- (1.) THESE five writ petitions are directed against the common order passed by a Division Bench of the Board of revenue' for Rajasthan at Ajmer (for short' the Board of Revenue') dated 7. 11. 1988 disposing of six appeals. For Rajasthan at Ajmer (for short 'the Board of Revenue')
(2.) IT is alleged that against petitioners Bhala (Writ Petition No. 948/89), Sagar (Writ Petition No. 949. 89) and the father of Megharam & Ors. i. e. Motaram (Writ petition No. 947 of ), a suit for eviction under Sec. 180 (1) (b) of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act') was File by late by Maji Sahiba Shri Shekhawatji Govind Kanwarji from who certain pieces of land were, taken by these petitioners for cultivation in village Nasal Bari and Nesal Choti whereas against petitioners Laxman (Writ Petition No. 109/89) and Harisingh and Ors. (Writ Petition No. 3465 of 1989), writs for eviction were brought under s. l80 (l) (b) of the Act respondents No. l to 3, who are legal here of late Maji Sahiba Shri Shekhawatji Govind Kanwar ji. All these fruits were instituted in the year 1971 and they came to be dismissed by the trial court on 13. 2. 1975. IT will be pertinent to note here that during the pendency of these suits before the trial Court, Maji Sahiba Shri Shekhawatji Govind Kanwarji died on 28. 12. 1971. However, appeals were filed before the Revenue Appelate Authority, Bikaner. The Revenue Appellate Authority set aside the judgment of the Sub-Division Officer, Bikaner and decreed the suits of the plaintiffs for eviction of the petitioners vide his Judgment dated 4. 3. 1978. Thereafter, second appeals were filed before the Board of Revenue and they were dismissed by the Board of Revenue vide its judgment dated 31. 1. 1986. There after, a writ petition was filed before this Court bearing D. B. Civil Writ Petition No. 2316 of 1986, Megharam & Others V. Vikram Singh and others, which came to be disposed of by this Court vide its Order dated October 27,1987. It was sentenced before this Court that while deciding the appeal, the provisions of Sec. 19, which has been amended in the year 1979, have not been taken in to consideration by the learned Board of revenue and even no request was made by the learned counsel appearing for the parties to take note of the attended provisions of Sec. 19 of the Act, which came into force with effect from 29. 12. 1979. Thus, on the joint request, the case was remanded beck to the learned Board of Revenue for reconsideration. Both the parties were directed to appear before the board of Revenue on 4th of January, 1988 and the Board of Revenue was directed to re-hear the appeals as jointly agreed by the learned counsel for the parties. It was further directed that if the parties so desire, they can move application for amendment of the Pleading and it would be for the Board of Revenue to consider whether after such amendment, any further remand is necessary or the Board itself can decide on the basis of the available record or some other mode which it deems proper according to law. After remand, all the six appeals came to be dismissed by the learned Board of Revenue vide its judgment 7. 11. 1988. Hence, these writ petitions. We have heard M/s R. N. Bishnoi and Vijay Bishnoi, the learned counsel appearing for the petitioners, Mr. S. N. Sharma for the respondents and Mr. H. R. Panwar, learned Addl. Govt. Advocate and have carefully gone through the record of the case. The only ground on which the previous writ petition bearing D. B. Civil Writ Petition. No. 2316 of 1986 was filed, argued and decided was that amended provisions of s. 19 of the Act, which came into force prior to the decision of the second appeals by the learned Board of Revenue, have not been taken into consideration by Board of Revenue. The Judgments of the court below were not challenged on their merits. Thus, the now is point that services for consideration before this Court now is whether the Board of Revenue has decided the appeals correctly in view of the aforesaid amendment in Sec. 19 of the Act, which came into force with effect from 29. 12. 1979. The provisions of ss,19 (AA) and 19 (2a) as amended by the Rajasthan Tenancy (Amendment) Act, 1979 (No, 16 of 1979) have been extracted verbatim in the judgment of the learned Board of Revenue dated 7. 11. 1988 and, therefore, we need not quote them here. The contention of Mr. R. N. Bishnoi, the learned counsel appearing for the petitioners is that as per Sec. 19 (1aa) of the Act, every person who, on the 31st day of December, 1969 was entered in the annual registers then current as the tenant of Khudkasht or sub-tenant or was not so entered but was a tenant of Khudkasht of sub-tenant of land other than grave land, has been made entitled subject to the exceptions contained in the provisions to sub-s. (1), as from the dated of the commencement of the Rajasthan Tenancy (Amendment ). Act, 1979 i. e. 29. 