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State of Rajasthan Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 3337/1974
Judge
Reported in1983WLN402
AppellantState of Rajasthan
RespondentBoard of Revenue and ors.
DispositionPetition allowed
Cases ReferredPuran Singh and Ors. v. Stare of Rajasthan and Anr.
Excerpt:
rajasthan tenancy act, 1955 - section 15 & 13 and rajasthan land reforms & resumption of jagirs act, 1952--land in khadkasht posseesion and held as temporary tenant on date of resumption of jagir--khotedari rights did not accrue--no transferable rights--held, sale deed & mutation were void and ineffective.;the said land was held by sanwaldan after the date of resumption as a temporary tenant thereof as provided in section 15-a, although the said land was in his khudkasht before the date of resumption, khatedari rights did not accrue to him in such land on the resumption of his jagir and as such he was only a tenant holding the said land temporarily.;however, a temporary tenant could not transfer his tenancy rights on account of the bar contained in the provisions of section..........in district bikaner and his jagir lands were resumed in accordance with the provisions of the rajasthan land reforms and resumption of jagirs act, 1952 and were vested in the state of rajasthan. settlement and record operations in village dandusar started on october 21, 1947 and were completed on may 9, 1948. khasra no. 133, measuring 81 bighas and 13 biswas, was entered in the settlement records in the name of sanwal dan, who was then the jagirdar of dandusar, as 'khudkast', a note was appended that the land in question was held by sanwal dan free of rent, as he was the jagirdar. by a sale-deed dated july 7, 1970 sanwal dan, the ex-jagirdar, sold his rights in khasra no. 133 to respondents no. 4 and 5, bansbidan and motidan. after the sale-deed was duly registered respondents no. 4.....
Judgment:

Dwarka Prasad Gupta, J.

1. Sanwal Dan was formerly the Jagirdar of Thikana Dandusar in District Bikaner and his jagir lands were resumed in accordance with the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and were vested in the State of Rajasthan. Settlement and record operations in village Dandusar started on October 21, 1947 and were completed on May 9, 1948. Khasra No. 133, measuring 81 Bighas and 13 Biswas, was entered in the settlement records in the name of Sanwal Dan, who was then the jagirdar of Dandusar, as 'khudkast', A note was appended that the land in question was held by Sanwal Dan free of rent, as he was the jagirdar. By a sale-deed dated July 7, 1970 Sanwal Dan, the ex-jagirdar, sold his rights in Khasra No. 133 to respondents No. 4 and 5, Bansbidan and Motidan. After the sale-deed was duly registered respondents No. 4 and 5 made an application before the Tehsildar Colonisation, Rajasthan Canal Project, Bikaner for mutation of their names in the record of rights in place of Sanwaldan. As the land in question was included in a colony, within the meaning of the Rajasthan Colonisation Act, the Tehsildar Colonisation forwarded the application of respondents No. 4 and 5 with his report to the Assistant Colonisation Commissioner, Rajasthan Canal Project, Bikaner, who also held the powers of the Additional Land Records Officer under the Rajasthan Land Revenue Act 19 6. The Assistant Colonisation Commissioner found that the land was recorded as 'Muafi' in the revenue records and held that Sanwaldan was a temporary cultivation lease holder and as such he could not have transferred his tenancy rights to the respondents No. 4 and 5. The application for mutation was dismissed by the Assistant Colonisation Commissioner by his order dated December 16, 1961. Banshidan and Motidan respondents No. 4 and 5 prefeired an appeal, against the aforesaid order, before the Additional Colonisation Commissioner, Rajasthan Canal Project, who is also the Revenue Appellate Authority for the Rajasthan Canal Project area. The Additional Colonisation Commissioner, following two decisions of the Board of Revenue in State of Rajasthan v. Mohansingh 1970 RRD 23 and State of Rajasthan v. Padamsingh 1970 RRD 58 decided that as the land in question was formerly held by the then jagirdar Sanwaldan so 'khudkasht', the ex-jagirdar Sanwaldan became a khatedar tenant thereof, by virtue of the provisions of Section 13 of the Rajasthan Tenancy Act, 1955. It was observed that as Sanwaldan himself was the owner of the land before the date of resumption, he could not be held to have let out the land to himself before the resumption thereof and as much the land in question could not be considered to have been 'leased out'. Thus, according to the Additional Colonisation Commissioner, Section 15-A of the Rajasthan Tenancy Act, 1955 (here in after referred to as 'the Act') was not applicable to the land of the former jagirdar, which was entered as 'khudkasht' & as such khatedari rights accrued therein by virtue of the provisions of Section P of the Rajasthan Tenancy Act, which could be lawfully transferred by him The appeal preferred by the respondents No. 4 and 5 was consequently allowed and the Additional Colonisation Commissioner, by his order dated 15th February, 1973, directed that the said respondents No. 4 and 5 be entered as kharedar tenants in respect of the land comprised in Khasra No. 133. A 'revision petition preferred by the Mate of Rajasthan before the Board of Revenue was dismissed by the order of the Board of Revenue dated April 22, 1974. The Board of Revenue took the same view as was taken by the Additional Colonisation Commissioner, following the earlier two decisions of the Board referred to above and held that a land holder who held land in his 'khudkasht' could not be said to have 'leased out' the land to himself, and as such the provisions of Section 15-A of the Act could not be made applicable to such land, which was held by the jagirdar as khudkasht land, before the resumption of his jagir.

