2013 Supreme(Raj) 535
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohammad Rafiq, J.
Bhawani Shankar - Appellant
Versus
The Board of Revenue & Ors. - Respondent
S.B. Civil Writ Petition No. 961 of 1995.
Decided On : 3-01-2013
Advocates:
For the Petitioner:R.K. Agrawal with Senior. Advocate Yogesh Pujari, Advocate.
For the Respondents:R.P. Vijay, Advocate.
An amendment to a statute that removes a restriction on the sale of land by a khatedar-tenant has retrospective effect, and a co-owner of immovable property can transfer his share of the property even if it is part of a joint khatedari.
Headnote:
LAND TENANCY - SALE OF LAND - VALIDITY - RETROSPECTIVE EFFECT OF AMENDMENT - RAJASTHAN TENANCY ACT, 1955 - SECTION 42(A), 42B, 53 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 44.
Fact of the Case:
Petitioner purchased a plot of land from respondent no. 3, who was the brother of respondent no. 2. The sale was challenged by respondent no. 2 on the ground that it violated Section 42(a) and Section 53 of the Rajasthan Tenancy Act, 1955, which restricted the sale of land by a khatedar-tenant. The Revenue Appellate Authority and the Board of Revenue upheld the challenge and dismissed the petitioner's appeal. The petitioner filed a writ petition challenging the orders of the Revenue Appellate Authority and the Board of Revenue.
Finding of the Court:
The court held that the amendment to Section 42(a) of the Rajasthan Tenancy Act, 1955, which deleted the restriction on the sale of land by a khatedar-tenant, had retrospective effect. The court also held that the petitioner could have sold his share of the land even if it was part of a joint khatedari, and that the respondent no. 2 had not shown that the petitioner had sold land in excess of his share. The court further held that the petitioner was not required to approach the Revenue Court for a formal decree of partition since the respondent no. 2 had not alleged that the petitioner had sold land in excess of his share.
Issues: 1. Whether the amendment to Section 42(a) of the Rajasthan Tenancy Act, 1955, had retrospective effect. 2. Whether the petitioner could have sold his share of the land even if it was part of a joint khatedari. 3. Whether the petitioner was required to approach the Revenue Court for a formal decree of partition.
Ratio Decidendi: 1. The court held that the amendment to Section 42(a) of the Rajasthan Tenancy Act, 1955, had retrospective effect based on the following reasoning: - The amendment was intended to remove the restriction on the sale of land by a khatedar-tenant, which was a legislative policy decision. - The amendment was beneficial to the petitioner, who had purchased the land in good faith. - The amendment did not affect any vested rights of the respondent no. 2. 2. The court held that the petitioner could have sold his share of the land even if it was part of a joint khatedari based on the following reasoning: - Section 44 of the Transfer of Property Act, 1882, allows a co-owner of immovable property to transfer his share of the property. - The respondent no. 2 had not shown that the petitioner had sold land in excess of his share. 3. The court held that the petitioner was not required to approach the Revenue Court for a formal decree of partition since the respondent no. 2 had not alleged that the petitioner had sold land in excess of his share.
Final Decision: The court allowed the writ petition, set aside the impugned orders of the Revenue Appellate Authority and the Board of Revenue, and directed the petitioner to make an appropriate application to the Collector or officer empowered by the State Government under the provisions of Section 42B of the Rajasthan Tenancy Act, 1955, seeking a declaration as to the validity of the sale transaction.
JUDGMENT
1. - This writ petition seeks to challenge the order passed by the Board of Revenue dated 18.12.1992 by which the appeal of the petitioner against the judgement of Revenue Appellate Authority dated 16.7.1990 was dismissed and also the order of the Revenue Appellate Authority which had reversed the order passed by Assistant District Collector dated 26.3.1990 was maintained. Assistant Collector by its aforesaid order dismissed the revenue suit filed by respondent no.2 Madan Mohan for cancellation of sale deed made in favour of the petitioner by respondent no.3 Babu Lal. Respondent no.3 Babu Lal, happens to be brother of respondent no.2 Madan Mohan. Petitioner purchased the plot of land measuring 34' x 80' from respondent no.3 Babu Lal by registered sale deed executed on 31.7.1980. Assistant District Collector vide its order dated 16.6.1988 on application of the petitioner for cancellation of sale deed and recovery of possession, converted the use of land from agriculture to residential. Pursuant thereto, petitioner deposited the requisite conversion charges and a patta of the aforesaid land in the size of 34' x 80' was issued out of khasra no. 797 in his name.
2. Shri R.K. Agrawal, learned senior counsel appearing for the petitioner argued that the Revenue Appellate Authority as well as Board of Revenue allowed the revenue suit filed by the respondent no.2 on the premise that the land purchased by the petitioner was a land of joint khatedari of respondent nos. 2 and 3. The sale of land by respondent no.2 alone without the consent of respondent no. 3 amounted to fragmentation of holding and violated Section 42 (a) and Section 53 of Rajasthan Tenancy Act. However, subsequently clause (a) of Section 42 of the Rajasthan Tenancy Act was deleted with effect from 11.11.1992 vide Section 6 of the Rajasthan Tenancy (Amendment) Act, 1992. Restriction on the sale of transfer thus did not remain operative. Sale made in favour of petitioner by respondent no. 3 on 31.7.1980 confers indefeasible right, title and interest in favour of the petitioner. Deletion of clause (a) of Section 42 of the Act by Act No. 22 of 1992 was having retrospective effect for all purposes and it would be as if that clause (a) to Section 42 of the Act was never incorporated in the Act and, therefore, the sale of his share of the land by respondent no.3 to the petitioner should be treated valid. The Board of Revenue delivered its judgment dismissing appeal of the petitioner on 18.12.1992 even though the aforesaid amendment deleting clause (a) of Section 42 of the Act became effective from 11.11.1992. In the circumstances, the petitioner filed review petition drawing attention of the Board towards this error apparent on the face of record. The Board of Revenue however committed a grave error in holding that deletion of clause (a) to Section 42 would not have retrospective effect. Learned senior counsel relied on the judgement of this Court in Lal Chand @ Lalaram v. Nathu (since deceased) Mst. Munni & Ors., 1998 DNJ (Raj.) 63 on interpretation of Section 42(a) holding that amendment thereof was retrospective in nature. Such amendment would always be taken to be retrospective in nature argued the learned senior counsel relying on the judgement of Supreme Court in Darshan Singh v. Ram Pal Singh & Anr., 1992 Supp (1) SCC 191 . The Board thus illegally dismissed the revision petition.
3. Shri R.K. Agrawal, learned senior counsel also cited the Rajasthan Tenancy (Amendment) Act, 1995 whereby Section 42B was inserted in the Act with effect from 6th May, 1995 to provide that where any sale, gift or bequest made by a khatedar-tenant of his holding or part of the holding before the commencement of the aforesaid 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, such sale, gift or bequest may be declared to be valid by the Collector or any officer or authority empo
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