Bookmark
PDF
Share
CaseIQ

Bhikam Chand v. The State Of Rajasthan

Rajasthan High Court

Nov 6, 1956

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Factual and Procedural Background

These are two connected matters concerning the validity of the Marwar Patta Ordinance, 1921 (referred to as the Patta Act). The first matter arises in a second appeal brought by Tarachand. Tarachand held a decree against judgment-debtors Maghelal and Askaran. A house belonging to those judgment-debtors was sold in execution of the decree and purchased by Ramlal. Notice under Order XXI, rule 66 of the Code of Civil Procedure was issued to the judgment-debtors. They did not appear during the execution proceedings and the sale proceeded under Order XXI. Afterwards the judgment-debtors appeared and filed an objection under Order XXI, rule 90, alleging material irregularity because the sale had been conducted contrary to the provisions of section 22(2) of the Patta Act and prayed that the sale be set aside.

The executing court dismissed the objection as not maintainable under Order XXI, rule 90. On appeal 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 decide the matter in accordance with section 21(2) of the Patta Act. That order was brought in second appeal to this Court. The learned Single Judge referred the question whether section 21(2) of the Marwar Patta Ordinance, 1921 is hit by Article 14 of the Constitution to the Bench hearing the appeal.

The second connected proceeding is a writ application by Bhikamchand. He purchased a house in village Sumerpur, District Pali, and was asked to pay Rs. 407/2 as Patta fees under section 16(2) of the Patta Act. He contended that he held a registered sale-deed compliant with the Stamp Law and the Registration Act and, by virtue of the Transfer of Property Act, had acquired perfect title; consequently the demand for Patta fee under section 17(2) was invalid and discriminatory and therefore contravened Article 14 of the Constitution.

No reply was filed on behalf of the State. No one appeared for the judgment-debtors in the second appeal, though the State was given notice because the validity of statutory provisions was challenged.

Legal Issues Presented

Whether section 21(2) of the Marwar Patta Ordinance, 1921 is invalid as being contrary to Article 14 of the Constitution (as referred by the learned Single Judge).
Whether sections of the Patta Act that impose Patta-related payments on transfers — specifically section 17(2) (and related provisions such as sections 6(2), 8, 21(1)/21(2), and section 24 as discussed in the opinion) — are invalid under Article 14 of the Constitution (and in the opinion the challenge is considered in the context of Article 13 read with Article 14).

Arguments of the Parties

Judgment-debtors' Arguments (execution objection)

The judgment-debtors (Maghelal and Askaran) objected under Order XXI, rule 90 to the sale in execution on the ground that the sale had been conducted in contravention of section 22(2) of the Patta Act; they sought setting aside of the sale on that basis.

Writ Applicant's Arguments (Bhikamchand)

Bhikamchand asserted that he had a registered sale-deed made in accordance with the Stamp Law and the Registration Act and that, by virtue of the Transfer of Property Act, he had acquired perfect title to the house and site.
He contended that the demand for Patta fee under section 17(2) of the Patta Act was invalid after the coming into force of the Constitution because it amounted to discriminatory legislation and violated Article 14.

No detailed adversarial pleadings or additional party arguments were contained in the provided opinion text beyond the points summarized above. The State filed no reply in the matters as reported in the opinion.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court conducted a statutory and contextual analysis of the Patta Act and applied constitutional principles (Article 14, and Article 13 read with Article 14 as referenced in the opinion) to determine whether particular provisions of the Act produced impermissible discrimination.