2. In this writ petition, learned Deputy Government Advocate, appearing for the State of Rajasthan, submitted that the provisions of Section 15-A were clearly applicable to the land in question and khatedari rights could not accrue to the former jagirdar upon the resumption of his jagir, because the application of the provisions of Section 13 were clearly excluded by Section 15-A of the Act. It was submitted that the decision of the Board of Revenue was erroneous on the very face and deserves to be set aside by this Court.

3. Section 13 and Section 15-A of the Act, which are relevant for the decision of the present writ petition, are as under:

13 Khatedavi rights upon resumption or abolition : On the resumption or abolition of an estate under any law in force in the whole or any part of the State, the estate holder holding khudkasht shall become a khatedar tenant thereof and shall be entitled to all the rights conferred, and be subject to all the liabilities imposed, on a khatedar tenant by or under this Act.

Provided that the Zamindar or Biswedar holding khudkasht land on the abolition of his estate under the Rajasthan Zamindari and Biswedari Abolition Act 1959, shall become the Malik of such khudkasht land and shall be entitled to all the rights conferred and be subject to all the liabilities imposed on a khatedar tenant by or under this Act.

15-A. Khatedari tights not to accrue in Rajasthan Camal Area : (1) Not with standing anything contained in Section 13 or in Sub-section (i) of Section 15 of this Act or in any other law for the, time being in force or in any lease, patta or other document, land in the Rajasthan Canal area leased out on any terms what so ever, shall be deemed to have been let out temporarily, within the meaning of the proviso to the said Sub-section of the said Section 15 of this Act and no khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as aforesaid.

Provided that nothing in Sub-section (1) shall affect or apply to any person to whom Khatedari rights shall accrue in accordance with the provisions of the Rajasthan Colonisation (General Colony) Conditions, 1955 of any other Statement of Conditions or Rules of Allotment & Sale of Government lands made in exercise of the power conferred by Section 7 of the Rajasthan Colonisation Act, 1954 (Rajasthan Act 27 of 1954) or the rules for allotment of lands for khudkasht in the Rajasthan Canal area made under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (Rajasthan Act 6 of 1952).

(ii) Any person claiming that he possesses and is in enjoyment of khatedari rights in any land referred to in Sub-section (1) because such land had been let out to him permanently before the commencement of this Act may, within four years from the date of such commencement and on payment of a court fee of twenty five parse, apply to the Assistant Collector having jurisdiction, praying for a declaration to that effect, & the provisions of Sub-section (5) of Section 15 shall apply to such application.

4. If the land in question would not have been situated in the Rajasthan Canal area, the ex-jagirdar Sanwal Dan on resumption of his jagir under the Tagir Resumption Act would have become Pkhatedar tenant of such land which was held by him as khudkasht prior to the date of resumption, in accordance with the provisions of Section 13 of the Act. But as the land in dispute was situated in the Rajasthan Canal area, the application of the provisions of Section 13 of the Act to the land in dispute was excluded because of the provisions of Section 15-A. ft may be pointed out that Section 15-A begins with a non-obstente clause and the provisions of Section 13 or of any other law for the time being in force are excluded from operation, in respect of lands situated in the Rajasthan Canal area. The Board of Revenue in its decisions in the cases of Mohansingh and Padamsingh, referred to above, as also in the present case, has said emphasis on the expression 'leased out', occurring in Section 15-A and has emphasised that a landholder who held land in his khudkasht could not be said to have leased out the land to himself and as such Section 15 A of the Act has no application. To was also observed by the Board of Revenue that the holder of the khudkasht land, who was formerly the jagirdar, automatically became a khatedar tenant on the resumption of his jagir lands or the abolition of jagir under the provisions of Jagir Resumption Act. In Padamsingh's case 1970 RRD 58 the learned Member of the Board of Revenue observed as under:

It is clear from a perusal of the above that the lands covered by this section are the lands underlease Now the non-petitioners in this case are entered as khudkasht holder in the Misal Bandobast for St 2006. As stated above, Khudkasht lands cannot be deemed to be under lease. No doubt, Section 15-A mentions the phrase 'notwithstanding anything contained in Section 13, yet its operative part applies only to cases of lease and as a land holder who holds land in his khudkasht cannot be said to have leased it out to himself, this section will not govern his case.

