advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, July 9, 2014

Rajasthan Tenancy Act, 1955 - sec.42, 66 and 175 - the registered sale deed dated 12.01.1962 executed prior to 1.5.1964 against the provisions of Act cannot be held to be void.The suit filed by the Tehsildar, Viratnagar after about 31 years of the sale is barred by limitation u/s 175 of the Act.-Apex court held that Therefore, it is clear that the proceeding for restoration of land initiated by the Tehsildar, Viratnagar was barred by limitation and was not maintainable. We, accordingly, set aside the impugned judgment dated 2.02.2012 passed by the Division Bench of the Rajasthan High Court as well as judgement and order dated 23.05.2002 passed by the Single Judge. The appeal is allowed. No costs.= Ram Karan (Dead) Through LRs. & ors. … APPELLANTS VERSUS State of Rajasthan and Ors. … RESPONDENTS = 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41718

   Rajasthan  Tenancy  Act,  1955 - sec.42, 66 and 175 - the registered sale deed dated 12.01.1962 executed  prior  to 1.5.1964 against the provisions of Act cannot be held to be void.The suit filed by the Tehsildar, Viratnagar after  about  31  years  of  the sale is barred by limitation u/s 175 of the Act.-Apex court held that Therefore, it is clear that the proceeding  for  restoration  of  land
initiated by the Tehsildar, Viratnagar was barred by limitation and was  not maintainable.  We,  accordingly,  set  aside  the  impugned  judgment  dated 2.02.2012 passed by the Division Bench of the Rajasthan High Court  as  well as judgement and order dated 23.05.2002 passed  by  the  Single  Judge.  The appeal is allowed. No costs.=
The suit property is an agricultural land  admeasuring  10  bighas  13
biswa situated in village Med, Jaipur, Rajasthan. The said land was sold  by
its recorded Khatedar, Dalu (hereinafter referred to  as  the  “vendor”)  to
Ram Karan (since deceased) and Mahendra Kumar  who  belong  to  upper  caste
vide a registered  sale  deed  dated  12th  January,  1962.  Ram  Karan  and
Mahendra Kumar (hereinafter referred to as the “vendee”) were both  landless
persons on the date of sale of disputed land. The said vendees had  been  in
cultivator possession of the disputed land prior to 12th January, 1962.
4.    Subsequently, Gram Panchayat allowed the land to  be  mutated  in  the
name of the vendee, Ram Karan and Mahendra Kumar. It  was  mutated  on  10th
September, 1966 and they became Khatedar.
5.    After lapse of more than 31  years,  Tehsildar,  Viratnagar,  District
Jaipur,  instituted  Case  No.1681/1993  before  the  Assistant   Collector,
Shahpura, District Jaipur, u/s  175  of  the  Rajasthan  Tenancy  Act,  1955
(hereinafter referred to as the, ‘Act’) seeking  ejectment  of  the  vendee.
The said suit was filed on the ground that the  vendor;Dalu  belonged  to  a
Scheduled Caste category (Nayak) and consequently the  disputed  land  could
not be sold to the vendees who belonged to an upper caste of ‘Mahajan’.  The
contention was that the sale was void being in contravention of  Section  42
of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as, ‘the  Act’).
The Tehsildar also moved an application u/s 112 of the Act  for  appointment
of a receiver. The Assistant Collector by order dated 1.1.1994 rejected  the
application  made  by  Tehsildar  for  appointment  of  receiver   to   take
possession of the suit land. He held that the vendee had been in  possession
and cultivating the suit land for 32 years and had otherwise matured  rights
by adverse possession. He further held that there was no  prima  facie  case
in favour of the State and also the balance of convenience was in favour  of
the vendee.   
Proviso to Section 42  inserted  by  Section  4  of  the  Rajasthan  Tenancy
(Second Amendment) Act No.28 of 1956, giving Section  42  retrospective  has
been declared violative of Article 19 of the Constitution of  India  by  the
Rajasthan High Court in Triveni Shyam Sharma v. Board  of  Revenue  &  Ors.,
[AIR 1965 Raj.54] which having not challenged reached finality. In  view  of
such decision, the registered sale deed dated 12.01.1962 executed  prior  to
1.5.1964 cannot be held to be void.
The suit filed by the Tehsildar, Viratnagar after  about  31  years  of  the
sale is barred by limitation u/s 175 of the Act.
 In the present case, neither any  objection  was
raised nor was any application filed by vendors for restoration of  land  in
their favour. The suit was filed by the  Tehsildar,  Viratnagar  after  more
than 31 years.  No ground is shown to file such petition  after  long  delay
nor it was mentioned as to whether the  vendors  i.e.  original  landholders
made any application for restoration of land in their favour.
39.   In view of the matter, we hold that the suit being  filed  beyond  the
reasonable period  was  fit  to  be  dismissed.   The  Additional  Collector
rightly dismissed the suit being barred by limitation.
40.   Counsel for the appellant  submitted  that  under  notification  dated
20.09.1977 “Nayak” were not declared as  Scheduled  Castes  and,  therefore,
there was no occasion for the Tehsildar to file a  suit  in  the  year  1993
i.e.  16  years  after  notification  dated  20.09.1977  on  the  ground  of
violation of Section 42.. This question has not been dealt with by the  High
Court and the fact aforesaid has not been disputed by the respondents.
41.   Therefore, it is clear that the proceeding  for  restoration  of  land
initiated by the Tehsildar, Viratnagar was barred by limitation and was  not
maintainable.  We,  accordingly,  set  aside  the  impugned  judgment  dated
2.02.2012 passed by the Division Bench of the Rajasthan High Court  as  well
as judgement and order dated 23.05.2002 passed  by  the  Single  Judge.  The
appeal is allowed. No costs.

