REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6741-6742 OF 2012
[Arising out of SLP (Civil) Nos. 33006-33007 of 2010]
State of Rajasthan & Others .. Appellants
Versus
Aanjaney Organic Herbal Pvt. Ltd. .. Respondents
WITH
CIVIL APPEAL NO. 6743 OF 2012
[Arising out of SLP (Civil) No. 14771 of 2011]
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Leave granted.
2. We are, in this case, called upon to decide the question as to
whether the transfer of land from a member of Scheduled Caste to a juristic
person, other than Scheduled Caste, is void, in view of the provisions of
Section 42(b) of the Rajasthan Tenancy Act, 1955 (for short ‘the Act’).
3. The High Court of Rajasthan has answered the above question in
several cases holding that such a transfer would not be hit by the above
mentioned provision, since the expression ‘person’ would not take in a
‘juristic person’ and that juristic person does not have a caste and,
therefore, any transfer made by a Scheduled Caste person would not be hit
by Section 42(b) of the Act.
4. In the impugned judgment, reliance has been placed on an earlier
judgment of the High Court of Rajasthan in State of Rajasthan v. Indian Oil
Corporation 2004 (5) WLC (Raj.) 703, which held as follows:
“6. It goes without saying that though the Indian Oil
Corporation is a juristic person but it does not have a caste. Thus
the sale in favour of Indian Oil Corporation by a member of Scheduled
Caste is not covered by the provisions of section 42 of the Rajasthan
Tenancy Act. Thus taking into totality of the facts and
circumstances, we feel that it is not a fit case where the delay of
480 days should be condoned. The special leave is rejected.”
5. The judgment in IOC (supra) was challenged before this Court by the
State of Rajasthan in C.C. No. 19386 of 2010 with an application for
condonation of delay of 2798 days. This Court dismissed the petition with
costs vide order dated 4.1.2011, since the delay was not properly
explained.
6. We are informed that since the special leave petition, arising out of
CC No. 19386 of 2010, was dismissed, the judgment in IOC (supra) is treated
as law so far as the State of Rajasthan is concerned and being followed in
various other similar cases. It is, therefore, necessary to examine the
various legal issues raised before us so as to render an authoritative
pronouncement on the question posed before us.
7. The respondent is a private limited company registered under the
Indian Companies Act vide Registration Certificate of Incorporation dated
17.8.2005. The Company purchased 25 bighas of land in Khasra No. 840/651
situated in Village Jetasan Patwar area Jetasan Tehsil, Rajasthan, out of
which 9.73 bighas belonged to the members of Scheduled Caste. That
property was purchased on 26.9.2005 by a registered sale deed for a
consideration of Rs.60,000/-. An application was preferred by the
respondent before the Revenue Authorities for mutation of the property.
The same was refused placing reliance on a circular dated 19.11.2005, which
stated that mutation could be effected only if the transfer was between the
members of Scheduled Caste/ Scheduled Tribe, as the case may be. Since
the application for mutation was refused, the respondent herein filed S.B.
Civil Writ Petition No. 169/2006, which was allowed by a learned single
Judge. Aggrieved by the same, the State preferred an appeal before the
Division Bench, being D.B. Civil Writ Special Appeal (Writ) No. DR (J)
1177/2008, which was also dismissed following the judgment in IOC (supra).
8. Heard learned counsel on either side. The Act is a beneficial
legislation which takes special care to protect the interest of the members
of Schedule Caste and Schedule Tribe. Section 42 provides some general
restrictions on sale, gift and bequest of the interest of Scheduled Caste
and Scheduled Tribe, in the whole or part of their holding. The reason for
such general restrictions is not only to safeguard the interest of the
members of Scheduled Caste and Scheduled Tribe, but also to see that they
are not being exploited by the members of non-Scheduled Caste and Scheduled
Tribe. The relevant provisions of Section 42(b) are extracted below for
easy reference:
“42. General restrictions on sale, gift & 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) xxxxxxx deleted
b) 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 Scheduled Tribe in
favour of a person who is not a member of the Scheduled
Tribe.”
9. Shri P.P. Choudhary, learned senior counsel appearing for the
respondent, submitted that the expression ‘person’, as such, is not defined
in the Act and, therefore, we have to go by the definition of ‘person’
under the General Clauses Act, 1987. The General Clauses Act defines the
expression ‘person’ as follows:
“3(42). ‘Person’ shall include any company or association of
body or individuals, whether incorporated or not.”
10. Learned senior counsel, therefore, submitted that, if it is so read
along with Section 3(42) of the General Clauses Act, the expression
‘person’ used in clause (b) of Section 42 of the Act takes in a juristic
person as well and, therefore, if a member of Scheduled Caste sells his
property to a juristic person, the sale cannot be declared as void, since a
juristic person has no caste.
