ABDULKARIM KHAN Vs. STATE

JUDGEMENT

(1.) THIS is a wrIt application by Abdulkarim Khan and others under Art. 226 of the Constitution and seeks to challenge the order of the Rajasthan State dated the 9th July, 1958 by which the payment of 'khandan' allowances to the petitioners and respondent No. 3 was discontinued with effect from 1st July, 1952.

(2.) THE petitioners Nos. 1 & 2 and respondent no. 3 are admittedly descendants of His Highness Nawab Ameeruddaula of Tonk being the sons of Abdul Qayum Khan. This Abdul Qayum Khan was a grand son of Naseer Mohammed Khan, who was grand son of Nawab Ameeruddaula, but failed to succeed to the 'Gaddi' of Tonk having predeceased his father Nawab Waziruddaula. THE petitioner No. 3 Mst. Amir Begum is the widow of the said Abdul Qayum Khan and is the mother of petitioners Nos. 1 and 2 and respondent No. 3. It is further common ground between the parties that Naseer Mohanmmad Khan became the first holder of the so called "Khandan allowance" which subsequently devolved upon his son Ahmed Khan, and from the latter to Abdul Qayum Khan, and after his death, to the petitioners and respondent No 3, in accordance with the Tonk State Khandan Rules of 1944 (hereinafter called the Rules of 1944). Abdul Qayum Khan died sometime in May, 1948, and it is alleged that he was in receipt of a Khandan allowance of Rs. 159/- per month upto the date of the death, and this date of Abdul Qayum Khan's death has not been disputed in the reply filed on behalf of the State. It is important to mention at this stage that the State of Tonk, as it then was, had integrated with what we may call for the sake of facility "THE first United State of Rajasthan" with effect from the 1st of May, 1948. It is further not disputed before us that the Government of the aforesaid United State of Rajasthan sanctioned the grant of the Khandan allowances in favour of the petitioners and respondent no. 3 in accordance with the Rules of 1944. THE second United State of Rajasthan, which was the pre-constitution State, was then formed on the .7th of April, 1949 and the State of Tonk was merged in it. Under a letter dated the 16th October, 1956 from the Deputy Secretary to the Government of Rajasthan, Jaipur, General Administration Department to the Collector, Tonk (Ex. 4), the case of the petitioners in connection with their Khandan allowance was scrutinised and it was accepted that the petitioners No. 1 & 2 and respondent No. 3 all being legilimate heirs of the original grantee were entitled to get the allowances according to the Rules of 1944 at the rates noted therein against each and sanction of His Highness the Rajpramukh was accorded to the payment of these allowances to the persons concerned for their life time in accordance with the principles enunciated in letter No. F. 18 (10) Rev-11/51 dated the 2nd May, 1952 of the Revenue Department addressed to the Accountant General, Rajasthan. Among other matters, it was mentioned in the 1st mentioned letter that all such allowances would be admissible only for the life time of the grantee and no allowance would be paid to their heirs even though the Rules of 1944 may provide for the continuance of such allowances of them. It is thus clear that the petitioners no.1 & 2 and respondent no. 3 and their mother Mst. Amir Begum continued to get the allowances in question until November, 1937. THEn by the letter dated the 9th July, 1958 (Ex. 5), which we have already referred to above, these allowances were discontinued, and be it noted that they were not merely discontinued prospectively but with retrospective effect from the 1st of July, 1952. It is this order which is sought to be challenged before us.

(3.) THE position at which we thus arrive is that the impugned orders are bad and cannot be sustained. We also think that the case of the petitioners has to be governed by the Act of 1958 which came into force on the 2rst July, 1958. THE definition of "cash jagir" given in sec. 2 of this Act is very comprehensive and seems to include the cash allowances of the type of which the persons aggrieved before us were in receipt. By sec. 3 of this Act it has been provided that notwithstanding anything to the contrary contained in any law, sanad, order, custom or usage in force in any part of the State, all payments of money on account of cash jagirs within the meaning of this Act shall be discontinued on and from the 1st day of April, 1958 and all such cash jagirs shall stand abolished as from that. It is clear that to the extent that such jagirs were abolished from the 1st day of April, 1958, the Act of 1958 was given a retrospective effect, but there can be no question that it was open to the legislature to do so. By sub-sec. (2) of this sec. 6 it has further been provided that notwithstanding such discontinuance and abolition the State Government shall make payments by way of compensation in accordance with the scale laid down in the Second Schedule, of the Act. THE Second Schedule lays down the scale of compensatory payment, and so far as it is relevant for our present purposes under clause (a) thereof which provides that "if such monthly rate does not exceed fifty rupees, the compensation payable would be for a period of fifteen years from the 1st day of April, 1958, at a monthly rate equal to the cash jagir received by the holder per month immediately before the last mentioned date.