BHADAR RAM (D) THR. LRS.versusJASSA RAM & ORS.

394            SUPREME COURT
                         [2022]REPORTS
                                2 S.C.R. 394                [2022] 2 S.C.R.


A                       BHADAR RAM (D) THR. LRs.
                                        v.
                             JASSA RAM & ORS.
                         (Civil Appeal No. 5933 of 2021)
B                             JANUARY 05, 2022
                  [M. R. SHAH AND A.S. BOPANNA, JJ.]
             Rajasthan Tenancy Act, 1955 – s.42 – Land transaction –
      Legality –Land was allotted to ‘C’, the father of respondent, as a
C     Scheduled Caste landless person – C borrowed a sum from one ‘P’
      who allegedly, fraudulently, made ‘C’ to sign sale deed in favor of
      appellant , a resident of Punjab – ‘C’ filed suit for ejectment against
      ‘P’ and appellant – Trial court held that the land was in possession
      of ‘P’ who was not Scheduled Caste person and the sale deed was
      in violation of s.13 of Rajasthan Colonization Act, as well as in
D     breach of s.42 of Rajasthan Tenancy Act, and therefore, ‘P’ was
      liable to be evicted – Aggrieved by the order/ decree of trial court,
      appellant filed appeal before Revenue Appellate Tribunal which
      was dismissed – Further appeal of appellant before Board of Revenue
      was allowed, which gave benefit of compounding to appellant on
E     payment of compounding fees u/s.13 of the Rajasthan Colonization
      Act – Respondent filed writ petition which was dismissed by a Single
      Judge of High Court – On appeal, Division Bench set aside the
      judgment of Single Judge holding that appellant, being resident
      and a Scheduled caste belonging to Punjab, could not take benefit
      of his being Scheduled caste – Held: Merely because the appellant’s
F     grandfather and father had purchased the agricultural lands in
      the State of Rajasthan, the appellant cannot be said to be an
      ordinarily resident of Rajasthan – Appellant being a Scheduled
      Caste belonging to State of Punjab and being an ordinarily and
      permanent resident of the State of Punjab cannot claim the benefit
      of a Scheduled Caste in the State of Rajasthan for purpose of
G
      purchase of the land belonging to a Scheduled Caste person of
      State of Rajasthan, which was given to original allottee as Scheduled
      Caste landless person and therefore sale transaction in favour of
      appellant was in clear breach and/or in violation of s.42 of the
      Rajasthan Tenancy Act – Even otherwise, in the facts and
H     circumstances of the case, the sale transaction in favour of appellant
                                       394
       BHADAR RAM (D) THR. LRs. v. JASSA RAM & ORS.                     395


can be said to be in breach of s.13 of the Rajasthan Colonization       A
Act – Rajasthan Colonization Act, 1954 – s.13.
      Dismissing the appeal, the Court
      HELD:1. Merely because the appellant’s grandfather and
father had purchased the agricultural lands in the State of
Rajasthan, the appellant cannot be said to be an ordinarily resident    B
of Rajasthan. As per Section 42 of the Rajasthan Tenancy Act,
1955, there is a restriction on sale, gift or bequest by a member
of Scheduled Caste in favour of a person, who is not a member of
Scheduled Caste. Looking to the object and purpose of such a
provision, it can be said that the said provision is to protect a       C
member of the Scheduled Caste belonging to the very State he
belongs i.e., in the present case the State of Rajasthan.
[Paras 6.1 and 7][404-E, G-H; 405-A]
       2.1. In the case of Action Committee on Issue of Caste
Certificate to Scheduled Castes and Scheduled Tribes in the State       D
of Maharashtra, the Supreme Court held that a person belonging
to Scheduled Caste /Scheduled Tribe in relation to his original
State of which he is permanent or an ordinarily resident cannot
be deemed to be so in relation to any other State on his migration
to that State for the purpose of employment, education etc. The
decision of Action Committee on Issue of Caste Certificate to           E
Scheduled Castes and Scheduled Tribes in the State of Maharashtra
and Another is applicable with full force to the facts of the present
case also. The submission on behalf of the appellant that the said
decision shall not be applicable to the facts of the case on hand as
in that case the Court was considering the issue with respect to        F
employment, education and in the present case dispute is with
respect to sale /sale of property has no substance. There is no
reason to restrict the applicability of the said decision only with
respect to employment, education or the like and not to make
applicable the same with respect to purchase and sale of the
property in case of sale and purchase of the land belonging to a        G
Scheduled Caste person in the State of Rajasthan and when the
said land was allotted to the original land owner as Scheduled
Caste landless person. [Paras 7.1 and 8][406-C-F; 408-C-G]

