Babu Singh v. State of Rajasthan — 1998 DIGILAW 204 (RAJ)

Honble GUPTA, J.–Through this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner impugns the orders dated 3.6.1990 (Annx.1), 28.4.1990 (Anx.2) and 28.9.95 (Anx.3). (2). The facts stated in the writ petition are that Akura Ram Meghwal Was Gairkhatedar tenant of the land measuring 37.14 Bighas of land in village Rajasar, now Chak 5 M.D. He sold this land to one Naresh Chandra on 18.5.1963. Naresh Chandra in his turn sold this land to petitioner Babu Singh on 24.5.1970 by registered sale deed who is in possession of the land since then. The proceedings under Section 175 were initiated against the petitioner on 2.2.1974 but the Assistant Collector dismissed the application vide order dated 22.9.1977 on the ground that the application was time barred. Appeal taken against that order before the Revenue Appellate Authority was pending. During revenue campaign on 3.6.1989 Amari w/o Akuraram made on application before the Assistant Collector, Annopgrah that the petitioner had been dispossessed of the land by force and the possession should be restored to her. It was found that Amari was a member of Scheduled Caste and therefore she other husband could not sell the agricultural land to a person, who was not the member of Scheduled Caste and therefore the sale was void. The Assistant Collector vide order Ex.1 directed the Tehsildar to dispossess Babu Singh (petitioner) and hand over possession of the land to Amari (respondent no.6). This order was challenged by way of appeal before the Revenue Appellate Authority, who vide order dated 28.4.1990 dismissed the appeal and a revision preferred under Section 230 of the Rajasthan Tenancy Act was also dismissed by the Revenue Board vide its judgment dated 28.9.1995. The petitioners case is that the order Anx.1 was passed without affording an opportunity to the petitioner and therefore the order Ex.1 and the consequent orders Exs. 2 dt. 28.4.1990 & Ex.3 dt. 28.9.1995 are liable to be quashed. It has been averred that the petitioner had been in continuous possession for a long period and therefore he has acquired title by adverse possession. (3). In the reply respondents no. 1 to 5 have averred that the sale in favour of Naresh Chandra by Akura Ram was void under Section 42 of the Tenancy Act and as such subsequent sale by Naresh Chandra to the petitioner did not confer any legal right in the petitioner. (3). In the reply respondents no. 1 to 5 have averred that the sale in favour of Naresh Chandra by Akura Ram was void under Section 42 of the Tenancy Act and as such subsequent sale by Naresh Chandra to the petitioner did not confer any legal right in the petitioner. It has been stated that since the sale was void no notice was required to be given to the petitioner. (4). I have heard the arguments of the learned counsel for the parties and perused the record of the case. (5). The contention of Mr. Bhoot was that admittedly no notice was given to the petitioner before passing order Ex.1 and therefore the order Ex.1 is bad and orders Ex. 2 and 3 are also liable to be quashed. (6). Mr. Singhi & Mr. Sharma, on the other hand, canvassed that no notice was required to be given to the petitioner as sale to him was void ab-initio. They submi- tted that assuming that it was necessary to give an opportunity of hearing to the petitioner, the orders are not liable to be quashed for the reason that the petitioner did not have legal right in the land and this Court under the extra ordinary jurisdiction under Article 226 of the Constitution should not allow the illegality to be perpetuated. Their contention as that if the matter is sent back to the concerned authority for affording an opportunity to the petitioner of hearing, the result would be the same as the petitioner cannot successfully defend his possession. It was further contended that when the petitioner did not obtain possession over the land in accordance with law, he cannot successfully plead the acquisition of Khatedari rights on the basis of adverse possession. (7). I have given the matter my thoughtful consideration. In this case it is no more in dispute that petitioner was not given an opportunity of hearing before the order Ex.1 was passed. The order Ex.1 was passed under Section 175. Sub-section (4A) of Section 175 of the Tenancy Act provides that if the application is in respect of contravention of the provisions contained in Section 42, the Court shall after giving reasonable opportunity to the parties of being heard, conclude the enquiry in a summary manner and pass order, as far as may be practicable within a period of three months. It was thus obligatory on the part of the Assistant Collector to have first given notice to the petitioner before passing the impugned order. (8). Even if it is accepted that the order passed of administrative nature, notice should have been given to the petitioner before passing the order Ex.1 in view of the principles of natural justice. However, the matter does not conclude here. (9). The question to be considered is whether on the ground that the order was passed without affording an opportunity of hearing to the petitioner, it should be quashed. If the order Ex.1 and subsequent orders Ex.2 and Ex.3 are quashed the consequence will be that the petitioner shall be entitled to maintain his possession on the disputed land. (10). Hence it is relevant to read Section 42 of the Tenancy Act which is as under:– 42. General restrictions on sale, gift & bequest.