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2007 DIGILAW 751 (RAJ)

Badri Lal Raigar v. State of Raj.

2007-04-10

MOHAMMAD RAFIQ

body2007
Honble RAFIQ, J.—The petitioners, who have all replaced the original petitioner Badri Lal Raigar (since deceased), have filed this writ petition against the order dated 27.1.1996 passed by Additional Registrar-II, Co-operative Societies, Rajasthan, Jaipur whereby the revision petition filed by late Shri Badri Lal Raigar against the auction notice dated 5.4.85 issued by Inspector of Co-operative Societies, Malpura was dismissed. A further prayer has been made that the auction of the petitioners agricultural land be declared illegal and be quashed and set aside. 2. Factual matrix of the case is that original petitioner Badri Lal, who was member of Scheduled Caste being a Raigar by caste, was the real son of Ramcharan, but his Uncle Ramsukh took him in adoption. Ramsukh and Ramcharan were the original khatedars of khasra No. 2821, 5408, 5409, 5411, 5413, 5114 admeasuring 10 bighas and 10 biswas. The respondent Tonk District Co-operative Land Development Bank advanced a loan of Rs. 4,500/- to the petitioners on 7.8.1971. Land in dispute was mortgaged with the Bank against the aforesaid loan as a security. Ramsukh and Ramcharan could not make payment of the installments regularly therefore became defaulters. They expired in the year 1977 and 1976 respectively. Badri Lal claimed that he came to know about the aforesaid loan only when he received a notice from the respondent Bank on 19.5.1976 informing that so far only a sum of Rs. 2,000/- has been deposited against the loan. On enquiry from the Bank, he came to know that apart from Rs. 2000/- a sum of Rs. 400/- was also paid by his father on 15.6.1976 and thereafter also some more amount was paid. The petitioner Badri Lal thereafter obtained a certified the respondent Bank in the year 1981 according to which a sum of Rs. 4,441/- was due to be paid. Accordingly to him, the said account was opened in the name of deceased Ramsukh and the name of Ramcharan was not there. In the year 1980, the respondent bank attached the electric pump set, for purchase of which the loan was given and gave the same in the custody of one Motilal on 16.5.1980. Even then, the respondents proceeded to auction the lands of the petitioner Badri Lal. The petitioner made several representations to the respondents and finally the land of the petitioner was auctioned on 5.4.85 for a meager sum of Rs. Even then, the respondents proceeded to auction the lands of the petitioner Badri Lal. The petitioner made several representations to the respondents and finally the land of the petitioner was auctioned on 5.4.85 for a meager sum of Rs. 37,401/- as against the prevalent market value of Rs. 5,00,000/-, though the outstanding loan against the petitioner at that time was approximately of Rs. 8,600/-. Land was purchased by respondent No.3 in auction and possession of the same was given to him. Aggrieved thereby, the petitioner initially filed a petition before the Sub-Divisional Officer, Tonk, but that was held not maintainable. Thereafter, he filed a revision petition under Section 128 of the Rajasthan Co-operative Societies act, 1965 (for short, the Act of 1965) before the Additional Registrar-II, Co-operative Societies, Rajasthan, Jaipur. When he did not decide the petition, the petitioner filed a representation before the Minister Incharge of Co-operatives Department who in turn sent the same to the Additional Registrar-II, Cooperative Societies for decision. The revision petition was finally dismissed by order dated 27.1.1996. It is against the backdrop of these facts that the present writ petition has been filed challenging the aforesaid orders. 3. I have heard Shri G.L. Pareek, the learned counsel for the petitioner, Shri Samit Bishnoi, the learned counsel for respondent No.1 and 2 and Shri J.P. Goyal, the learned counsel for the respondent No.3. 4. Shri G.L. Pareek, the learned counsel for the petitioner argued that according to Section 37 of the Rajasthan Tenancy Act, lands of the khatedar tenant are not liable to seizure, attachment or sale by process of a Civil Court. He submitted that the land of the petitioner, who is a member of scheduled caste could not be sold to a member of general category even in auction. According to Section 42 of the Rajasthan Tenancy Act, such land could be transferred only to a member of Schedule Caste and therefore, auction sale in favour of the respondent No.3 was void. It was argued that according to Section 117 of the Act of 1965 the order of recovery is treated as a decree of the Civil Court issued under Section 118-A of the said Act and therefore according to Section 37 of the Rajasthan Tenancy Act, the attachment and sale of the disputed land was null and void. 5. It was argued that according to Section 117 of the Act of 1965 the order of recovery is treated as a decree of the Civil Court issued under Section 118-A of the