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2003 DIGILAW 1246 (RAJ)

Abdul v. State of Raj.

2003-09-03

PRAKASH TATIA, RAJESH BALIA

body2003
Honble BALIA, J.–Heard learned counsel for the parties. (2). As the matter can be decided without preparation of paper- book and filing of initial charges and list of documents, therefore, the same are dispensed with and the matter is heard on merits at the request of learned counsel for the parties. (3). The appellant/petitioner Abdul @ Abud, since deceased, was prosecuted in the Court of Munsif & Judicial Magistrate, 1st Class, Barmer under Sec. 3/6 of the Indian Pass-port Rules on 10.2.81 inter alia on the allegation that accused Abdul alongwith one other person was caught by the patrolling guard/Officers at the Pakistan check post because they were crossing the Indian Border and they were not having valid pass-ports. The accused has stated in his statement that infact he was going to meet his sister through the way which was passing near the Border and he was wrongly caught. However, this plea was not accepted and he was convicted for the aforesaid offence. (4). After this order of conviction was passed, proceedings were initiated against the petitioner under Sec. 63(1)(viii) of the Rajasthan Tenancy Act for recovery of possession of land from the petitioner/appellant. It was recorded that Abul or Abdul are one and same person who is son of Mewa, resident of village Punjasar. This was verified by the Patwari of the region. In his defence, he denied having ever gone to Pakistan and also took the plea that on the relevant date in question, he had gone to meet his sister and while returning from the way which was passing near Pakistan Border, a person of BSF apprehended him. The plea taken by the appellant is exactly similar to the plea which was taken during defence before the criminal court. This makes it sure that accused Abdul and the appellant Abdul are one and the same person and this fact was further corroborated from the statement of Suwana and the Patwari of the region. In fact, it was not a case where at any time it was urged by the petitioner/appellant that he was not accused in the aforesaid criminal case in the court of Munsif and Judicial Magistrate. In fact, it was not a case where at any time it was urged by the petitioner/appellant that he was not accused in the aforesaid criminal case in the court of Munsif and Judicial Magistrate. On the aforesaid material available on record, the Tehsildar-Choutan found that petitioner/appellant had crossed the Indian Border to Pakistan without having valid pass-port and, therefore, his khatedari rights are extinguished in terms of Sec. 63 of the Rajasthan Tenancy Act, 1955. This order was made on 7.9.94. (5). The appeal filed by the father of petitioner was dismissed by the Revenue Appellate Authority vide order dt. 18.4.95 agreeing with the finding of Tehsildar and thereafter same was affirmed by the Board of Revenue in revision vide its order dated 20.3.98. The contention of petitioner/appellant that he never went to Pakistan was not accepted by the Board of Revenue and in view of statutory provisions, the order passed by Tehsildar was affirmed, which resulted in filing the writ petition before this Court, which too was dismissed by learned Single Judge vide order dated 18.8.2000. (6). Having perused the order under appeal we are of the view that the order passed by learned Single Judge does not give clear picture of the controversy raised in the writ petition. However, this alone is not sufficient to allow the appeal and writ petition without considering the question on merit of the petitioners contention. (7). The first contention raised by the petitioner is about the divergence in the name between the person shown as accused person in criminal case referred to above and the petitioners name already noted above. This has been found by all the courts below the Abul and Abdul are one and the same person. Moreover it was not the contention of petitioner that he is not Abul. What was his case, was that he has never visited Pakistan; in fact he was returning from his sisters house when BSF personnel apprehended him. Copy of the order passed in criminal case by Munsif and Judicial Magistrate shows exactly the same defence taken by appellant Abdul in that case. It fully corroborates that accused Abul and the petitioner Abdul are one and the same person. Copy of the order passed in criminal case by Munsif and Judicial Magistrate shows exactly the same defence taken by appellant Abdul in that case. It fully corroborates that accused Abul and the petitioner Abdul are one and the same person. In the facts and circumstances of the case, we have no doubt that Abdul and Abul who are one and the same person, was apprehended by BSF personnel near Indo-Pak Border and it cannot be co-incidence that in two different matters, two different persons of same name have taken same defence in respect of identical incident, when there is no dispute about the common parentage. (8). Another contention raised by learned counsel for the petitioner/ appellant is that notice under Sec. 63 of the