in the other. The Dargah has further the right to re-enter when the lines of its permanent lessees fail and to take possession of the entire lands and to enjoy the entire usufruct of the property. This will not be possible if the State resumes the sub-grants.
It is admitted between the parties that these villages were, granted to the Dargah in perpetuity for its maintenance. The mere fact that the Dargah created a Sub-grant of a permanent nature in favour of the applicants' ancestors in the 19th century would not, in our opinion, change the nature of the jagir from being a religious jagir to an ordinary jagir liable to resumption under the Act.
In this particular case, it may be that the Dargah now gets a much smaller proportion of the income of the villages than goes to the share of the applicants : but the proportion that goes to the lessor or to the lessee is no ground for determining the nature of the land, and whether it comes under the exemption in Section 20.
13. Another argument urged by the learned Government Advocate was that Section 20 requires two conditions, namely (7) that the jagir should have been originally granted or deemed to have been granted for religious purpose, and (2) that its income should continue to be utilised for the maintenance of a place of religious worship, and in this case, though the first condition was satisfied, the second condition was not, inasmuch as the entire income from this jagir was not being utilised for the maintenance of the place of worship namely the Dargah.
Therefore, it was urged that this case was not covered by the exemption. We are of opinion that there is no warrant for adding the word 'entire' or 'whole' before the word 'income' in Section 20. All that Section 20 lays down is that the grant should have been originally made or deemed to have been made for a religious purpose, and the income should still at the time when the Act came into force be utilised for the maintenance of a place of religious worship or for the performance of any religious service.
The word 'income' has not been qualified there by the word 'entire' or 'whole', and in the absence of any such qualification we must hold that so long as the income is utilised for the maintenance of the place of religious worship, whether the entire income or in part, the second condition is fulfilled. It is only when no part of the income of a jagir originally granted to a religious institution is being used for the maintenance of a place of religious worship, or for the performance of a religious service, that it can be said that the second part of Section 20 is not complied with. We also feel that if the word 'entire' or 'whole' was to qualify the word 'income' in Section 20 its operation would become very difficult, and a lot of controversy may arise in innumerable cases whether a particular jagir made for the maintenance of a place of religious worship or for the performance of any religious service is exempt or not.
14. On a careful consideration, therefore, of the relevant provisions of the Act, which we have pointed out. We are of opinion that the intention of the legislature by the exemption provided in Section 20 was to exempt all jagirs which were originally granted or may be deemed to have been granted for religious purposes, and the income of which was still being utilised in whole or in part for the maintenance of any place of religious worship or for the performance of any religious service from the operation of the Act, and there was no intention to resume sub-Jagirs under such a jagirdar.
15. The applications are therefore allowedand the State is prohibited from interfering withthe applicants. But in view of the circumstancesof these cases, we order the parties to bear theirown costs.