said Act and therefore according to Section 37 of the Rajasthan Tenancy Act, the attachment and sale of the disputed land was null and void. 5. Shri G.L. Pareek argued that powers of Land Development Officer of the Cooperative Societies is conditional according to which the bank is required to obtain previous approval of the District Collector concerned or the Registrar for auction of the land who in turn is required to issue a notice to the loanee providing him an opportunity of hearing. This statutory requirement has not been satisfied because neither any notice was served upon the petitioner by the Collector or the Registrar, nor was even any previous approval obtained. It was argued that even otherwise, Section 106 of the Act of 1965 is subject to the provisions of Section 37 of the Rajasthan Tenancy Act. Auction sale was void in law because notice under Section 92 of the Rajasthan Co-operative Societies Act was issued in the name of Ramsukh, a dead person and the notice of thirty days for action sale was not at all published. Land worth Rs. 5,00,000/- has been sold for a paltry sum of Rs. 37,401/- and that too for a very meager outstanding loan of Rs. 4,441/-. Auction sale was made by the bank authorities in collusion with respondent No.3 at a very low rate for ulterior motives. This amounted to depriving the petitioner of his property in contravention of Article 300-A of the Constitution of India. Besides, when loan was payable by Ramsukh alone, the half portion of the land which was in the share of Ramcharan could not be sold in auction. Shri Pareek in support of his arguments relied on the judgments of Honble Supreme Court in Lincai Gamango & Ors. vs. Dayanidhi Jena & Ors., AIR 2004 SC 3457 , Machegowda & Ors. Besides, when loan was payable by Ramsukh alone, the half portion of the land which was in the share of Ramcharan could not be sold in auction. Shri Pareek in support of his arguments relied on the judgments of Honble Supreme Court in Lincai Gamango & Ors. vs. Dayanidhi Jena & Ors., AIR 2004 SC 3457 , Machegowda & Ors. vs. State of Karnataka & Ors., (1984) 3 SCC 301 , Amrendra Pratap Singh vs. Tej Bahadur Prajapati & Ors., AIR 2004 SC 3782 and certain judgments of the Board of Revenue specially one in State of Rajasthan vs. Meti & Ors., 2004 RRD 92 on the question that Section 106 of the Act of 1965 being a general law would not prevail on special law contained in Section 42 of the Rajasthan Tenancy Act which prohibits transfer of the land belonging to a Schedule Caste to a non-Scheduled Caste. 6. On the other hand, Shri J.P. Goyal and Shri Samit Bishnoi opposed the writ petition and argued that Section 93 of the Act of 1965 clearly provides that a mortgage executed in favour of the Land Development Bank shall have priority over any claim of the Government arising from a loan granted after the execution of the mortgage under the Rajasthan Agricultural Loans Act, 1957. According to Section 106 of the Act of 1965 notwithstanding anything contained in Transfer of Property Act, 1982, the Land Development Bank in case of default in the payment of the mortgaged money, shall have the power to put the mortgaged property to sell by public auction without the interference of the Court. It was argued that the petitioners contention that he had no knowledge about the loan taken by his deceased father upto 12.3.1976 was patently false because the loan was taken by three persons which included not only deceased Ramsukh and late Ramcharan but also the original petitioner Badri Lal. Copy of the application has been placed on record. Copy of the deed was also placed on record which was signed amongst others by the petitioner Badri Lal as well. The petitioner Badri Lal also filed his affidavit along with application for grant of loan which too has been placed on record. The petitioner having concealed all these facts, was not entitled to any relief. 7. Copy of the deed was also placed on record which was signed amongst others by the petitioner Badri Lal as well. The petitioner Badri Lal also filed his affidavit along with application for grant of loan which too has been placed on record. The petitioner having concealed all these facts, was not entitled to any relief. 7. In the application submitted for loan, the petitioner had shown himself to be son of Ramcharan whereas now he is claiming to be the son of Ramsukh. The petitioner has concealed the fact that he had gone in adoption to Kanha. Having taken loan, the petitioners and other loanees did not pay a single installment in time. It was argued that the bank money is a public money and there was no other way for the bank to recover its money except by way of public auction of the mortgaged property. The petitioner failed to make payment of the outstanding amount in spite of being repeatedly required. It was denied that any notice in this connection was not given to the petitioner. the notice was given on 12.5.82, which was received by the petitioner on 20.5.82 and such