2014 – June. Part -http://judis.nic.in/supremecourt/filename=41718


                                                              REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5853 OF 2014
                  (arising out of SLP (C) No.16638 of 2012)


Ram Karan (Dead) Through LRs. & ors.          … APPELLANTS

                                   VERSUS

State of Rajasthan and Ors.                 … RESPONDENTS



                               J U D G M E N T


Sudhansu Jyoti Mukhopadhaya, J.

      Leave granted.
2.    This appeal is directed against  the  judgment  and  order  dated  2nd
February, 2012 passed by the Division Bench of the High Court of  Judicature
for Rajasthan, Jaipur Bench, Jaipur in  D.B.  Civil  Special  Appeal  (Writ)
No.557/2002. By the impugned judgment the High Court  dismissed  the  appeal
preferred by the appellant and upheld the order dated 23rd May, 2002  passed
by the learned Single Judge in S.B. Civil Writ Petition No.639 of 1996.
3.    The factual matrix of the case is as follows:
      The suit property is an agricultural land  admeasuring  10  bighas  13
biswa situated in village Med, Jaipur, Rajasthan. The said land was sold  by
its recorded Khatedar, Dalu (hereinafter referred to  as  the  “vendor”)  to
Ram Karan (since deceased) and Mahendra Kumar  who  belong  to  upper  caste
vide a registered  sale  deed  dated  12th  January,  1962.  Ram  Karan  and
Mahendra Kumar (hereinafter referred to as the “vendee”) were both  landless
persons on the date of sale of disputed land. The said vendees had  been  in
cultivator possession of the disputed land prior to 12th January, 1962.
4.    Subsequently, Gram Panchayat allowed the land to  be  mutated  in  the
name of the vendee, Ram Karan and Mahendra Kumar. It  was  mutated  on  10th
September, 1966 and they became Khatedar.
5.    After lapse of more than 31  years,  Tehsildar,  Viratnagar,  District
Jaipur,  instituted  Case  No.1681/1993  before  the  Assistant   Collector,
Shahpura, District Jaipur, u/s  175  of  the  Rajasthan  Tenancy  Act,  1955
(hereinafter referred to as the, ‘Act’) seeking  ejectment  of  the  vendee.
The said suit was filed on the ground that the  vendor;Dalu  belonged  to  a
Scheduled Caste category (Nayak) and consequently the  disputed  land  could
not be sold to the vendees who belonged to an upper caste of ‘Mahajan’.  The
contention was that the sale was void being in contravention of  Section  42
of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as, ‘the  Act’).
The Tehsildar also moved an application u/s 112 of the Act  for  appointment
of a receiver. The Assistant Collector by order dated 1.1.1994 rejected  the
application  made  by  Tehsildar  for  appointment  of  receiver   to   take
possession of the suit land. He held that the vendee had been in  possession
and cultivating the suit land for 32 years and had otherwise matured  rights
by adverse possession. He further held that there was no  prima  facie  case
in favour of the State and also the balance of convenience was in favour  of
the vendee.
6.    Against the aforesaid order dated 1.1.1994,  the  Tehsildar  filed  an
appeal before Revenue Appellate Authority and the  same  was  registered  as
Appeal No.9 of 1994. The Revenue Appellate Authority  by  order  dated  28th
January, 1994 held that in order to effectuate the social objective  u/s  42
of the Act, the State Government has enhanced the time for instituting  suit
u/s 175 so that old cases of sale may be reopened. The  appeal  was  allowed
and order dated 1.1.1994 passed by the Assistant Collector was set aside.
7.    The Tehsildar was appointed  as  receiver  of  the  said  land  having
Khasra nos.2307, 2308, 2309, 2310, 2311, 2318,  2326,  2327,  2328  total  9
Tulka 25 hectares.
8.    The Vendee, Ram Karan and Mahendra,  challenged  the  aforesaid  order
dated 28.4.1994 in  revision  before  the  Board  of  Revenue  which  remain
pending.
9.    During the pendency of  the  proceedings  u/s  175  of  the  Act,  the
Tehsildar filed a reference under Rule 82 of the Land  Record  Rules  before
