Supreme Court of India
RAM KARAN (DEAD) THROUGH LRS. & ORS.versusSTATE OF RAJASTHAN AND ORS.
- Citation
- 2014 INSC 433
- Decided
- 30 June 2014
- Disposal
- Appeal(s) allowed
- Bench
- S MUKHOPADHAYA
Holding
The sale is void under the proviso to Section 42 and the ejectment suit filed after the statutory limitation period is time‑barred, so the appeal is allowed.
Summary
The appellant, Ram Karan (deceased) through legal representatives, purchased agricultural land in 1962 from a Scheduled Caste vendor and obtained mutation in 1966. The State of Rajasthan, via a Tehsildar, filed a suit under Section 175 of the Rajasthan Tenancy Act in 1993 seeking ejectment, alleging the sale violated the proviso to Section 42 which prohibits a Scheduled Caste or Tribe member from transferring land to a non‑member. The Supreme Court held that the proviso, effective from 22‑09‑1956, rendered the 1962 sale void as it contravened public policy under Section 23 of the Contract Act, and that the suit was barred by the 30‑year limitation prescribed in Schedule 3 read with Section 214 of the Act. Consequently, the High Court’s orders were set aside and the appeal was allowed.
Issues considered
- The sale deed executed on 12‑Jan‑1962 by a Scheduled Caste vendor to a non‑Scheduled Caste buyer is void under the proviso to Section 42 of the Rajasthan Tenancy Act, 1955.
- Whether the proviso to Section 42 operates retrospectively and is constitutionally valid under Article 19(1)(f) of the Constitution.
- Whether the suit for ejectment filed under Section 175 of the Act after more than 30 years is barred by limitation.
- Whether the mutation of the land can be cancelled despite the limitation bar.
- Whether the Rajasthan High Court decision in Triveni Shyam Sharma v. Board of Revenue is applicable to the present case.
Legislation cited
- Constitution of Indias. Article 19(1)(f)
- Indian Contract Act, 1872s. 2, s. 23
- Limitation Act, 1963
- Rajasthan Tenancy Act, 1955s. 175, s. 214, s. 42
Subjects
Rajasthan Tenancy ActSection 42Scheduled Castevoid salelimitation periodejectmentpublic policyContract ActArticle 19retrospective legislationmutationland revenue
Judgment
[2014] 6 S.C.R. 977
RAM KARAN (DEAD) THROUGH LRS. & ORS. A
v.
STATE OF RAJASTHAN AND ORS.
(Civil Appeal No. 5853 of 2014)
JUNE 30, 2014.
B
(SUDHANSU JYOTI MUKHOPADHAYA AND
KURIAN JOSEPH, JJ.]
Rajasthan Tenancy Act, 1955: s.42, proviso - Transfer of
land - Suit land sold to appef/ants-vendees in 1962 and C
mutated in 1966 - After 31 years, Tehsildar instituted a case
uls. 175 of the Act seeking ejectment of the vendees on the
ground that sale was void being in contravention of s. 42 since
the vendors belonged to the Scheduled Caste category and
vendees belonged to an upper caste - Cancellation of D
mutation - Propriety of - Held: Not proper - No doubt, there is
clear prohibition in making sale by a member of Scheduled
Castes or Scheduled Tribes in favour of person who is not.
member of Scheduled Castes or Scheduled Tribes after
22.09.1956 - However, no action was taken either by vendor E
or by State for more than 31 years - As per Schedule 3 rlw
s.214 of the Act the limitation for filing a suit for any illegal
transfer was 30 years - Suit was filed by Tehsi/dar after about
31 years - In the said suit for the first time an application was
filed for appointment of receiver - The said application was F
rejected by the Assistant Collector holding that the vendee has
been in possession and cultivating the suit land for 32 years
- No ground was shown to file sU'Ch petition after long delay
nor it was mentioned as to whether the vendors i.e. original
landholders made any application for restoration of land in G
their favour -Suit being filed beyond the reasonable period
was rightly dismissed as time-barred - Limitation Act, 1963 -
Delayllaches.