notices were separately issued to all the applicants on 12.1.82. Copies of the demand notices have been placed on record. By these notices, time of three months was given to the defaulters for making payment of the outstanding loan amount failing which auction in terms of Section 106 of the Act of 1965 and the Rajasthan State Cooperative Societies Rules, 1986 (for short - the Rules) would be made. In fact, the final notices under Rule 82 and 91 of the Rules was issued on 28.1.85 but the petitioner refused to receive the notice, therefore, the same was affixed on his residence in the presence of two independent witnesses on 4.2.85. by these notices, a further period of 15 days was allowed to the defaulters to make payment of the loan or else the declaration of sale would be made. The land was sold to respondent No.3, he being the highest bidder. It was argued that Section 37 of the Rajasthan Tenancy Act is not applicable in the present case because it does not prohibit the Bank from proceeding to make recovery of the outstanding amount from the mortgaged property. The land was sold to respondent No.3, he being the highest bidder. It was argued that Section 37 of the Rajasthan Tenancy Act is not applicable in the present case because it does not prohibit the Bank from proceeding to make recovery of the outstanding amount from the mortgaged property. Section 117 and Section 118A of the Act of 1965 are also not applicable to the present case. Section 117 pertains to the powers of the Registrar to make an order directing the payment of any debt or outstanding demand due to a cooperative society by any member whereas the present case pertains to the power of the Land Development Bank to sale by public auction a property mortgaged to it, in the event of loanee being in default. For the same reason, therefore, Section 118-A is also not applicable. It is submitted that the Rajasthan Co-operative Societies Act being specific Act would override the provisions of general enactment like the Rajasthan Tenancy Act and therefore Section 37 and 42 of the Rajasthan Tenancy Act would not apply to the present case. In any case, Section 93(2) of the Rajasthan Co-operative Societies Act starts with a non-obstante clause and has been given overriding effect over any other law for the time being in force and provides that the land mortgaged with the Bank shall be subject to prior charge of the bank. Notice under Section 106 of the said Act was given to the petitioner but he did not pay heed to the same and simultaneously notice under Rule 92 was also given to which also he did not respond. Entire land was sold because the Sale Officer recorded the finding during the course of sale proceedings that auction of the part of the land would not fetch reasonable price therefore the allegation that the entire land was sold in collusion with respondent No. 3 was totally beseless. It was submitted that the sale in favour of respondent No. 3 having been made absolute under Rule 92(4) & (6) of the Rules now cannot be challenged. 8. Shri J.P. Goyal, the learned counsel for the respondent No.3 also relied on the judgment of this Court in M/s. Ganesh Oil and General Mills & Anr. It was submitted that the sale in favour of respondent No. 3 having been made absolute under Rule 92(4) & (6) of the Rules now cannot be challenged. 8. Shri J.P. Goyal, the learned counsel for the respondent No.3 also relied on the judgment of this Court in M/s. Ganesh Oil and General Mills & Anr. vs. Debts Recovery Tribunal, Jaipur & Ors., 1999(1) WLC page 208 (Raj.) and the judgment of Board of Revenue in Devi @ Devi Lal vs. Smt. Dali & Ors., 2000 RRD 260 and submitted on the authority of those judgments that the bar created in Section 37 of the Rajasthan Tenancy Act on seizure, attachment and sale by process of Civil Court would not apply to recovery proceedings carried under Section 12 of Rajasthan Agricultural Credit Operations (Removal of Difficulties) Act, 1974 and it applies to only civil cases. It was therefore prayed that the writ petition be dismissed. 9. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record. 10. Though the arguments of learned counsel for the parties have remained focused on the question, whether or not, there is prohibition on sale of the land of member of Scheduled Caste to a non-member as contained in Section 42 of the Rajasthan Tenancy Act even if such land is mortgaged with the Bank. Neither of the parties however have cited any direct judgment of this Court on this point whether in view of Section 106 of the Rajasthan Co-operative Societies Act, the bar contained in the Section 42 of the Rajasthan Tenancy Act would also apply to the lands mortgaged to the Co-operatives Society. A learned single Judge of this Court in Heja vs. Board of Revenue, 1999 DNJ (Raj.) 740 considered validity and correctness of the judgment passed by the Board of Revenue a the reference being made to it by Collector under Section 232 of the Rajasthan Tenancy Act which