                                                                        H
396            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A           2.2. The appellant being a Scheduled Caste belonging to
      State of Punjab and being an ordinarily and permanent resident
      of the State of Punjab cannot claim the benefit of a Scheduled
      Caste in the State of Rajasthan for the purpose of purchase of the
      land belonging to a Scheduled Caste person of State of Rajasthan,
      which was given to original allottee as Scheduled Caste landless
B
      person and therefore the sale transaction in favour of the appellant
      was in clear breach and / or in violation of s.42 of the Rajasthan
      Tenancy Act, 1955. [Para 10][409-E-G]
             2.3. Even otherwise, in the facts and circumstances of the
      case, the sale transaction in favour of the appellant can be said to
C     be in breach of s.13 of the Rajasthan Colonization Act, 1954. When
      the Board of Revenue granted the benefit of compounding under
      Section13A(2), an order of ejection of appellant was already passed
      against him and ‘P’, and the possession was already handed over
      to respondent from ‘P’, who was found to be in actual physical
D     possession of the land on 30.12.1980. s.13(A)(2) of the Rajasthan
      Colonization Act, 1954 would be applicable only in a case where
      an order of ejectment has been passed, but a person against whom
      an order of ejectment has been passed has not actually been
      ejected from the land transferred. In that view of the matter, no
      order of compounding in favour of the appellant and /or even ‘P’’
E     could have been passed by the Board of Revenue in exercise of
      power under s.13(A)(2) of the Rajasthan Colonization Act, 1954.
      [Para 11][409-G-H; 410-A-D]
            Action Committee on Issue of Caste Certificate to
            Scheduled Castes and Scheduled Tribes in the State of
F           Maharashtra and Another v. Union of India and
            Another, (1994) 5 SCC 244 : [1994] 1 Suppl. SCR 714
            – held applicable.
            Marri Chandra Shekar Rao v. Dean, Geth G.S. Medical
            College and Others, (1990) 3 SCC 130 : [1990] 2 SCR
G           843 – followed.
            Ranjana Kumari v. State of Uttarakhand & Ors. [2019]
            15 SCC 664 – relied on.


H
        BHADAR RAM (D) THR. LRs. v. JASSA RAM & ORS.                            397


      Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312 :                         A
      [2018] 10 SCR 513 – referred to.
      3. The land transaction in favour of the appellant was in
breach of s.13 of the Rajasthan Colonization Act, 1954 and s.42
of the Rajasthan Tenancy Act, 1955, which was rightly held to be
void by the Division Bench of the High Court. [Para 12][410-E]                  B
                         Case Law Reference
[1994] 1 Suppl. SCR 714           held applicable              Para 2.3
[2019] 15 SCC 664                 relied on                    Para 4.1
[1990] 2 SCR 843                  followed                     Para 4.1         C
[2018] 10 SCR 513                 referred to                  Para 4.2
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5933
of 2021.
      From the Judgment and Order dated 07.04.2011 of the High Court            D
of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal
No.1398 of 1999.
      Ms. Suruchi Mittal, Abhishek Gautam, Advs. for the Appellants.
      Ms. Christi Jain, Ms. Pratibha Jain, Advs. for the Respondents.
                                                                                E
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
       1 Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 07.04.2011 passed by the Division Bench of High Court
of Judicature for Rajasthan at Jodhpur in Civil Special Appeal No.1398/         F
1999 by which the Division Bench of High Court has allowed the said
Appeal preferred by the respondent herein – original plaintiff, the appellant
herein - original defendant – purchaser of the suit land in question has
preferred the present Appeal.
      2 The facts leading to the present Appeal in nutshell are as under:       G
      2.1 The dispute is with respect to the land situated at village
Dharamsinghwala, Tehsil Sadulshahar, District Sri Ganganagar,
Rajasthan. The said land was allotted to one Chunilal as Scheduled Caste
landless person and father of the respondent herein – original plaintiff.
As per the case of the respondent – original plaintiff, in the year 1972,       H
398            SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A     the said Chunilal borrowed a sum of Rs.5000/- from one Puran Singh
      and under the guise of documentation, the said Puran Singh belonging to
      Jat - High Caste fraudulently made Chunilal sign the sale deed in favour
      of the appellant herein – original defendant – Bhadar Ram, who was a
      resident of Punjab.
B            2.2 The said Chunilal filed a suit for ejectment against Puran Singh
      and Bhadar Ram on the ground that he was the allottee of the land and
      the sale deed dated 21.06.1972 is void and ineffective and the same is in
      violation of Section 42 of the Rajasthan Tenancy Act, 1955 and Section
      13 of the Rajasthan Colonization Act, 1954. The said suit came to be
      decreed by the learned trial Court vide judgment and decree dated
C
      13.10.1980 holding that the land was in possession of Puran Singh who
      was not a Scheduled Caste person and that the sale deed is in violation
      of Section 13 of the Rajasthan Colonization Act, 1954 as well as in breach
      of Section 42 of the Rajasthan Tenancy Act, 1955 and therefore, the
      said Puran Singh is liable to be evicted. As per the case of the respondent
D     - original plaintiff, the possession of the land was handed over to him in
      pursuance of the decree passed by the learned trial Court. The possession
      was found to be with Puran Singh and not with Bhadar Ram. Feeling
      aggrieved and dissatisfied with the judgment and order /decree passed
      by the learned trial Court, the appellant – original defendant filed Appeal
E     before the Revenue Appellate Tribunal. The Revenue Appellate Tribunal
      dismissed the said Appeal. The appellant – original defendant filed the
      Appeal before the Board of Revenue, which came to be allowed vide
      order dated 25.04.1989 by giving benefit of compounding to the appellant
      – original defendant on payment of compounding fees under Section 13
      of the Rajasthan Colonization Act, 1954.
F
             2.3 Feeling aggrieved and dissatisfied with the order passed by
      the Board of Revenue, the respondent – original plaintiff filed a Writ
      Petition before the learned Single Judge of the High Court. The learned
      Single Judge of the High Court dismissed the said Writ Petition vide
      judgment and order dated 15.09.1999. The respondent – original plaintiff
G     thereafter preferred Appeal before the Division Bench and by the
      impugned judgment and order the Division Bench of the High Court has
      allowed the said Appeal and has set aside the judgment and order passed
      by the learned Single Judge holding that the appellant herein – original
      defendant, being the resident and Scheduled Caste belonging to the State
H     of Punjab, he could not have taken the benefit of his being Scheduled
           BHADAR RAM (D) THR. v. JASSA RAM & ORS.                             399
                     [M. R. SHAH, J.]