977 H
978 SUPREME COURT REPORTS [2014] 6 S.C.R.
A Allowing the appeal, the Court
HELD: 1. The proviso added to Section 42 of the
Rajasthan Tenancy Act, 1955 by second Amendment Act
No. 28 of 1956 prohibits any transfer of interest in holding
by a Member of Scheduled Castes or Scheduled Tribes
8
to any person who was not a member of Scheduled
Castes or Scheduled Tribes. The vendor executed the
sale deed in favour of the vendee, predecessor in interest
of the appellant on 12.01.1962. The sale being forbidden
by law and being opposed to public policy within the
C meaning of Section 23 of the Contract Act, 1872, it was
1:1ot enforceable by law in view of proviso to Section 42.
Section 2 of the Contract Act, 1872 also provides that an
· agreement which is not enforceable by law is said to be
void. [Para 24] [987-B-E]
D
Triveni Shyam Sharma v. Board of Revenue & Ors. AIR
1965 Raj.54 - referred to.
2.As per Schedule 3 read with Section 214 of the Act;
E the limitation for filing a suit for any illegal transfer was
30 years. It was after about 31 years, on 6.07.1993 the suit
was filed by the Tehsildar. In the said suit for the first time
an application was filed for appointment of receiver. The
said application was rejected by the Assistant Collector
holding that the vendee has been in possession and
F cultivating the suit land for 32 years. If no period of
limitation has been prescribed, statutory authority must
exercise its jurisdiction within a reasonable period. No
ground is shown to file such petition after long delay nor
it was mentioned as to whether the vendors i.e. original
G · landholders made any application for resto~ation of land
in their favour. The suit being filed beyond the reasonable
period was fit to be dismissed. The Additional Collector
rightly dismissed the suit being barred by limitation.
[Paras 33, 36,38 and 39] [992-B, 994-E-F; 995-A-B, D]
H
RAM KARAN (DEA~JHROUGH LRS. v. STATE OF 979
. RAJASTHAN
State of Punjab v. Bhatinda District Cooperative. Milk A
Producers Union Ltd. (2007) 11 SCC 363: 2007 (11) SCR
14 • relied on. · ·
Case Law Reference :
AIR 1965 Raj.54 Referred to Para 26 B
c200411~ sec 585 Referred to Para 34
2007 (11) SCR 14 Relied on Para 35
CIVIL APPELLATE JURISDICTION : Civil Appeal No. C
5853 of 2014.
From the Judgment and Order dated 02.02.2012 in CWP
No, 639/1996, SA No.557/2002 of the High Court of Rajasthan
at Jaipur.
D
Sushil Kumar Jain, Chhaya Kirti, Navdeep, Pratibha Jain,
for the appellants.
S.S Shamshery AAG., Harshvardhan Singh Rathore, Amit
Sharma, Sandeep Singh,Narun Punia, Ajay Choudhary, Ankit E
R. Kothari Ajay Singh, Reepak Kansai, Milind Kumar for the
respondents.
J
The Judgment of the Court was delivered by
SUDHANSU JYOTI MUKHOPADHAYA, J.1. Leave F
gra~ed. -
2. This appeal is directed against the· judgment and order
dated 2nd February, 2012 passed by the Division Bench of the
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur G
in D.B. Civil Special Appeal (Writ) No.557/2002. By the
impugned judgment the High Court dismissed the appeal
··preferred by the appellant and upheld the order dated 23rd
May, 2002 passed by the learned Single Judge in S.B. Civil
Writ Petition No.639 of 1996.
H
980 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 3. The factual matrix of the case is as follows:
The suit property is an agricultural land admeasuring 10
bighas 13 biswa situated in village Med, Jaipur, Rajasthan. The
said land was sold by its recorded Khatedar, Dalu (hereinafter
referred to as the "vendor") to Ram Karan (since deceased)
8
and Mahendra Kumar who belong to upper caste vide a
registered sale deed dated 12th January, 1962. Ram Karan
and Mahendra Kumar (hereinafter referred to as the "vendee")
were both landless persons on the date of sale of disputed land.
The said vendees had been in cultivator possession of the
C disputed land prior to 12th January, 1962.
4. Subsequently, Gram Panchayat allowed the land to be
mutated in the name of the vendee, Ram Karan and Mahendra
Kumar. It was mutated on 10th September, 1966 and they
D became Khatedar.