was accepted. The Board of Revenue by its order passed in reference proceedings set aside a compromise decree entered into between the parties one of which was a Scheduled Caste whereas the other was General Caste. The Board of Revenue by its order passed in reference proceedings set aside a compromise decree entered into between the parties one of which was a Scheduled Caste whereas the other was General Caste. In those facts, when the Board accepted the reference and set aside the decree, this Court upheld the order of the Board in reference proceedings holding that the decree passed by the Civil Court was null and void being in violation of Section 42 of the Rajasthan Tenancy Act. 11. So far as the judgment of Honble Supreme Court in Amrendra Pratap Singh, supra, is concerned, the core issue therein was acquisition of title by adverse possession on the property belonging to tribal by a non-tribal and it was in that context that their Lordships held that this would be barred by the provisions contained in para 5(2) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations (2 of 1956) and such transfer in the meaning of para 3 thereof would be liable to be treated as transfer of immovable property. The aforesaid Regulations of 1956 were promulgated by the Governor of Orissa in exercise of sub-para (2) of paragraph 5 of the 5th Schedule to the Constitution of India. Similar to Section 42 of the Rajasthan Tenancy Act, there was also a restriction on transfer of the lands of a aboriginal tribal to a member of non-aboriginal tribal except with the previous permission of the Sub-Divisional Officer concerned and such provision was contained in Section 7 of the Orissa Merged States Lands Act, 1950. The Honble Supreme Court held that such transaction which "acquisition of title in favour of a non-tribal by invoking the Doctrine of Adverse Possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the Court." It was held that "a tribal may acquire title by adverse possession over the immovable property of another tribal", "but a non-tribal can neither prescribe nor acquire title by adverse possession over the property belonging to a tribal as the same is specifically prohibited by a special law promulgated by the State Legislature". It was held that "a general law cannot defeat the provisions of special law to the extent to which they are in conflict, else an effort has to be made at reconciling the two provisions by homogenous reading." This view was later reiterated by their Lordships of Honble Supreme Court in Lincai Gamango & Ors. vs. Dayanidhi Jena & Ors., AIR 2004 SC 3457 in which the earlier judgment in Amrendra Pratap Singh was followed. Manchegowda & Ors. vs. State of Karnataka & Ors., (1984) 3 SCC 301 was a case in which the Constitutional validity of the provisions of Section 4 and 5 contained in Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, a similar provision to that of Section 42 of the Rajasthan Tenancy Act was upheld and it was held that the transfer of granted lands in contravention of the said provision would be void and therefore the transferee would have no property rights and recovery of such property would not be hit by Article 31 of 31A of the Constitution. It was held that a person who acquires a defeasible right which is liable to be defeated in accordance with law, cannot make grievance of violation of Article 19(1)(f) by the Constitution if the law defeating such rights is enacted by a competent legislature. 12. Question would therefore arise as to whether the Rajasthan Co-operative Societies Act, 1965 would be a special law only because it is a later law entitling the Land Development Bank to sell the land mortgaged to it by its loanee or whether Section 42 of the Rajasthan Tenancy Act, 1955 would be liable to be treated as a special law. it should be noted that Section 42 of the Rajasthan Tenancy Act, 1955 when it came with the original enactment and was enforced from 15.10.1955 in its original shape was as follows:– "Section 42. Sale or 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 90 acres of unirrigated or 30 acres of irrigated land. Explanation.—If such land is partly irrigated and partly unirrigated, one acre of irrigated land shall, for calculating the area of land for the purpose of this section, be deemed to be equivalent to three acres of unirrigated land." 13. The aforesaid Section 42 was thereafter amended by Rajasthan Tenancy (Second Amendment) Act No. 28 of 1956 which came into force on 22.9.1956 whereby the following proviso was added to Section 42– "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 a member of a scheduled caste or a scheduled tribe." 