Rajasthan High Court - Jaipur
Ramsharan Modi vs Board Of Revenue And Ors on 28 February, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.6032/2010. Ramsharan Modi Vs. Board of Revenue & Ors. 2) S.B. CIVIL WRIT PETITION NO.6033/2010. Ramsharan Modi Vs. Board of Revenue & Ors. 3) S.B. CIVIL WRIT PETITION NO.6034/2010. Ramsharan Modi Vs. Board of Revenue & Ors. 4) S.B. CIVIL WRIT PETITION NO.6035/2010. Ramsharan Modi Vs. Board of Revenue & Ors. 5) S.B. CIVIL WRIT PETITION NO.6036/2010. Ramsharan Modi Vs. Board of Revenue & Ors. 6) S.B. CIVIL WRIT PETITION NO.6178/2010. Ramsharan Modi Vs. Board of Revenue & Ors. 7) S.B. CIVIL WRIT PETITION NO.6183/2010. Ramsharan Modi Vs. Board of Revenue & Ors. 8) S.B. CIVIL WRIT PETITION NO.6184/2010. Ramsharan Modi Vs. Board of Revenue & Ors. Date of Order : February 28, 2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Saransh Saini for the petitioner. Smt. Sonia Shandilya for the respondents. ******* BY THE COURT:-
1) These writ petitions are directed against the order of the Board of Revenue dated 20/1/2010 (Ann.1) whereby the revision petition submitted by the petitioner against the order of the SDO dated 31/8/2009 has been dismissed and the order dated 31/8/2009 (Ann.2) passed by Sub Divisional Officer, Ramganj Mandi, Kota whereby, application of the petitioner moved under Order 7 Rule 11 CPC has been rejected.
2) Learned counsel for the petitioner has submitted that case of the defendant-petitioner is that he has not been paid compensation in terms of Section 89(4) of the Rajasthan Land Revenue Act, 1956 (for short, Act of 1956) and his remedy is to approach the mining authority under the mining lease against grant of the mining lease. In case, the mining lease was granted with the consent of khatedar, a review under Section 188 would not be maintainable. It was contended that availability of appeal or other remedy against the grant of lease to the defendant would be an implied bar for maintainability of the revenue suit under Section 188. Learned counsel for the petitioner has cited the judgment of Bombay High Court in Khetan Industries Pvt.Ltd. and others Vs. Manju Ravindraprasad Khetan : AIR 1995 Bombay 43 and judgment of Supreme Court in I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and others : (1998) 2 SCC 70. It is argued that in all the aforesaid judgments, the objection of implied bar has been upheld.
3) Learned counsel for the respondent has opposed the writ petition and submitted that the suit under Section 188 of the Act of 1956 would be maintainable because the land was and continue to be recorded in the khatedari of the plaintiff. There is no question of implied bar of such a suit. Consent may not be inferred because Section 89(4) requires determination of compensation of the land.
4) Learned counsel for the respondents has opposed the writ petition and submitted that lease hold rights could have been granted only when compensation in terms of Section 89(4) was paid to the defendant-petitioner, which has not been paid so far.
5) It is to be noted that sub-Section (4) of Section 89 of the Rajasthan Land Revenue Act provides that if in the exercise of the right herein referred to over any land, the rights of any persons are infringed by the occupation or disturbance of the surface of such land, the State Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Collector, or, if his award is not accepted, by the Civil Court, as nearly as may be, in accordance with the provision of the Rajasthan Land Acquisition Act, 1953. In my view, the consent is the pre-requisite condition for considering any application for grant of mining lease for the land, which is in the khatedari of any individual. The law is very specific on this aspect, which is evident from the language used in Section 89(5) that no assignee of the State Government shall enter on or occupy the surface of any land without the previous sanction of the Collector, unless the compensation has been determined and tendered to the person whose rights are infringed. Payment of compensation is therefore also a condition precedent for a mining lease rights. Validity of the provisions of Section 89 of the Act were challenged and this court in Magh Singh Vs. State of Rajasthan & Ors. : WLC (Raj.) 1995(1) 731 held that Section 89 of the Act gives vast power to the State Government to take away the land of any person but at the same time the provisions of Section 89 envisage that opportunity of being heard be given to a person and also give liberty to him to file any objection regarding acquisition, quantum of compensation and remedy is also provided if the award of compensation is not acceptable to him. On this consideration, the provision was held to be reasonable and ultravires and the validity of Section 89 was upheld. There cannot be any question of implied bar on maintenance of suit under Section 188, which remedy is available in the Rajasthan Land Revenue Act, 1956 itself. Cited judgments are therefore distinguishable on facts. In any case, this could not be an objection raised by the petitioner under Order 7 Rule 11 CPC holding that plaint does not disclose a cause of action. However, this can be an objection of the petitioner, which may have to be decided as a preliminary issue and an issue may have to be framed by the SDO while deciding the suit on the question of maintainability of suit.
6) Writ petitions are accordingly dismissed however, with the observation that anything discussed in this order would not adversely affect rights of any of the parties and that this issue would have to be examined independently in the context of Order 7 Rule 11 CPC while deciding the application of the defendant-petitioner and therefore those observations should be construed to reflect only on that effect.
(MOHAMMAD RAFIQ), J.
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