Rajasthan Tenancy Act was issued by Tehsildar and, therefore, Tehsildar was precluded from passing the order. We are unable to sustain this contention. Whether ejectment has to take place in the manner as provided under Sec. 61 in the case of extinction of interest as a result of abandonment or ejectment is by treating such person holding under Government in authorised occupation after extinguishment of tenancy interest under Section 183(2) read with Sec. 91 of the Rajasthan Land Revenue Act, the power is vested in Tehsildar to take proceedings. Before taking action he is required to issue notice to show cause. Therefore, merely because Tehsildar issues notices to take any action the relevant statute under which he is required to act, he does not loose jurisdiction to decide as quasi judicial authority the proceedings initiated by him. (9). Our attention has been invited towards the Provisions of Secs. 63 and 64 of the Rajasthan Tenancy Act in that regard. Sec. 63 envisages circumstances or contingencies in which the interest of tenant in his holding or a part thereof, as the case may be, is extinguished. Amongst other contingencies, Cl. (viii) of sub- section (1) of Sec. 63 envisages that if a tenant migrates from India to a foreign country without obtaining a valid passport or without lawful authority, interest of tenant in his holding or a part thereof shall be extinguished, Sec. 63(1)(viii) along with Explanation appended to it reads as under: ``(viii) if he migrates from India to a foreign country without obtaining a valid passport or without lawful authority. Explanation:-For the purpose of Cl. Explanation:-For the purpose of Cl. (viii), a tenant who moved or enters into a foreign country without obtaining a valid passport under the India Passport Act, 1920 (Central Act No. 34 of 1920) or without a lawful authority shall be presumed to have migrated from India to a foreign country. (10). Section 64 of the Act of 1955 envisages that when the interest of tenant or sub-tenant is extinguished, he shall vacate his holding but shall have, in respect of the removal of any crops, the same right as he would have upon ejectment in accordance with the provisions of this Act. (11). The two provisions cover the question about the event which result in extinguishment of interest by holder and the consequence of extinguishment of such interest entails vacation of possession by the tenant. (12). However, these provisions do not provide for situation where the tenant has not vacated the possession himself and asserts, if called upon to vacate on the ground of such extinguishment of his interest, that his interest has not extinguished in terms of Sec. 63. The procedure to be followed in such event has to be looked for somewhere else. (13). Section 63(1)(ii) provides that interest of a tenant in his holding or a part thereof, as the case may be, shall be extinguished when he surrenders or abandons it in accordance with the provisions of this Act or the Rajasthan Land Revenue Act, 1956. Chapter V deals with surrender, abandonment and extinction of tenancies. Sec. 58 provides in the manner in which a tenant otherwise than a tenant bound by a lease or other agreement to continue to occupy his holding, may surrender his holding by giving up the possession thereof accompanied with a writing attested by Tehsildar having jurisdiction or by the Chairman of a Municipal Board, as the case may be, whether such holding is or is not sublet or mortgaged. If such application is made, Section 56 requires a tenant desirous of surrendering his tenancy to send his land-holder a registered notice of his intention to do so, at least thirty days before the 1st May of any year and the land holder under Section 58 has right, to whom a notice has been sent under Section 56 or Section 57, to institute a suit to have such notice declared invalid and in case no suit is instituted, the landholder shall be deemed to have accepted the surrender. Thus, the procedure is prescribed following which alone extinction of tenancy rights can take place under Section 63(1)(ii) by surrender. Like wise abandonment of tenancy is dealt with under Section 60 which is couched in negative term, that a person who ceases to cultivate and leaves the neighborhood shall not loose his interest in holding if he leaves a person in its the charge responsible for payment of rent as it falls due and gives written notice to the land-holder of such arrangement. Sub-secs. (2) and (3) of Sec. 60 envisages that where the land is left in charge of a person responsible for payment of rent will still be deemed to have been abandoned if within the period provided under Sub-Secs. (2) and sub Sec. (3) as the case may be, the holder does not resume cultivation. In a way sub-Secs. (2) and (3) are part of the scheme of sub-Sec. (1). Sub-section (4) of Section 60 provides that a tenant who ceases to cultivate and leaves the neighborhood otherwise than in accordance with the provisions of sub-section (1), is presumed to have abandoned his holding. (14). Apparently where tenancy is surrendered by handing over possession voluntarily, the question of taking possession