14. Burden of the aforesaid proviso is that no khatedar tenant being a member of a scheduled caste or a scheduled tribe shall transfer his interest in the whole or a part of his holding to any person who is not a member of a scheduled caste or a scheduled tribe. The legislature again introduced certain changes in the aforesaid Section 42 by the Rajasthan Tenancy (Amendment) Act No. 12 of 1964 which came into force w.e.f. 1.5.1964 and Section 42 after the aforesaid amendment reads as under:– 42. General restrictions on sale, gift and 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) It is not of a survey number except when the area of the survey number of sold, gifted or bequeathed is in excess of the minimum area prescribed for the purpose of sub-sec. (1) of Sec. 53, in which case also the area not transferred shall not be a fragment; Provided that this restriction shall not apply if the sale, gift or bequest is of the entire interest of a tenant in the survey number; (b) such sale, gift or bequest is by member of a 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; (c) made by a person enjoying khatedari rights since before the commencement of the Act in the project areas referred to in the proviso to sub-sec. (1) of Sec. 15 or in the Rajasthan Canal area mentioned in Sec. 15-A, and any transfer by sale or gift made by any such person after the commencement of the Rajasthan Tenancy (Amendment) Ordinance No.2 of 1960 shall be null and void." 15. The aforesaid clause (c) however was deleted by Rajasthan Tenancy (Amendment) Act, No. 15 of 1970 w.e.f. 18.8.1970 and was always deemed to have been omitted whereas the clause (2) as indicated above including its two provisos was also deleted by Rajasthan Tenancy (Amendment) Act No. 22 of 1992 w.e.f. 11.11.1992. Now Section 42 as available on the statute reads as under:– "42. General restrictions on sale, gift & bequest– The sale, gift or bequest by a Khatedar tenants of his interest in the whole or part of his holding shall be void, if (XXX(a) . . . . . . deleted w.e.f. 11.11.1992 XXX] (b) such safe, 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 Caste, or by a member of a Scheduled Tribe in favour of a person who is not member of the Scheduled Tribe. [XXX] [(bb) such sale, gift or bequest, notwithstanding anything contained in clause (b), is by a member of Saharai Scheduled tribe in favour of a person who is not a member of the said Saharia tribe."] 16. My purpose of having a brief resume of the legislative history is to show that the State Legislature has always been reiterating its intention for protection of the rights of the members of the Scheduled Castes and Scheduled Tribes and the provisions of law ever since the Rajasthan Tenancy Act (2nd Amendment), 1956 have always prohibited the transfer of the interest of khatedar tenant by sale, gift/quest belonging to the Scheduled Caste or Scheduled Tribe in favour of a person who is not member of that caste. While the whole of the Rajasthan Tenancy Act can be described as a general law but then, the proviso contained therein specifically prohibiting transfer of rights of a member of Scheduled Caste in a land to a non member of Scheduled Caste especially its Section 106, shall be liable to be treated as a special law. While the whole of the Rajasthan Tenancy Act can be described as a general law but then, the proviso contained therein specifically prohibiting transfer of rights of a member of Scheduled Caste in a land to a non member of Scheduled Caste especially its Section 106, shall be liable to be treated as a special law. The argument that the Rajasthan Co-operative Societies Act, 1965 especially its Section 106, shall be liable to be treated as a special law, over the provisions the Rajasthan Tenancy Act which is general law, cannot be therefore upheld. I am fortified in my views from the observations made by the Honble Supreme Court in Amrendra Pratap Singh (supra) where he title in relation to the lands owned by a member of Scheduled Tribe was sought to be transferred by reference to Article 65 of the Limitation Act. Question before the Honble Supreme Court was whether only testamentary disposition as are known to result in transferring an interest in immovable property would be liable to be treated as transfer or further whether title acquired by adverse possession over the land which has the effect of causing or resulting in the transfer of interest therein would also be included in its meaning. Their Lordships however held "where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society the Court would not hesitate in placing an extended meaning, even a stretched one, on he word, if in doing so the statute would succeed in attaining the object sought to be achieved." 