–The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void if (a) xxxx deleted (b) such sale, gift or bequest is by a number of Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. (11). Prior to 1.5.1964 the Section was to the following effect. ``42. Sale of gift.–Except with the general or special permission of the State Government no Khatedar tenant shall have the right to transfer by sale or gift his interest in the whole or a part of his holding to any person who at the date of such transfer is already in possession of land which together with the land so transferred will exceed the ceiling area applicable to him: Provided that no Khatedar tenant being a member of a Scheduled Caste or a Scheduled Tribe shall so transfer his interest in the whole or a part of his holding to any person who is not member of a Scheduled Caste or a Scheduled Tribe. (12). A reading of the Section 42, as it stands today, makes it clear that the sale by a Khatedar tenant who is member of Scheduled Caste of his interest in the holding is void if the person, to whom the sale is made, is not member of the Scheduled Caste. (12). A reading of the Section 42, as it stands today, makes it clear that the sale by a Khatedar tenant who is member of Scheduled Caste of his interest in the holding is void if the person, to whom the sale is made, is not member of the Scheduled Caste. In the instant case, the sale by Akura Ram was made in the year 1963. The sale under Section 42, as it stood then, was though not expressly held to be void, yet it was forbidden by law. The proviso started with the negative words. The negative words are clearly prohibitory and are ordinarily used as a legislative devide to make the statute imperative. (13). This Court had an occasion to interpret the proviso to Section 42 in the case of Ram Chandra vs. Om Prakash (1) wherein it was held that proviso to Section 42 categorically forbids the sale by a member of the Scheduled Caste in favour of the person who is not member of that class and therefore such sale is forbidden by law within the meaning of Section 23 of the Indian Contract Act and no court will lend its assistance to give effect to a contract forbidden by law. It is obvious that the sale of interest in the land by Akura Ram to Naresh Chandra who, admittedly was not the member of Scheduled Caste, was forbidden by law. As such, the vendee did not get any legal right in the land by such transaction. The petitioner who had purchased interest in the land from Naresh Chandra could not get better right than his vendor. It may also be pointed out here that Akura Ram was not even Khatedar of the land; he was Gair Khatedar, and as such the interest in the holding was not transferable because of Section 38 of the Tenancy Act. (14). Now the next question that needs consideration is whether the petitioner can succeed on the plea of adverse possession on the land. The possession of the petitioner according to the averments in the writ petition was from the year 1970. (15). This Court had occasion to consider the question whether Khatedari rights can be acquired by adverse possession even if the sale was in contravention of Sec. 42 of the Tenancy Act in the case of Khuman Mal vs. Bheru (2). The possession of the petitioner according to the averments in the writ petition was from the year 1970. (15). This Court had occasion to consider the question whether Khatedari rights can be acquired by adverse possession even if the sale was in contravention of Sec. 42 of the Tenancy Act in the case of Khuman Mal vs. Bheru (2). In that case, it was observed by the Division Bench that Section 42 of the Rajasthan Tenancy Act prohibits transfer of land by Khatedar tenant belonging to Scheduled Caste to a person who does not belong to Scheduled Caste and the prohibition in this Section is absolute, and that as the sale of land held by a member of Scheduled Caste can- not be transferred by way of sale, gift or bequest or even by decree of a competent court, the same cannot be allowed to be entered in the name of persons who are seeking Khatedari rights on the basis of possession. It was further observed that under Section 88 a purchaser may acquire by adverse possession Khatedari rights provided that the acquisition of Khatedari is not specifically prohibited by law, which means that if a person, claiming to have acquired Khatedari rights by adverse possession, was put in or had obtained possession of the land in