Rajesh Balia, J.
1. Ghanchi Mahasabha, which is a representative body of Ghanchi Samaj, is registered as a Society under the provisions of Societies Registration Act. It had purchased the land in dispute from the erstwhile Ruler of Marwar, Maharaja Shri Gaj Singh vide sale deed dated 31.8.1964. It is submitted that prior to the aforesaid sale, the petitioner was put in possession of the said land as its tenant since 1958-59. It is a part and parcel of Sardarsamand Estate known as 'Soorwari' and covers that large number of fields and grass-zone in-between the Sardarsamand Estate.
2. According to the petitioners, after the Rajasthan Land Reforms and Acquisition of Land-Owners Estates Act, 1964 [for short 'the Act of 1964'] came into force, the estates of such land owners were to vest in the State of Rajasthan with effect from 1st Sept. 1964 the appointed date for acquisition under Section 7 read with Section 9 of the Act, excepting the properties falling under under Section 10 of the Act. They have further contended that a writ petition was filed by the erstwhile Ruler of Marwar State Maharaja Shri Gaj Singh challenging the validity of the provisions of the Act and the acquisition made thereunder, which was numbered as S.B. Civil Writ Petition No. 875 of 1975. That writ petition came to be decided by this Hon'ble Court vide its order dated 27.2.1981 whereby the authorities under the Act were restrained from taking possession of the lands comprised in Sardarsamand Estate of which the land in question was a part in exercise of their powers conferred by Section 9A of the Act.
3. Thereafter, aggrieved with the action of the Tehsildar in interfering with the possession of the petitioners over the land in question, the petitioners also filed S.B. Civil Writ Petition No. 345 of 1976, which came to be decided by this Hon'ble Court vide its order dated 8.7.1985. That petition was disposed of by permitting the petitioners to file objection about the acquisition of the land in question within two months from the date of the order and the District Collector was directed to dispose of such objections, and until that time protecting the interest of the petitioners. During the pendency of that writ petition, status quo with regard to the land in question had been ordered to be maintained.
4. Thereafter, the petitioners filed its objections (Annexure/6) dated 5.9.1985 before the District Collector, Jodhpur. In continuation of the objection Annx. 6, further objections were filed on March 11, 1986 and were submitted vide Annx.6-A to the writ petition.
5. Before proceeding further, it would be relevant to notice that in the first instance Rajasthan Land Reforms and Acquisition of Land-owners Estates Act, 1964 (Act No. 11 of 1964) came into operation with its publication on 6th April, 1964. It envisaged that the Govt. may by notification appoint a date for such acquisition. The appointed date came to be notified as 1.9.1964. However there was no impediment on the estate holders to transfer their rights in the estate under the Act. Such transfers conferred rights to the transferees subject to the law relating to transfer of property. However, by inserting Section 7-A it was declared that no transfer of an estate of any part thereof liable to acquisition under the Act made by the land owners on or after the commencement of the Act namely 6th April, 1964 and before the date of vesting that is to say 1st September, 1964 be recognised for the purposes of the Act and the estate or part thereof be deemed to be still vesting in the land owners. This provision of law as introduced in 1974. The present petitioners had acquired rights of the owner from the erstwhile Ruler of Marwar through sale deed executed on 31st August, 1964 and such transfer was recognised also by the respondents in the form of issuing regular pass-books as khatedar for the lands situated in different villages forming part of the erstwhile Sardarsamand Estate.
6. However, as a result of insertion of Section 7-A, The said transfers were refused to be recognised by the respondent State for the purposes of the Act and the part of the estate so transferred to the petitioners were deemed to continue to be vested in the land owner and it was claimed that he being not in possession of the land in question on 1st Sept., 1964 was liable to be vested in State unless the petitioners could claim their rights otherwise than transfer made during that period. This led to filing of writ-petition No. 345/76.