on such extinction does not arise. Sub-section (4) of Section 60 provides that a tenant who ceases to cultivate and leaves the neighborhood otherwise than in accordance with the provisions of sub-section (1), is presumed to have abandoned his holding. (14). Apparently where tenancy is surrendered by handing over possession voluntarily, the question of taking possession on such extinction does not arise. However, for giving effect to extinction of interest of a tenant by abandonment under Section 60 procedure has been provided for taking possession of such holding under Sec. 61, which provides that where a tenant is presumed to have abandoned his holding, the Tehsildar shall, on his own motion or on the application of the land-holder, as the case may be, cause a proclamation to be issued and served or published in the prescribed manner, stating that the holding of such tenant is intended to be treated as abandoned and entered upon and taken possession thereof unless reasonable cause to the contrary effect is shown. Thus Section 61(1) evolves a procedure by which the tenant whose right are going to be effected by considering it to be abandonment of holding. A reasonable opportunity is provided to him by issuing a proclamation and notice to him to show cause against proposed treatment of the tenancy as abandoned before taking possession. A reasonable cause for falling within the ambit of Sec. 60 is also envisaged to be a defence Sub-section (2) of Sec. 61 obviously implies that before dispossessing the tenant from the holdings the objections that may be filed by the Tehsildar are to be considered and decided by Tehsildar. The holder of any person interested in holder gets an opportunity to raise objection that the holder has not abandoned the holdings within the meaning of Sec. 60. If any such objections are raised, unless the same are decided, the Tehsildar or the land-holder does not acquire the rights to dispossess the tenant and acquire the possession. (15). It is to be noticed that Section 63 provides number of contingencies, happening of which, results in extinguishment of tenancy right. Apparently there is a prior happening of the contingency and the action follows to give effect to happening of such contingency. (15). It is to be noticed that Section 63 provides number of contingencies, happening of which, results in extinguishment of tenancy right. Apparently there is a prior happening of the contingency and the action follows to give effect to happening of such contingency. The main question before the authorities is that before taking action to take possession of the holdings on the ground that tenants rights have been extinguished, it is required that the happening of one or other of such contingency as envisaged under Sec. 63 of the Raj. Tenancy Act is established in appropriate proceedings. No specific provision has been made in respect of contingencies referred to in Section 63 except for contingencies viz. surrender and abandonment of tenancy rights referred to in clause (i) of sub-section (1). (16). In the case falling under Sec. 63(1) (ii) provisions have been made under Sec. 55 to 62. However, we find that having realised this difficulty the Government has issued a guideline through circular in respect of clause (i) of Sub-section (1) of Sec. 63 which inter alia provides that tenancy is extinguished when a tenant dies leaving no heir entitled to inherit, in accordance with the provisions of the Rajasthan Tenancy Act, obviously before it is held that rights of tenancy have extinguished under Section 63(1)(i), it has to be established as fact that no heir as envisaged under Tenancy Act has survived the deceased tenant. Under Section 63(1)(i) of the Rajasthan Tenancy Act the tenancy rights of the deceased extinguish, apparently, it is like a case which is envisaged for taking proceedings under the Escheat Act. No separate procedure has been provided for taking possession in such event. The State Government has issued circular that in such cases for determining whether a person has died without leaving any heir who could inherit his property whether by interstate succession or by testamentary succession, the same procedure may be adopted as has been provided under Section 61. (17). Vide circular, published at page 310 of the Law of Tenancy in Rajasthan Mathur & Mathur 7th edition shows that similar procedure as has been provided under Sec. 61 the case of extinguishment of interest of a holder on surrender or abandonment, be adopted in before taking possession of any holding interest in which is extinguished in case the tenant dies without leaving a heir. (18). (18). However, in other cases governed by Sec. 63, no separate procedure has been prescribed to be followed before entering the land, where the holder does not suo motu vacates the holding. As per provisions of Section 63, the tenancy rights are extinguished as on the date the contingency happens. However, that may be bonafide contention about the fact whether such event has at all occurred, except where holding is voluntarily surrendered. In all such cases the opinion held by any authority that one