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2015 DIGILAW 1603 (RAJ)

Sadiq Ali v. State of Rajasthan

2015-08-31

GOVIND MATHUR, JAISHREE THAKUR

body2015
Hon'ble MATHUR, J.— By the judgment dated 7.1.2014, the learned Single Bench dismissed the petition for writ preferred by the petitioner giving challenge to order dated 3.8.1994 passed by the Tehsildar, Chohtan, order dated 26.12.1995 passed by the Additional Collector, Barmer and order dated 4.8.1997 passed by the Board of Revenue, Rajasthan, Ajmer. 2. In brief, facts of the case are that the appellant-petitioner Sadik Ali, a permanent resident of District Barmer had a khatedari land measuring 168 Bighas in Khasra No.182, 183 and 185 village Burhana Ka Tala, Tehsil Chohtan, District Barmer. The Tehsildar, Chohtan on 4.11.1998 submitted an application to the Assistant Collector, Barmer to treat the land under khatedari of the petitioner as "Government land" in light of the provisions of Sec. 63(viii) of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act of 1955'). 3. On being called upon, the petitioner submitted a reply to the application and stated that he has not extinguished his tenancy right as he did not migrate from India to a foreign country without a valid passport or without a lawful authority. The case then was transferred to the Tehsildar, Chohtan, who decided the same on 30.8.1994. The Tehsildar held that as per Section 63(viii) of the Act of 1955, the interest of a tenant in his holding or a part thereof stands extinguished, if, he migrates from India to a foreign country without obtaining a valid passport or without lawful authority. The tenant Sadik Ali migrated for Pakistan without a valid passport in the year 1981, therefore, he has extinguished his interest as tenant in his holding. While doing so, the Tehsildar noticed that by a judgment dated 15.6.1981, the learned Judicial Magistrate, First Class, Barmer, convicted Shri Sadik Ali for an offence punishable under Section 3 read with Section 6 of the Passports Act, 1967 and, therefore, his migration stands established. 4. The order passed by the Tehsildar came to be affirmed by the Additional District Collector, Barmer vide order dated 26.12.1995 in the appeal preferred by the appellant, being No. 80/1995. A revision petition giving challenge to the order dated 26.12.1995 was also dismissed by the Board of Revenue, Rajasthan, Ajmer. 5. By the judgment impugned, the learned Single Judge also dismissed the writ petition preferred by the appellant. 6. A revision petition giving challenge to the order dated 26.12.1995 was also dismissed by the Board of Revenue, Rajasthan, Ajmer. 5. By the judgment impugned, the learned Single Judge also dismissed the writ petition preferred by the appellant. 6. In appeal, the argument advanced by learned counsel for the appellant-petitioner is that under Section 63(viii) of the Act of 1955, the word used "migrates" is of a large amplitude and tenancy rights of a person under Section 63 cannot be extinguished ipse dixit merely on the count of conviction under Section 3 read with Section 6 of the Indian Passport Act, 1967. It is stated that a Division Bench of this Court in the case of Legal Representatives of Abdul vs. State of Rajasthan & Ors., reported in 2004(2) WLC (Raj.) page 327 while considering the scope of expression "migration" held as under:- "The term `migration' has 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. It states that as per clause (viii), a tenant who moves or enters into foreign country without a valid passport 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 other country is envisaged. In its narrower sense the 'Migration' de-notes moving from one place to another for settling at the latter place. 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 other country is envisaged. In its narrower sense the 'Migration' de-notes 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 passport 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 passport under the Indian Passport Act or without authority of law shall be presumed to have migrated. This only give rise to a rebuttal 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 `presume to have migrated' has been used to suggest that in such case what inference is permissible 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 rebuttal presumption against the holder if he is found even to have moved to a foreign territory that such move-ment was by way of migration. However, the holder can be leading evidence or from material available on record can rebute a presump-tion and prove otherwise that he has not migrated to other country. A Rule of evidence raising a rebutable 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 of 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. 33. Therefore, the crux of the 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 sence 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. 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 631 (viii) has arisen can bee 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 in hand, apparently because the authorities under the Rajasthan Tenancy Act have not understood the meaning of provisions of clause (viii) to Sub-Section 1 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 Ors., AIR 53 1966 SC 1614 as has said that:- "The word "migrated" is capable both of a narrower meaning as well as of a wider meaning. 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 Ors., AIR 53 1966 SC 1614 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 latter 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 Webster's dictionary (Second Ediction, 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 once 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 nor there is any intention of settlement in the place in 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 An. 7. 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 An. 7. Similarly a case where a period was forced to go from the territory of Indian to the territory of Prakistan as for example, where he might have been kidnapped or abducted would not be covered by the word "migrated" as used in Art. 7. Baring such cases the word "migrated" as used in An. 6 and 7 has the wider meaning, namely, movement from one territory to another territory wether or not with the intention of permanent residence in the latter 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 boarding State will not be a case of migration. Movement to another land not situated on Border area where question of mere unintentioned straying may not be possible. A case of movement to a foreign territory unintentionally by sheer mistake must be distin-guished for deliberate transgression. In later case the mere movement can fulfil the requirement of Sec. 631(viii) but not in the former. In other words, intentional movement to a foreign territory without valid passport or without authority 1 of law. It is also in consonance with cannon of interpretation that where consequence of all is so grave as to result in forfeiture of property, it must be strictly construed." 