Caste in the State of Rajasthan. While holding so, the Division Bench of       A
High Court relied upon the decision of this Court in the case of Action
Committee on Issue of Caste Certificate to Scheduled Castes and
Scheduled Tribes in the State of Maharashtra and Another Vs. Union
of India and Another, (1994) 5 SCC 244.
       2.4 Feeling aggrieved and dissatisfied with the impugned judgment       B
and order passed by the Division Bench of the High Court, the appellant
- original defendant – purchaser of the land in question has preferred the
present Appeal.
       3.0 Learned Counsel appearing on behalf of the appellant – original
defendant has vehemently submitted that as such all throughout the case        C
set up by the respondent – original plaintiff was all alone that the
transaction was void for absence of prior permission as required under
Section 13 of the Rajasthan Colonization Act, 1954 before executing the
sale between the members of Scheduled Caste and that the appellant –
original defendant has been allegedly used by Puran Singh to overcome
                                                                               D
the bar imposed by Section 42 of the Rajasthan Tenancy Act. It is
submitted that thus the respondent – original plaintiff admitted that the
appellant – original defendant is the Member of Scheduled Caste and
known in the community as such. It is submitted that since there was
never a proper /formal issue framed qua the ordinary status of the
appellant – original defendant for determination of caste status in relation   E
of State of Rajasthan, adequate evidence could not be presented, though
the appellant’s father – forefathers are residents of Rajasthan.
        3.1 It is submitted that after amendment of 1983, Section 13A has
been inserted in Rajasthan Colonization Act, 1954, which permits
compounding and regularization of the transaction executed without the         F
permission as required under Section 13 of the Rajasthan Colonization
Act, 1954 on deposit of compounding fees, which was correctly done by
the Board of Revenue in the present case after the amendment. It is
submitted that, as submitted hereinabove, the main thrust of the case of
the respondent – original plaintiff until then was that the transaction was    G
not in compliance of Section 13 of the Rajasthan Colonization Act, 1954.
It is submitted that only after the decision of the Board of Revenue, the
respondent – original plaintiff shifted the focus to Section 42 of the
Rajasthan Tenancy Act, 1955.