1st Additional Collector, Viratnagar, District Jaipur  seeking  cancellation
of the mutation dated 10.09.1963.  The  same  was  registered  as  Reference
No.261/94/LR/Jaipur of 1994.  The  ground  taken  was  that  the  sale  deed
executed by the vendor, Dalu was in contravention of provisions  of  Section
42 of the Act.
10.   On 26.06.1994, the appellant-vendee moved an  application  before  the
Collector,  Jaipur  seeking  to  stay   reference   proceedings   till   the
adjudication of the proceedings u/s 175 of the Act  or  to  consolidate  the
reference and the proceedings u/s 175 of the Act. In reply to the notice  on
reference the  appellant-vendee  stated  that  the  sale  deed  executed  on
12.01.1962 by Dalu is not in breach of Section  42  of  the  Act.   It  was,
inter alia, contended that the proceedings u/s 175 of the  Act  was  pending
and consequently the reference was liable to be dismissed as  the  same  was
not maintainable.
11.   The  First  Additional  Collector  vide  his  order  dated  19.10.1994
directed to place the matter before the Board of Revenue for passing  orders
to cancel the mutation in favour of the vendee and held  that  the  transfer
was in breach of Section 42 of the Act and there was  no  limitation  for  a
reference to the Board. It was further held that a pending  application  for
ejectment u/s 175 of the Act is no bar to a reference.
12.   On 26.06.1995, the Single Member,  Board  of  Revenue  held  that  the
vendor, Dalu being “Nayak” by caste was from Scheduled  Caste  category  and
the sale deed executed being in  favour  of  General  category  person,  the
mutation carried out on the basis of said sale deed was null  and  void.  He
further held  that  the  sale  deed  dated  12.01.1962  was  void  being  in
contravention of Section 42 of the Act and, therefore,  consequent  mutation
was illegal. The Member,  Board  of  Revenue  set  aside  the  sanction  for
mutation granted by the Gram Panchayat and directed striking off  the  names
of the vendees, Ram Karan and Mahendra and in their place the  name  of  the
vendor/heirs was directed to be recorded.
13.   Against the  aforesaid  order  dated  26.06.1995,  the  Vendees  filed
Special Appeal No.1A/95RLAct/Jaipur before the Division Bench of  the  Board
of Revenue. The Division Bench of  the  Board  of  Revenue  by  order  dated
16.11.1995 affirmed the  order  of  the  Single  Member  and  dismissed  the
appeal.
14.   The appellant-vendees subsequently  filed  S.B.  Civil  Writ  Petition
No.639 of 1996 challenging order dated 19.10.1994 passed by  the  Additional
Collector; order dated 26.06.1995 passed by the Single Member of  the  Board
of Revenue and order dated 16.11.1995 passed by the Division Bench of  Board
of Revenue.
15.   Learned Single Judge of the  High  Court  by  order  dated  23.05.2002
dismissed the writ petition and held that as the sale deed was  executed  in
violation of Section 42 of the Act, the dismissal of application u/s 175  of
the Act does not create any right in favour of the vendees.
16.   Against the aforesaid order dated  23.05.2002,  the  vendee  preferred
D.B. Special Appeal (Writ) No.557 of  2002.   The  Division  Bench  of  High
Court by impugned judgment and order dated 2.2.2012 dismissed the same.  The
Division Bench held that the vendor, Dalu, was a member of  Scheduled  Caste
category and further held as follows:-
      “Coming to the submission that no steps were taken by the  respondents
u/s 183 of the Tenancy Act, in our considered opinion,  even  if  no  action
was taken, power could have been exercised to annul mutation as  transaction
was illegal and void u/s 42 of the Tenancy Act.   There  was  no  effect  of
dismissal of the application u/s 175 of the  Tenancy  Act  being  barred  by
limitation as no right has accrued  in  favour  of  the  appellants  on  the
strength of sale deed which was void.  The power has been rightly  exercised
and there is no infirmity or  illegality  in  the  orders  which  have  been
impugned in the intra-court appeal.”

