1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Harjeet Singh Vs. State of Rajasthan & Anr. (D.B.Civil Special Appeal (W) No.928/2001) DATE OF JUDGMENT :::: 18th January 2010. PRESENT HON’BLE THE CHIEF JUSTICE MR.JAGDISH BHALLA HON’BLE MR.JUSTICE DINESH MAHESHWARI Mr.R.K.Singhal for the appellant Mr.Hemant Choudhary, Government Counsel BY THE COURT: (Per Hon'ble Maheshwari,J.) This intra-court appeal is directed against the order dated 09.11.2001 as passed in S.B.Civil Writ Petition No.2237/2001 whereby the learned Single Judge has dismissed the writ petition preferred by the petitioner-appellant against the order dated 12.04.2001 as passed by the Board of Revenue for Rajasthan, Ajmer ('the Board' / ‘the Board of Revenue’) dismissing the revision petition preferred by the petitioner against the order dated 28.02.1996 as passed by the Additional Collector, Sriganganagar whereby the learned Additional Collector, while declining the application for 2 regularisation moved by the petitioner under Section 13-A of the Rajasthan Colonisation Act, 1954 ('the Act of 1954'), proceeded to order resumption of the land in question in the State for the alleged transfer being in violation of the provisions of Section 42 of the Rajasthan Tenancy Act, 1955 ('the Act of 1955'/'the Tenancy Act'). Briefly put, the relevant facts and background aspects of the matter are that on 01.12.1962, one Purkha Ram son of Chaina Ram, member of a Scheduled Caste, was allotted 12 bighas and 10 biswas of agriculture land as comprised in Murraba No.34 at Chak 20 GB Tehsil Vijaynagar. The said allottee, even before completion of 7 years of allotment and without obtaining any permission from the concerned Collector, purportedly alienated the allotted land in favour of one Karnial Singh son of Sadhu Singh, a non-Scheduled Caste person, by the sale deed dated 14.06.1967. The petitioner-appellant Harjeet Singh allegedly purchased the land in question from the said Shri Karnail Singh under the sale deed dated 23.01.1973. It appears that by the order dated 20.05.1987 (Annex.5), the Additional Collector (Vigilance), Sriganganagar proceeded to order resumption of the land in question on account of violation of Section 13(1) of the Act of 1954 for the sale having been made on 14.06.1967 before completion of 7 years of allotment and without obtaining permission of the concerned Collector. The petitioner- appellant, the alleged transferee from Karnial Singh, questioned the 3 said order dated 20.05.1987 before the Revenue Appellate Authority, Sriganganagar ('the RAA') in Appeal No.396/1987. It was submitted before the RAA on behalf of the petitioner that the land in question was transferred only after deposit of all the due instalments; that he had been continuously in possession of the land; and that the State Government had extended the date for depositing the compounding fees until 31.12.1992 and he was ready to make the requisite deposit. The appeal was contested on behalf of the State with the submissions that the transfer having been made by a Scheduled Caste person to a non-Scheduled Caste person, the matter was not fit to be regularised. The learned RAA, in its order dated 29.12.1992 (Annex.6) referred to the fact that the decision of the proceedings under Section 175 of the Act of 1955 had been rendered in favour of the petitioner; and proceeded to remand the matter to the subordinate authority with the observations that if the matter was covered by Section 13-A of the Act of 1954, the requisite proceedings be adopted after getting the compounding fees deposited but if the matter was not so covered, the impugned order shall stand affirmed. Pursuant to the aforesaid order dated 29.12.1992 as passed by the RAA, the Additional Collector (Administration), Sriganganagar considered the matter in the impugned order dated 28.02.1996 (Annex.7) and observed that even before the order of the RAA, the 4 petitioner had proposed to deposit the compounding fees. It was submitted on behalf of the petitioner-appellant that with compounding fees having been deposited and the matter under Section 175 of the Act of 1955 having been decided, the land be regularised in his favour. The learned Additional Collector, however, declined the prayer so made with the observation that the sale from a member of Scheduled Caste to a non-Scheduled Caste person was directly hit by Section 42 of the Act of 1955 and was void ab-initio conferring no right on the purchaser. The learned Additional Collector was of the view that no case for regularisation was made out and even the disposal of the