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Bhikamchand And Anr. v. State Of Rajasthan And Ors.
Factual and Procedural Background
These are two connected matters concerning the validity of provisions of the Marwar Patta Ordinance, 1921 (the "Patta Act"). The Court heard the matters together because the same statutory point was in issue in both.
In the second appeal (by Tarachand), Tarachand was decree-holder against judgment-debtors Maghelal and Askaran. A house of the judgment-debtors was sold in execution of the decree and purchased by Ramlal. Notices under Order XXI, Rule 66 were issued to the judgment-debtors, who did not participate in the execution proceedings and the sale proceeded under Order XXI of the Code of Civil Procedure. After the sale the judgment-debtors appeared and filed an objection under Order XXI, Rule 90, contending that the sale was irregular because it contravened Section 21(2) of the Patta Act. The executing Court dismissed that application; on appeal the District Judge took the view that the objection could be raised under Order XXI, Rule 90 and remitted the matter to the executing Court to decide whether a Patta existed and to apply Section 21(2).
Separately, a writ application was filed by Bhikamchand. He purchased a house in Sumerpur (Pali district) and was asked to pay Rs. 40-2-0 as Patta fees under Section 17(2) of the Patta Act. He relied on a registered sale deed and provisions of the Stamp and Registration laws and the Transfer of Property Act to claim he had acquired perfect title, and contended that the demand under Section 17(2) was illegal. He argued that the Patta Act was discriminatory and violative of Article 14 of the Constitution because comparable parts of Rajasthan did not have similar laws; in those parts a registered sale-deed and possession suffice to create title without an additional Patta fee.
The Single Judge referred the constitutional question—whether Section 21(2) of the Marwar Patta Ordinance of 1921 is hit by Article 14—to the Bench.
Legal Issues Presented
- Whether Section 21(2) of the Marwar Patta Ordinance of 1921 is violative of Article 14 of the Constitution (the specific question referred to the Bench).
- Whether Section 17(2) (and related provisions) of the Patta Act are invalid after the commencement of the Constitution because they discriminate in contravention of Article 14 (the writ applicant challenged Section 17(2)).
- More broadly, whether Sections 6(2), 8, 17(2), 21(1), 21(2) and Section 24 (and consequential procedural provisions) of the Patta Act — insofar as they impose a 10% site-value charge or prohibit court sales of non-Pattashud land — are invalid under Article 13 read with Article 14 of the Constitution.
Arguments of the Parties
Writ Applicant (Bhikamchand)
- Purchase was evidenced by a registered sale deed executed in accordance with the Stamp Law and the Registration Act; under the Transfer of Property Act he thereby acquired perfect title (including the site).
- The demand to pay Patta fees under Section 17(2) is illegal because the sale deed and registration already confer title.
- The Patta Act is discriminatory and violative of Article 14 because no similar law operates in other parts of Rajasthan; elsewhere a registered sale-deed suffices to create title without an extra Patta tax or requirement.
Judgment-Debtors (Maghelal and Askaran) — objection in execution
- After a sale in execution, they filed an objection under Order XXI, Rule 90 asserting that the sale was materially irregular because it was conducted contrary to Section 21(2) of the Patta Act (which prohibits sale of non-Pattashud land in execution).
Court below / Procedural positions
- The executing Court dismissed the objection under Order XXI, Rule 90 on the ground that such an objection could not be raised under that rule.
- The District Judge held that such an objection could be raised under Order XXI, Rule 90 and remitted the matter to the executing Court to determine whether a Patta existed and to act in accordance with Section 21(2).
- No reply was filed on behalf of the State in the writ proceedings; no one appeared for the judgment-debtors in the second appeal, but the State was served because the validity of a statute was in question.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court undertook a statutory analysis of the Patta Act (Marwar Patta Ordinance, 1921) to determine whether the challenged provisions were discriminatory and therefore unconstitutional under Article 14 (and Article 13 read with Article 14). The reasoning proceeded in the following principal steps, using only the material and inferences stated in the opinion:
- Scope and objects of the Act: The Act applied only to Khalsa villages (not to jagir villages) in the former State of Marwar and had two main objects: (a) to require persons in possession of State lands either to produce a Patta or to be compelled to take a Patta so as to regularise title; and (b) to tax transfers of land for which a Patta had been granted.
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Key provisions analysed: The Court identified the operative provisions relevant to transfers by sale/gift — namely Section 6(2), Section 8, Section 17(2), Section 21(1) and Section 21(2) (and Section 24) — and explained their effect:
- Section 6(2) required persons who come into possession of Patta land to renew the Patta in their own name (subject to limited provisos).