17.   Learned counsel for the appellants submitted as follows:
Transfer of land by Scheduled Caste in  favour  of  a  non  Scheduled  Caste
prior to 1964 may be voidable but not void ab initio.
Proviso to Section 42  inserted  by  Section  4  of  the  Rajasthan  Tenancy
(Second Amendment) Act No.28 of 1956, giving Section  42  retrospective  has
been declared violative of Article 19 of the Constitution of  India  by  the
Rajasthan High Court in Triveni Shyam Sharma v. Board  of  Revenue  &  Ors.,
[AIR 1965 Raj.54] which having not challenged reached finality. In  view  of
such decision, the registered sale deed dated 12.01.1962 executed  prior  to
1.5.1964 cannot be held to be void.
The suit filed by the Tehsildar, Viratnagar after  about  31  years  of  the
sale is barred by limitation u/s 175 of the Act.
18.   On the other hand, learned counsel for the respondents-State  referred
to legislative history of Section 42 and contended as follows:
The sale deed dated 12.01.1962 was covered u/s 42 of the Act  and  therefore
void.
Void sale deed does not create any right in favour of the appellants
Mutation proceeding had not created any right or  title  in  favour  of  the
appellants
19.   For determining the issues, it is desirable to notice the  Legislative
History of Section 42, as amended from time to time.
Original Section 42 came into force w.e.f. 15.10.1955 reads as under:
“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  un
irrigated or 30 acres of irrigated land.
Explanation- If such land is partly irrigated and  party  un-irrigated,  one
acre of irrigated land, shall, for calculating the  area  of  land  for  the
purposes of this Section, be deemed to be equivalent to three acres  of  un-
irrigated land.”

20.   The Act was for the first time amended by  Act  No.27  of  1956  dated
22.09.1956. By this amendment Section 42 remained  untouched.  The  Act  was
again amended by the Rajasthan Tenancy (Second) Amendment Act, 1956 (Act  28
of 1956) which came into force  on  22.09.1956.  By  this  amendment  Act  a
proviso to Section 42 was added as under:
      “Provided that no khatedar tenant being a member  of  Scheduled  Caste
or a Scheduled Tribe shall so transfer these rights 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.”

      Thereafter, Section 42 was amended and  substituted  w.e.f.  1.05.1964
as under:
“Section 42 General restriction on sale, gift and bequest-  The  sale,  gift
or bequest by a khatedar tenant of his interest in  the  whole  or  part  of
holding shall be void if:
It is not of a survey number except when the area of the  survey  number  so
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 fragment:
Provided that this restriction shall not apply if the  area  so  transferred
becomes merged into a contiguous survey number.
Provided further that the restriction shall not apply if the sale,  gift  or
bequest is of the entire interest of a tenant in the survey number;

such sale gift or bequest is by a 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
schedule tribe in favour of a person who is not a  member  of  the  schedule
tribe.”

