BHIKAM CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE are two connected cases as the validity of the Marwar Patta Ordinance, 1921, which later came to be know as the Marwar Patta Act (hereinafter called the Patta Act), arises in both. We shall deal with them together as the point involved is common.

(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.) THE first question, therefore, that arises is whether such a tax, which is imposed by secs. 17 (2), 21 (1), or 24 in the case of gifts can now be upheld when we know there is on similar provision in other parts of Rajasthan. We are clearly of opinion that Art. 14 hits these provisions relating to taxation in case of Pattas of this kind on transfer by sale or gift for such tax only exists in that part of the State of Rajasthan, which was covered by the former State of Marwar and that too only in Khalsa village. 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 farmer State of Marwar, there is this further law which requires an extra payment 10% of and compels the person, who purchases the property, to apply for a Patta, and pay this extra tax. We are therefore, of opinion that 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.