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400             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A             3.2 It is submitted that merely because the appellant – original
      defendant was residing or has house at Punjab does not make him an
      ordinarily resident of Punjab. Reliance is placed on Section 20(1) of the
      Representation of People Act, 1950. It is submitted that therefore a
      further inquiry into that aspect is /was required before residential status
      is finally determined.
B
             3.3 Learned Counsel appearing on behalf of the appellant – original
      defendant has also relied upon the report of the Action Committee on
      the issue of caste certificate to Scheduled Caste and Scheduled Tribes
      referring to the case of Action Committee on Issue of Caste Certificate
      to Scheduled Castes and Scheduled Tribes in the State of
C
      Maharashtra and Another (supra).
              3.4 Now so far as the reliance placed upon the decision in the
      case of Action Committee on Issue of Caste Certificate to Scheduled
      Castes and Scheduled Tribes in the State of Maharashtra and
      Another (supra) is concerned, it is submitted that the said judgment
D
      only discusses the status of a person in relation to a State, who has
      migrated to and has not anywhere discussed a situation where a person
      having migrated to another State was returning to his State of origin and
      at that time the issue of Scheduled Caste status being raised and agitated
      like the present case. He submitted that even the said decision also only
E     discuses Scheduled Caste status with respect to employment /education
      or the like and purchase or sale of property that has not been looked
      into.
            3.5 It is submitted that the purchase of the property is out of
      one’s own fund i.e., for lawful consideration from another and does
F     not necessarily require State reservation or other limitation and is
      essentially a free act determined in open market, regulated only to the
      extent of its mode of execution by law and has to be looked as such. It
      is submitted that the appellant – original defendant therefore should
      not be denied benefits of land purchased from his own hard-earned
G     money.
              3.6 It is submitted that even the respondent – original plaintiff
      cannot be permitted to question 1972 sale in 1977 after 5 years for the
      first time. It is submitted that this fact itself goes to show mala fides of
      the respondent – original plaintiff and abuse of process of law thereafter
H     to deny appellant – original defendant his rightful land. It is submitted
           BHADAR RAM (D) THR. v. JASSA RAM & ORS.                               401
                     [M. R. SHAH, J.]

that the consideration received has been retained all throughout by the          A
respondent – original plaintiff and the appellant – original defendant has
been depositing compounding fees in terms of Section 13A of the
Rajasthan Colonization Act, 1954, and therefore, he should not be denied
the benefits of his land.
       Making the above submissions, it is prayed to allow the present           B
Appeal and quash and set aside the impugned judgment and order passed
by the Division Bench.
      4. The present Appeal is vehemently opposed by Ms. Christi Jain,
learned counsel appearing on behalf of the respondent – original plaintiff.
                                                                                 C
        4.1 It is submitted that the issue whether a person, who is a member
of Scheduled Caste in Punjab, where he is residing, can claim the benefit
of Scheduled Caste in Rajasthan in relation to Section 42 of the Rajasthan
Colonization Act, 1954 is squarely covered by the decision of this Hon’ble
Court dated 01.11.2018 in Ranjana Kumari Vs. State of Uttarakhand
& Ors. in Civil Appeal No.8425/2013. It is submitted that after                  D
considering two constitution Bench judgments, in the case of Marri
Chandra Shekar Rao Vs. Dean, Geth G.S. Medical College and
Others, (1990) 3 SCC 130 and Action Committee on Issue of Caste
Certificate to Scheduled Castes and Scheduled Tribes in the State
of Maharashtra and Another (supra), it is held that merely because in
                                                                                 E
the migrant State, the same caste is recognized as Scheduled Caste, a
migrant cannot be recognized as Scheduled Caste of the migrant State.
It is submitted that therefore applying the law laid down by this Court
and the aforesaid decisions, the Division Bench of the High Court has
rightly allowed the Appeal and has rightly held that the appellant – original
defendant, being the resident of State of Punjab and being a member of           F
Scheduled Caste in State of Punjab, cannot claim benefit of Scheduled
Caste in Rajasthan, and therefore, the transaction between the respondent
- plaintiff and the appellant - original defendant is hit by Section 42 of the
Rajasthan Tenancy Act, 1955.
      4.2 It is further submitted that even the aforesaid issue is covered       G
by another decision of this Court in the case of Bir Singh Vs. Delhi Jal
Board, (2018) 10 SCC 312 (paragraph 34). It is submitted that
therefore no interference of this Court is called for in exercise of powers
under Article 136 of the Constitution of India.
                                                                                 H
402             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A            4.3 It is submitted that in the present case the suit was filed by the
      respondent - original plaintiff for ejectment and for declaring the sale
      deed dated 21.06.1972 as void being in violation of Section 42 of the
      Rajasthan Tenancy Act, 1955 and Section 13 of the Rajasthan
      Colonization Act, 1954. It is submitted that in the present case the land
      was purchased by Puran Singh a non-Scheduled Caste in the name of
B
      Bhadar Ram when the respondent – original plaintiff borrowed some
      money from him for his medical treatment. It is submitted that therefore
      the same can be said to be in breach of Section 13 of the Rajasthan
      Colonization Act, 1954 as well as Section 42 of the Rajasthan Tenancy
      Act, 1955. It is further submitted that even otherwise the appellant –
C     original defendant is a resident of Punjab and not of Rajasthan. It is
      submitted that in the bainama, his address is shown as Village Burajwala,
      Tehsil, Fajilka, District Firozpur, Punjab and he is resident of Punjab. It is
      submitted that in the mutation record also, his address is shown as that
      of Punjab. In the cross examination, he has submitted that he was resident
      of Punjab. It was not a case set up by him that he was in fact a resident
D
      of Rajasthan and had migrated to Punjab.
              4.4 It is submitted that the appellant – original defendant claims to
      be a resident of Rajasthan only on the ground that his grandfather had
      land in Rajasthan. It is submitted that holding land in Rajasthan does not
      ipso facto lead to the conclusion that the person belongs to that State.
E     There is no evidence of birth of appellant – original defendant in Rajasthan.
      It is submitted that therefore the transaction is hit by Section 42 of the
      Rajasthan Tenancy Act, 1955.
             4.5 It is submitted that even otherwise the appellant – Bhadar
      Ram was in fact the benami holder for Puran Singh who was not a
F     member of Scheduled Caste in Rajasthan. The land was found to be in
      possession of Puran Singh. The learned trial Court specifically observed
      that the possession is of Puran Singh. The learned trial Court also
      observed that the possession is found to be with Puran Singh when the
      authorities went to deliver the possession to the respondent – original
G     plaintiff in pursuance to the order passed by the learned trial Court. It is
      submitted that therefore the sale deed is in violation of Section 13 of the
      Rajasthan Colonization Act, 1954.
            4.6 It is submitted that even otherwise the Board of Revenue
      could not have given the benefit of compounding under Section 13 A to
H     the appellant – original defendant. It is submitted that the benefit of
           BHADAR RAM (D) THR. v. JASSA RAM & ORS.                                403
                     [M. R. SHAH, J.]