21.   Subsequently, the said Section was amended  by  Rajasthan  Act  15  of
1970 w.e.f. 18.08.1970; Rajasthan Act  22  of  1992  w.e.f.  11.11.1994  and
Rajasthan Act 18 of 1999 w.e.f. 30.09.1999. On such  amendments  Section  42
reads as below:
“42. General  restrictions  on  sale,gift  and  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

[(a)...deleted w.e.f. 11.11.1992]
(b) such sale, gift or bequest is by a member of Scheduled Caste  in  favour
of a person who is not a member of the Scheduled Caste, or by  member  of  a
Scheduled Tribe in favour of a person who is not a member  of  the  Schedule
Tribe.
[(c) Omitted by Raj. Act 15 of 1970, published in Raj. Gaz.  Ext.,  Part  IV
(ka), dated 18.8.1970 and shall always be deemed to have been omitted].

(bb) Such sale, gift  or  bequest,  notwithstanding  anything  contained  in
clause (b), is by a member of Saharia Scheduled Tribe in favour of a  person
who is not a member of the said Saharai  tribe.   [inserted  vide  Rajasthan
Act 18 of 1999 with effect from 30.09.1999]

22.   According to respondents, sale deed  in  question  was  registered  on
12.01.1962. The second amendment in Section 42 by which a proviso was  added
to Section 42 was brought into force on 22.9.1956 and the sale  in  question
had been effected on 12.01.1962 which is much later to coming into force  of
the second Amendment in Section 42  of  the  Act.   Since  after  22.09.1956
there was clear prohibition in making any sale  by  a  member  of  Scheduled
Castes or Schedules Tribes in favour of a  person  who  was  not  member  of
Scheduled Castes or Scheduled Tribes, the transfer  made  on  12.01.1962  is
against the said prohibition as well as provisions  of  Section  23  of  the
Contract Act.
23.   So far as amendment made by  Act  No.12  of  1964  dated  1.5.1964  in
Section 42 is concerned the only change made  was  that  a  declaration  was
given that the sale, gift or bequest by a khatedar tenant  in  violation  of
Section 42 “shall be void”.
24.   The amendment Act  No.  12  of  1964  though  brought  into  force  on
1.05.1964 after the alleged sale on 12.1.1962, the fact  remains  that  even
the earlier proviso which was added to Section 42 by  second  Amendment  Act
No. 28 of 1956, also prohibits any transfer of  interest  in  holding  by  a
Member of Scheduled Castes or Scheduled Tribes to any person who was  not  a
member of Scheduled Castes or Scheduled Tribes.  The  second  amendment  Act
No.28 of 1956 which came into force on 22.09.1956 was in force at  the  time
of alleged sale, The sale being  forbidden  by  law  and  being  opposed  to
public policy within the meaning of Section 23 of the  Contract  Act,  1872,
it was not enforceable by law in view of proviso to Section  42.  Section  2
of the Contract Act, 1872 also provides  that  an  agreement  which  is  not
enforceable by law is said to be void.
25.   Hence, the question that arises for our consideration  is  whether  in
view of proviso to Section 42 inserted by  Second  Amendment  Act  No.28  of
1956, the sale deed executed on 12.01.1962 is void or not.
26.   Learned counsel for the appellant referred to Division  Bench  of  the
Rajasthan High Court decision in Triveni Shyam Sharma v. Board of Revenue  &
Ors, AIR 1965 Raj.54 and submitted  that  in  view  of  the  said  decision,
retrospective effect of proviso having  been  declared  ulta  vires  is  not
applicable to the sale in question. But such submission cannot be accepted.
27. In the case of Triveni Shyam Sharma(Supra), the Division  Bench  of  the
Rajasthan  High  Court  considered  the  effect  of  amendment  on  sale  of
proprietary right prior to the Second amendment and held as follows:
      “10. The main question for determination is whether the  sale  of  the
proprietary right made  by  Gyarsia  in  favour  of  the  petitioner  became
invalid on account of the subsequent legislation,  namely  the  addition  of
the proviso to Section 42 by the Second Amendment Act.   A  perusal  of  the
language of the proviso which was added to Section 42, would  show  that  if
it is read without the context of the deeming  clause,  it  cannot  be  said
that it was to be applied retrospectively. The difficulty was  created  only
because of the words  “shall  be  deemed  always  to  have  been  so  added”
inserted in Section 4 of the second Act while introducing the proviso.”