7. It is urged that in the case in hand, the petitioner before the learned Tehsildar adduced evidence to establish that he never migrated to Pakistan and was never intending to migrate. The Tehsildar on the count of conviction of the appellant petitioner for the offence under Section 3 of the Passport Act, 1967 applied provisions of Section 63(viii) of the Act of 1955 and extinguished tenancy rights. It is asserted that Section 3 of the Act of 1967 pertains to departure from India and not for migration and, as such, the Tehsildar should have considered case of the petitioner by examining scope of the term "migrates" as used under the Act of 1955. 8. It is asserted that Section 3 of the Act of 1967 pertains to departure from India and not for migration and, as such, the Tehsildar should have considered case of the petitioner by examining scope of the term "migrates" as used under the Act of 1955. 8. Per contra, learned Government Advocate while defending the judgment passed by the learned Single Bench submits that no interference in appeal is required to be made looking to the concurrent findings arrived right from Tehsildar to the Board of Revenue and further their affirmance by the learned Single Bench of this Court. On merits it is stated that the petitioner was convicted by a competent court as he departed from India without a valid passport or travel document, hence, his migration to a foreign country without passport or without authority of law stands proved. 9. Heard learned counsels for the parties. 10. It is not in dispute that the Tehsildar, Chohtan; Assistant Collector, Barmer and the Board of Revenue, Rajasthan, Ajmer applied provisions of Section 63(viii) of the Act of 1955 in the case of the appellant petitioner by treating him a person migrated from India on the basis of his conviction in the year 1981 for violation of Section 3of the Act of 1967. The learned Single Bench also affirmed the orders passed by the authorities referred above in the same time. The learned Single Bench also distinguished case of the petitioner with the case of the Legal Heirs of Abdul (supra) by noticing that in that case the petitioner tried to show that he did not move to Pakistan, but only returned from his sister's house, which too is in Indian territory near border. 11. Before proceeding further, it shall be pertinent to notice that the judgment given by the court of learned Judicial Magistrate, First Class, Barmer in the year 1981 has already been weeded out and that has not been seen even by the courts below except the court of Tehsildar, Chohtan. However, from perusal of the order passed by the learned Tehsildar, it appears that the petitioner adduced evidence to establish that he did not cross the border and if crossed, then that was due to some inadvertence. It is also a fact accepted that prior to the year 1999 Indo-Pak border close to District Barmer was open and inadvertent crossing of border was not unusual. It is also a fact accepted that prior to the year 1999 Indo-Pak border close to District Barmer was open and inadvertent crossing of border was not unusual. As per the record available, it appears that the petitioner was arrested from an Indian village close to the border and he was subjected to a trial for violating Section 3 of the Act of 1967. During trial he accepted his inadvertent movement across the border and for that he was said to be sentenced. No party is in a position to acquaint the Court as to what was the punishment given to him. The petitioner at present is about 82 years of age and, therefore, the learned counsel appearing on his behalf submits that it is quite difficult for him too to ascertain this fact even from the petitioner. 12. Be that as it may, we have examined case of the petitioner at its own merits. Section 3 of the Act of 1967 provides that "No person shall depart from, or attempt to depart from, India unless he holds in this behalf a valid passport or travel document". Section 3 (ibid) does not use the term "migrates". The scope of term "depart" then to "migrate" is quite different. Every departure from Indian territory cannot be treated as migration from India to a foreign country. The dictionary meaning of expression "depart" means to leave, to set forth, to quit whereas the expression "migrate" means to go from one place to settle in another (specially in a foreign country), to journey between different habitat, at specific times of year or to depart to change abode. The expressions are clearly distinguishable and migration is not simply departure but departure with an intention. The Hon'ble Division Bench of this Court in the case of Legal Heirs of Abdul vs. State of Rajasthan & Ors. (supra), while relying upon a judgment of Hon'ble the Supreme Court in Kulathil Mammu vs. State of Kerala & Ors. held that migration is not bare physical movement from India to the territory of a foreign country, but such movement is required to be accompanied by an intention and mere going from one place to another cannot obviously be treated as "migrated from India" with regard to context of the Rajasthan Tenancy Act. The courts below did not examine case of the petitioner in this perspective. The courts below did not examine case of the petitioner in this perspective. All the courts applied the provisions of Section 63(viii) of the Act of 1955 ipse-dixit by taking into consideration conviction of the petitioner for violation of Section 3 read with Section 6 of the Indian Passports Act, 1967 as a migration from India. No Court has examined case of the petitioner independently by taking into consideration the expression "migrates" as given under Section 63(viii) of the Act of 1955 by keeping in mind the law laid down by Hon'ble the Supreme Court in the case of Kulathil Mammu (supra) and by Division Bench of this Court in the case of Legal Heirs of Abdul (supra). We are of the considered opinion that as a matter of fact no evidence is available on record to arrive at a conclusion that the appellant migrated to Pakistan territory with some sort of intention. It is also relevant to notice that the appellant petitioner throughout stated that he is a permanent resident of a village that is very close to the inter-national border and he never crossed the border. He never intended to cross the border and if that has been occurred, then that was due to inadvertence. The facts noticed indicates that the appellant, though may have departed from Indian territory but did not migrate from India in context to provision of Section 63(viii) of the Act of 1955. 13. Looking to the discussion made above, we are inclined to accept this appeal. Accordingly, the same is allowed. The judgment dated 7.1.2014 passed by learned Single Bench in S.B. Civil Writ Petition No. 312/1998 and the orders passed by the Board of Revenue, Rajasthan, Ajmer; Additional Collector, Barmer and the Tehsildar, Chohtan dated 4.8.1997, 26.12.1995 and 3.8.1994 respectively are quashed and set aside. It is declared that provisions of Section 63(viii) of the Act of 1955 cannot be applied against the petitioner on the basis of the facts available in the instant matter. No order as to costs.