7. The writ petition filed by the present petitioners was dismissed vide order dated 8th July, 1985 directing petitioners to file objections before the Collector. The petitioners contended firstly that the right vested in favour of the petitioners vide a valid transfer before commencement of Section 7-A could not be effected and to that extent law itself was void. Secondly, it was contended that even if the sale in favour of the petitioners is held to be not recognisable still they are entitled to be declared as khatedars in terms of Section 6(1) of the Act of 1964 because they are in possession of the lands since 1958 and they were in possession of the alnd at the commencement of the Act of 1964. For their possession they relied on the cash receipt issued by the erstwhile owner for the year 1958-59 describing the payment as Ijara of the land. Such receipt was also produced for the years 1961-62 and 1963-64. It was elaborated in their additional objections filed in continuation of the first objection filed on 5th Sept., 1985 that they were in possession of the land as tenants since 1958 and their possession as tenant since 1958 was not incompatible with the transaction of sale which took place on 31st August, 1964 through which they acquired full rights in the land in question. In the second alternate it was also urged that even if they are not held entitled to become Khatedar for any reason by dint of amendment in the Rules of 1964, under the Act of 1964 which amendments were brought in the year 1978 vide notification dated 5th May, 1978, they are entitled to be allotted the land which was in their possession under a transfer which was not recognised and avoided by retrospective operation of Section 7-A on all priorites and rule 16. Such power may be invoked in their favour for making such allotment and treating their possession as Khatedar to be regular.
8. These objections were overruled by the Collector vide impugned order dated 25th August, 1987. The Collector, rejected the request for recognising the validity of transfers made on 31.8.64 and recognising it as Khatedar tenant by ignoring Section 7-A as ultra vies by noticing that Section7-A has been held to be valid and beyond the pail of challenge on the ground of being violative of Part III of the Constitution inasmuch as the Act of 1964 has been placed in the IX Schedule. Even otherwise, in my opinion, the Collector was not conferred with the power to have entertained the plea against the validity of the provisions of the Act.
9. Learned counsel for the petitioners had on merit sought to urge that as the entire Sardarsamand Estate was found by this Court in Writ Petition No. 874/1975 filed on behalf of erstwhile land owner which was decided on 27th Feb., 1981 that the land under the Sardarsamand Estate was under the personal cultivation of the petitioners of which the petitioners have become a Khatedar tenant from the date of vesting. That being the position, there was no impediment in trasnferring the property forming part of the Sardarsamand Estate to the petitioners by the land owner.
10. Under Section 10 of the Act of 1964 that part of the enclosure in possession of the alnd owners used for domestic or agricultural purposes were liable to be continued were saved from vesting in the State and were to continue to belong to and held by the land owner and with effect from the vesting of the holdings the land holder would become khatedar in respect of that land. However, when admittedly land owner was not in possession of the land in question on 1st Sept., 1964, therefore, he could not have acquired Khatedari interest therein under Section 6(2) of the Act also.
11. It is not in dispute that there was no impediment at the relevant time when Act of 64 was enacted originally in transferring the property after the commencement of the Act of 1964 and before the date of vesting, the transfers of the estate which took place prior to 1st Sept., 1964 remained unaffected. It is only on that premise that in the first instance the pass-books showing the petitioners Khatedar were issued in 1974. However, as a result of insertion of sec, 7-A the transfers of estate liable to be acquired under the Act of 1964 made by the land owners between the date of commencement of the Act and before the appointed date of vesting, which were otherwise valid and operative were deemed to continue to vest in the land owner by not recognising any such transfers for the purposes of this Act.
12. In this context, it would be apposite to reproduce Section 7-A to understand the true scope of the provision.
7-A. Non-recognition of certain transfers and agreements.-- Notwithstanding anything contained in any law of judgment, decree or order of a court to the contrary,--
(i) no 'transfer of an estate liable to acquisition under this Act or part thereof made by the landowner' on or after the date of commencement of this Act and before the date of vesting, whether by way of sale, mortagage, gift, exchange, lease, assignment, surrender, bequest, creation of trust or otherwise, shall be recognised for any purpose of this Act and the estate or part so transferred shall be deemed to continue to vest in the landowner;
(ii) All transfers of an estate liable to acquisition under this Act or part thereof of the nature referred to in Clause (i) made by the land owner on or after the date of vesting shall be null and void; and
(iii) any agreement made by a landowner with any other person on or after the commencement of this Act for transfer or his estate liable to acquisition under this Act or part thereof or for relieving, whether in whole or in part, a tenant from liability for payment of rent of any land comprised in his estate shall be and is hereby declared to be null and void.
