Back
Rajasthan High Court
Wanchoo C.J. & Dave, J.
Bhikam Chand - Appellant
Versus
The State of Rajasthan - Respondents
Civil Writ No. 30 of 1956, and Civil Execution Second Appeal No. 39 of 1954
Decided On : November 06, 1956
HELD : Secs. 6(2), 8, 17(2), 21(1) and 21(2) are the substantive provisions which provide that where land is transferred in Khalsa villages in the territory of former Marwar State, whether there is a Patta in existence from before of that land or not, the transferee has to pay 10% of the site value, and has to obtain a renewal Patta. He is bound to do so in view of the provisions of secs. 6(2) and 17(2). And if it is a case where there is no Patta in existence from before, the sale-deed would not be registered under sec. 8, and the courts are prohibited from selling lands of which no Patta is available. It is obvious that the provision relating to charging of 10% of the site value on such transfers amounts to taxation on sales or gifts of land in Khalsa villages, unless the case is covered by sec. 23 when only a fixed fee is charged. In other parts of Rajasthan, the person, who obtains a sale-deed after paying the requisite stamp duty and registration fees, becomes the owner of the property, and there are no restrictions on his right of ownership of any kind. Only in Khalsa villages, however, of the former State of Marwar, there is this further law which requires an extra payment of 10% and compels the person, who purchases the property, to apply for a Patta, and pay this extra tax. Therefore, secs. 6(2), 8, 17(2) 21(2) and 24, so far as they relate to taking of Pattas on the occasion of transfer by sale or gift, are now invalidated under Art. 13 of the Constitution, read with Art. 14. As for sec. 21(2), that provision forbids the courts from selling non-Patta-shud land in execution of decree. As the main provision relating to this, based on transfers, has failed, this sub-section also, becomes invalid.
Further, it may be pointed out, that there is no similar law in other parts of the State of Rajasthan which prohibits the courts from selling what is called non-Pattashud land. It is enough to point out that sale by a court passes such title as the person, whose land is sold, possesses, and the court does not guarantee the title of the person whose property is being sold, The person, who purchases the property, does so at his own risk, and in these circumstances we fail to see why there should be this discrimination in that part of Rajasthan which was covered by the former State of Marwar and why the courts should not sell non-Pattashud land in Khalsa village in this part of Rajasthan, when they can do so, and are doing so, in other parts of Rajasthan.
When these six main provisions have fallen, any consequential or procedural provisions relating to such sale or gift also fall.
2. The second appeal is by Tarachand and briefly the facts are these—
Tarachand held a decree against the judgment-debtors respondents Maghelal and Askaran. A house of Maghelal and Askaran was sold in execution of the decree, and was purchased by Ramlal who is also a respondent in the appeal. Notice under O. XXI, r.66 was issued to the judgment-debtors. They, however, did not appear during the course of the execution proceedings with the result that the house was sold in the manner provided in O.XXI of the Code of Civil Procedure. After the sale of the house, however, the judgment-debtors appeared in the execution court, and filed an objection under O.XXI, r.90. Their case was that there was material irregularity in the conducting of the sale inasmuch as the sale had been held against the provisions of sec. 22(2) of the Patta Act. They, therefore, prayed that the sale be set aside. The executing court dismissed the application remarking that such an objection could not be raised under O. XXI, r. 90. Thereupon, there was an appeal to the District Judge who apparently held that such an objection could be raised under O. XXI, r. 90, and sent the case back to the executing court for determining the question whether there was a Patta of the land or not, and then to decide the matter according to the provisions of sec. 21(2) of the Patta Act.
3. This order has been brought in second appeal to this Court. The matter came before a learned Single Judge, and as the point involved the validity of a piece of legislation, the following question has been referred to this Bench, namely "whether sec. 21(2) of the Marwar Patta. Ordinance of 1921 is hit by Art. 14 of the Constitution.
4. We may also briefly narrate the facts which have led to the writ application. These facts are that the applicant Bhikamchand purchased a house situate in village Sumerpur in the District of Pali. It seems that he has been asked to pay Rs. 407/2/- as Patta fees under sec. 16(2) of the Patta Act. His contention is that he has got a registered sale-deed in accordance with the provisions of the Stamp Law and the Registration Act and that by virtue of that sale-deed he has acquired perfect title in the house in dispute including the site in view of the provisions of the Transfer of Property Act, and the demand of Patta fee under sec. 17(2) of the Patta Act has become invalid after the coming into force of the Constitution as it is a discriminatory piece of legislation, and is hit by Art. 14 of the Constitution. It is pointed out that there is no similar law in force in any other part of Rajasthan, and that in those parts all that is necessary, in order to create title in a person who makes a sale-deed, is that he should be in possession of a registered sale-deed in accordance with the law relating to stamp and registration.
5. The question, therefore, that falls for consideration, is whether these two sections of the Patta Act, namely secs. 17(2) and 21(2) are invalid now and hit by Art. 14 of the Constitution.
6. No reply has been filed on behalf of the State. No one has appeared on behalf of the judgment-debtors in the second appeal, but the State was given notice of this appeal as the validity of a section of the law was raised therein.
7. An analysis of the Patta Act would, in our opinion, be helpful in deciding the point raised about the validity of these two sections. The Act was passed in 1921, and deals with two matters. It may be mentioned that it applied only to Khalsa villages and not to Jagir villages. So it only applied to a small part of the territory of the former State of Marwar. The object of the Act was twofold. In the first place, it appears that the object was that all persons in possession
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