proceedings under Section 175 of the Act of 1955 was not of any effect on invalidity of the transfer. While finding the case not fit for regularisation, the learned Additional Collector ordered the land to be resumed in favour of the Government. The petitioner questioned the aforesaid order dated 28.02.1996 before the Board of Revenue in the revision petition preferred under Section 83 of the Rajasthan Land Revenue Act. The learned Member of the Board proceeded to reject the revision petition by the order dated 12.04.2001 (Annex.8) again with the finding that the sale by Purkha Ram to Karnail Singh being in violation of Section 42 of the Rajasthan Tenancy Act, did not confer any right or title in the transferee; and hence, the subsequent sale to the petitioner too was not of any effect. 5 The petitioner attempted to challenge the aforesaid order dated 12.04.2001 in the writ petition to this Court, being S.B.Civil Writ Petition No.2237/2001. The writ petition, however, came to be dismissed by the learned Single Judge on 09.11.2001 after finding no case for interference. The learned Single Judge found that there was no question of transferring the land to Karnail Singh as the transfer was in violation of Section 42 of the Tenancy Act and such a sale deed was unenforceable and inexecutable; and if Karnail Singh could not have the title out of the said sale deed, he had nothing to transfer in favour of the petitioner. The learned Single Judge also observed that certain other issues were sought to be raised by the learned counsel for the petitioner that had not been raised before the Board; and such issues relating to the questions of fact could not be permitted to be raised for the first time in the writ petition. While assailing the order passed by the learned Single Judge and so also the orders as passed by the Revenue Authorities, the emphasis of the learned counsel for the petitioner-appellant has been on the submissions that the State indeed adopted the proceedings under Section 175 of the Tenancy Act questioning the validity of transfer but such proceedings came to be terminated against the State by the order dated 21.02.1974 (Annex.2) wherein the Sub Divisional Officer, Raisinghnagar (‘the SDO’) found the proceedings barred by limitation; and the review application as 6 made by the Tehsildar was also dismissed by the SDO on 08.08.1974 (Annex.8). It has further been pointed out that yet another application as moved by the Tehsildar (Revenue), Anoopgarh under Section 175 of the Tenancy Act came to be rejected by the concerned SDO as barred by res judicata on 23.08.1984 (Annex.4). It is submitted that with the proceedings under Section 175 of the Tenancy Act having conclusively been decided against the State, no order could have been passed for resumption of the land in question. The learned counsel submitted that there was no impediment in regularising the land in favour of the petitioner; and further submitted in the alternative that even if such regularisation was not to be ordered by the Revenue Authorities, in any case, no order could have been passed for resumption of the land. The learned counsel further submitted that the land in question has been in possession of the petitioner for over 30 years and there would not be any justification to order resumption of the land at this length of time. The learned counsel has referred to and relied upon the decisions in Nathu Ram (Dead) by LRs. & Ors. Vs. State of Rajasthan & Ors.: 2006 (1) RRT 383, Babu Singh Vs. State of Rajasthan & Ors.: 2002 (1) RLR 135, Anandi Lal Vs. State of Rajasthan & Ors.: 1996 DNJ (Raj.) 100, Subhan Khan Vs. Board of Revenue & Ors.: 2005 (1) DNJ (Raj.) 539, and Mammi Khan Vs. State of Rajasthan & Ors.: 2005 (3) DNJ (Raj.) 1270. 7 Per contra, the learned Government Counsel has duly supported the orders impugned and submitted that the proceedings under Section 175 of the Tenancy Act were not decided on merits and even if they were declined on the ground of limitation, no rights were conferred on the petitioner, a non-Scheduled Caste person, as the subsequent transferee of the land that originally belonged to a Scheduled Caste person. The learned Government Counsel submitted that any order in favour of the petitioner would be indirectly giving recognition to the invalid and void transfer made in contravention of the provisions of Section 42 of the Rajasthan Tenancy Act; and the petitioner is not entitled to such a relief. Having given a thoughtful consideration to the rival submissions and having scanned through the record, we are unable to find a