13. A close look of the aforesaid provision makes it clear that the transfers of such estates only have been inhibited, where prior to the date of acquisition or after the date of acquisition which were liable to be acquired under the provisions of the Act. The date, on which liability to be acquired under the Act would attach to any part of the estate, would be the date on which the Act commences. On what date actual acquisition would lake place was dependent on will of the State to notify the appointed date under Section 9. But such notification will operate only in respect of such estate or such part of estate, which has become liable to be acquired under the Act. Apparently, the question whether a land was liable to be acquired will have to be determined with effect from the date of the commencement of the Act and not thereafter. No inhibition can be spelt out of Section 7-A that even such land, which was not liable to be acquired as on the date of the commencement could be acquired by notifying the date of vesting later on and not be transferred or if transferred would not be recognised.
14. Vesting of in the State could be and shall be only of such Estate which was liable to be acquired on the date of commencement of the Act. Notification of date of vesting could not and does not extend the field of acquisition, beyond what was on the date of commencement of the Act. Acquisition of land owner's Act is one time event envisaged under the Act. What estate is liable to be acquired under the Act is also determined at one time. That in my opinion could only be the date of the commencement of the Act when it defines what is the Estate which is dealt with under the Act and that alone liable to be acquired subject to other provision and what are the properties which are not to subject to other provisions liable to be acquired. If seen in that context, the provision of Section 10 becomes imperative to be read together. As the properties mentioned in Section 10 describe the properties which were to continue to belong to or to be held by such land owners in person subject to the terms and conditions mentioned in the covenant. The property which corresponded to the properties described in Section 10 fell beyond the scope of 'the property liable to be acquired under the Act', when the Act came into force. Only such property could be termed as property liable to be acquired in the term as used in Section 7-A. It would be too much to read in the provisions of Section 7-A that the property which was not liable to be acquired when the Act came into force and is transferred after the date of commencement, there being no impediment on transfer of the estate as a whole, would become property liable to be acquired as a result of such transfers. Inhibition imposed under Section 7-A is not on any transfer of any estate of the land owner during the period of commencement of the Act and the date of notification of appointed date when actual acquisition of the estate takes place. It must be referable to the estate which was liable to be acquired at the commencement of the Act and shall stand so acquired when the appointed date has been notified by the State.
15. When the Act came into force, and there was no general prohibition against transfer of any of the estate or part of estate which was not liable to be acquired, and would not have been acquired had vesting not been postponed, he will continue to hold property which could not still be acquired under the provisions of the Act. The property of this nature could not be estate or part of estate is 'liable to be acquired'. Accepting the principle contrary to it will lead to an wholly curious and untenable conclusion. Transfer of such property being not prohibited could not attract provision of Section 7A of the Act of 1964. This is demonstrable in the present case.
16. Unquestionably, entire Sardarsamand Estate has been held by this Court in the writ petition filed by the land-owner that it was a land which was not liable to be acquired as it fell under Clause a(i) of Sub-section (1) of Section 10. Had the transfer not taken place on 31st August, 1964, the property in question would have been continued to be property forming part of the estate of erstwhile ruler of Marwar and was not liable to be acquired in terms of Section 10. That position also obtained as on the date Act of 1964 commenced. Thus, as on the date the Act commenced the property in question was not liable to be acquired.
17. This is also clear from the fact that provision has been made to the property liable to be estate, which has been transferred after the date of commencement of the Act. Thus, it is essential that as per the provisions of Section 7A of the Act of 1964, the property subject matter of transfer, must be liable to acquisition in the absence of such transaction of transfer. This explains that Section 7A cannot make a property acquirable as a result of transfer, but must be so acquirable antecedent to transfer. It is not disputed and cannot be disputed that but for transaction dt. 31.8.64, the property in question was not liable to be acquired and could not have vested in the State, but would have remained with the land owner and its tenure would have become of Khatedar w.e.f. 1.9.64 instead of land owner.
18. That being so, in my opinion, the transfer of any property between the date of commencement of the Act and before the acquisition took place, which is of the nature described in Sec, 10, the same cannot be termed as an estate or a part of the estate which was liable to be acquired under the Act. Transfer of such property between the two termini dates is not hit by the provisions of Section 7-A. For reaching this conclusion, the question of validity of Section 7-A is not at all required to be gone into.