11. Dr. Manish Singhvi, learned Additional Advocate General appearing for
the State of Rajasthan, on the other hand, contended that we cannot read
Section 3(42) of the General Clauses Act into Section 42(b) of the Act, out
of context. Learned counsel submitted that the expression ‘person’ used in
Section 42(b) of the Act is a natural person and not a juristic person and
if the transfer is by a member of Scheduled Caste or Scheduled Tribe to a
person who is not a member of Scheduled Caste or Scheduled Tribe, then such
a transfer is void under Section 42 of the Act.
12. Article 341 of the Constitution empowers the President by public
notification to specify the castes, races or tribes which shall, for the
purpose of the Constitution, be deemed to be Scheduled Castes in relation
to that State or Union Territory etc. Article 341 of the Constitution
reads as follows:
“341. Scheduled Castes.- (1) The President may with
respect to any State or Union Territory, and where it is a State
after consultation with the Governor thereof, by public
notification, specify the castes, races or tribes or parts of or
groups within castes, races or tribes which shall for the
purposes of this Constitution be deemed to be Scheduled Castes
in relation to that State or Union Territory, as the case may
be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under clause
(1) any caste, race or tribe or part of or group within any
caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any
subsequent notification.”
13. Article 342 of the Constitution deals with ‘Scheduled Tribes’ and
reads as follows:
“342. Scheduled Tribes. – (1) The President may with respect to
any State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for the purposes
of this Constitution be deemed to be Scheduled Tribes in
relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under clause
(1) any tribe or tribal community or part of or group within any
tribe or tribal community, but save as aforesaid a notification
issued under the said clause shall not be varied by any
subsequent notification.”
14. The expressions ‘Scheduled Castes’ and “Scheduled Tribes’, we find in
Section 42(b) of the Act have to be read along with the constitutional
provisions and, if so read, the expression ‘who is not a member of the
Scheduled Caste or Scheduled Tribe’ would mean a person other than those
who has been included in the public notification as per Articles 341 and
342 of the Constitution. The expression ‘person’ used in Section 42(b) of
the Act therefore can only be a natural person and not a juristic person,
otherwise, the entire purpose of that section will be defeated. If the
contention of the company is accepted, it can purchase land from Scheduled
Caste / Scheduled Tribe and then sell it to a non-Scheduled Caste and
Schedule Tribe, a situation the legislature wanted to avoid. A thing which
cannot be done directly can be not done indirectly over-reaching the
statutory restriction.
15. We are, therefore, of the view that the reasoning of the High Court
that the respondent being a juristic person, the sale effected by a member
of Scheduled Caste to a juristic person, which does not have a caste, is
not hit by Section 42 of the Act, is untenable and gives a wrong
interpretation to the above mentioned provision.
16. We are also of the view that the Revenue Authorities rightly refused
the mutation as per circular dated 9.11.2005. Condition No. 7(2) of the
circular was rightly invoked by the Revenue Authorities in denying
mutation, which condition is extracted below for easy reference:
“7(2). If the khatedar of Scheduled Caste / Scheduled Tribe
executes sale to such a person of Scheduled Caste / Scheduled
Tribe who is office-bearer of any firm/society/company/legal
institution, then the mutation on the basis of registration
shall be made only in the name of that particular person/vendee
who is a member of Scheduled Caste/Scheduled Tribe and not in
the name of that firm/society/company/legal institution wherein
he is office-bearer or member.”
17. The above mentioned condition makes it amply clear that the mutation
on the basis of registration shall be made only in the name of that
particular person/vendee who is a member of Scheduled Caste/Scheduled Tribe
and not in the name of any firm/society/company/legal institution wherein a
person is office-bearer or member. When we apply the above principles to
the transfer of land in question, we have no hesitation to hold that the
sale deed effected on 26.9.2005 was void and therefore rightly denied
mutation in Revenue records. Property, therefore purchased by the
respondent from the members of Scheduled Caste vide sale deed dated
26.9.2005 and other sale deeds, therefore are void since hit by Section
42(b) of the Act and it is so declared. The State can, therefore, re-
possess the lands and return the lands to the original owners who are
members of Scheduled Caste.
18. We may hasten to add, at times, Section 42(b) may go against the
interest of the members of Scheduled Caste / Scheduled Tribe as well.
There may be several situations where they intend to sell the property for
purposes like marriage of son/daughter or to purchase a better property and
so on, but in that event sometimes they may not get a better competitive
price, if the sale is made only among the members of Scheduled Caste /
Scheduled Tribe. We have come across legislations where provisions are
made enabling them to sell their lands to the members of non-Scheduled
Caste / Scheduled Tribe, on getting permission from the prescribed
authority. Such a provision may be sometimes helpful to the members of
Scheduled Caste / Scheduled Tribe to get a better price for their land but
it is for the legislature to incorporate appropriate provision in the
Rajasthan Act.
19. Consequently, the appeals are allowed and the judgments of the
learned single Judge and the Division Bench of the High Court are set
aside. However, there will be no order as to costs.
……………………………….J.
(K.S. Radhakrishnan)
..………………………………J.
(Dipak Misra)
New Delhi,
September 20, 2012