or other contingency under Section 63 has come into existence, cannot be final, so as to affect the valuable rights of holder. This question has to be determined in appropriate proceedings before dispossession of holder can take place in pursuance of such opinion held by competent authority under the Rajasthan Tenancy Act. (19). We have not been taken to any of the provisions which provide for any machinery for determining these questions before taking action for acquiring the possession from a tenant whose tenancy rights are considered to have been extinguished under Section 63 who is otherwise holding land lawfully. (20). It is, therefore, reasonable to consider in the absence of any specific provisions, before action is taken to evict a person on any of the grounds mentioned under Section 63, notice be given or the methodology as has been extended to clause (i) through the State circular be extended to other contingencies also. However, for adoption of such proceedings Tehsildar remains the authority who is empowered to take such action. (21). The other provision which has been made in the Rajasthan Tenancy Act is for ejectment of trespassers under Section 161 of the Rajasthan Tenancy Act, the Chapter II provides that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of the Act of 1955. Relevant for the present purpose is Section 183 of the Rajasthan Tenancy Act which provides for ejectment of certain trespassers. Sub-section (2) of Section 183 provides that in case of land which is held directly from the State Government or to which the State Government, acting through the Tehsildar, is entitled to admit the trespasser as tenant, the Tehsildar shall proceed in accordance with the provisions of Section 91 of the Rajasthan Land Revenue Act, 1956, which is the procedure adopted for effecting ejectment of trespassers under the Rajasthan Land Revenue Act. The trespasser has been defined under Section 5(44) to mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him. (22). In the circumstances, it can be urged that whose tenancy rights are extinguished under Section 63 and does not vacate his holding, he is a person who detained possession of land without authority and can be treated as trespasser. (23). However, the difficulty in accepting this proposition is that to consider a person without determination of question under Section 63 without affording an opportunity of hearing to the person whose rights are effected cannot be said to be a person retaining the possession without authority of law inasmuch as the extinguishment takes place only if the fact about the existence of the contingency envisaged under Section 63 is determined. Unless the exigency of such contingency is determined, his possession cannot be said to be not authorised by law. (24). Considering these aspects, we are of the opinion that circular which has laid down the procedure to be followed in the case of taking possession from a tenant who is considered to have died without leaving an heir, and accords with procedure laid down under Sec. 61, before taking possession of holding thought to be abandoned. (25). In the present case, the order of Tehsildar shows that he has issued notices to the person affected by proper ejectment following the procedure laid down under Section 61 and, therefore, the proceedings cannot also be held to be in breach of principle of natural justice, nor can it be said that it has been taken by a person not having jurisdiction to take such action. (26). The next question which requires our consideration is whether the appellant petitioner can be treated to have migrated to foreign country. We have reproduced the provisions of Section 63 (viii) with the Explanation appended thereto. (26). The next question which requires our consideration is whether the appellant petitioner can be treated to have migrated to foreign country. We have reproduced the provisions of Section 63 (viii) with the Explanation appended thereto. All the courts below namely Tehsildar Chohtan in his order dated 7.9.1994, the Revenue Appellate Authority in his order dated 14.4.1995 in appeal and the Board of Revenue in its order dated 20/03/1998 passed in revision filed by the petitioner appellant has concurrently came to the conclusion that because of the decision rendered by Munsiff and Judicial Magistrate First Class, Barmer on 10.2.1981 in Criminal Case No. 528/1976, the petitioner had crossed the Indian Boarder to Pakistan in breach of Section 3/6 of Indian Pass Port Rules, in view of the Explanation appended to Section 63(1)(viii), the petitioner is deemed to have migrated to Pakistan in breach of the Pass Port Rules, consequently, his interest in tenancy was extinguished under Section 63(1)(viii). The evidence led by petitioner was not considered in view of order passed in criminal case. (27). We may notice that in response to the notice, the petitioner denied to have migrated to Pakistan. In support of his plea he examined Rewat Singh S/o Mukan Singh, Thakara Ram S/o Kachhba Ram, Abdul S/o Mewa, the petitioner appellant Suwana S/o Ahemad, Suleman S/o Hazi Mathar, Mandiya S/o Moran, Adhu S/o Lakha all