case for interference in this intra-court appeal. The fundamental of the fact situation remains that the land in question admeasuring 12 bighas and 10 biswas was allotted to Purkha Ram, a member of Scheduled Caste in the year 1962. Purkha Ram attempted to alienate the land in favour of Karnail Singh, a non-Scheduled Caste person by the alleged sale deed dated 14.06.1967 before completion of period of 7 years of allotment and without obtaining any permission. Even if the said allottee would have sought permission, the same was not available for the 8 very basic reason that no such transfer from a Scheduled Caste person to a non-Scheduled Caste person could have been countenanced. The alleged sale deed being hit by the provisions of Section 13 of the Act of 1954 and Section 42 of the Act of 1955, never conferred any right or title in Karnail Singh. The petitioner entered the scene later as a subsequent transferee from Karnail Singh. We find the learned Single Judge justified in observing that Karnail Singh himself had no title available with him so as to make a valid transfer in favour of the petitioner. In the given set of facts, we are unable to find even a semblance of right or interest available with the petitioner wherefor he could seek regularisation per Section 13-A of the Act of 1954. The learned SDO had rightly declined the prayer for regularisation as made by the petitioner; and the learned Member of the Board has also rightly declined to interfere. In the given fact situation, even if the attempt on the part of the State in the proceedings under Section 175 of the Tenancy Act failed on the question of limitation, hardly any case is made out so as to regularise the land in favour of the petitioner and thereby indirectly to countenance the flagrant violation of Section 42 of the Tenancy Act prohibiting transfer of a Scheduled Caste person's land to a non-Scheduled Caste person. The cited decisions are of little assistance to the petitioner- appellant. In the case of Nathu Ram (supra), the predecessors of 9 the appellants were the members of the Scheduled Caste and the transferees were not the members of Scheduled Castes or Scheduled Tribes. The Tehsildar initiated action and the transferees were dispossessed and the predecessors of the appellant were put in possession. Thereafter, an application was filed before the SDO under Section 175 (4-A) of the Tenancy Act; and the SDO was of the view that application was beyond limitation as the same was made after the period of 12 years from the date of execution of the documents. It was also noticed that during the pendency of the proceedings, the Receiver had taken possession of the land from the purchasers of the appellants and so he was directed to hand over possession. This part of the order was challenged by the transferee. The Board of Revenue confirmed the order passed by the SDO but, while holding that the action taken under Section 175 was beyond the period of limitation, directed the possession to be given to the transferee. The writ petition moved to this Court on behalf of transferors i.e., appellants, was dismissed. Hence, the matter was before the Hon'ble Supreme Court. The Hon'ble Supreme Court noticed that the period of 12 years was originally prescribed for filing of an application for ejectment on illegal transfer; and with effect from 05.10.1981, the period was prescribed as 30 years. In relation to the transactions in question, the limitation of 12 years was held applicable and it was found that for the transfers 10 made on 02.04.1964 and 04.05.1964, the application filed on 22.11.1976 was hit by limitation. Going by what has been observed by the Hon'ble Supreme Court in the decision in Nathu Ram (supra), even the basic rejection of the proceedings under Section 175 of the Tenancy Act as made in this case on 21.02.1974 finding the proceedings to be barred by limitation while taking the period of limitation as 3 years and dismissal of the review application on the same ground appear to be seriously questionable; and in the writ jurisdiction, we find it absolutely unjustified to rely on such questionable orders and to countenance the illegality. Moreover, as noticed, the present one has been a case where the petitioner came out with the proposition of seeking regularisation under Section 13-A of the Act of 1954; and such regularisation could not have been ordered except violating the provisions of Section 42 of the Tenancy Act. In the given set of facts and circumstances, the only logical course after declining the prayer for regularisation is that the land