28.   The Division Bench of the Rajasthan High Court further held:
“14..........It is contended by him that  the  proviso  was  added  for  the
protection of the interests of the  members  of  the  Scheduled  tribe  and,
therefore, it was saved by this Clause. In our opinion, this  contention  is
not tenable because even, according to Clause (5),  reasonable  restrictions
on the fundamental rights embodied in Article 19(1)(f) can be  imposed  only
for the protection of the interests of the members of the  scheduled  tribe.
The word 'interests' appearing in  the  said  Clause  refers  to  subsisting
interests and not to those interests which cease to exist  even  before  the
law is enacted. The term  'protection'  is  also  suggestive  of  subsisting
interests. If the interests already  cease  to  exist,  there  would  remain
nothing which may be protected by law. In the case of interests which  cease
to exist, it would be revival  of  the  interests  and  not  the  protection
thereof. In a  case  like  the  present  one,  where  Gyarsia   had  already
transferred his interests  before  the  second  Act  came  into  force,  the
deeming clause, if held to be valid,  would  not  protect  the  vendor,  but
would tend to deprive the vendee, i. e., the petitioner of  the  rights  and
interests which had already vested in him. The  deeming  clause  would  not,
therefore,  be  saved  by  Clause  (5)  and  it  would   be   violative   of
Article 19(1)(f) of the Constitution of India.

15. In this view of the matter there seems to be no force in the  contention
raised by learned counsel for the contending respondents,  because   Gyarsia
had parted with his  Khatedari  rights  in  the  property  long  before  the
proviso was added to Section 42. The insertion  of  the  proviso  could  not
revive  his  interest  merely  because  the  deeming  clause  rendered   its
operation retrospective. His interest had already ceased to exist and  there
remained nothing to be protected  by  law.  We,  therefore,  hold  that  the
deeming clause was violative of Article 19 in  so  far  as  it  resulted  in
divesting the petitioner in whom  the  vendor's  rights  and  interests  had
vested before the second amendment.”

“18. Learned counsel for the respondents has urged that according to  Clause
(b) of the amended section, the sale in favour of the  petitioner  was  void
since he was not a member of a Scheduled Caste  or  a  Scheduled  Tribe.  It
would suffice to say that while substituting  Section  42,  the  Legislature
took good care in not making the  change  to  operate  retrospectively.  The
plain reading  of  Section  3  would  show  that  the  new  Section  42  was
substituted in place of the old one with effect from the date  this  amended
Act came into force namely, 1st May, 1964. This Act also does  not  seek  to
validate the deeming clause appearing in Section 4 of the second Act,  which
was invalid from the very  date  it  was  introduced,  as  held  above.  The
Constitution (Seventeenth  Amendment)  Act,  1964,  protects  the  Rajasthan
Tenancy Act, 1955 as it  stood  on  the  date  the  said  amendment  of  the
Constitution of India, came into force.”

29.   The Rajasthan Tenancy (Second) Amendment Act, 1956 (Act  28  of  1956)
came into force on 22.09.1956. The vendor executed the sale deed  in  favour
of the vendee, predecessor in interest of the appellant on  12.01.1962  i.e.
after the second amendment. The appellants cannot  claim  that  their  right
was created much prior to  the  second  amendment  i.e.  before  proviso  to
Section 42 was inserted. Counsel for the respondents rightly contended  that
the alleged sale deed dated 12.01.1962 was effected much after the  date  of
coming into force (22.09.1956) of proviso to Section  42.  There  was  clear
prohibition in making any sale by a member of Scheduled Castes or  Scheduled
Tribes in favour of person  who  was  not  member  of  Scheduled  Castes  or
Scheduled Tribes since after 22.09.1956. The  transfer  made  on  12.01.1962
was against the said prohibition.
30.   Section 23 of the Indian Contract Act, 1872 reads as follows:
      “23. What consideration and objects  are  lawful,  and  what  not.—The
consideration or object of an agreement is lawful, unless—

it is forbidden by law;  or is of such  a  nature  that,  if  permitted,  it
would defeat the provisions of  any  law;  or  is  fraudulent;  involves  or
implies, injury to the person or property of another; or the  Court  regards
it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is  said
to be unlawful.  Every agreement of which the  object  or  consideration  is
unlawful is void."