- Section 8 prohibited registration of documents transferring title unless the transferee produced a Patta or showed that an application for Patta had been made.
- Section 17(2) provided that a person obtaining possession by transfer (from a person with a Patta) could be granted a renewal of Patta on payment of 10% of the present site value (the State could in theory refuse renewal because the word "may" was used).
- Section 21(1) charged 10% of site value on auction sales like private sales under Section 17(2); Section 21(2) prohibited transfer in any shape or form of non-Pattashud land and enjoined Courts not to sell such land in execution of decrees.
- Characterization of the Patta and the charge: The Court concluded from the statutory scheme that the Patta effectively evidenced an estate in the site — in substance resembling a sale by the State — and that the State's 10% charge on transfer or renewal of a Patta was a tax on sales or gifts of land in the affected area. The Court observed that separate rule-making power and fee provisions (e.g., section 36) existed for imposition of fees, further supporting the conclusion that the 10% charge had the character of taxation on transfers.
- Discrimination and constitutional test: The Court compared the statutory regime in Khalsa villages of former Marwar with other parts of Rajasthan where no similar law existed; in those other parts a registered sale-deed and possession suffice to make the purchaser owner without extra restrictions or charges. The Court found that the 10% charge and the compulsion to obtain a Patta applied only in the limited territory and therefore constituted discriminatory treatment.
- Application of Articles 13 and 14: The Court held that the impugned provisions relating to taxation on transfers (Sections 6(2), 8, 17(2), 21(1) and 24, insofar as they related to transfer by sale or gift) were invalid under Article 13 read with Article 14 because they produced unequal treatment not found elsewhere in the State. This ground of invalidity extended to Section 21(2) as well: the prohibition on Courts selling non-Pattashud land was designed to protect the State's claimed taxing interest and was discriminatory because no analogous prohibition existed elsewhere in Rajasthan.
- Consequential effect: The Court reasoned that once the principal provisions imposing tax and restrictions on transfer fell, consequential and procedural provisions connected to those matters also ceased to have effect.
- Procedural disposition in the specific appeals: Applying this analysis, the Court answered the referred constitutional question by declaring Section 21(2) invalid after 26-1-1950 as being hit by Article 14. The Court allowed the appeal (Tarachand), set aside the District Judge's order that remitted the matter, and restored the executing Court's order dismissing the Rule 90 objection (though on a different ground). The writ application by Bhikamchand was allowed: Section 17(2) was declared invalid and the State was prohibited from realizing Patta fees from that applicant.
Holding and Implications
Holding:
Section 21(2) of the Marwar Patta Ordinance of 1921 has become invalid after 26-1-50 as it is hit by Article 14 of the Constitution.
In addition, the Court held that Sections 6(2), 8, 17(2), 21(1) and 24, insofar as they relate to the taking of Pattas on transfer by sale or gift (and impose a 10% site-value charge), are invalid under Article 13 read with Article 14.
Direct consequences and orders made:
- The second appeal (Tarachand) was allowed; the District Judge's order was set aside and the Civil Judge's order dismissing the Rule 90 objection was restored (the Court dismissed the objection on a different ground).
- The writ application by Bhikamchand was allowed: Section 17(2) was declared invalid and the State was prohibited from realizing Patta fees from that applicant.
- Parties were ordered to bear their own costs in this Court and the District Judge's Court in both matters; the decree-holder (Tarachand) was to get his costs of the executing Court from the judgment-debtors.
- The Court observed that consequential and procedural provisions connected to the invalidated sections would also fall insofar as they related to sale or gift transfers.
Broader implications:
The opinion's declared invalidation of the specified Patta provisions removes the additional statutory restriction and the 10% site-value charge that uniquely applied in Khalsa villages of the former State of Marwar; purchasers in those areas are no longer subject to those statutory requirements or charges under the provisions invalidated by the Court. The Court grounded that result in equality principles (Article 14) and the constitutional guarantee against inconsistent laws (Article 13), as explicitly stated in the opinion.
1. These are two connected cases as the validity of the Marwar Patta Ordinance, 1921, which later came to be known 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 -
3. 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 Order XXI, Rule 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 Order XXI of the Code of Civil Procedure. After the sale of the house, however, the judgment-debtors appeared in the executing Court, and filed an objection under Order XXI, Rule 90. Their case was that there was material irregularity in the conducting of the sale in as much as the sale had been held against the provisions of Section 21(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 Order XXI, Rule 90. Thereupon, there was an appeal to the District Judge who apparently held that such an objection could be raised under Order XXI, Rule 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 Section 21 (2) of the Patta Act.