5. After lapse of more than 31 years, Tehsi!dar, Viratnagar,
District Jaipur, instituted Case No.168111993 before the
Assistant Collector, Shahpura, District Jaipur, u/s 175~of the
E Rajasthan Tenancy Act, 1955 (hereinafter referred to as the,
'Act') seeking ejectment of the vendee. The said suit was filed
on the ground that the vendor;Dalu belonged to a Scheduled
Caste category (Nayak) and consequently the disputed land
could not be sold to the vendees who belonged to an upper
caste of 'Mahajan'. The contention was that the sale was void
F being in contravention of Section 42 of the Rajasthan Tenancy
Act, 1955 (hereinafter referred to as, 'the Act'). The Tehsildar
also moved an application u/s 112 of the Act for appointment
of a receiver. The Assistant Collector by order dated 1.1.1994
rejected the application made by Tehsildar for appointment of
G receiver to take possession of the suit land. He held that the
vendee had been in possession and cultivating the suit land for
32 years and had otherwise matured rights by adverse
possession. He further held that there was no prima facie case
in favour of the State and also the balance of convenience was
H in favour of the vendee.
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 981
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
6. Against the aforesaid order dated 1.1.1994, the A
Tehsildar filed an appeal before Revenue Appellate Authority
and the same was registered as Appeal No.9 of 1994. The
Rel{enue Appellate Authority by order dated 28th January,
1994 held that in order to effectuate the social objective u/s 42
of the Act, the State Government has enhanced the time for B
instituting suit u/s 175 so that old cases of sale may be
reopened. The appeal was allowed and order dated 1.1.1994
passed by the Assistant Collector was set aside.
7. The Tehsildar was appointed as receiver of the said land C
having Khasra nos.2307, 2308, 2309, 2310, 2311, 2318, 2326,
'2327, 2328 total 9 Tulka 25 hectares.
8. The Vendee, Ram Karan and Mahendra, challenged the
aforesaid order dated 28.4.1994 in revision before the Board
of Revenue which remain pending. D
9. During the pender.cy of the proceedings u/s 175 of the
Act, the Tehsildar filed a reference under Rule 82 of the Land
Record Rules before 1st Additional Collector, Viratnagar,
District Jaipur seeking cancellation of the mutation dated · E
10.09.1963. The same was registered as Reference No.261/
94/LR/Jaipur of 1994. The ground taken was that the sale deed
executed by the vendor, Dalu was in contravention of provisions
of Section 42 of the Act.
10. On 26.06.1994, the appellant-vendee moved an F
application before the Collector, Jaipur seeking to stay
reference proceedings till the adjudication of the proceedings
u/s 175 of the Act or to consolidate the reference and the
proceedings u/s 175 of the Act. In reply to the notice on
reference the appellant-vendee stated that the sale deed G
executed on 12.01.1962 by Dalu is not in breach of Section
42 of the Act. It was, inter alia, contended that the proceedings
u/s 175 of the Act was pending and consequently the reference
was liable to be dismissed as the same was not maintainable.
H
982 SUPREME COURT REPORTS [2014] 6 S.C.R. ·
A 11. The First Additional Collector vide his order dated
19.10.1994 directed to place the matter before the Board of
Revenue for passing orders to cancel the mutation in favour of
the vendee and held that the transfer was in breach of Section
42 of the Act and there was no limitation for a reference to the
B Board. It was further held that a pending application for
ejectment u/s 175 of the Act is no bar to a reference.
12. On 26.06.1995, the Single Member, Board' of Revenue
held that the vendor, Dalu being "Nayak" by caste was from
Scheduled Caste category and the sale deed executed being
C in favour of General category person, the mutation carried out
on the basis of said sale deed was null and void. He further
held that the sale deed dated 12.01.1962 was void being in
contravention of Section 42 of the Act· and, therefore,
consequent mutation was illegal. The Member, Board of
D Revenue set aside the sanction for mutation granted by the .
Gram Panchayat and directed striking off the names of the
vendees, Ram Karan and Mahendra and in their place the
name of the vendor/heirs was directed to be recorded.
E 13. Against the aforesaid order dated 26.06.1995, the
Vendees filed Sp~cial Appeal No.1A/95RLAcUJaipur before
the Division Bench of the Board of Revenue. The Division
Bench of the Board of Revenue by order dated 16.11.1995
affirmed the order of the Single Member and dismissed the
F appeal.