31.   In the present case, the sale deed in question was alleged to be  made
when it was forbidden  by  law  (proviso  to  Section  42).  Therefore,  the
appellant cannot derive advantage of  decision  rendered  by  the  Rajasthan
High Court in Trivei Shyam Sharma(Supra).
32.   To determine the  second  issue  in  relation  to  limitation,  it  is
desirable to notice the relevant provisions of the Act. Section 175  of  the
Act deals with ejectment for illegal transfer or sub-letting  and  reads  as
follows:

“175. Ejectment  for  illegal  transfer  or  sub-letting.-(1)  If  a  tenant
transfers or sub-lets, 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 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 sub-let or purported to be transferred or sub-let.


(2) To every application, under this Section  the  transferee  or  the  sub-
tenant or the purported transferee or the sub-tenant, as the  case  may  be,
shall be joined as a party.


(3) On an application being made under this section, the court  shall  issue
a notice to the opposite  party  to  appear  within  such  time  as  may  be
specified therein and show cause why he should not be ejected from the  area
so transferred or sublet or purported to be transferred or sub-let.]


(4) If appearance is made within the time specified in the  notice  and  the
liability to ejectment is contested, the court  shall,  on  payment  of  the
proper court fees, treat the application to be a suit and proceed  with  the
case as a suit:


Provided that in the  event  of  the  application  having  been  made  by  a
Tehsildar in respect of land held directly  from  the  State  Government  no
court-fee shall be payable.


 (5) If no such appearance  is  made  or  if  appearance  is  made  but  the
liability to ejectment is not contested the court shall pass  order  on  the
application as it may deem proper.”

33.   As per Schedule 3 read with Section 214 of the Act the limitation  for
filing a suit for any illegal transfer was  30  years.  The  relevant  entry
which was in Rajasthan Tenancy Act, 1967 Edition reads as follows:
|S.NO. |Section of   |Description of suit, application  |Period of    |
|      |Act          |or appeal                         |Limitation   |
|1     |2            |3                                 |4            |
|66    |175          |Application for ejectment for     |Thirty years |
|      |             |illegal transfer or sub-letting   |             |

|Time from which period |Proper Court fees      |Court/officer competent|
|begins to run          |                       |to dispose of          |
|5                      |6                      |7                      |
|Date of transfer or    |50 Paise               |Assistant Collector    |
|sub-lease              |                       |                       |

34.   Counsel for the appellants referred  to  decision  of  this  Court  in
Nathuram v. State of Rajasthan, (2004) 13 SCC 585 and in the said case  this
Court held:
“4. The contention urged by the appellant’s counsel is  that  by  virtue  of
Section  42  of  the  Rajasthan  Tenancy  Act,  any  transaction   made   in
contravention has been declared to be void and,  therefore,  the  period  of
limitation is not applicable and that the authority should  have  held  that
the [pic]appellants are entitled to get possession. It may be  noticed  that
for taking an action  under  Section  175  of  the  Act,  the  procedure  as
prescribed under sub-section 4(A) of Section 175 has to be  adopted.  It  is
also to be noticed that under Section 214  of  the  Rajasthan  Tenancy  Act,
period of limitation is prescribed for initiating action under Section  175.
Under Section 214, it is stated that:
“214. (1) The suits and applications specified in the Third  Schedule  shall
be instituted and made within the  time  prescribed  therein  for  them  and
every such suit instituted or application  made  after  the  expiry  of  the
period of limitation so prescribed shall be dismissed:”

Under the Third Schedule, in clause 66, for  an  application  for  ejectment
for  illegal  transfer  or  sub-letting,  the  period  of  twelve  years  is
originally prescribed for filing  such  an  application  from  the  date  of
transfer or sub-lease. The provision relating to the  period  of  limitation
was later  on  amended  with  effect  from  5-10-1981  and  the  period  was
prescribed as 30 years. So far as the present transaction is concerned,  the
period of limitation applicable is twelve years. The transfers being one  on
2-4-1964 and another on 4-5-1964, the proper application  should  have  been
filed within twelve years,  but  it  was  filed  before  the  Sub-Divisional
Officer only on 22-11-1976. In that view  of  the  matter,  the  proceedings
were initiated beyond the period of limitation. Therefore, it was barred  by
limitation and the finding of the SDO is  correct  which  has  been  rightly
confirmed by the authorities right up to the High Court.”

