Rajasthan High Court

Sundar S/O Ratanlal vs Smt Sulakshana Devi W/O Bhagwan ... on 29 January, 2021

Bench: Mahendar Kumar Goyal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 20682/2019

Sundar S/o Ratanlal, Aged About 42 Years, Resident Of Naugaon
Tehsil Kaman, District Bharatpur (Rajasthan)
                                                                     ----Petitioner
                                     Versus
1.     Smt Sulakshana Devi W/o Bhagwan Singh, Resident Of
       Naugaon Tehsil Kaman, District Bharatpur (Rajasthan),
       Through Special Power Of Attorney- Aurang S/o Saurav,
       Resident Of Naugayan Tehsil Kaman, District Bharatpur.
2.     State Of Rajasthan, Through Tehsildar, Kaman, District
       Bharatpur (Rajasthan)
                                                                ----Non-Petitioners


For Petitioner(s)        :     Mr. Sanjay Mehrish
For Respondent(s)        :     Mr.   Kuldeep Sharma, for

Mr. Akshay Sharma, AGC Mr. Mohammed Zubeir, for Mr. Asgar Khan

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

29/01/2021

The petitioner, who is a member of Scheduled Caste, has

filed this writ petition stating therein that he purchased two

parcels of land comprising of Khasra No.335/0.23 hectare and

Khasra No.336/0.27 hectare vide registered sale deed dated

27.12.2010 from the respondent No.1, also a member of

Scheduled Caste. Thereafter, he filed a suit under Sections 88, 89

and 188 Rajasthan Tenancy Act, 1955 which came to be decided

by the Court of Sub-Divisional Officer, Kaman, District Bharatpur

vide judgment and decree dated 30.06.2015 (Annexure-1). He

submitted that the first appeal preferred by the respondent No.1

(2 of 5) [CW-20682/2019]

against the judgment and decree dated 30.06.2015 was allowed

by the Revenue Appellate Authority, Bharatpur vide judgment

dated 25.09.2017 (Annexure-2) relying on the clarification circular

dated 11.02.2019 issued by the Government of Rajasthan in the

Department of Revenue. He averred that the second appeal

preferred by him was dismissed by the Board of Revenue Ajmer,

Rajasthan vide judgment dated 07.11.2019 (Annexure-3).

Assailing the judgment as well as the clarification

circular/letter dated 11.02.2009, learned counsel for the petitioner

contended that Section 42-B of the Rajasthan Tenancy Act, 1955

(for short, 'The Act of 1955') puts no bar on purchase of the

property by a member of Scheduled Caste not resident of

Rajasthan. He contended that by way of administrative order, the

statutory provisions cannot be altered/amended. He, therefore,

prays for quashing the impugned judgment and decree dated

07.11.2019 passed by Board of Revenue Ajmer, Rajasthan as well

as for a direction to the respondents to enter the mutation of the

land in question in his favour.

Per contra, Mr. Kuldeep Sharma, learned counsel for Mr.

Akshay Sharma, learned Additional Government Counsel,

submitted that vide clarification circular/letter dated 11.02.2009,

keeping in view the interest of the residents of Rajasthan, it was

decided to restrain the persons not residents of Rajasthan from

purchasing the land belonging to the members of Scheduled

Castes/Scheduled Tribes.

Mr. Mohammed Zubeir, learned counsel for Mr. Asgar Khan,

learned counsel appearing for the respondent No.1 supported the

judgment passed by the Board of Revenue based on the

clarification circular dated 11.02.2009.

(3 of 5) [CW-20682/2019]

Learned counsel for the respondents relied on the judgment

of the Hon'ble Apex Court of India in cases of Bhagwan Dass

and ors. Vs. Kamal Abrol and ors.: (2005) 11 SCC 66 as well

as Union of India (UOI) and ors. Vs. Dudh Nath Prasad: AIR

2000 SC 525 in support of their contention.

Heard the learned counsels for the parties and perused the

record.

