JUDGMENT
Wanchoo, C.J.
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.