35.   Learned counsel for the appellants also referred to  decision of  this
Court in State of Punjab v. Bhatinda  District  Cooperative  Milk  Producers
Union Ltd., (2007) 11 SCC 363.  In the said case this  Court  while  noticed
that no period of limitation was prescribed under the statute held:

 “18. It is trite that if no  period  of  limitation  has  been  prescribed,
statutory authority must  exercise  its  jurisdiction  within  a  reasonable
period. What, however, shall be the reasonable period would depend upon  the
nature of the statute, rights and liabilities thereunder and other  relevant
factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be  exercised
within a period of three years having regard to the purport in terms of  the
said Act. In any event, the same  should  not  exceed  the  period  of  five
years. The view of the High Court, thus, cannot be said to be  unreasonable.
Reasonable period, keeping in view the discussions made  hereinbefore,  must
be found out from the statutory scheme. As indicated  hereinbefore,  maximum
period of limitation provided for in sub-section (6) of Section  11  of  the
Act is five years.”

36.   In the present case, no action was taken either by the  Vendor  or  by
the State for more than 31 years.  The sale deed was executed on  12.01.1962
and the land was mutated in the  name  of  the  appellants’  predecessor  in
interest on 10.09.1963.  It was after about 31 years, on 6.07.1993 the  suit
was filed by the Tehsildar, Viratnagar being Case No.1681 of 1993.   In  the
said suit for the first time an application was  filed  for  appointment  of
receiver.  The said application was rejected  by  the  Assistant  Collector,
Shahpura vide order dated 1.1.1994 holding  that  the  vendee  has  been  in
possession and cultivating the suit land for 32 years.
37.   In view of the position of law, as noticed above, it is not  necessary
to see whether the petition for cancellation of mutation was filed  on  time
or not.  The decision of this Court in Nathu Ram (supra) relates to  Section
42 of the Act and the transaction made in contravention with the  provisions
of the said Act. In the said case similar plea were taken  by  the  parties,
having noticed sub-section 4(A) of Section 175 and Section 214 of  the  Act,
this Court held that as the transaction was made much beyond the  period  of
12  years,  the  proceeding  was  beyond  the  period  of  limitation   and,
therefore, barred by limitation.
38.   In State of Punjab & Ors. v. Bhatinda District Cooperative Milk  Union
Ltd. (supra) this Court held that  if  no  period  of  limitation  has  been
prescribed, statutory authority must  exercise  its  jurisdiction  within  a
reasonable period. However,  what  shall  be  the  reasonable  period  would
depend upon the nature of the statute,  rights  and  liabilities  thereunder
and other relevant factors. In the present case, neither any  objection  was
raised nor was any application filed by vendors for restoration of  land  in
their favour. The suit was filed by the  Tehsildar,  Viratnagar  after  more
than 31 years.  No ground is shown to file such petition  after  long  delay
nor it was mentioned as to whether the  vendors  i.e.  original  landholders
made any application for restoration of land in their favour.
39.   In view of the matter, we hold that the suit being  filed  beyond  the
reasonable period  was  fit  to  be  dismissed.   The  Additional  Collector
rightly dismissed the suit being barred by limitation.
40.   Counsel for the appellant  submitted  that  under  notification  dated
20.09.1977 “Nayak” were not declared as  Scheduled  Castes  and,  therefore,
there was no occasion for the Tehsildar to file a  suit  in  the  year  1993
i.e.  16  years  after  notification  dated  20.09.1977  on  the  ground  of
violation of Section 42.. This question has not been dealt with by the  High
Court and the fact aforesaid has not been disputed by the respondents.
41.   Therefore, it is clear that the proceeding  for  restoration  of  land
initiated by the Tehsildar, Viratnagar was barred by limitation and was  not
maintainable.  We,  accordingly,  set  aside  the  impugned  judgment  dated
2.02.2012 passed by the Division Bench of the Rajasthan High Court  as  well
as judgement and order dated 23.05.2002 passed  by  the  Single  Judge.  The
appeal is allowed. No costs.

                                              ……………………………………………………………………….J.
                                      (SUDHANSU JYOTI MUKHOPADHAYA)



                                              ……………………………………………………………………….J.
NEW DELHI,                           (KURIAN JOSEPH)
JUNE 30, 2014.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.