compounding can only be given if the transferee was in possession. In             A
the present case, the transferee – appellant was not in possession, and
therefore, the benefit of compounding could not have been given to the
appellant – original defendant. The permission of compounding can only
be given by the State Government and not the Board of Revenue. It is
submitted that even otherwise the provisions under Section 13A could
                                                                                  B
have been exercised up to 13.06.1987 whereas Board has exercised it
on 25.04.1989, which is beyond the time limit.
      Making the above submissions and relying upon the above
decisions, it is prayed to dismiss the present Appeal.
        5. Heard learned Counsel appearing on behalf of the respective            C
parties at length. The short question, which is posed for the consideration
of this Court is, Whether the land transaction in favour of the appellant -
original defendant was illegal and in violation of Section 42 of the Rajasthan
Tenancy Act, 1955 and Section 13 of the Rajasthan Colonization Act,
1954 being a person belonging to Scheduled Caste of State of Punjab?
                                                                                  D
       6. It is not in dispute that the land in question is situated within the
State of Rajasthan. The land in question was allotted to one Chunilal –
father of the respondent – original plaintiff, being a Scheduled Caste
landless person. According to the respondent – original plaintiff, the said
Chunilal borrowed a sum of Rs.5000/- from one Puran Singh (Jat - High
Caste) and under the guise of documentation, the said Puran Singh                 E
fraudulently made Chunilal to sign a sale deed in favour of the appellant
herein – Bhadar Ram, a resident of Punjab. Thus, according to the
respondent – original plaintiff, in effect the sale was in favour of the said
Puran Singh. However, the said Puran Singh got the sale deed executed
in favour of the appellant herein – Bhadar Ram, being a person belonging          F
to Scheduled Caste (Scheduled Caste in Punjab). According to the
respondent – original plaintiff, all throughout, the land was in possession
of the said Puran Singh, who was not a Scheduled Caste person and
even after the judgment and decree passed by the learned trial Court
when the possession was handed over to the respondent – original plaintiff,
the possession was found to be with Puran Singh and not with the appellant        G
- original defendant, and therefore, it was the case on behalf of the
respondent – original plaintiff that the sale transaction in favor of Bhadar
Ram was in violation of Section 13 of the Rajasthan Colonization Act,
1954. It was also the case on behalf of the respondent – original plaintiff
that the sale transaction was also in violation of Section 42 of the Rajasthan    H
404             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A     Tenancy Act, 1955 in as much as the appellant – Bhadar Ram was
      belonging to Scheduled Caste in the State of Punjab and he was the
      permanent resident of State of Punjab. However, it was the case on
      behalf of the appellant - original defendant that he being a person belonging
      to Scheduled Caste, the sale deed in his favour cannot be said to be in
      breach of Section 42 of the Rajasthan Tenancy Act, 1955. It was also
B
      the case on behalf of the appellant - original defendant that he has migrated
      to Rajasthan and as his grandfather and father had purchased the
      agricultural lands in the State of Rajasthan, and therefore, he can be said
      to be the permanent resident of State of Rajasthan.
             6.1 Whether the appellant herein – original defendant – purchaser
C     of the land in question, situated in the State of Rajasthan, can be said to
      be an ordinarily resident of State of Rajasthan, it is to be noted that in
      bainama, his address is shown as Village Burajwala, Tehsil Fajilka, District
      Firozpur, Punjab. In the mutation record also, his address is shown as
      that of Punjab. In the cross examination, he has admitted that he was a
D     resident of Punjab. However, according to the appellant – original plaintiff,
      as his grandfather and father had purchased the lands in the State of
      Rajasthan, he can be said to be an ordinarily resident of State of Rajasthan.
      The aforesaid cannot be accepted. Merely because his grandfather and
      father had purchased the agricultural lands in the State of Rajasthan, the
      appellant cannot be said to be an ordinarily resident of Rajasthan.
E
             ‘Ordinarily Resident’ has been defined under the
      Representation of the People Act, 1950. As per Section 20(1) of
      the Representation of the People Act, 1950, ‘ordinarily resident’ means
      a person shall not be deemed to be ordinarily resident in a constituency
      on the ground only that he owns, or is in possession of, a dwelling house
F     therein. Considering the documentary evidences referred to hereinabove,
      it cannot be said that the appellant – original defendant is an ordinarily /
      permanent resident of State of Rajasthan.
             7. Now whether the sale transaction in favour of the appellant -
      original defendant can be said to be in violation of Section 42 of the
G     Rajasthan Tenancy Act, 1955 is concerned, it is to be noted that as per
      Section 42 of the Rajasthan Tenancy Act, 1955, there is a restriction on
      sale, gift or bequest by a member of Scheduled Caste in favour of a
      person, who is not a member of Scheduled Caste. Looking to the object
      and purpose of such a provision, it can be said that the said provision is
H
           BHADAR RAM (D) THR. v. JASSA RAM & ORS.                            405
                     [M. R. SHAH, J.]