12. 1979 subject to other provisions contained in this Chapter, the Khatedar tenant of that part of the land held by him in which he has not acquired Khatedari rights under sub-s. (l) of sub-s. (AI), if before the said date, no proceedings for his ejectment under clause (a) or clause (b) of sub-s. (l) or section 188 shall have started within the time limit prescribed by S. 182-A or it on that date, no such proceedings previously started might have been pending Mr. Bishnoi has Submitted that the Petitioners were recorded as sub-tenant of the khudkasht. They took land way back in the Samvat years 2005 to 2008 from late Maji Sahiba Shri Shekhawatji Govind Kanwarji and were cultivating it regularly till the Rajasthan Tenancy (Amendment) Act,1979 came into force and, therefore, they were entitled to get Khatedari rights. He has submitted that although Sec. 19 (1aa) provides that these rights are subject to the exception contained in the provisos to sub-sec. (1) of S. 19 of the Act but the embargo, that a person who is a sub-tenant of a Khudkasht holder who happens to be a widow should not be conferred any Khatedari rights, did not remain operative against the petitioners after 28. 12 1971 when late Maji Sahib Shri Sahibawatji Govind Kanwarji died. These Khatedari rights are to be conferred with effect from the date the Rajasthan Tenancy (Amendment) Act, 1979 came into force i. e. 29. 12. 1979. He has, therefore, argued that the petitioners are entitled to be granted Khatedari rights of this land which they have held from Khudkasht holder i. e. late Maji Sahib Shri Shekhawatji Govind Kanwarji. In this respect, referred to sub-s. (2a) (i) and (2a) (ii) of Sec. 19 of the Act and has submitted that it is true that the petitioners have not made any formal application before the Sub Divisional Officer having jurisdiction for declaration of Khatedari rights in their favour, It was contended by him that that sub-clause (ii) of sub-s. 2a of s. 19 of the Act provides that the Assistant Collector having jurisdiction over the area concern may at his own motion or otherwise within one year of the said date and after making an enquiry in the same manner as is prescribed for an enquiry under sub-sec. (5) of Sec. 15 and after affording a reasonable opportunity to the parties of being heard and on being satisfied that Khatedari rights accrued to such tenant of Khudkasht or sub-tenant under sub-s. (laa) may issue such a declaration to that effect. He has further contended that at the time when the Rajasthan Tenancy (Amendment) Act, 1979 came into force i. e. 27. 12. 1979, the second appeals of the petitioners were pending before the Board of Revenue and the learned Board of Revenue is with all powers which can be exercised by the Assistant Collector or the Sub Divisional Officer. According to him, the was of word "may" in sub-clause (ii) of sub-s. (2a) of s. 19 of the Act should be read as 'shall'. In other words, he has submitted that the provisions of section 19 (2a) (ii) of the Act should be treated as mandates of the law that the Assistant Collector was required to issue such a declaration, if Khatedari rights have already accrued to subtenants or the tenants of the Khudkasht. In support of his aforesaid submissions, he has placed reliance on certain Authorities.
(3.) WE may first refer to an authority of their lordship of the supreme Court in Textile Commr. V. Sagar Textile Mills (l), wherein their lordships have observed:- "the word "may" is capable of meaning 'must' or 'shall' in the light of the context and where a discretion is conferred upon, a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. Considering the purpose of the relevant empowerment and its impact on those, who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for which the directions shall be operative. " Our attention was next drawn to a decision of their lordships of the Supreme Court in Govind Rao V. State of M. P. (2), wherein it has been observed: "the word 'may' is often read as 'shall' or 'must' when there is something in the nature of the thing to be done which makes it the duty of the parson on whom the power is conferred to exercise the power" In Ganesh Prasad V. Lakshmi Narayan (3),s. 11a of the Bihar Buildings (lease, Rent and Eviction) Control Act,1947 lays down a proviso that the Court shall order the defence to be struck out, While considering the word 'shall, used in proviso to Sec. 11-A of the Act, it was held that this being a beneficial legislation for favouring the tenants, the word 'shall' should be treated as 'may'. ;