14. The appellant-vendees subsequently filed, S.B. Civil
Writ Petition No.639 of 1996 challenging order dated
19.10.1994 passed by the Additional Collector; order dated
26.06.1995 passed by the Single Member of the Board of
G Revenue and order dated 16.11.1995 passed by the Division
Bench of Board of Revenue.
15. Learned Single Judge of the High Court by order dated
23.05.2002 dismissed the wri(petition and held that as the sale
H deed was. executed in violation of Section 42 of the Act, the
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 983
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
dismissal of application u/s 175 of the Act does not create any A
right in favour of the vendees.
16. Against the aforesaid order dated 23.05.2002, the
vendee preferred D.B. Special Appeal (Writ) No.557 of 2002.
The Division Bench of High Court by impugned judgment and B
order dated 2.2.2012 dismissed the same. The Division Bench
held that the vendor, Dalu, was a member of Scheduled Caste
category and further held as follows:-
"Coming to the submission that no steps were taken by
the respondents u/s 183 of the Tenancy Act, in our C
considered opinion, even if no action was taken, power
could have been exercised to annul mutation as
transaction was illegal and void u/s 42 of the Tenancy
Act. There was no effect of dismissal of the application
u/s 175 of the Tenancy Act being barred by limitation as D
no right has accrued in favour of the appellants on the
strength of sale deed which was void. The power has
been rightly exercised and there is no infirmity or
illegality in the orders which have been impugned in the
intra-court appeal." E
17. Learned counsel for the appellant-5 submitted as
follows:
(i) Transfer of land by Scheduled Caste in favour of a
non Scheduled Caste prior to 1964 may be F
voidable but not void ab initio.
(ii) Proviso to Section 42 inserted by Section 4 of the
Rajasthan Tenancy (Second Amendment) Act
No.28 of 1956, giving Section 42 retrospective has G
been declared violative of Article 19 of the
Constitution of India by the Rajasthan High Court in
Triveni Shyam Sharma v. Board of Revenue &
Ors., [AIR 1965 Raj.54] which having not challenged
reached finality. In view of such decision, the
H
984 SUPREME COURT REPORTS [2014) 6 S.C.R.
A registered sale deed dated 12.01.1962 executed
prior to 1.5.1964 cannot be held to be void.
(iii) The suit filed by the Tehsildar, Viratnagar after about
31 years of the sale is barred by limitation u/s 175
of the Act.
B
18. On the other hand, learned counsel for the
respondents-State referred to legislative history of Section 42
and contended as follows:
c (i) The sale deed dated 12.01.1962 was covered u/s
42 of the Act and therefore void.
(ii) Void sale deed does not create any right in favour
of the appellants
D (iii) Mutation proceeding had not created any right or
title in favour of the appellants
19. For determining the issues, it is desirable to notice the
Legislative History of Section 42, as amended from time to
E time.
Original Section 42 came into force w.e.f. 15.10.1955
reads as under:
"Section 42-Sale or Gift-Except with the general or special
F permission of the State Government, no khatedar tenant
shall have the right to transfer by sale or gift his interest
in the whole or a part of his holding to any person who at
the date of such transfer is already in possession of land
which together with the land so transferred will exceed 90
G acres of un irrigated or 30 acres of irrigated land.
Explanation- If such land is partly irrigated and party un-
irrigated, one acre of irrigated land, shall, for calculating
the area of land for the purposes of this Section, be
deemed to be equivalent to three acres of un-irrigated
H land."
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 985
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
20. The Act was for the first time amended by Act No.27 A
,of 1956 dated 22.09.1956. By this amendment Section 42
remained untouched. The Act was again amended by the
Rajasthan Tenancy (Second) Amendment Act, 1956 (Act 28 of
1956) which came into force on 22.09.1956. By this
amendment Act a proviso to Section 42 was added as under: B
"Provided that no khatedar tenant being a member of
Scheduled Caste or a Scheduled Tribe shall so transfer
these rights in the whole or a part of his holding to any
person who is not a member of a Scheduled Caste or a C
Scheduled Tribe."
Thereafter, Section 42 was amended and substituted w.e.f.
