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1976 DIGILAW 388 (RAJ)

Narayan Lal v. Sub-Divisional Officer, Bhilwara

1976-11-09

GUPTA

body1976
GUPTA, J.—I have heard learned counsel for the parties. 2. Learned cousnel for the petitioner raised two contentions before me. His first contention is that the proceedings regarding the determination of the ceiling area applicable to late Shri Hari Singh, the transferer of the petitioners, could not have been decided under Chapter IIl-B of the Raiasthan Tenancy Act after the promulgation of the New Ceiling Act of 1973. This question has been considered in all its aspects and concluded by the decision of a Special Bench of this Court in Banshidhar vs. State of Rajasthan (Special Appeal No. 8 of 1976 and others decided on October 21, 1976) and it has been held therein that pending matters will have to be decided in accordance with the provisions of Chapter III-B of the Rajasthan Tenancy Act. This contention of learned counsel, therefore, deserves to be repelled now in accordance with the aforesaid decision of the Special Bench. 3. The second contention raised by the learned counsel is that the petitioners were transferees of late Shri Hari Singh and that an agreement for sale was executed in favour of the petitioners on April 28, 1957 but sale deeds came to be executed on August 22, 1966 or thereabout. According to the learned counsel, the transfers in favour of the petitioners were protected under the provisions of Section 30-DD of Chapter III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). However, there are two pre-conditions for recognition of a transfer under section 30-DD, namely (i) the transfer should have been effected upto the 31st day of December, 1969; and (ii) it should have been effected in favour of an agriculturist domiciled in Rajasthan or in favour of the son or brother of the transferor, intending to take to the profession of agriculture and capable of cultivating land personally and who had attained the age of majority on or before the aforesaid date. So far as the first requirement is concerned, the transfers in question were no doubt made in favour of the petitioners on or about August 22, 1966, but the second requirement of section 30 DD of the Act is not fulfilled in present case It is not the case ot the petitioners that they were either sons or brothers of the transferor Shri Hari Singh and, therefore, the transfers effected by him in their favour could only be protected if the petitioners were agriculturists and further if they were domiciled in Rajasthan. The second Explanation incorporated by the Legislature to section 30DD provides that the expression "demiciled in Rajasthan" in that section referred to a person who was permanently residing in Rajasthan since before the commencement of the Act. The agreement which is said to have been executed by late Shri Hari Singh in favour of the petitioners on April 28, 1957 has been placed on record by the learned counsel for the petitioners and it mentions that the petitioners were residents of village Dhansura of district Sabarkanta in the State of Gujrat. The grievance of the learned counsel for the petitioners is that this agreement dated April 28, 1957 was sought to be produced by the petitioners before the Revenue Appellate Authority, but that Authority failed to take the same in evidence under Order 41 Rule 27 C.P.C. In my view, even if the document in question, namely the agreement dated April 28, 1957 would have been taken on record by the Revenue Appellate Authority, it would have rather disproved the contention of the learned counsel, as a perusal thereof shows that the petitioners were not "domiciled in Rajasthan" within the meaning of that expression as used in section 30-DD, because they were not permanently residing in Rajasthan since before the commencement of the Rajasthan Tenancy Act, 1955. 4. Learned counsel for the petitioners contended that in Explanation (2) of section 30 DD of the Act, the expression "the commencement of this Act should have reference to the Rajasthan Tenancy (Second Amendment) Act, 1970 (Act No. 15 of 1970), by which the provisions of Section 30 DD were introduced in Chapter III-B of the Rajasthan Tenancy Act. I am unable to agree with this contention. I am unable to agree with this contention. The provisions of section 30 DD were no doubt inserted into Chapter III-B of the Rajasthan Tenancy Act, 1955 by the aforesaid Amending Act No. 15 of 1970, yet after the said Amending Act came into force, it should be deemed as if the provisions of Section 30-DD were physically inserted in the Rajasthan Tenancy Act, 1955. After the amendment of Chapter III B of the Act by the introduction of section 30 DD, including the two Explanations attached thereto, it should be considered as if the provisions of Section 30 DD were incorporated with pen and ink in the original enactment of Chapter III-B of the Act. Reference may be made in this connection to the decision of their Lordships of the Supreme Court in Shamrao vs. Parulekar (1), wherein it was observed:— "The rule is that when a subsequent Act amends an earlier one in such a may as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scorer out so that thereafter there is no need to refer the amending Act at all." Therefore, the reference to the " commencement of this Act" in Explanation (2) of section 30-DD after its incorporation in the parent Act of 1955, can have reference only to the commencement of the Rajasthan Tenancy Act, 1955 and not to the Amend ing Act No.l5 of 1970. As it is not the case of the petitioners that they were residents of Rajasthan even prior to 1957, the Revenue Appellate Authority rightly came to the conclusion that the transfers made in favour of the petitioners could not be recognised under the provisions of section 30-DD of the Rajasthan Tenancy Act". 5. Learned counsel for the petitioners then submitted that the principles of natural justice were violated in the present case inasmuch as the petitioners were not given an opportunity of hearing by the Sub-Divisional Officer. 5. Learned counsel for the petitioners then submitted that the principles of natural justice were violated in the present case inasmuch as the petitioners were not given an opportunity of hearing by the Sub-Divisional Officer. However, when the petitioner filed an appeal before the Revenue Appellate Authority, they were afforded a hearing by that Authority and it was after hearing them that the Revenue Appellate Authority came to the conclusion that the petitioners were not domiciled in Rajasthan and that the transfers made in their favour could not be recognised under section 30-DD of the Act. Moreover, the order passed by the Revenue Appellate Authority in this matter could surely have been subject matter of a revision petition before the Board of Revenue under the provisions of the Act and as an effective alternative remedy by way of revision under the provisions of the Rajasthan Tenancy Act was available to the petitioners, the writ petition could not be entertained. 6. Learned Additional Government Advocate further submitted that a joint petition on behalf of 11 petitioners could not have been filed, as the petitioners had separate holdings transferred to them by late Shri Hari Singh and as such a joint writ petition is not maintainable on their behalf. This objection has also force and a joint petition on behalf of 11 petitioners could not be maintained, but as I have preferred to decide the writ petition on merits, it would be necessary to persue the matter further. 7. No other point was argued before me by the learned counsel. 8. In the result, the writ petition has no merit and, therefore, the same is dismissed.