17. Their Lordship of Honble Supreme Court in Pandey Orson vs. Ram Chandra Sahu, 1992 Supp. (2) SCC 77 also had the occasion to consider the meaning of the term "transfer" as used in Section 71 of the Tenancy Act, 1908. The word "transfer" was not defined in that act. It was held that considering the situation in which the exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of "transfer" to a transfer under Transfer of Property Act or a situation where "transfer" is statutorily defined. The word "transfer" was not defined in that act. It was held that considering the situation in which the exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of "transfer" to a transfer under Transfer of Property Act or a situation where "transfer" is statutorily defined. It was held that what exactly was contemplated by Section 71A of that Act was whether possession has passed from one to another and as a physical fact the member of Scheduled Tribe who was entitled to hold possession has lost it to and a non-member has come into possession. Such a transaction was held to have been covered by "transfer". Their Lordships held that "provisions is beneficial and the legislative intention is to extent protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore when the legislature is extending special protection to the named category, the Court has to give a liberal consideration to the protective mechanism which would work out protection and enable the sphere of protection to be effective than limit by its scope." In State of Madhya Pradesh vs. Babu Lal & Ors. (1977) 2 SCC 435 , the Honble Supreme Court was dealing with a case in which the non-tribal devised a peculiar mode to deprive a tribal of his land. The provisions of M.P. Land Revenue Code 1959 imposed restriction on the transfer of land by a member of a Scheduled Tribe to a non-tribal. The non-tribal filed a suit for declaration against the tribal in that case that his name be recorded in the revenue record as bhooswami and the concerned tribal did not contest the suit which ended in decree in favour of the plaintiff based on compromise. The Government intervened and filed a writ of certiorari against the decree which was issued in contravention of sub-section (6) of Section 165 of the M.P. Land Revenue Code, 1959. Though the High Court dismissed the writ petition holding that the State could pursue the alternative remedy by filing the civil suit, the Honble Supreme Court set aside that judgment and issued a writ of certiorari quashing the decree passed in civil suit. 18. Though the High Court dismissed the writ petition holding that the State could pursue the alternative remedy by filing the civil suit, the Honble Supreme Court set aside that judgment and issued a writ of certiorari quashing the decree passed in civil suit. 18. When provisions contained in two enactments are before a Court in consideration of a particular mater, it has to make an attempt to harmonise them both and make a homogeneous reading in such a way that both the enactments remain workable. In view of the fact that transfer of agricultural land by way of sale has been specifically barred by Section 42 of the Rajasthan Tenancy Act, if such sale involves the transfer of land owned by a member of Scheduled Caste or Scheduled Tribe to one who is not a member of Scheduled Caste or a Scheduled Tribe, in my considered view, this being the intention of the legislature, the same shall have to be respected and therefore even if it is a case of property mortgaged with the Bank, such property if auctioned in favour of a person who is not a member of the caste belonging to the owner of that property, the transfer of such property even by a public auction would be hit by the provisions of Section 42 of the Rajasthan Tenancy Act. This is so because sale by way of auction is simply a mode of transfer and would certainly attract the bar contained in Section 42 supra. 19. Even otherwise, the respondents when they themselves conveyed to the petitioners that the outstanding dues were only Rs. 4,441/- as on 31.5.1981, sale by auction of the entire 10 bighas and 10 biswas of the land of the petitioners for a sum of Rs. 37,401/- could not justified in law just because according to the respondents, sale of part of land could not get the proper value of. According to the petitioner, the auction for a sum of Rs. 37,401/- was highly under valued. This further explains why the legislature has extended the protection of Section 42 to weaker sections of the society such as Scheduled Castes and Scheduled Tribes. According to the petitioner, the auction for a sum of Rs. 37,401/- was highly under valued. This further explains why the legislature has extended the protection of Section 42 to weaker sections of the society such as Scheduled Castes and Scheduled Tribes. But then, this observation is besides the basic finding recorded as above that the sale of the land of the petitioners to the respondent No.3 was null and void as being hit by statutory bar contained in Section 42 of the Rajasthan Tenancy Act. 20. In view of what has been discussed above, the writ petition is allowed and the auction sale in favour of the respondent No. 3 by the respondent No. 2 is held to be illegal as violative of Section 42 of the Rajasthan Tenancy Act and accordingly the petitioners are held entitled to be restored back in possession of the land in dispute. The concerned Tehsildar shall ensure compliance of this order within two months from the date copy of this judgment is produced before him.