4. This order has been brought in second appeal to this Court. The matter came before a learned Single Judge, and as the point involved the validity of a piece of legislation, the following question has been referred to this Bench, namely
"whether Section 21 (2) of the Marwar Patta Ordinance of 1921 is hit by Article 14 of the Constitution."
5. We may also briefly narrate the facts which have led to the writ application. These facts are that the applicant Bhikamchand purchased a house situated in village Sumerpur in the district of Pali, It seems that he has been asked to pay Rs. 40/-2-0 as Patta fees under Section 17 (2) of the Patta Act. His contention is that he has got a registered sale deed in accordance with the provisions of the Stamp Law and the Registration Act, and that by virtue of that sale deed he has acquired perfect title in the house in dispute including the site in view of the provisions of the Transfer of Property Act, and the demand of Patta fee under Section 17 (2) of the Patta Act is illegal.
It is urged that the Patta Act has become invalid after the coming into force of the Constitution, as it is a discriminatory piece of legislation, and is hit by Article 14 of the Constitution. It is pointed out that there is no similar law in force in any other part of Rajasthan, and that in those parts all that is necessary in order to create title in a person who takes a sale deed is that he should be in possession of a registered sale deed in accordance with the law relating to stamp and registration.
6. The question, therefore, that falls for consideration, is whether these two sections of the Patta Act, namely Sections 17 (2) and 21 (2) are invalid now, and hit by Article 14 of the Constitution.
7. No reply has been filed on behalf of the State. No one has appeared on behalf of the judgment-debtors in the second appeal, but the State was given notice of this appeal as the validity of a section of law was raised therein.
8. An analysis of the Patta Act would, in our opinion, be helpful in deciding the point raised about the validity of these two sections. The Act was passed in 1921, and deals with two matters. It may be mentioned that it applied only to Khalsa villages and not to jagir villages. So it only applied to a small part of the territory of the former State of Marwar. The object of the Act was two-fold. In the first place, it appears that the object was that all persons in possession of land belonging to the State should either produce a Patta for inspection, or should be compelled to take a Patta, and regularise their title to State lands in their possession.
At the same time, provision was made that those, who took possession of State lands after the coming into force of the Patta Act, should do so only after applying for a regular Patta and paying what was called the site value of the land, which really meant its price. The Patta did not provide for any reservation of rent, and thus was more or less and out and out sale subject to the right of the sovereign to escheat the property according to the conditions prevalent in the former State of Marwar. The second object of the Act was to tax transfers of land of which Patta had been granted by the State.
9. The present two cases are concerned with transfers of land by sale or gift, and we shall confine ourselves to those provisions of the Patta Act, which deal with such transfers.
10. We begin with Section 6. Sub-section (1) of that section deals with obtaining of Patta by those in possession of land on the date of the coming into force of the Patta Act, and also of obtaining Patta in future by those who wanted to occupy land. Sub-section (2) deals with the cases of those who come into possession of land covered by a Patta and requires that these persons shall renew the Patta in their own name. This provision is, however, subject to two provisos, namely that it would not apply to those who come into possession of the Pattashud land by inheritance or succession, and that such persons were not bound to renew the Patta, and even if they wanted to do so they could get it done on a nominal! payment of a fee of Rs. 5-4-0 only, In order to enforce Section 6 (2) of the Patta Act, Section 8 prohibited registration of documents transferring title unless the transferee produced a Patta therefor, whether in the name of the transferor or his predecessor-in-interest, or satisfied the Registration Department that the transferee had applied for a Patta. Sections 9 to 16 deal with procedural matters about the issue of Pattas, and need not be referred to. Then comes Section 17. Sub-section (1) of that section deals with the first class of cases, namely those who are entitled to apply for Patta by virtue of their possession. Section 17 (2) deals with the cases of transfers, and provides that any person, who, after the coming into force of the Patta Act obtains possession of any land by transfer from a person who has a Patta in his own name, may be granted a renewal of such Patta on payment of 10 per cent. of the present site value.
Reading this sub-section with sub-section (2) of section 6, it is at once clear that a person is bound to apply for Patta in Ins own name, and is bound to pay 10 per cent. of the present site value, though, because of the use of the word 'may' in Section 17 (2) the State had the right to refuse the renewal of the Patta. It is this provision, namely, Section 17 (2), which is being attacked in the writ application as illegal on the ground of being discriminatory.
11. Section 18 deals with granting of Pattas on the basis of possession, and we are not concerned with it. Section 19 deals with certain penalties which apply in the case of transfers also. But it is a mere procedural provision, and if the main provisions relating to transfer are held invalid, Section 19 will be of no effect so far as cases of transfer are concerned. Section 20 provides for issue of Patta in case of loss, though we must say that the fee provided up to 10 per cent. of the site value for replacement of such Patta appears extraordinarily high. Then conies Section 21.