19. Therefore, the Collector has apparently erred in not distinguishing between the property forming part of 'the estate' on the one hand and property forming part of 'the estate liable to be acquired' on the other which convey difference of status of property for the purpose of Section 7A under the provisions of the Act of 1964.
20. This conclusion alone is sufficient to issue the writ. However, it is deemed appropriate to notice other grounds raised by the petitioners to sustain their claim.
21. Another objection against the acquisition of the land in question in the hands of the petitioners was founded on the provisions of Section 6(1) of the Act of 1964 which inter-alia reads as under--
6. Khatedari Rights in estates.--(1) Every person who, at the commencement of this Act, is or so, entered in the revenue records as a tenant or a tenant of Khudkasht, but not as a sub-tenant, of any land forming part of an estate shall, unless he become a Khatedar tenant thereof previously to such commencement by virtue of any law or otherwise, be deemed to be the Khatedar tenant of such land holding from the landowner of the estate:
Provided that Khatedari rights under this Sub-section shall not accrue to any person to whom land is or has been let out temporarily in the Gang Canal, Bhakra, Chambal, Jawai or Rajasthan Canal Project Area; and no Khatedari rights shall accrue if the land belongs to any of the categories specified in section 16 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955).
22. It is apparent from the aforesaid provision that the benefit of Sub-section (1) of Section 6 can be available only to a person who can be termed as a 'tenant and so entered in the revenue records at the time of commencement of the Act. This contention has been rejected by the Collector on the ground that when the applicants admit themselves to nave receipts of Ijara they can only be considered to be Ijaredars, but they cannot be termed 'tenants' in view of definition of 'tenant' under Section 5(43) of the Rajasthan Tenancy Act.
23. According to that definition of 'tenant' a grantee at a favourable rate of rent or 'an ijaredar' or a Thekadar or a trespasser is not included in the definition of tenant.
24. It is true that while the petitioners claim themselves to be in possession of the land since 1957-58, in their objection petition dated 5th Sept., 1985 they had submitted in proof thereof certain receipts which were described by the petitioners as receipts of Ijara. At the same time, the nature of possession held by the petitioners was not disclosed in the first instance but in later submissions made in continuation of the first objection, the petitioners claimed themselves to be in possession of the land since 1957-58. However, notwithstanding claiming themselves to be in possession of the land as tenant, the nature of possession held by the petitioners has not been detailed in that objection petition either. It is also true that merely by use of word 'Ijara' in the receipt no definite inference can be drawn that the person concerned is Ijaredar within the meaning of that term as understood under the Tenancy Act. It depends in fact actually what is the nature of payment made. If it is paid for use or produce of land, except for favourable rent, he is to be treated as tenant, irrespective whether he pays rent as lessee of land or for securing right to collect other produce of land. On the other hand, if the payment is not for having right to use or procure produce of land, but for collecting the rent payable by users of land or by procurers of produce of land, he is called thekedar, or contractor, popularly termed as Ijaredar.
25. It may be profitable to notice that under Section 5(43) of the Rajasthan Tenancy Act, 1955 a tenant has been defined to mean a person from whom rent is, or but for a contract, express or implied, would be payable and to include the persons enumerated in Clause (a) to (i)
26. The term 'rent itself has been defined Under Section 5(32) of the Act of 1955 to mean whatever is in cash or in kind or partly in cash and partly in kind payable on account of the use or the occupation of land or on account of any right in land, and unless the contrary intention appears, shall include 'sayar'. The 'Sayar' has also been defined under Section 5(37). It includes whatever is to be paid by a lessee or licensee on account of the right to gather from unoccupied land such produce as grass, thatching grass, wood, fuel, fruits, lac, gum, loong, pala, panni, waternuts or the like or such refuge as bones or dung lying scattered on the surface or on account of fisheries of forest rights or the use of water for irrigation purposes from artificial sources.
27. As against these provisions relating to rent and sayar, 'Ijara' has been defined to mean under Section 5(18) an ijara or theka, a farm or lease granted 'for the collection of rent', the area to which an ijara or theka relates shall be called the 'ijara or theka area' and an 'ijaradar' or 'Thekadar' shall mean the person to whom an ijara or theka is granted.
