A sale of land by a member of the Scheduled Caste in favour of a non-member is void ab initio under Section 42 of the Rajasthan Tenancy Act, 1955, and the mutation order based on such a sale is also void and can be quashed under Section 82 of the Rajasthan Land Revenue Act, 1956.

1. - This writ petition is directed against the order of the Board of Revenue dated August 26, 1976.

2. Brief facts of the case which are relevant for the disposal of this writ petition are that a piece of land bearing Khasra No. 254/5, measuring 3 bighas 10 biswas situated in Sikar, was initially shown in the revenue records in the name of Moonga son of Padma Balai, a member of Schedule caste. On the death of Munga, the land was mutated in the name of Partu Ram and Moolaram who were also members of the scheduled caste. They executed a sale deed in favour of the non-petitioner No. 1 D.H. Well for this land on November 29, 1962. The mutation was effected by the Tehsildar Sikar on March 8, 1963, in favour of Shri Well. On May 14, 1965, Shti Well sold this land to the non-petitioner No. 2 Shri Govind Singh. A mutation in favour of Gobind Singh was also granted by the Tehsildar on 28.9.65. When these facts were brought to the notice of the Distt. Administration that a land belonging to the persons of scheduled caste has been sold to a person who is not a member of the scheduled caste and that the sale is void ab initio in view of the mandatory provisions of Section 42 of the Rajasthan Tenancy Act, a reference under section 82 of the Rajasthan Land Revenue Act for quashing the mutation was made by the learned Additional Collector, Sikar before the Board of Revenue. The Board of Revenue rejected the reference. It is against this order of rejecting the reference that the present writ petition is directed.

3. On behalf of the respondent No. 2, Shri Govind Singh, a caveat was filed. The respondent No. 2 has contended that the writ petition is per se not maintainable. It was contended that against the order of the Board of Revenue dated August 26, 1976, the writ petition was filed on April 28, 1977. It was contended that the remedy by way of writ petition has been sought after a great delay, and that the petitioner being faulty of laches, the writ petition deserves to be dismissed on this score alone. It was further contended that the petitioner has not exhausted the alternative remedy available by filing a special appeal under section 10 of the Rajasthan Land Revenue Act before a Division Bench of the Board of Revenue against the order of the learned Single Member. It was, therefore, contended that as petitioner has not exhausted the remedy available, the writ petition should be held to be not maintainable. It was further contended that initially the sale deed is alleged to have been executed on November 29, 1962, and that the remedies under section 175 or Section 183 of the Rajasthan Tenancy Act have become time barred, and that this court shall not pass an order which would not be capable of being executed. It was also contended that mutation proceedings are only fiscal in nature showing the possession of a person liable to pay land revenue and do not determine the rights of the parties. It was contended that by merely cancelling the mutation order the original khatedar could not be put into possession without seeking the remedy either under sections 175 or 183 of the Rajasthan Tenancy Act.

4. On behalf of the petitioner, it was contended that the delay in filing the writ petition is not inordinate, and that after obtaining the necessary copies and after getting the case examined by the departments concerned, the writ petition was filed without any further delay. It was also contended that no special appeal under section 10 of the Raj. Land Revenue Act could lie before the Division Bench against the order of the learned Single Member in view of Section 77 of the Rajasthan Land Revenue Act. It was also contended that as the order of mutation sale which is void ab initio, the order deserves to be quashed.

5. Section 42, of the Rajasthan Tenancy Act, provides that the sale, gift or bequest by a khatedar tenant of his interest in the whole or part C shall be void, if such sale, gift or bequest is by a member of a Schedule Case in fa