resident of same village supporting fully the petitioners case that he has not migrated to Pakistan. In the Patwar record, there is no such incident of Abdul going to Pakistan has been recorded in Ghatna Bahi. However, PW1 Rewat Singh stated that in 1976 a case under Section 3/6 Pass Port Rules was registered against Abdul and on 10.2.1991, and a fine was imposed. Out of the witnesses produced by the petitioner, Rewat Singh is an employee of Patwar Buran and Thakra Ram is A.S.I. of the region. It has also come on record that name of Abdul finds place in voter list and he has been issued I.D. card and ration card by the authorities of Rajasthan State and that land is being continuously cultivated by him throughout. The incident of crossing the Boarder is of 1976. He was allegedly arrested by Pak. It has also come on record that name of Abdul finds place in voter list and he has been issued I.D. card and ration card by the authorities of Rajasthan State and that land is being continuously cultivated by him throughout. The incident of crossing the Boarder is of 1976. He was allegedly arrested by Pak. officials while he was returning after committing a theft in Pakistan territory of some cattles and he was handed over to the officials petrolling on Indian border, whereas the defence of the petitioner has been that he was going to meet his sister at village Pacharla and he was caught by BSF people while he was returning from Pacharla within Indian Territory. There was no allegation that since the incident of 1976 the petitioner is not residing in India or has not been cultivating his land regularly or was not in possession of the land in question prior to the alleged incident in 1976. (28). Be that as it may, by raising the presumption under Explanation to Section 63(1)(viii), the Tehsildar did not consider the effect of evidence led by the petitioner and held that for the purpose of Section 63(1)(viii) as per Explanation the petitioner is deemed to have migrated to Pakistan, a foreign country in breach of Pass Port Rules. The same finding has been affirmed by the Asstt. Collector and Board of Revenue for the same reason. The learned Single Judge has considered that in view of concurrent finding of fact recorded by the authority under Tenancy Act is not liable to be interfered with in the extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. (29). Having considered rival contentions we find that the authorities under Tenancy Act as well as learned Single Judge have not considered the meaning of `migration and effect of legal fiction created under Explanation in the context of Section 63(1)(viii) which would result in extinguishment of Tenancy rights. (30). The term `migrates from India to a foreign country without a valid passport or without lawful authority is the substantive provision. (31). The term `migration has not been defined in the Act. The substantive provision requires that interest of a tenant in his holding is to extinguish if he migrates from India to foreign country without obtaining a valid passport or without lawful authority. (31). The term `migration has not been defined in the Act. The substantive provision requires that interest of a tenant in his holding is to extinguish if he migrates from India to foreign country without obtaining a valid passport or without lawful authority. The Explanation is for the purpose of creating a fiction by way of rule of evidence that when it can be presumed that a tenant has migrated to a foreign country that shall be presumed to have migrated from India to a foreign country. It states that as per clause (viii), a tenant who moves or enters into foreign country without a valid pass port or without a lawful authority shall be presumed to have migrated from India to a foreign country. Apparently, the emphasis is not shifted from the requirement of `Migration as a condition of extinguishment of tenancy rights. It may be noticed that migrating from India to a foreign country without obtaining a valid pass-port or without lawful authority is the part of substantive provision, and the same is the requirement for operating the Explanation. Apparently the Explanation has been enacted to serve the same purpose. (32). Expression `Migration has a narrower and wider meaning. In its wider meaning mere movement of any person from one territory to another territory for some duration, without any intention to settle in the other country is envisaged. In its narrower sense the `Migration denotes moving from one place to another for settling at the latter place. Explanation merely provides that for the purpose of clause (viii), if a person moving without a valid pass port under the Indian Passport Act or without a lawful authority shall be presumed to have migrated from India to a foreign country. Explanation provides a rule of evidence that unless contrary is proved, a person who move from India to foreign country without obtaining a valid pass-port under the Indian Passport Act or without authority of law shall be presumed to have been migrated. This only give rise to a rebuttable presumption. The legislation has not created a legal