The same reasoning was applied in Mohansingh's case 1970 RRD 23 & was adopted by the learned Member of the Board of Revenue in the present case as well. However, another Member of the Board of Revenue, in a subsequent case in State of Rajasthan v. Suraj Kumar 1977 RRD 576 took a different view from that taken earlier in the aforesaid two cases and observed that the earlier decisions did not consider the proper implications of the non-obstente clause.

5. It may be observed that the words 'in Section 13 or' did not exist in Section 15 A from the beginning but they were added subsequently, by the amendment made by the Rajasthan Tenancy Amendment Act No. 7 of 1960, published in the Rajasthan Gazette, Extra ordinary dated March 24, 1960, with retrospective effect. If the legislature at ail intended that in the khudkasht lands held by the jagirdar, khatedari rights should accrue to the ex-jagirdar on the abolition of the estate or on the resumption of his jagir lands, then the words 'in Section 13' would not have been inserted by amendment in Section 15 A and the said amendment would not have been given retrospective effect by Section 2 of the Amending Act No. 7 of 1960.

6. The intention of the legislature in making the amendment in Section 13-A of the Act, by introducing the words 'in Section 13' by means of the Amending Act No. 7 of 1960 can very well be understood from the objects and reasons appended to Bill No. 6 of 1960, which were published in the Rajasthan Rajpatra March 2, 1960 and read as under:

Section 15-A of the Tenancy Act lays down that land in the Rajasthan Canal area leased out on any terms what so ever shall be deemed to have been let out temporarily within the meaning of Sub-section (1) of Section 15 and no khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as afotesaid. Although Sub-section (1) of Section 1-A specifically overrides the provisions of Sub-section (1) of Section 15 of the Tenancy Act or any other law for the time being in force, it does not specifically override the provisions of Section 13 of the Tenancy Act under which, on the resumption or abolition of an estate, the estate-holder holding khudkasht becomes a khatedar tennant and is entitled to all the rights conferred on a khatedar tenant by or under the Tenancy Act. It is considered necessary to remove this lecura by specifically overriding the provisions of Section 13, by an amendment of Section 15-A & this amendment should be given retrospective effect.

7. Thus the amendment in Section 15-A was specifically intended to remove the 'lacuna' referred to above & to clearly override the provisions of Section 13 and the same was given retrospective effect, in order that the ex jagirdar holding land in the Rajasthan Canal area as khudkasht before resumption of his jagir may not be able to obtain khatedari rights in such lands upon the abolition of his jagir or resumption of his jagir or land^ by virtue of Section 13 of the Act. However Section 15-A. begins with a non obstente clause and the situation in this regard has now been placed beyond doubt by the introduction of the words 'in Section 13' in Section 15 A before the words 'or any other law for the time being in force' by means of an amendment made in Section 15-A with retrospective effect. These aspects of the matter appear to have escaped the attention of the learned members of the Board of Revenue, who decided the cases of Mohansingh 1970 RRD 23 and Padamsingh 1970 RRD 58, which decisions were followed by another learned number of the Board of Revenue in the present case. After the introduction of the word 'in Section 13' in the provisions of Section 15-A and that too with retrospective effect, there could be no doubt left about the intention of the legislature that upon the resumption of his jagir lands, the ex-jagirdar, holding 'khudkasht' lands would not be entitled to conferment of khatedari rights in such lands in case the lands are situated in the Rajasthan Canal area, because in that respect the provisions of Section 15-A would specifically over-ride the provisions of Section 13, whether the lands in dispute were in personal cultivation of the ex-jagirdar or the estate holder or such lands were entered as khudkasht in the record of rights. It is of course true that the jagirdar could not lease out the land to himself that is why Section 15-A provides that such land shall be deemed to have been let out temporarily and further it emphatically proceeds to provide that no khatedari rights shall accrue in such lands or even deemed to have been accrued, as from the date of the resumption of the jagir lands, all lands belonging to the jagirdar would stand resumed to the State and the ex-jagirdar would cease to be the owner of such lands. If the land is not situated in the Rajasthan Canal area, Section 13 would become applicable and the ex-jagirdar would upon resumption of his jagir lands, become khatedar tenant in respect of his khudkasht holding. The proprietory rights would undoubtedly revert to the State on the resutnp ion of the Jagir lands, but the former jagirdar would occupy the position of a teuant, as khatedari rights would be conferred upon him by virtue of the provisions of Section 13. However, if the lands are situated in the Rajasthan Canal area, the application of the provisions of Section 13 is completely excluded and khatedari rights would not accrue to the ex-jagirdar in respect of such lands as are situated in the Rajasthan Canal area. But in that event, the ex-jagirdar would have only the rights of a tenant to whom such land is Jet out temporarily. It may be pointed out that khatedari rights would accrue to the ex-jagidar in bis khudkasht lands only on account of the application of the provisions of Section 13, but as the provisions of Section 15-A specifically override the provisions of Section 13 in respect of the lands situated in the Rajasthan Canal area and there is no other provision according to which khatedari rights could accrue to the ex-jagirdar in his khudkasht holding situated in the Rajasthan Canal area. I may also refer to the provisions of Section 10 of the Jagir Resumption Act, which have a similar effect as that of Section 13 of the Rajasthan Tenancy Act and provide that as from the date of resumption of any jagir land, the khudkasht land of the ex-jagirdar shall be deemed to have been held by him as a khatedar tenant thereof. It may, however, be pointed out that Section 10 of the Jagir Resumption Act has also been kef t out of operation, so far as the lands situated in the Rajasthan Canal area are concerned, because Section 15-A also excludes the operation of any other law for the time being in force, which expression would include the Jagir Resumption Act as well.