Key points of the Court's step-by-step reasoning:

The Patta Act (1921) applied only to Khalsa villages in the territory of the former State of Marwar and not to Jagir villages; thus it operated only in a limited part of the former State of Marwar (para. 7).
The Act had two principal objects: (a) to have persons in possession of State land produce or obtain a Patta and thereby regularize title, and (b) to tax transfers of land in respect of which the State had granted Pattas (para. 7).
The Court examined the relevant provisions governing transfers: section 6(2) (requirement to renew Patta in transferee's name, with provisos), section 8 (prohibition of registration of transfer documents unless transferee produced a Patta or proved application), sections 17(2) and 21(1) (charging 10% of the present site value on transfers and auction sales), and section 21(2) (prohibiting courts from selling non-Pattashud land in execution) (paras. 9–11).
The Court concluded that the 10% charge in sections such as 17(2) and 21(1) effectively amounted to a tax on sales and gifts of land in Khalsa villages; the Patta itself was treated by the law as evidencing a sale of the site and the extra payment operated as a further burden beyond ordinary stamp/registration requirements (paras. 12–13).
The Court compared the legal position in Khalsa villages with other parts of Rajasthan: in other parts a buyer who obtains a registered sale-deed after paying stamp duty and registration fees acquires ownership without further restrictions; by contrast, in the Khalsa-village area an additional 10% charge and an obligation to obtain a Patta were imposed (para. 14).
Because the taxation/extra payment imposed by the Patta-related provisions existed only in the limited Marwar Khalsa area and not elsewhere in Rajasthan, the Court held these provisions to be discriminatory and therefore contrary to Article 14; the Court expressly stated that these provisions were invalid under Article 13 read with Article 14 of the Constitution (para. 14).
In particular, section 21(2)'s prohibition on courts selling non-Pattashud land was held to be a safeguard to secure the State's 10% charge; with the main transfer-based provisions invalidated, the Court concluded that section 21(2) must also fall. The Court also reasoned that courts historically sell only the title the judgment-debtor possesses and purchasers take risk; that practice obtained elsewhere in Rajasthan and there was no justification for singling out the Marwar Khalsa area for different treatment (para. 15).
The Court further observed that once the principal provisions imposing the Patta charge and related transfer restrictions fall, consequential and procedural provisions connected to those main provisions also cease to have effect (para. 16).
On the referred question, the Court answered clearly that "Sec. 21(2) of the Marwar Patta Ordinance of 1921 has become invalid after 26.1.50 as it is hit by Art. 14 of the Constitution" (para. 17–18).
Applying these conclusions to the appeals and writ: the Court allowed the second appeal, set aside the District Judge's order and restored the Civil Judge's order dismissing the Order XXI, rule 90 application (though on different grounds). The Court also allowed the writ application and declared section 17(2) of the Patta Act invalid and prohibited the State from realizing Patta fees from the writ applicant (paras. 19–20).

Holding and Implications

Primary holdings:

Sec. 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. (Answer to the referred question; para. 17–18)
Section 17(2) of the Patta Act is declared invalid. The Court prohibited the State from realizing any Patta fees from the writ applicant (para. 20).
The Court held that sections 6(2), 8, 17(2), 21(2) and section 24 (so far as they relate to taking of Pattas on transfers by sale or gift) are invalid under Article 13 read with Article 14; consequential and procedural provisions connected to these main provisions likewise fall (paras. 14, 16).
The second appeal was allowed: the District Judge's order was set aside and the Civil Judge's dismissal of the objection under Order XXI, rule 90 was restored (para. 19).

Direct consequences for the parties (as stated in the opinion):

The appeal is allowed and the executing sale-objection decision is restored in favour of the decree-holder (Civil Judge's order), with the appellate order set aside (para. 19).
The writ applicant (Bhikamchand) is relieved from payment of the Patta fee sought under section 17(2); the State is prohibited from realizing such Patta fees from him (para. 20).
Costs: parties to the appeal were ordered to bear their own costs in this Court and the District Judge's Court; the decree-holder will obtain his costs of the executing court from the judgment-debtors. In the writ matter parties were ordered to bear their own costs (paras. 19–20).

The opinion does not elaborate broader doctrinal consequences beyond the invalidation of the specified statutory provisions in the Marwar Patta Act and the direct effects on the parties; it grounds its decision on the absence of similar provisions elsewhere in Rajasthan and on Article 14 (with reference to Article 13 read with Article 14).

Show all summary ...

Wanchoo, C.J:— 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. 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 sec. 21(2) of the Marwar Patta. Ordinance of 1921 is hit by Art. 14 of the Constitution.