fiction by deeming clause to assume something to exist what is not. Instead of expression `deemed to have migrated expression `presumed to have migrated has been used to suggest that in such case what inference is permissable to be drawn. This only give rise to a rebuttable presumption. The legislation has not created a legal fiction by deeming clause to assume something to exist what is not. Instead of expression `deemed to have migrated expression `presumed to have migrated has been used to suggest that in such case what inference is permissable to be drawn. However, it also does not say that such inference shall be conclusive proof of fact required to be proved for extinguishment of right. In the circumstances, it is reasonable to hold that Explanation provides a Rule of evidence to raise a rebuttable presumption against the holder if he is found even to have moved to a foreign territory that such movement was by way of migration. However, the holder can be leading evidence or from material available on record can rebute the presumption and prove otherwise that he has not migrated to other country. A rule of evidence raising a rebuttable presumption can result in burden of proof being shifted to other side, but cannot be raised to status of conclusive proof. Explanation does not provide a rule of conclusive proof to exclude all relevant evidence to prove migration from India to a foreign country without obtaining a valid pass-port or without lawful authority. If mere movement from Indian territory to foreign territory without valid passport or without lawful authority was enough to estinguish the rights of holder for the reason the word ``migration either in clause (viii) or in Explanation would be an add endage. (33). Therefore, the crux of matter is whether the mere movement of a person into a foreign country without a valid pass-port or without lawful authority itself tantamount to migration or not. (34). In the absence of anything else mere movement shall be presumed to result in migration from India to a foreign country. It results in placing burden on tenant to prove that movement from India to a foreign country without pass-port or without lawful authority is not migration in the sense in which migration is understood after such movement is proved. What amount of evidence and what circumstances would rebut such presumption obviously depends on the facts and circumstances of each given case. Even the circumstances appearing from record may be sufficient in some case to rebut the presumption in the other, even the oral evidence may not be found worthy to rebut the presumption. What amount of evidence and what circumstances would rebut such presumption obviously depends on the facts and circumstances of each given case. Even the circumstances appearing from record may be sufficient in some case to rebut the presumption in the other, even the oral evidence may not be found worthy to rebut the presumption. Once the person takes a stand that he has not migrated, after it is proved that he has moved from Indian territory to foreign territory without lawful authority he may lead evidence in support of his contention that he has not migrated or he may rely on circumstances appearing on record to rebut the presumption. (35). Without considering and rejecting the credibility of the evidence led by the objector would not fulfil the requirement of law before action for evicting a person on the ground that contingency under Section 63(1)(viii) has arisen can be sustained. Any other view will convert this Explanation into rule of conclusive proof, which neither the language nor the object of provision support. (36). Such course has obviously not been taken in the case at hand, apparently because the authorities under the Rajasthan Tenancy Act have not understood the meaning of provisions of clause (viii) to sub-section (i) of Section 63 and Explanation appended thereto in the right perspective. While construing the term migration in two Articles 5 and 6 of the Constitution, the Supreme Court in Kulathi Mammu vs. State of Kerala and Others (1), as has said that:- ``The word ``migrated is capable both of a narrower meaning as well as of a wider meaning. In its narrower connotation it means going from one place to another with the intention of residing permanently in the later place; in its wider connotation it simply means going from one place to another whether or not with any intention of permanent residence in the latter place. In Websters dictionary (Second Edition, 1937), the word ``migrate means ``to go from one place to another; especially to move from one country, region or place of abode or sojourn to another, with a view to residence; to move. Corpus Juris Secundum published in 1948 gives the same meaning except that it adds one more meaning namely, ``to change ones place of residence. Corpus Juris Secundum published in 1948 gives the same meaning except that it adds one more meaning namely, ``to change ones place of residence. It will be seen that if the narrower meaning is given an intention to settle in the place to which a person moves a migration is necessary. On the