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2005 DIGILAW 3242 (RAJ)

Narayan v. State of Rajasthan

2005-12-07

GYAN SUDHA MISRA, S.N.JHA

body2005
JUDGMENT 1. - This writ petition arises from orders passed in a proceeding under Section 175 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). The petitioners seek quashing of the order of the Assistant Collector, Jhalawar allowing the application for their ejectment as well as the orders of the Revenue Appellate Authority and the Board of Revenue arising therefrom. The petitioners have also questioned the validity of Section 4 of the Rajasthan Tenancy (Amendment) Act, 1981 (Act 14 of 1981) and this is how the petition was listed before the Division Bench. 2. Section 175 of the Act so far as relevant runs as under: "if a tenant transfers or sublets, or executes an instrument purporting to transfer or sublet, the whole or any part of his holding otherwise than in accordance with the provisions of this Act and the transferee or sub lessee or the purported transferee or sub lessee has entered upon or is in possession of such holding or such part in pursuance of such transfer or sub-lease, both the tenant and any person who may have thus obtained or may thus be in possession of the holding or any part of the holding, shall on the application of the land holder be liable to ejectment from the area so transferred or sublet or purported to be transferred or sublet." 3. The facts of the case briefly are that on 11.5.1957, respondent No. 5 Bala and Bhanwaria-represented by respondent Nos. 6 and 7-sold about 12 bighas land to the petitioners. The vendors admittedly being members of Scheduled Caste and the petitioners not being members of the Scheduled Caste, the transfer was in violation of Section 42 (b) of the Act. Section 42(b) puts restrictions on sale, gift or bequest by a member of a Scheduled Caste in favour of the person who is not a member of Scheduled Caste or by a member of Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe, and declares that such sale, gift or bequest of his interest shall be void. On 10.1.1979, Tehsildar Pachpahar, District Jhalawar filed application for ejectment of the petitioners. On 30.4.1984, the Assistant Collector, Jhalawar allowed the application and passed the order of ejectment. The petitioners preferred appeal before the Revenue Appellate Authority which was dismissed on 17.8.1985 as time barred. On 10.1.1979, Tehsildar Pachpahar, District Jhalawar filed application for ejectment of the petitioners. On 30.4.1984, the Assistant Collector, Jhalawar allowed the application and passed the order of ejectment. The petitioners preferred appeal before the Revenue Appellate Authority which was dismissed on 17.8.1985 as time barred. The appeal to the Board of Revenue was also dismissed on 28.12.1990. Petitioners then filed application for review which too was dismissed on 14.2.1991. 4. Shrf K.K. Mehrishi appearing for the petitioners firstly submitted that the order of ejectment was subject to payment of compensation under sub-section (2) of section 176 of the Act as it stood, but the provision was deleted by the Rajasthan Tenancy (Amendment) Act, 1981. According to the counsel, the ejectment of the transferee without payment of compensation amounts to acquisition of land without compensation which is violative of fundamental rights. 5. The submission overlooks the provisions of Article 31-A of the Constitution & India which so far as relevant provides as under: "31-A. Saving of Laws providing for acquisition of estates, etc.- Notwithstanding anything contained in Article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) ......... (c) ......... (d) ......... (e) ......... shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 and 19. 6. (c) ......... (d) ......... (e) ......... shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 and 19. 6. In response to the observation of the Court that any law providing for taking away of right in an estate cannot be questioned on the ground of breach of fundamental rights in view of Article 31-A, Shri Maharishi submitted that 1981 amendment in the Rajasthan Tenancy Act did not receive the assent of the President as required under first proviso to Article 31-A. Counsel also relied on the second proviso which lays down that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate not less than the market rate. 7. The submission at the first instance appears to be attractive but is devoid of substance. The submission over looks the distinction between the 'acquisition' and 'extinguishment' as well as Article 300A of the Constitution of India. Whereas under sub-clause (a) of Article 31A, both 'acquisition' and 'extinguishment' of rights are mentioned, the proviso refers to only acquisition by the State. In Black's Law Dictionary, Seventh Edition, the word 'acquisition' is defined to mean "the gaining of possession or control over something acquired - a valuable acquisition", the word 'extinguishment' is defined to mean "cessation or cancellation of some right or interest". The words 'acquisition' and 'extinguishment' therefore, cannot be understood in the same sense. One of the principles of interpretation of statute is that where two words are used in the same section, it is to be presumed that the legislature intended to give different meaning to the terms. 8. Indeed, Section 42A of the Act provides complete answer to the submission of the counsel. Section 42A was inserted by the same Amendment Act. I.e. Rajasthan Tenancy (Amendment) Act, 1981 by which sub-section (2) of Section 176 was deleted. 8. Indeed, Section 42A of the Act provides complete answer to the submission of the counsel. Section 42A was inserted by the same Amendment Act. I.e. Rajasthan Tenancy (Amendment) Act, 1981 by which sub-section (2) of Section 176 was deleted. Section 42A runs so far as relevant, as under: "42-A. Declaration as valid of sale, gift and bequest.