4. We may also briefly narrate the facts which have led to the writ application. These facts are that the applicant Bhikamchand purchased a house situate in village Sumerpur in the District of Pali. It seems that he has been asked to pay Rs. 407/2/- as Patta fees under sec. 16(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 sec. 17(2) of 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 Art. 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 makes 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.

5. The question, therefore, that falls for consideration, is whether these two sections of the Patta Act, namely secs. 17(2) and 21(2) are invalid now and hit by Art. 14 of the Constitution.

6. 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 the law was raised therein.

7. 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 twofold. 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 corning 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 an 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.

8. 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.

9. We begin with sec. 6; sub-sec. (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-sec. (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/- only. In order to enforce sec. 6(2) of the Patta Act, sec. 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. Secs. 9 to 16 deal with procedural matter about the issue of Pattas, and need not be referred to. Then comes sec. 17; sub-sec. (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. Sec. 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% of the present site value. Reading this sub-section with sub-sec. (2) of sec. 6, it is at once clear that a person is bound to apply for Patta in his own name, and is bound to pay 19% of the present site value, though, because of the use of the word ‘may’ in sec. 17(2) the State had the right to refuse the renewal of the Patta. It is this provision, namely sec. 17(2), which is being attacked in the writ applications as illegal on the ground of being discriminatory.

10. Sec. 18 deals with granting of Pattas on the basis of possession, and we are not concerned with it. Sec. 19 deals with certain penalties which apply in the case of transfers also. But it is a mere procedural, and if the main provisions relating to transfer are held invalid, sec. 19 will be of no effect so far as case of transfer are concerned. Sec. 20 provides for issue of Patta in case of loss, though we must say that the fee provided upto 10% of the site value for replacement of such Patta appears extraordinarily high. Then comes sec. 21.

11. Sub-sec. (1) of sec. 21 provides for charging 10% of the site value in case of auction sales just like sale by private treaty provided by sec. 17(2). Sec, 21(2), which is also one of the sections attacked, prohibits transfer in any shape or from of non-Pattashud land the courts are enjoined not to sell such land at auction in execution of a decree. Sub-sec. (3) provides that in case any land has been sold in disregard of sub-sec. (2) the matter has to be reported to the Mehkma Khas, and Mehkma Khas may, on such report either cancel the sale or make such order as it thinks fit. We need not refer to the order 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.

12. This analysis, therefore, shows that in the present case we are concerned mainly with secs. 6(2), 8, 17(2), 21(1) and 21(2). These five provisions are 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%of the site value, and has to obtain a renewal Patta. He is bound to do so in view of the provisions of secs. 6(2) and 17(2). And if it is a case where there is no Patta in existence from before, the sale-deed would not be registered under sec. 8, and the courts are prohibited from selling lands of which no Patta is available. It is obvious that the provision relating to the charging of 10% of the site value such transfers amounts to taxation on sales or gifts of land in Khalsa villages, unless the case is covered by sec. 23 when only a fixed fee is charged.

13. 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% 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 sec. 36 of the Patta Act, and the power given there to make rules for the imposition of fees of various kinds in this connection.

14. 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.

15. As for sec. 21(2), that provision forbids the courts from selling non-Pattashud land execution of a decree. This was provided in order to sale-guard the rights of the State in the matter of getting its 10% on all sales in Khalsa villages. As the main provision relating to this based on transfers has failed, the 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 title 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, there, of opinion that sec. 21(2) of the Act is so also now invalid in view of Art. 13 of the Constitution read with Art. 14.

16. We may point out that there are other consequential and procedural provision 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.

17. We, therefore, answer the question put to us in the second appeal as follows:—

“Sec. 21(2) of the Marwar Patta Ordinance of 1921 has become invalid after 26.1.50 as it is hit by Art. 14 of the Constitution.”

18. 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.

19. We, therefore, allow the appeal, set aside the order of the District Judge, and restore the order of the Civil Judge dismissing the application under O. XXI, r. 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 District Judge's Court. The decree-holder will get his costs of the executing court from the judgment-debtors.

20. We allow the writ application and declare sec. 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.