other hand if the wider meaning is given all that is necessary is that there should be movement from one place to another whether or not there is any intention of settlement in the place to which one moves. The question that is posed for our consideration is which of the two meanings was intended by the Constitution-makers when they used the word ``migrated in Art. 7. ``Even so we are of the opinion that there is one qualification which must be attached to the word ``migrated as used in these two Articles, even though that word has the wider meaning of going from one place to another in the context of these Articles. That qualification is that the movement should have been for a specific purpose and for a short and limited period. A case where a person went on what may be called a visit from the territory of India to the territory of Pakistan for a short and limited period with a specific purpose would not be covered by the word ``migrated as used in Art. 7. Similarly a case where a period was forced to go from the territory of India to the territory of Pakistan as, for example, where he might have been kidnapped or abducted would not be covered by the word ``migrated as used in Art. 7. Barring such cases the word ``migrated as used in Art. 6 and 7 has the wider meaning, namely, movement from one territory to another territory whether or not with the intention of permanent residence in the later place. (37). The aforesaid ratio lays down that even in wider sense the movement from Indian territory to any foreign territory must be for some duration and some purpose mere straying in the foreign territories of bording State will not be a case of migration. Movement to another land not situated on Boarder area where question of mere unintentional straying may not be possible. A case of movement to a foreign territory unintentionally by sheer mistake must be distinguished for deliberate transgression. Movement to another land not situated on Boarder area where question of mere unintentional straying may not be possible. A case of movement to a foreign territory unintentionally by sheer mistake must be distinguished for deliberate transgression. In later case the mere movement can fulfil the requirement of section 63(1)(viii) but not in the former. In other words, intentional movement to a foreign territory without valid passport or without authority of law. It is also in consonance with cannot be interpretation that where consequence of all is so grave as to result in forfeiture of property, it must be strictly construed. (38). In the present case, the petitioner has tried to show that he has been continuously in India before the incident took place in 1976. He has been throughout in India and he has been in cultivatory possession of the land in question and has actually cultivated the land that he has not moved to Pakistan but was only returned from his sisters house which too is in Indian territory but near the Boarder. In such case the question of unintentional straying in foreign territory also cannot be ruled out. (39). We do not propose to examine the evidence from the aspect whether the petitioner has rebutted the presumption raised against him because of his alleged movement from Indian territory to Pakistan territory as per the finding given by the criminal court. It may also be noticed that finding given in criminal case may not be binding in these proceedings so as to preclude the petitioner from showing that he has not even moved from Indian territory to Pakistan territory and the defence taken by him was in criminal case correct. It is also trite that a finding in criminal case may be relevant in civil proceedings, but it is not binding so as to preclude enquiry by the Tribunal dealing with civil right, which in the context include Revenue Laws affecting property rights to reach its independent conclusion. (40). The matter has not been examined in right perspective and the credibility of the evidence led by the petitioner has not been at all examined by the authorities, but they have been swayed by the singular circumstance of his conviction under Passport Act. (41). (40). The matter has not been examined in right perspective and the credibility of the evidence led by the petitioner has not been at all examined by the authorities, but they have been swayed by the singular circumstance of his conviction under Passport Act. (41). We deem it just and proper to set aside the order passed by the Board of Revenue, the Collector as well as of Tehsildar and send the case to the Tehsildar, Barmer to examine the material on record and decide the question of extinguishment of the petitioners interest in holdings afresh in accordance with law and in the light of observations made above. (42). The appeal is allowed. The judgment under appeal is set aside. Consequently, the writ petition is allowed. The judgment of the Board of Revenue as well as Collector, Barmer or Tehsildar are quashed. The Tehsildar, Barmer and directed to decide the appeal afresh in the light of material which has come on record and the observations made above within three months. (43). No order as to costs.