-Where any sale, gift or bequest made by a khatedar tenant of his interest in the whole or part of his holding before the commencement of the Rajasthan Tenancy (Amendment) Act, 1978 (Rajasthan Act 11 of 1978) was void on account of contravention of any of the provisions of-clause (a) of Section 42, such sale, gift or bequest may be declared to be valid by the Collector or any authority authorised by the State Government in this behalf, on an application made to it or him in the prescribed manner and on the payment of the prescribed fee, within four years." 9. A bare reading makes it clear that notwithstanding the fact that the transfer in violation of provisions of Section 42(b) of the Act was void ab initio, Section 42-A confers rights on the transferee to get the transfer which was otherwise illegal and void ab initio regularised on payment of prescribed fee on application made to the competent authority in the prescribed manner within the period of four years. It was thus, open to the petitioners to file application for regularisation of the transfers made by Bala and Bhanwaria in violation of Section 42(b) of the Act. The Tehsildar filed application for ejectment of the petitioners on 10.1.1979. Instead of contesting the application for ejectment, the petitioners should have filed application as provided under Section 42-A of the Act. 10. Shri Mehrishi submitted that the transfer was made in 1957 and as the law stood at that time, prior to amendment by Rajasthan Act No. 12 of 1964, the transfer was .voidable. Counsel submitted that as a matter of fact, the transferor had filed application for cancellation of transfer which was dismissed. 10. Shri Mehrishi submitted that the transfer was made in 1957 and as the law stood at that time, prior to amendment by Rajasthan Act No. 12 of 1964, the transfer was .voidable. Counsel submitted that as a matter of fact, the transferor had filed application for cancellation of transfer which was dismissed. Counsel also submitted that in any view of the matter, the application for ejectment should have been filed within a period of 12 years in view of the period of limitation set out in Schedule appended to the Tenancy Act, and the application filed by Tehsildar on 10.1.1979 was, therefore, barred by limitation and it should have been dismissed outright. 11. We do not find any substance in the first limb of the argument. When the transfer was made in 1957, as Section 42 stood at that time, the transfer was no doubt voidable at the instance of transferor but the attempted distinction between voidable and void transfer in the instant case appears to be misconceived. Section 42 as it now stands provides - "The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if -...." 12. The section is couched in wide terms and it does not countenance any distinction between transfers made in the past and transfers made after the 1964 amendment. It is manifest that the legislature intended to take away the legal effect of any transfer by declaring the transfer as void i.e. non-est in the eye of law notwithstanding the period of transfer. Section 42-A cannot be understood to mean that the transfer to be made in future only shall be void while the transfer made in the past, shall be voidable. Section 175 of the Act read with Section 176 provides for ejectment of the person in possession of land by virtue of illegal transfer or sub-letting. It also does not contemplate any distinction between voidable and void transfer. In our opinion all cases of illegal transfer or sub-letting are covered by Section 175 and, therefore, the submission that only void transfers would be subject to provisions of Section 175 cannot be accepted. Indeed, if the law declares the transfer to be void, it would mean that no transfer in the eye of law had ever taken place. 13. In our opinion all cases of illegal transfer or sub-letting are covered by Section 175 and, therefore, the submission that only void transfers would be subject to provisions of Section 175 cannot be accepted. Indeed, if the law declares the transfer to be void, it would mean that no transfer in the eye of law had ever taken place. 13. After hearing counsel for the parties, however we have come to the conclusion that the petition is fit to be allowed on the latter submission on the point of limitation. Entry 66 of the Schedule III to the Act provides for period of limitation. As the Schedule stood at the beginning, the period of limitation for filing application under Section 175 was three years. By amendment it was made 12 years with effect from 23.4.1971. By further amendment vide Rajasthan Tenancy (Amendment) Act (No. 14 of 1981), the period was increased to 30 years. The period as per column 5 of the Schedule is to be counted from the date of transfer or sub-letting as the case may be. The transfer in the instant case took place, as seen above, on 1 11.5.1957. As on 10.1.1979, when the application for ejectment was filed, the period of 12 years from the date of sale had already expired. The application for ejectment under Section 175 of the Act was, therefore, clearly time barred. The Act does not contain any indication that the period can be extended. In any view, no order of condonation or extension was passed by the authority. Indeed, the orders appear to have been passed in complete ignorance of the provision relating to limitation. In the premises, we are of the view that the impugned orders cannot be sustained. 14. In the result, the petition is allowed, the orders contained in 1 Annexures-1, 3, 4 and 5 are set aside. There will be no order as to costs.Writ petition allowed - Impugned orders set aside. *******