to protect a member of the Scheduled Caste belonging to the very State        A
he belongs i.e., in the present case the State of Rajasthan. Being a
Scheduled Caste in the State of Punjab whether the sale transaction in
favour of the appellant - original defendant could have been saved from
the bar under Section 42 of the Rajasthan Tenancy Act, 1955 is now not
res integra. In the case of Marri Chandra Shekar Rao (supra) in
                                                                              B
paragraph 10 it is observed and held as under:
      “10. It has, however, to be borne in mind that a man does not
      cease to belong to his caste by migration to a better or more
      socially free and liberal atmosphere. But if sufficiently long time
      is spent in socially advanced area then the inhibitions and handicaps
                                                                              C
      suffered by belonging to a socially disadvantageous community
      do not continue and the natural talent of a man or a woman or a
      boy or girl gets full scope to flourish. These, however, are problems
      of social adjustment i.e how far protection has to be given to a
      certain segment of socially disadvantaged community and for how
      long to become equal with others is a matter of delicate social         D
      adjustment. These must be so balanced in the mosaic of the
      country’s integrity that no section or community should cause
      detriment or discontentment to other community or part of
      community or section. Scheduled Castes and Scheduled Tribes
      belonging to a particular area of the country must be given
                                                                              E
      protection so long as and to the extent they are entitled in order to
      become equal with others. But equally those who go to other
      areas should also ensure that they make way for the disadvantaged
      and disabled of that part of the community who suffer from
      disabilities in those areas. In other words, Scheduled Castes and
      Scheduled Tribes say of Andhra Pradesh do require necessary             F
      protection as balanced between other communities. But equally
      the Scheduled Castes and Scheduled Tribes say of Maharashtra,
      in the instant case, do require protection in the State of
      Maharashtra, which will have to be in balance to other communities.
      This must be the basic approach to the problem. If one bears this       G
      basic approach in mind, then the determination of the controversy
      in the instant case does not become difficult.”
       While holding so, it is observed in the aforesaid decision that the
Scheduled Castes and Scheduled Tribes in some States had to suffer the
social disadvantages and did not have the facilities for development and
                                                                              H
406             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A     growth, and therefore, in order to make them equal in those areas where
      they have so suffered and are in the state of underdevelopment, to have
      reservations or protection in their favour so that they can compete on
      equal terms with the more advantageous or developed sections of the
      community, a particular caste who has suffered more in a particular
      State might be given reservations or protection in their favour. It is also
B
      observed that social condition of a State varies from State to State and it
      will not be proper to generalize any Caste or any Tribe as a Scheduled
      Caste or Scheduled Tribe for the whole country.
             7.1 In the case of Action Committee on Issue of Caste Certificate
      to Scheduled Castes and Scheduled Tribes in the State of
C
      Maharashtra and Another (supra) after considering the decision of
      this Court in the case of Marri Chandra Shekar Rao (supra) the
      question arose, Whether a person belonging to caste or tribe specified
      for the purpose of Constitution to be Scheduled Caste or a Scheduled
      Tribe in relation to State A migrates to State B, where a caste or tribe
D     with the same nomenclature is specified for the purposes of Constitution
      to be a Scheduled Caste or Scheduled Tribe in relation to that State B,
      will that person be entitled to claim the privileges and benefits admissible
      to persons belonging to Scheduled Caste and /or Scheduled Tribe in
      State B? Holding that a person belonging to Scheduled Caste /Scheduled
      Tribe in relation to his original State of which he is permanent or an
E
      ordinarily resident cannot be deemed to be so in relation to any other
      State on his migration to that State for the purpose of employment,
      education etc. In paragraph Nos.3 and 16 it is observed and held as
      under:
            “3. On a plain reading of clause (1) of Articles 341 and 342 it is
F
            manifest that the power of the President is limited to specifying
            the castes or tribes which shall, for the purposes of the Constitution,
            be deemed to be Scheduled Castes or Scheduled Tribes in relation
            to a State or a Union Territory, as the case may be. Once a
            notification is issued under clause (1) of Articles 341 and 342 of
G           the Constitution, Parliament can by law include in or exclude from
            the list of Scheduled Castes or Scheduled Tribes, specified in the
            notification, any caste or tribe but save for that limited purpose
            the notification issued under clause (1), shall not be varied by any
            subsequent notification. What is important to notice is that the
            castes or tribes have to be specified in relation to a given State or
H
    BHADAR RAM (D) THR. v. JASSA RAM & ORS.                              407
              [M. R. SHAH, J.]