1.05.1964 as under:
"Section 42 General restriction on sale, gift and bequest- D
The sale, gift or bequest by a khatedar tenant of his
interest in the whole or part of holding shall be void if
(a) It is not of a survey number except when the area of
the survey number so sold, gifted or bequeathed is in
excess of the minimum area prescribed for the purpose E
of sub-sec.(1) of Sec.53, in which case also the area not
transferred shall not be fragment:
Provided that this restriction shall not apply if the area
so transferred becomes merged into a contiguous survey F
number.
Provided further that the restriction shall not apply if the
sale, gift or bequest is of the entire interest of a tenant in
the survey number;
G
(b) such sale gift or bequest is by a member of a
Scheduled caste in favour of a person who is not a
member of the scheduled caste, or by a member of a
schedule tribe in favour of a person who is not a member
of the schedule tribe. " H
986 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 21. Subsequently, the said Section was amended by
Rajasthan Act 15 of 1970 w.e.f. 18.08.1970; Rajasthan Act 22
of 1992 w.e.f. 11.11.1994 and Rajasthan Act 18 of 1999 w.e.f.
30.09.1999. On such amendments Section 42 reads as below:
"42. General restrictions on sale,gift and bequest-The
B
sale, gift or bequest by a khatedar tenants of his interest
in the whole or part of his holding shall be void, if
[(a) ... deleted w.e.f. 11.11.1992]
c (b) such sale, gift or bequest is by a member of
Scheduled Caste in favour of a person who is not a
member of the Scheduled Caste, or by member of a
Scheduled Tribe in favour of a person who is not a
member of the Schedule Tribe.
D
[(c) Omitted by Raj. Act 15 of 1970, published in Raj.
Gaz. Ext., Part IV (ka), dated 18.8.1970 and shall always
be deemed to have been omitted].
(bb) Such sale, gift or bequest, notwithstanding anything
E contained in clause (b), is by a member of Saharia
Scheduled Tribe in favour of a person who is not a
member of the said Saharai tribe. [inserted vide
Rajasthan Act 18 of 1999 with effect from 30.09.1999]
F 22. According to respondents, sale deed in question was
registered on 12.01.1962. The second amendment in Section
42 by which a proviso was added to Section 42 was brought
into force on 22.9.1956 and the sale in question had been
effected on 12.01.1962 which is much later to coming into force
of the second Amendment in Section 42 of the Act. Since after
G 22.09.1956 there was clear prohibition in making any sale by
a member of Scheduled Castes or Schedules Tribes in favour
of a person who was not member of Scheduled Castes or
Scheduled Tribes, the transfer made on 12.01.1962 is against
the said prohibition as well as provisions of Section 23 of the
H Contract Act.
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 987
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
23. So far as amendment made by Act No.12 of 1964 A
dated 1.5.1964 in Section 42 is concerned the only change
made was that a declaration was given that the sale, gift or
bequest by a khatedar tenant in violation of Section 42 "shall
be void".
B
24. The amendment Act No. 12 of 1964 though brought
into force on 1.05.1964 after the alleged sale on 12.1.1962, the
fact remains that even the earlier proviso which was added to
Section 42 by second Amendment Act No. 28 of 1956, also
prohibits any transfer of interest in holding by a Member of C
Scheduled Castes or Scheduled Tribes to any person who was
not a member of Scheduled Castes or Scheduled Tribes. The
second amendment Act No.28 of 1956 which came into force
on 22.09.1956 was in force at the time of alleged sale, The sale
being forbidden by law and being opposed to public policy
within the meaning of Section 23 of the Contract Act, 1872, it D
·. was not enforceable by law in view of proviso to Section 42.
Section 2 of the Contract Act, 1872 also provides that an
agreement which is not enforceable by law is said to be void.
25. Hence, the question that arises for our consideration E
is whether in view of proviso to Section 42 inserted by Second
Amendment Act No.28 of 1956, the sale deed executed on
12.01.1962 is void or not.
26. Learned counsel for the appellant referred to Division
F
Bench of the Rajasthan High Court decision in Triveni Shyam
Sharma v. Board of Revenue & Ors, AIR 1965 Raj.54 and
submitted that in view of the said decision, retrospective effect
of proviso having been declared ulta vires is not applicable to
the sale in question. But such submission cannot be accepted.