12. Sub-section (1) of Section 21 provides for charging 10 per cent, of the site value in case of auction sales just like sale by private treaty provided by Section 17 (2). Section 21 (2), which is also one of the sections attacked, prohibits transfer in any shape or form of non-Pattashud land, and the Courts are enjoined not to sell such land at auction in execution of a decree. Sub-section (3) provides that in case any land has been sold in disregard of Sub-section (2), the matter has to be reported to the Mehkma Khas, and the Mehkma Khas may on such report either cancel the sale or make such order as it thinks fit. We need not refer to the other sections of the Act for they deal with consequential matters arising out of the previous sections and provide for appeals, and power of the Government to frame rules, and so on.
13. This analysis, therefore, shows that in the present cases we arc concerned mainly with Section 6 (2), Section 8, Section 17 (2), Section 21 (1) and Section 21 (2). These five provisions arc the substantive provisions which provide that where land is transferred in Khalsa villages in the territory of former Marwar State, whether there is a Patta in existence from before of that land or not, the transferee has to pay 10 per cent. of the site value, and has to obtain a renewal Patta.
He is bound to do so in view of the provisions of Sections 6 (2) and 17 (3), And if it is a case where there is no Patta in existence from before, the sale deed would not be registered under Section 8, and the Courts are prohibited from selling lands of which no Patta is available. It is obvious that the provisions relating to charging of 10 per cent. of the site value on such transfers amounts to taxation on sales or gifts of land in Khalsa villages unless the case is covered by Section 23 when only a fixed fee is charged.
14. We have already pointed out that the manner, in which the Patta is issued under the Patta Act, shows that it really evidences the sale of the site. Thereafter, if the State makes any charge in the nature of 10 per cent. of the site value, it is really taxing the sale or gift, for there are separate provisions for imposition of fees as will be clear from section 36 of the patta act, and the power given there to make rules for the imposition of fees of various kinds in this connection.
15. The first question, therefore, that arises is whether such a tax, which is imposed by Section 17 (2), or Section 21 (1), or Section 24 in the case of gifts, can how be upheld when we know that there is no similar provision in other parts of Rajasthan. We are clearly of opinion that Article 14 hits these provisions relating to taxation in cases 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 cover-ed 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 per cent. and compels the person, who purchases the property, to apply for a Patta, and pay this extra tax. We are, therefore, of opinion that Sections 6 (2), 8, 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 Article 13 of the Constitution read with Article 14.
16. As for Section 21 (2), that provision forbids the Court's from selling non-Pattashud land in execution of a decree. This was provided in order to safeguard the rights of the State in the matter of getting its 10 per cent. on all sales in Khalsa villages. As the main provision relating to this based on transfers has failed, this sub-section also in our opinion, becomes invalid. Further, it may be pointed out that there is no similar law in other parts of the State of Rajasthan, which prohibits the Courts from selling what is called non-Pattashud land.
It is enough to point out that sale by a Court passes such title as the person, whose land is sold, possesses, and the Court does not guarantee the tide of the person whose property is being sold. The person, who purchases the property, does so at his own risk, and in these circumstances we fail to see why there should be this, discrimination in that part of Rajasthan which was covered by the former State of Marwar, and why the Courts should not sell non-Pattashud land in Khalsa villages in this part of Rajasthan, when they can do so, and are doing so in other parts of Rajasthan. We are, therefore, of opinion that Section 21 (2) of the Act is also now invalid in view of Article 13 of the Constitution read with Article 14.
17. We may point out that there are other consequential and procedural provisions dealing with this matter of transfer of lands. It is enough to say that when these six main provisions have fallen, any consequential or procedural provisions relating to such sale or gift also fall,
18. We, therefore, answer the question put to us in the second appeal as follows -
" Section 21 (2) of the Marwar Patta Ordinance of 1921 has become invalid after 26-1-50 as it is hit by Article 14 of the Constitution."
19. As there are no further questions involved in this appeal, and as learned counsel have no objection to" our disposing of the whole appeal, we propose to do so.
20. We, therefore, allow the appeal, set aside the order of the Dist. Judge, and restore the order of the Civil Judge dismissing the application under Order XXI, Rule 90, though on a different ground. In view of the circumstances, we order parties to this appeal to bear their own costs in this Court and the Dist. Judge's Court. The decree-holder will get his costs of the executing Court from the judgment-debtors.
21. We allow the writ application and declare Section 17 (2) of the Patta Act to be invalid, and prohibit the State from realizing any Patta fees from the applicant. In view of the circumstances, we order parties to bear their own costs.
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