QASIM Vs. BANSILAL

JUDGEMENT

(1.) This is a revision under sec. 34 of the Marwar Patta Ordinance, 1921 which rater came to be known as the Marwar Patta Act (hereinafter referred to as the Act), against an order of the Additional Commissioner, jodhpur, remanding the case to the Collector Pali for further enquiry.

(2.) We have heard the learned counsel for the parties and have examined the record as well. The proceedings commenced upon an application of the opposite party Bansilal Jigyasu, dated 24 -l -l946, presented before the Hakim Pali in the former State of Marwar, wherein it was stated that he had purchased three shops situated in Rui Katla of Pali Town from a person who had a Patta in his name. It was, therefore, prayed presumably under sec. 17(2) of the Act that he may be granted Patta after on payment of the prescribed fee. Objections were raised in the case by Qasim and Ram -lal, details of which need not be gone into at present. There were series of decisions by the subordinate officers and appellate courts as well, which sometimes favoured the one party and at other times, the other party. The Collector Pali by his decision dated 13.12.1955 held that the land in dispute to be declared as Khalsa ; that it should be deemed to be in the possession of no body ; that no objection certificate obtained in respect of this land be also held as invalid ; that if any body desired to have this land he should obtain a fresh no objection certificate ; that the auction hold in the case should stand cancelled and that on the production of a fresh no objection certificate legal proceedings should commence de novo. This order was challenged in appeal by all the three persons concerned. Bansilal who had applied for renewal of Patta under sec. 17(2) of the Act and Qasim and Ramlal who had raised objections to the grant of Bansilals request. The learned Additional Commissioner heard all these three appeals together. Qasims appeal was rejected by him. Randals appeal also met a similar fate. Bansilals appeal Was allowed and the case was remanded to the Collector Pali for a decision as to his claim on the ground of possession as decided by the Additional Commissioner on 12.4.1955. Qasim has come up in revision before us against this order In view of the decision of the Honble High Court of Judicature for Rajasthan in Bhikamchand vs. State of Rajasthan, decided on 6.11.1956 (1957 R. L. W. 1), it is unnecessary to go into the merits of the case at all. In that case the question i or consideration was whether secs 17(2) and 21(2) of the Act were invalid and were hit by Art. 14 of the Constitution of India. After examining the various provisions of the Act their Lordships were pleased to observe as below : - - "The first question, therefore, that arises is whether such a tax, which is imposed by sec. 17(2)? or sec. 21(1! or sec. 24 in the case of gifts, can now be upheld when we know that there is no similar provision in other parts of Rajasthan. We are clearly of opinion that Art. 14 hits these provisions relating to taxation in cases of Pattas of this kind on transfer by sale or gift for such tax only exsists in that part of the State of Rajasthan, which was covered by the former State of Marwar and that too only in Khalsa villages. 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 percent, 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(3), 17(2), 21(1) 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.

(3.) In view of these observations it becomes clear that sec. 17(2) of the Act is now invalid and no action what -so -ever can be taken under it by any of the subordinate courts. We would, therefore, allow this revision, set aside all the orders and decisions passed by the subordinate officers in this case and direct that the application presented by Bansilal Jigyasu on 24.1.1948 shall stand rejected.