G
27. In the case of Triveni Shyam Sharma(Supra), the
Division Bench of the Rajasthan High Court considered the
effect of amendment on sale of proprietary right prior to the
Second amendment and held as follows:
H
988 SUPREME COURT REPORTS [2014] 6 S.C.R.
A "10. The main question for determination is V'lhether the
sale of the proprietary right made by Gyarsia in favour
of the petitioner became invalid on account of the
subsequent legislation, namely the addition of the proviso
to Section 42 by the Second Amendment Act. A perusal
s of the language of the proviso which was added to
Section 42, would show that if it is read without the context
of the deeming clause, it cannot be said that it was to be
applied retrospectively. The difficulty was created only
because of the words "shall be deemed always to have
c been so added" inserted in Section 4 of the second Act
while introducing the proviso."
28. The Division Bench of the Rajasthan High Court further
held:
D "14 .. ........ It is contended by him that the proviso was
added for the protection of the interests of the members
of the Scheduled tribe and, therefore, it was saved by this
Clause. In our opinion, this contention is not tenable
because even, according to Clause (5), reasonable
E restrictions on the fundamental rights embodied in Article
19(1)(f) can be imposed only for the protection of the
interests of the members of the scheduled tribe. The word
'interests' appearing in the said Clause refers to
subsisting interests and not to those interests which
F cease to exist even before the law is enacted. The term
'protection' is a/so suggestive of subsisting interests. If the
interests already cease to exist, there would remain
nothing which may be protected by law. In the case of
interests which cease to exist, it would be revival of the
interests and not the protection thereof In a case like the
G
present one, where Gyarsia had already transferred his
interests before the second Act came into force, the
deeming clause, if held to be valid, would not protect the
vendor, but would tend to deprive the vendee, i. e., the
petitioner of the rights and interests which had already
H
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 989
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
vested in him. The deeming clause would not, therefore, A
be saved by Clause (5) and it would be violative of Article
19(1)(f) of the Constitution of India.
15. In this view of the matter there seems to be no force
in the contention raised by learned counsel for the 8
contending respondents, because Gyarsia had parted
with his Khatedari rights in the property long before the
proviso was added to Section 42. The insertion of the
proviso could not revive his interest merely because the
deeming clause rendered its operation retrospective. His C
interest had already ceased to ·exist and there remained
nothing to be protected by law. We, therefore, hold that
the deeming clause was violative of Article 19 in so far
as it resulted in divesting the petitioner in whom the
vendor's rights and interests had vested before the
second amendment." D
"18. Learned counsel for the respondents has urged that
according to Clause (b) of the amended section, the sale
in favour of the petitioner was void since he was not a .
member of a Scheduled Caste or a Scheduled Tribe. It E
would suffice to say that while substituting Section 42, the
Legislature took good care in not making the 9hange to
operate retrospectively. The plain reading of Section 3
would show that the new Section 42 was substituted in
place of the old one with effect from the date this F
amended Act came into force namely, 1st May, 1964.
This Act a/so does not seek to validate the deeming
clause appearing in Section 4 of the second Act, which
was invalid from the very date it was introduced, as held
above. The Constitution (Seventeenth Amendment) Act, G
1964, protects the Rajasthan Tenancy Act, 1955 as it
stood on the date the said amendment of the Constitution
of India, came into force."
29. The Rajasthan Tenancy (Second) Amendment Act,
1956 (Act 28 of 1956) came into force on 22.09.1956. The H
990 SUPREME COURT REPORTS [2014] 6 S.C.R.
A vendor executed the sale deed in favour of the vendee,
predecessor in interest of the appellant on 12.01.1962 i.e. after
the second amendment. The appellants cannot claim that their
right was created much prior to the second amendment i.e.
before proviso to Section 42 was inserted. Counsel for the
B respondents rightly contended that tl:ie alleged sale deed dated
12.01.1962 was effected much after the date of coming into
force (22.09.1956) of proviso to Section 42. There was clear
prohibition in making any sale by a member of Scheduled
Castes or Scheduled Tribes in favour of person who was not
c member of Scheduled Castes or Scheduled Tribes since after
22.09.1956. The transfer made on 12.01.1962 was against the
said prohibition.
30. Section 23 of the Indian Contract Act, 1872 reads as
follows:
D
"23. What consideration and objects are lawful, and
what not.-The consideration or object of an agreement is
lawful, unless-
it is forbidden by law; or is of such a nature that, if
E
permitted, it would defeat the provisions of any law; or is
fraudulent; involves or implies, injury to the person or
property of another; or the Court regards it as immoral,
or opposed to public policy.