would stand resumed to the State. The learned Revenue Authorities have rightly done so. The learned counsel has relied upon the following paragraph from the decision in Babu Singh's case as reported in 2002 (1) RLR 135:- 11 ''11. It is of significance to notice that legislature has designedly not provided for automatic vesting of law (sic land?) on invalid transfer in the State, nor it has empowered to have recourse to evict a transferee from a member of scheduled caste or scheduled tribe but who himself is not a member of scheduled caste or scheduled tribe, as the case may be, in a summary procedure against a rank trespasser under Section 91 of the Land Revenue Act, but has devised a mechanism by which it was left to land holder to make an application to eject tenant and transferees in possession and on contest, such application is to be treated and tried as a suit. Under Section 176 a decree for ejectment is envisaged against a tenant as well as a transferee in possession in proceedings under Sec.175.'' In the said decision, this Court has dealt with an entirely peculiar fact situation as is noticeable from the following observation in paragraph-13 of the Report:- ''13.In view of the said serious issue having already subject matter of a pending lis, particularly in making impugned order which has been taken in hot haste in most bizzare manner by completing all enquiry on the spot at the back of petitioner who is not a transferee from a scheduled caste, nor who has dispossessed any member of scheduled caste in possession when he entered the possession under a sale from a person not a member of scheduled caste on a complaint by a person who had already lost her right to recover possession from the State as well as from person in possession, it cannot be said that no substantial failure of justice has occasioned so as to warrant to take a position of non-interference, notwithstanding clear breach of natural justice in making the impugned order, by the Revenue Authority.'' The present one is not a case of breach of principles of natural justice. The petitioner has all through been heard by the authorities before pronouncing against him. 12 The principle as propounded and followed in the cases of Anandi Lal, Subhan Khan and Mammi Khan (supra) is that the powers of reference ought to be exercised by the authorities concerned within reasonable time. We are unable to find even a wee bit of the relevance of the said principle to the present case. The requisite orders have been passed in this case on the application made by the petitioner; and it cannot be said that the authorities failed to deal with the matter within reasonable time. The submission as made by the learned counsel that the petitioner deserves not to be dispossessed for being in possession for over three decades, has its own shortcomings. The length of time in the litigation cannot be tilting to balance of equities in favour of the petitioner when viewed in the light of the fact that if the submissions of the petitioner are countenanced, the same would be putting at naught the operation of Section 42 of the Tenancy Act, enacted with the avowed object of protecting the interests of weaker sections of the society. While scanning through the record, we have noticed yet another significant fact that effectively operates against the suggestion as made on behalf of the petitioner on the balance of equities. It is noticed that the petitioner is residing at British Columbia, Canada. Such are the particulars of the petitioner stated in the writ petition that was filed in the year 2001 through the 13 special power of attorney holder Karnail Singh. The same power of attorney holder has filed this special appeal too. The document of power of attorney shows that the petitioner had earlier appointed one Succha Singh as the special power of attorney holder. The revision petition before the Board of Revenue was filed in the year 1996 by the said previous power of attorney holder Succha Singh. With the petitioner having been shown to be residing in Canada, it is but apparent that the petitioner has not been the person who put his personal efforts in developing and nourishing the land in question. The considerations of special equity cannot even remotely be applied in the case of the petitioner. In view of the discussion aforesaid, we are clearly of the opinion that no case for interference in this special appeal is made out. The appeal fails and is, therefore, dismissed; however, in the circumstances, without any order as to costs. (DINESH MAHESHWARI).J. (JAGDISH BHALLA), CJ. MK