BHAWANI SHANKAR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS writ petition seeks to challenge the order passed by the Board of Revenue dt. 18.12.1992 by which the appeal of the petitioner against the judgment of Revenue Appellate Authority dt. 16.07.1990 was dismissed and also the order of the Revenue Appellate Authority which had reversed the order passed by Assistant District Collector dt. 26.03.1990 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 31.07.1980. Assistant District Collector vide its order dt. 16.06.1988 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. 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 31.07.1980 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 judgment of this Court in Lal Chand @ Lalaram vs. 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 judgment of Supreme Court in Darshan Singh vs. Ram Pal Singh & Anr., : 1992 Supp (1) SCC 191. The Board thus illegally dismissed the revision petition.

(2.) 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 06.05.1995 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 empowered by the State Government in this behalf on an application made to him or it within such time and in such manner and on payment of such fee and penalty as may be prescribed. Learned senior counsel submits that since the matter was subjudice before this Court and an interim order directing parties to maintain status quo was passed on 21.02.1995, there was no occasion for the petitioner to approach the competent authority for seeking declaration as to validity of the transaction. Petitioner is agreeable to approach the competent authority under that provision even now subject to decision of this Court.

(3.) PER contra, Shri R.P. Vijay, learned counsel for the respondents opposed the writ petition and argued that the amendment by which Clause (a) of Section 42 was deleted with effect from 11.11.1992 would not have the effect of retrospectively validating the transaction of sale, which was otherwise void having been effected in breach of Section 42(a) and Section 53 of Rajasthan Tenancy Act, 1955. Learned counsel for respondents submits that Section 42(a) of the Rajasthan Tenancy Act as it existed originally, provides that sale by a khatedar tenant of his interest in the whole or part of his holding shall be void, if it is not a survey number when the area of survey number so sold is in excess of the minimum area prescribed for the purpose of sub -Section (1) of Section 53. Section 53 provides that no holding shall be divided so as to result in holding of less area than the minimum prescribed by the State Government for each district, or part of a district. The respondent No. 3, therefore, could not have sold part of the holding.