F In each of these cases, the .consideration or object of an
agreement is said to be uh/awful. Every agreement of
which the object or consideration is unlawful is void. "
31. In the present case, the sale deed in question was
G alleged to be made when it was forbidden by law (proviso to
Section 42). Therefore. the appellant cannot derive advantage
of decision rendered by the Rajasthan High Court in Trivei
Shyam Sharma(Supra).
32. To determine the secontl issue in relation to limitation,
H it is desirable to ·notice the relevant pr5'visions of the Act.
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 991
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Section 175 of the Act deals with ejectment for illegal transfer A
or sub-letting and reads as follows:
"175. Ejectment for illegal transfer or sub-letting.-(1) If a
tenant transfers or sub-lets, or executes an instrument
purporting to transfer or sublet, the whole or any part of 8
his holding otherwise than in aecordance with the
provisions of this Act and the transferee or sub-lessee or
the purported such part in pursuance of such transfer or
sub lease, both the tenant and any person who may have
thus obtained or may thus be in possession of the
holding or any part of the holding, shall on the application C
of the land holder, be liable to ejectment from the area
so transferred or sub-let or purported to be transferred or
sub-let.
(2) To every application, under this Section the transferee D
or the sub-tenant or the purported transferee or the sub-
tenant, as the case may be, shall be joined as a party.
(3) On an application being made under this section, the
court shall issue a notice to the opposite party to appear E
within such time as may be specified therein and show
cause why he should not be ejected from the area so
transferred or sublet or purported to be transferred or sub-
let.]
(4) If appearance is made within the time specified in the F
notice and the liability to ejectment is con1ested, the court
shall, on payment of the proper court fees, treat the
application to be a suit and proceed with the case as a
suit:
G
Provided that in the event of the application having been
made by a Tehsildar in respect of land held directly from
the State Government no court-fee shall be payable.
(5) If no such appearance is made or if appearance is
H
992 SUPREME COURT REPORTS
A made but the liability to ejectment is not contested the
court shall pass order on the application as it may deem
proper."
33. As pef Schedule 3 read with Section 214 of the Act
the limitation for filing a suit for any illegal transfer was 30 years.
8
The relevant entry which was in Rajasthan Tenancy Act, 1967
Edition reads as follows:
S.NO. Section of Description of Period of
Act suit, application Limitation
c or appeal
1 2 3 4
66 175 Application for Thirty years
ejectment for illegal
D
transfer or sub-letting
Time from which Proper Court fees Court/officer
period begins to run competent to
dispose of
E
5 6 7
Date of transfer or 50 Paise Assistant
sub-lease Collector
F 34. Counsel for the appellants referred to decision of this
Court in Nathuram v. State of Rajasthan, (2004) 13 SCC 585
and in the said case this Court held:
"4. The contention urged by the appellant's counsel is
that by virtue of Section 42 of the Rajasthan Tenancy Act,
G
any transaction made in contravention has been declared
to be void and, therefore, the period of limitation is not
applicable and that the authority should have held that
the appellants are entitled to get possession. It may be
noticed that for taking an action under Section 175 of the
H
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 993
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Act, the procedure as prescribed under sub-section 4(A) A
of Section 175 has to be adopted. It is also to be noticed
that under Section 214 of the Rajasthan Tenancy Act,
period of /imitation is prescribed for initiating action under
Section 175. Under Section 214, it is stated that:
B
"214. (1) The suits and applications specified in the Third
Schedule shall be instituted and made within the time
prescribed therein for them and every such suit instituted
or application made after the expiry of the period of
/imitation so prescribed shall be dismissed:"
c
Under the Third Schedule, in clause 66, for an application
for ejectment for illegal transfer or sub-letting, the period
of twelve years is originally prescribed for fifing such an
application from the date of transfer or sub-lease. The
provision relating to the period of limitation was later on D
amended with effect from 5-10-1981 and the period was
prescribed as 30 years. So far as the present transaction
is concerned, the period of limitation applicable is twelve
years. The transfers.being one on 2-4-1964 and another
on 4-5-1964, the proper application should have been E
filed within twelve years, but it was filed before the Sub-
Divisional Officer only on 22-11-1976. In that view of the
matter, the proceedings were initiated beyond the period
of /imitation. Therefore, it was barred by limitation and the
finding of the SDO is correct which has been rightly F
confirmed by the authorities right up to the High Court."·
35. Learned counsel for the appellants also referred to
decision of this Court in State of Punjab v. Bhatinda District
Cooperative Milk Producers Union Ltd., (2007) 11 SCC 363.