Section 42-B of the Act of 1955 reads as under:

"42-B. Declaration as valid of sale, gift and bequest-- Where any sale, gift or holding before the commencement of the Rajasthan Tenancy (Second Amendment) Act, 1992 Act No. 22 of 1992 was void on account of contravention of any of the provisions of clause (a) of section 42, as it stood before the said amendment Act of 1992, such sale, gift or bequest may be declared to be valid by the Collector or any officer or authority empowered by the State Government in this behalf on an application made to him or it within such time and in such manner and on payment of such fee and penalty as may be prescribed:

Provided that-

(a) such sale, gift or bequest was otherwise legally valid and in conformity with the provisions of the laws for the time being in force except those contained in clause (a) of section 42 as aforesaid;

(b) the parties to the sale, or bequest comply with all the terms and conditions as may be prescribed by the rules or by any special or general order;

(c) the payment is made of such premium or penalty as may be prescribed;

(d) the applicant undertakes to pay urban assessment levied at such rate and in accordance with such manner as may be prescribed."

Section 5 (37-A) and (37-B) defines the Scheduled Castes

and Schedules Tribes reads as under:

(4 of 5) [CW-20682/2019]

"(37-A) "Scheduled caste" shall mean any of the castes, races or tribes or members of, groups within, the castes or tribes, specified in Part XIV of the Constitution (Scheduled Castes) Order 1950. (37-B) "Scheduled tribe" means any of the tribes, tribal communities or parts of or groups within the tribes or tribal communities, specified in Part XII of the Constitution (Scheduled Tribes) Order, 1950;"

A perusal of the Section 42-B of the Act of 1955 reveals that

it does not put any embargo on the members of Scheduled

Castes/Scheduled Tribes not residents of Rajasthan from

purchasing the land of the Scheduled Castes and Scheduled Tribes

situated in Rajasthan. As a matter of fact, there is no bar under

the entire scheme of the Act of 1955 on a resident of state other

than the State of Rajasthan from purchasing the agricultural land

in the Rajasthan. It is trite law that by administrative/executive

fiat, the legislative mandate cannot be altered/modified. The

provisions of Section 42-B do not suffer from any ambiguity so as

to warrant any clarification. A Constitution Bench of the Hon'ble

Apex Court in the case of Mannalal Jain Vs. The State of

Assam and Ors.: [1962] 3 SCR 936 has held as under:

"Before we part with this case we express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting of licenses, instructions which clearly enough are not in consonance with the provisions of law governing the grant of such licenses. We doubt the wisdom of issuing executive instructions in matters which are governed by provisions of law; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilised as to over-ride the provisions of law. Such a method will destroy the very basis of the rule of law and strike at the very root of orderly administration of law. We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with

(5 of 5) [CW-20682/2019]

the provisions of clause 5 of the Control Order 1961."

Further, the definition of SC & ST under Section 5 (37-A) &

(37-B) of the Act of 1955 is not confined to the members of these

scheduled communities resident of Rajasthan only. In these

circumstances, the respondents cannot be permitted to deny the

petitioner benefit of mutation on the strength of clarification

circular/letter dated 11.02.2019.

This Court is in complete agreement with the proposition laid

down by the Hon'ble Apex Court in the cases of Bhagwan Dass

and ors. (supra) and Union of India and ors. (supra); but, the

same has no applicability in the facts and circumstances of the

case. I find no valid objection on the part of the respondents to

deny the petitioner to have mutation in his favour on the strength

of sale deed dated 27.12.2010.

Consequently, the writ petition is allowed. The judgment and

decree dated 07.11.2019 (Annexure-3) passed by the Board of

Revenue are set aside and the judgment and decree dated

30.06.2015 (Annexure-1) passed by the Court of Sub-Divisional

Officer, Kaman, District Bharatpur is restored. The Respondent

No.2 is directed to open mutation of the land purchased by the

petitioner vide registered sale deed dated 27.12.2010 in his name

within four weeks from the date of receipt of certified copy of this

order.

(MAHENDAR KUMAR GOYAL),J

DANISH USMANI /45