Hon'ble MISHRA, CJ.—Heard on the question of admission.

2. In the writ petition, petitioner has prayed for declaring Section 42(b) of the Rajasthan Tenancy Act, 1955 as ultra vires of the Constitution of India. Prayer has been made to set aside the order dated 2.2.2011. Consequential relief of mutation of the name of the petitioner in the revenue record has also been made.

3. Section 42(b) of the Rajasthan Tenancy Act prohibits sale, gift or bequest by khatedar tenant member of Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of Scheduled tribe in favour of a person who is not a member of the Scheduled Tribe. Such a transaction is declared to be void. It is averred on the petition that petitioner is a private limited company. It is involved in the generation of any kind of energy like solar energy and to set up power plants and other facilities for generation of power from solar energy.

4. The petitioner intended to participate in the proposed scheme to be floated by NTPC Vidyut Vyapar Nigam Ltd. (NVVN) under the Jawaharlal Nehru National Solar Mission. Requisite permission has been obtained. However, bidders need to provide evidence within six months of signing PPA with NVVN that the required land for project development was under possession of the successful bidders. The petitioner started purchasing land at Phalodi so as to acquire ownership and possession of a requisite large piece of land. Land in dispute was required to be purchased by the petitioners. Petitioner purchased around 150 bighas land from Bhera Ram S/o Budha Ram Bavari recorded as such as khatedar tenant vide sale-deed dated 4.1.2011. Petitioner thereafter applied for changes in revenue record. Tehsildar came to the conclusion that sale is against he provision of Section 42(b) of the Act of 1955. Sellers belong to a scheduled caste, therefore transaction is void. The respondents are likely to proceed under Section 175 of the Act of 1955 to take over the land in dispute.

5. It is submitted by the petitioner that initially the scheme of Section 42 was not to make such transaction as void ab initio. Though Act of 1955 has been placed in the 9th Schedule of the Constitution of India for protection against challenge to its validity on the anvil of Part-III of the Constitution as provided in Article 31-B of the Constitution of India, as such this Court can examine the vires of Section 42(b) of the Act of 1955. Petitioner has also submitted that State of Rajasthan has come out with a comprehensive policy to promote power generation from solar energy in name of Rajasthan Solar Energy Policy, 2011. In order to carry out the objective of the State policy, land has been purchased.

6. Mr. Manish Shishodia, learned counsel appearing on behalf of the petitioner has raised the submission that Section 42(b) of the Act be declared to be illegal and ultra vires as it imposes unreasonable restriction upon the petitioners to carry out project of solar energy which is in public interest. Since operation of the provision has become unreasonable, Court can have a re-look on such a provision after lapse of reasonable time.

7. Section 42 of the Act of 1955 is quoted below :

"Section 42.—General restrictions on sale, gift and 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) Deleted w.e.f. 11.11.1992

(b) Such sale, gift or bequest is by a member of Scheduled Caste in favour of a person who is not a member of Scheduled Caste, or by a member of Scheduled Tribe in favour of a person who is not a member of Scheduled Tribe;

[(bb)] Such sale, gift or bequest, notwithstanding anything contained in clause (b), if by a member of Saharia Schedule Tribe in favour of a person who is not a member of the said Saharia Tribe]

(c) "Omitted".

8. The aforesaid Section 42(b) declares any transaction by khatedar tenant of his interest in the whole or part of his holding, to be void in case

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