Union Territory. That means a given caste or tribe can be a              A
Scheduled Caste or a Scheduled Tribe in relation to the State or
Union Territory for which it is specified. These are the relevant
provisions with which we shall be concerned while dealing with
the grievance made in this petition.”
“16. We may add that considerations for specifying a particular          B
caste or tribe or class for inclusion in the list of Scheduled Castes/
Schedule Tribes or backward classes in a given State would depend
on the nature and extent of disadvantages and social hardships
suffered by that caste, tribe or class in that State which may be
totally non est in another State to which persons belonging thereto
                                                                         C
may migrate. Coincidentally it may be that a caste or tribe bearing
the same nomenclature is specified in two States but the
considerations on the basis of which they have been specified
may be totally different. So also the degree of disadvantages of
various elements which constitute the input for specification may
also be totally different. Therefore, merely because a given caste       D
is specified in State A as a Scheduled Caste does not necessarily
mean that if there be another caste bearing the same nomenclature
in another State the person belonging to the former would be
entitled to the rights, privileges and benefits admissible to a member
of the Scheduled Caste of the latter State “for the purposes of
                                                                         E
this Constitution”. This is an aspect which has to be kept in mind
and which was very much in the minds of the Constitution-makers
as is evident from the choice of language of Articles 341 and 342
of the Constitution. That is why in answer to a question by Mr
Jaipal Singh, Dr Ambedkar answered as under:
                                                                         F
   “He asked me another question and it was this. Supposing a
   member of a Scheduled Tribe living in a tribal area migrates to
   another part of the territory of India, which is outside both the
   scheduled area and the tribal area, will he be able to claim
   from the local Government, within whose jurisdiction he may
   be residing the same privileges which he would be entitled to         G
   when he is residing within the scheduled area or within the
   tribal area? It is a difficult question for me to answer. If that
   matter is agitated in quarters where a decision on a matter like
   this would lie, we would certainly be able to give some answer
   to the question in the form of some clause in this Constitution.
                                                                         H
408            SUPREME COURT REPORTS                              [2022] 2 S.C.R.


A               But so far as the present Constitution stands, a member of a
                Scheduled Tribe going outside the scheduled area or tribal area
                would certainly not be entitled to carry with him the privileges
                that he is entitled to when he is residing in a scheduled area or
                a tribal area. So far as I can see, it will be practicably impossible
                to enforce the provisions that apply to tribal areas or scheduled
B
                areas, in areas other than those which are covered by
                them.......”
            Relying on this statement the Constitution Bench ruled that the
            petitioner was not entitled to admission to the medical college on
            the basis that he belonged to a Scheduled Tribe in the State of his
C           origin.”
             8. The decision of this Court in the case of Action Committee on
      Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes
      in the State of Maharashtra and Another (supra) shall be applicable
      with full force to the facts of the present case also. The submission on
D     behalf of the appellant - original defendant that the said decision shall
      not be applicable to the facts of the case on hand as in that case the
      Court was considering the issue with respect to employment, education
      and in the present case dispute is with respect to sale /sale of property
      has no substance and cannot be accepted. The reasoning given by this
E     Court in the case of Action Committee on Issue of Caste Certificate
      to Scheduled Castes and Scheduled Tribes in the State of
      Maharashtra and Another (supra) are on interpretation and on a plain
      reading of Clause I of Articles 341 and 342 of the Constitution of India,
      which are referred to hereinabove. We see no reason to restrict the
      applicability of the decision of this Court in the case of Action Committee
F     on Issue of Caste Certificate to Scheduled Castes and Scheduled
      Tribes in the State of Maharashtra and Another (supra) only with
      respect to employment, education or the like and not to make applicable
      the same with respect to purchase and sale of the property in case of
      sale and purchase of the land belonging to a Scheduled Caste person in
G     the State of Rajasthan and when the said land was allotted to the original
      land owner – Chunilal as Scheduled Caste landless person.
             9. At this stage, it is required to be noted that in the subsequent
      decision in the case of Ranjana Kumari (supra), a Three Judge Bench
      of this Court had an occasion to consider the same issue. Before this
H     Court the appellant belonged to Valmiki Caste (Scheduled Caste of the
           BHADAR RAM (D) THR. v. JASSA RAM & ORS.                             409
                     [M. R. SHAH, J.]