In the said case this Court while noticed that no period of G
limitation was prescribed under the statute held:
"18. It is trite that if no period of limitation has been
prescribed, statutory authority must exercise its
jurisdiction within a reasonable period. What, however, H
994 SUPREME COURT REPORTS [2014] 6 S.C.R.
A shall be the reasonable period would depend upon the
nature of the statute, rights and liabilities thereunder and
· other relevant factors.
19. Revisional jurisdiction, in our opinion, should
B ordinarily be exercised within a period of three years
having regard to the purport in terms of the said Act. In
any event, the same should not exceed the period of five
years. The vie.w of the High Court, thus, cannot be said
to be unreasonable. Reasonable period, keeping in view
the discussions made hereinbefore, must be found out
c from the statutory scheme. As indicated hereinbefore,
maximum period of limitation provided for in sub-section
(6) of Section 11 of the Act is five years."
36. In the present case, no action was taken either by the
D Vendor or by the State for more than 31 years. The sale deed
was executed on 12.01.1962 and the land was mutated in the
name of the appellants' predecessor in interest on 10.09.1963.
It was after about 31 years, on 6.07.1993 the suit was filed by
the Tehsildar, Viratnagar being Case No.1681of1993. In the
E said suit for the first time an application was filed for
appointment of receiver. The said application was rejected by
•
the Assistant Collector, Shahpura vide order dated 1.1.1994
holding that the vendee has been in possession and cultivating
the suit land for 32 years.
F
37. In view of the position of law, as noticed above, it is
not necessary to see whether the petition for cancellation of
mutation was filed on time or not,. The decision of this Court in
Nathu Ram (supra) relates to Section 42 of the Act and the
transaction made in contravention with the provisions of the said
G Act. In the said case similar plea were taken by the parties,
having noticed sub-section 4(A) of Section 175 and Section
214 of the Act, this Court held that as the transaction was made
much beyond the period of 12 years, the proceeding was
beyond the period of limitation and, therefore, barred by
H limitation.
RAM KARAN (DEAD) THROUGH LRS. v. STATE OF 995
RAJASTHAN [SUDHANSU JYOTI MUKHOPADHAYA, J.]
38. In State of Punjab & Ors. v. Bhatinda District A
Cooperative Milk Union Ltd. (supra) this Court held that if no
period of limitation has been prescribed, statutory authority
must exercise its jurisdiction within a reasonable period.
However, what shall be the reasonable period would depend
upon the nature of the statute, rights and liabilities thereunder B
and other relevant factors. In the present case, neither any
objection was raised nor was any application filed by vendors
for restoration of land in their favour. The suit was filed by the
Tehsildar, Viratnagar after more than 31 years. No ground is
shown to file such petition after long delay nor it was mentioned c
·as to whether the vendors i.e. original landholders made any
application for restoration of land in their favour.
39. In view of the matter, we hold that the suit being filed
beyond the reasonable period was fit to be dismissed. The
Additional Collector rightly dismissed the suit being barred by D
limitation.
40. Counsel for the appellant submitted that under
notification dated 20.09.1977 "Nayak" were not declared, as
Scheduled Castes and, therefore, there was no occasion for E
the Tehsildar to file a suit in the year 1993 i.e. 16 years after
notification dated 20.09.1977 on the ground of violation of
Section 42 .. This question has not been dealt with by the High
Court and the fact aforesaid has not been disputed by the
respondents. F
41. Therefore, it is clear that the proceeding for restoration
of land initiated by the Tehsildar, Viratnagar was barred by
limitation and was not maintainable. We, accordingly, set aside
the impugned- judgment dated 2.02.2012 passed by the
Division Bench of the Rajasthan High Court as well as G
judgement and order dated 23.05.2002 passed by the Single
Judge. The appeal is allowed. No costs.
Devika Gujral Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Rajasthan Tenancy Act"Sign in to search