contravention of any provisions of law prohibiting or invalidating the transaction which has occasioned such adverse possession or if any such provision of any State was thereby circumvented, will not acquire the Khatedari rights. It is, thus, settled legal position that when a person has purchased the land in contravention of the provisions of Sec. 42 of the Tenancy Act, he cannot acquire Khatedari rights by adverse possession. (16). The upshot of the above discussion is that the petitioner could not justify his possession over the land in dispute even if opportunity of hearing was given to him before passing order Ex.1. If the writ petition is allowed, it will result in perpetuating the illegality. This Court under extra ordinary jurisdiction is obliged to protect the rights of the citizens, but when there is no right vested in the petitioner and he is illegally holding the possession, it cannot be proper to issue writ on the technical ground that opportunity of hearing was not given to the petitioner. (17). This Court under extra ordinary jurisdiction is obliged to protect the rights of the citizens, but when there is no right vested in the petitioner and he is illegally holding the possession, it cannot be proper to issue writ on the technical ground that opportunity of hearing was not given to the petitioner. (17). In the cases cited by learned counsel for the respondents it has been held that the High Court should not quash an order even if it is wrong if the quashment of the order will result into restoration of the illegal order. (18). In the case of Jagan Singh vs. State (3) facts were that an order was pa- ssed by the Regional Transport Authority was challenged before the State Transport Appellate Tribunal, who held that the order was illegal. In this Court, it was argued that the State Transport Appellate Tribunal had no jurisdiction to entertain the application against the order at the instance of non-petitioner/s of that case. This Court observed that if the order of the State Transport Appellate Tribunal is set aside on the contention advanced, there would be restoration of the illegal order of the Regional Transport Authority. It was therefore held that it was not justified to interfere in the order of the State Transport Appellate Tribunal. (19). Similarly, in the case of Mala vs. State of Rajasthan (4) it was observed that if by setting aside an order on the ground of lack of jurisdiction, the other illegal orders are resorted then such a course should not be adopted because it does not result in a failure of justice to the party for the simple reason that the order passed in favour of the party were illegal. (20). In the case of Gadde Venkateshwara Rao vs. State of Andra Pradesh (5) it was noticed that the Govt. had reviewed its previous order on the ground that the said order was made under mistaken impression. It was argued that the Govt. had no jurisdiction to review that order. The High Court still did not quash the order. Their lordships of the Supreme Court upheld the order of the High Court observing that if the High Court had quashed the said order, it would have restored to an illegal order and therefore, the High Court had rightly refused to exercise its extraordinary discretionary power under Article 226, Constitution of India. Their lordships of the Supreme Court upheld the order of the High Court observing that if the High Court had quashed the said order, it would have restored to an illegal order and therefore, the High Court had rightly refused to exercise its extraordinary discretionary power under Article 226, Constitution of India. It is to be noticed that in that case also it was the contention of the appellant and that the order was passed without giving notice to the Panchayat Samiti. (10). Mohd. Swalesh vs. Third Distt. Judge, Meerut (6) the facts were that the District Judge, who had no jurisdiction to entertain an appeal against the order passed by the prescribed authority, had set aside the order and the High Court declined to entertain with the order. Their Lordships observed that the order of the prescribed authority was improper and invalid and the High Court was justified in not setting aside the order of the District Judge though technically there was point in the contention of the appellant that the order of the District Judge was improper and illegal. (24). The ratio of the above cases is that if setting aside of an order amounts to restoration of an illegal order, the High Court should not interfere in the exercise of its discretionary powers. In the instant case, as already stated, if the impugned orders are set aside, it will result in permitting the petitioner to hold possession of the land, which he is not entitled in view of the express provisions of Sec.42 of the Rajasthan Tenancy Act. It is, therefore, not considered proper to quash the orders impugned in this writ petition. (25). Consequently, there is no merit in this writ petition which is hereby dismissed.