28. It is apparent from these definitions that while Ijara or Theka is an amount which is payable as consideration for collection of rent which is otherwise payable to the holder of the land by the tenants but he himself is not the person who pays the rent to the holder of the land. He for consideration acquires rights for collection of the rent from the tenants. He does not get any right to use of land or benefits arising from land. On the other hand, any charges payable in consideration of right to cultivate the land or right to gather any produce of the nature specified in Sub-section (37) of Section 5 from the unoccupied land including from the surface of forest or other forest produce or even for use of water for irrigation purposes, the charges paid as Sayar brings a person in the capacity of a person by whom the rent is payable.
29. Therefore, without holding proper inquiry into all these facts it was not possible for the Collector to have reached any conclusion whether the petitioners were tenant or ijaredar within the meaning of Rajasthan Tenancy Act before the commencement of the Act. That would have required the case to be remitted to the Collector for holding an enquiry and then reach any conclusion.
30. However, in view of conclusion reached above that the property transferred to the petitioners formed part of the Sardarsamand Estate which was not liable to be acquired Under Section 10 the transfer is not invalid, this enquiry need not be perused further.
31. The last alternative argument raised by the petitioners was rejected by the Collector inter alia on the ground that for that the petitioners need made an application which can be considered appropriately for conferment of Khatedari Rights on the basis of transfer made prior to insertion of Section 7-A between the period of commencement of the Act and the appointed date. The request for regularising the possession by making allotment in favour of the petitioners in terms of Rule 16 of the Rajasthan Land Reforms and Acquisition of Land Owners Estate Rules 1964 (Rules of 1964) which in the wake of insertion of Section 7-A had been amended vide Notification dated 5th May, 1978. Sub-rule (1) of Rule 16 postulates that the Govt. shall reserve such extent of land comprised in the estates acquired by or vesting in it under Section 7 as may be necessary for purposes directed towards the promotion of agriculture or the welfare of the agricultural population to be settled on such lands. Both the parties are in agreement that no such reservation has been made under Rule 16 (1) about the lands in question. Under Sub-rule (2) it was envisaged that fifty percent of the land remaining after the reservation mentioned in Sub-rule (1), shall be allotted to landless persons, agriculturists and agricultural labourers belonging to the scheduled castes and the scheduled tribes and the remaining land shall be allotted to other landless persons, agriculturists and agricultural labourers according to the order or priority specified in Sub-rule(3). However, by amending Sub-rule (2) and Sub-rule (3) in 1978 the person to whom the land has been transferred prior to 26th Sept., 1970 but such transfers had been hit by the provisions of Section 7-A, land has been given to transferees top priority for making allotments of such land to them both in respect of land to be allotted under Sub-rule (2) of Sub-rule (3).
32. The petitioners undisputably being the transferees of the land in question prior to 26th Sept., 1970 would be governed by Sub-rule (2) and Sub-rule (3) of Rule 16 in case such transfer is not to be recognised under Clause (1) of Section 7-A, before any other person can be considered for allotment of the land in question. Obviously, in the circumstances, in the absence of any reservation having been made under Sub-rule (1) of the particular land in question, the entire land was available as on the date for allotment to petitioners, who were already in possession of same. The question whether they could have continued to hold the land in excess of the ceiling limit if the same is applicable to the petitioners, is a question that would not affect the present controversy inasmuch as that would be subject matter of independent proceedings and adjudication thereunder about the applicability of the ceiling provisions to the petitioners, who claim themselves to be a charitable institution for the benefit of a community holding the land, and if so to what extent That itself is a good ground for allowing the petitioners to be in possession as holders in whose favour passbooks as Khatedars have been issued since 1974, until the question of allotment and the applicability of ceiling law is decided.
33. But in view of my conclusion on the non-applicability of Section 7-A to the land in question, this question also does not fall to be considered in detail at this juncture.
34. As a result, this petition is allowed, the impugned order of the Collectoris set aside and it is declared that the transfer made in favour of the petitionersof the land forming part of the Sardarsamand Estate held by the erstwhile rulerof Marwar and which has been declared by this Court to be falling within theprovisions of Section 10 beyond the pail of acquisition, is not affected by theprovisions of Section 7-A(i) of the Act of 1964. However, this shall not affect theprovisions of ceiling law as may be applicable to it.
35. There shall be no orders as to costs.