State of Punjab), who married a person belonging to Valmiki Caste of           A
Uttarakhand migrated to that State. It was found that in the State of
Uttarakhand also under the Presidential order ‘Valmiki’ was also
recognized as notified Scheduled Caste. Even the State of Uttarakhand
also issued a certificate to the appellant. However, the State of
Uttarakhand denied the benefit, which may be available to the Scheduled
                                                                               B
Caste belonging to State of Uttarakhand. Thereafter the appellant
approached the High Court. The High Court rejected the claim. The
decision of the High Court was carried before this Court. While dismissing
the Appeal, it is observed in paragraph 4 as under:
      “4. Two Constitution Bench judgments of this Court in Marri
      Chandra Shekar Rao Vs. Dean, Seth G.S. Medical College &                 C
      Ors. and Action Committee on Issue of Caste Certificate to
      Scheduled Castes & Scheduled Tribes in the State of
      Maharashtra & Anr. Vs. Union of India & Anr. have taken the
      view that merely because in the migrant State the same caste is
      recognized as Scheduled Caste, the migrant cannot be recognized          D
      as Scheduled Caste of the migrant State. The issuance of a caste
      certificate by the State of Uttarakhand, as in the present case,
      cannot dilute the rigours of the Constitution Bench Judgments in
      Marri Chandra Shekar Rao (supra) and Action Committee
      (supra).”
                                                                               E
       10. In view of the above, the appellant – original defendant being
a Scheduled Caste belonging to State of Punjab and being an ordinarily
and permanent resident of the State of Punjab cannot claim the benefit
of a Scheduled Caste in the State of Rajasthan for the purpose of purchase
of the land belonging to a Scheduled Caste person of State of Rajasthan,
which was given to original allottee as Scheduled Caste landless person,       F
and therefore, as rightly held by the Division Bench of the High Court,
the sale transaction in favour of the appellant – original defendant was
in clear breach and / or in violation of Section 42 of the Rajasthan Tenancy
Act, 1955.
       11. Even otherwise, in the facts and circumstances of the case,         G
the sale transaction in favour of the appellant - original defendant can be
said to be in breach of Section 13 of the Rajasthan Colonization Act,
1954. It is required to be noted that the Board of Revenue granted the
benefit of provisions of Section 13A of the Rajasthan Colonization Act,
1954 in favour of the appellant - original defendant and the Board             H
410              SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A     permitted the appellant - original defendant to pay compounding fees
      and regularized the transaction. However, it is required to be noted that
      when the Board of Revenue granted the benefit of compounding under
      Section 13A(2), an order of ejection of the appellant - original defendant
      was already passed against him and Puran Singh, and the possession
      was already handed over to the respondent – original plaintiff from Puran
B
      Singh, who was found to be in actual physical possession of the land on
      30.12.1980. Section 13(A)(2) of the Rajasthan Colonization Act, 1954
      would be applicable only in a case where an order of ejectment has
      been passed, but a person against whom an order of ejectment has been
      passed has not actually been ejected from the land transferred. In that
C     view of the matter, no order of compounding in favour of the appellant -
      original defendant and /or even Puran Singh could have been passed by
      the Board of Revenue in exercise of power under Section 13(A)(2) of
      the Rajasthan Colonization Act, 1954, and therefore, also the order passed
      by the Board of Revenue confirmed by the learned Single Judge permitting
      compounding was contrary to Section 13A(2) of the Rajasthan
D
      Colonization Act, 1954, and therefore, also the land transaction in question
      is hit by Section 13 of the Rajasthan Colonization Act, 1954.
             12. In view of the above and for the reasons stated hereinabove,
      the land transaction in favour of the appellant - original defendant was in
      breach of Section 13 of the Rajasthan Colonization Act, 1954 and Section
E     42 of the Rajasthan Tenancy Act, 1955, which is rightly held to be void
      by the Division Bench of the High Court. We are in complete agreement
      with the view taken by the Division Bench. Under the circumstances,
      the present Appeal fails and the same deserves to be dismissed and is
      accordingly dismissed. However, in the facts and circumstances of the
F     case, there shall be no order as to costs.

      Bibhuti Bhushan Bose                                         Appeal dismissed.




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