8. I may also refer in this connection to the decision of a Division Bench of this Court in Puran Singh and Ors. v. Stare of Rajasthan and Anr. ILR 1966 Raj. 1105. It is unfortunate, that although this decision was brought to the notice of the learned members of the Board of Revenue, who decided the cases of Mohansingh and Padamsingh, referred to above, yet the decision of this Court was not given affect to. The Division Bench observed as under in Puransingh's case ILR 1966 Raj. 1105.

The case of the vendors does not fall under the proviso. It is also admitted that the vendors had not submitted applications as provided in Sub-Section (2) of Section 15-A on the ground that they possess or were in enjoyment of khatedari rights in the lands before the commencement of the Act. The result would, there fore, be that never if Section 15(1) applies to them, the lands would be deemed to have been let out temporarily to them by virtue of Section 15-A(1) of the Act.

9. Thus, the Division Bench also took the view that the former jagidar would only have the right or interest of a tenant to whom land is let out temporally, on account of the provisions of Section 15-A(1) of the Act, in khudkasht lands situated in the Rajasthan Canal area, after the resumption of jagir lands. In my view, khatedari rights never accrued to Sanwaldan in respect of khasra No. 133, which he sought to transfer to respondents No. 4 and 5 by means of registered sale-deed because the land in dispute is situated in the Rajasthan Canal area and khatedari rights could not accrue to the ex-jagirdar in the aforesaid land entered an khudkasht, on account of the application of the provisions of Section 15-A of the Act.

10. The question which then arises is as to what was the status of Sanwaldan in respect of the aforesaid land situated in the Rajasthan Canal area after the date of resumption of his jagir. The clear answer to this question is that the said land was held by Sanwaldan after date of resumption as a temporary tenant thereof as provided in Section 15-A. Although the said land was in his khudkasht before the date of resumption, khatedari rights did not accrue to him in such lard on then resumption of his jagir and as such he was only a tenant holding the said land temporarily. Section 30 of the Rajasthan Tenancy Act provides that the interest of a tenant in his holding is heritable but not transferable. If Sanwaldan could have been conferred with khatedari rights in the land is dispute, then he could transfer his rights in such holding by virtue of the provisions of Section 41. However, a temporary tenant could not transfer his tenancy rights on account of the bar contained in the provisions of Section 38. when Sanwaldan did not possess any transferable rights in the land in question, the sale effected by him in favour of respondent No 4 & 5 by means of a registered sale-deed dated July 7, 1970 was void and ineffective and mutation could not have been effected in favour of respondents No. 4 and 5 on the basis of such a sale-deed, executed by a person who was himself holding the land in the capacity of a temporary tenant.

11. As a result of the aforesaid discussion, the writ petition is allowed. The orders passed by the Additional Colonisation Commissioner, Rajasthan Canal Project, Bikamr dated February 15, 1973 and the Board of Revenue dated April 22, 1974 are quashed, while the order passed by the Assistant Colonisation Commissioner dated December 16, 1971 is restored. As the respondents No. 4 and 5 have not appeared before this Court, the parties shall bear their own costs.


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