Rajasthan High Court - Jodhpur
Smt. Meena Sharma vs A.D.J. (F.T.) No.2, Bhilwara & Ors on 25 July, 2011
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.CIVIL WRIT PETITION NO. 3670/2008
Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011
1/15
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
Smt. Meena Sharma versus Rajendra Kumar Porwal
& another
S.B.CIVIL WRIT PETITION NO. 3670/2008
Smt. Meena Sharma versus Rajendra Kumar Porwal
and another.
S.B.CIVIL REVISION PETITION NO. 3407/2008(DRJ)
Smt. Manisha versus Rajendra Kumar Porwal
and another
S.B.CIVIL WRIT PETITION NO. 3669/2008
Smt. Manisha versus Rajendra Kumar Porwal
and another
S.B.CIVIL REVISION PETITION NO.3408/2008 (DRJ)
DATE OF ORDER : 25th July, 2011
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
REPORTABLE
Mr.Vinay Jain, for the petitioners.
Mr. J.K.Bhaiya, ]
Mr. Sandeep Shah,] for the respondents.
BY THE COURT:
S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 2/15
1. These two writ petitions and two revision petitions are directed against the order dated 24/8/2007 passed by learned trial court, whereby, the applications of the petitioners; Smt. Manisha & Smt. Meena Sharma under Order 7 Rule 11 CPC was rejected by the learned trial court. The review petitions were filed by the defendant- petitioners against the said order and that too came to be rejected by the learned trial court by order dated 28/11/2007.
2. Being aggrieved of these two orders, two writ petitions and two revision petitions have been filed by the defendant petitioners.
3. Learned counsel for the petitioner, Mr. Vinay Jain submitted that in view of bar under sub-section (10) of Section 90-B of the Land Revenue Act, 1956 that no civil court shall have jurisdiction to entertain or decide any suit or proceeding questioning the order made under sub-section (5) passed by the Collector or the officer authorised by the State Government, the respondent-plaintiff, Rajendra Kumar Porwal, if he was aggrieved by the order passed in favour of the defendant petitioner on 20/7/2007 (Annex.2 in writ petition No. 3670/2008), then he could have filed an appeal under sub-section (7) of Section 90-B of the Act before the Divisional Commissioner.
4. On the contrary, learned counsel for the private respondent, Mr. J.K.Bhaiya as well as learned counsel appearing for the S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 3/15 U.I.T.Bhilwara, Mr. Sandeep Shah submitted that the impugned orders are just and legal because the remedy by way of appeal to the Divisional Commissioner lies only when a person is aggrieved of the order made under sub-section (5) of Section 90-B of the Act. They further urged that sub-section (5) deals only with orders passed with reference to sub-section (1) of Section 90-B of the Act, where under, the State Government upon finding that the agricultural land has been put to non-agricultural use, terminates the rights and interests of such a person in the said land or holding and the land may be resumed by the State Government. Before resuming the land, the Collector or the officer authorised by the State Government has to hold an inquiry under sub-section (2) of Section 90-B of the Act. The proceedings have to be conducted summarily within a period of 60 days of the first date of hearing specified in the notice under sub-section (2) vide sub- section (4) of Section 90-B. Sub-section (5) of Section 90-B further provides that where, after hearing the parties, the Collector or the officer authorised by the State Government, is of the opinion that the land is liable to be resumed under sub-section (1), he shall after recording reasons in writing, order for termination of rights and interest of such person in the said land and order for resumption of the said land. A person aggrieved of such an order passed under sub- section (5) may appeal to the Divisional Commissioner as per the provisions of sub-section (7) of Section 90-B of the Act, whose order shall be final and no civil court shall have the jurisdiction to entertain S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 4/15 or decide any suit or proceedings questioning the order made under sub-section (5) of the Collector or authorised officer by the State Government vide sub-section (10). It is further submitted that in case of surrender of land by the tenant or holder of the land himself, such application can be filed under sub-section (3) of Section 90-B of the Act, which land also vests, free from all encumbrances, in the State Government as per sub-section (6) of Section 90-B of the Act. Remedy by way of appeal to Divisional Commissioner is not available, if a person is aggrieved by such order made in favour of land holder or tenant himself surrendering the land in question. If any person is so aggrieved of such surrender by the holder of the land himself and claims any competing right or his own right over the land in question, the remedy available to him is civil suit before the competent civil court and not an appeal under sub-section (7) of the Act to the Divisional Commissioner.
5. Thus, learned counsels for respondents submitted that surrender of land and resumption of land are two separate channels, one by the State action initiated under sub-section (1) after inquiry under sub-section (2) and another channel is by surrender of land by the holder of the land himself under sub-section (3), which could be made available to the person concerned under proviso to sub-section (6) of the Act for its development in a planned manner according to the applicable rules, regulations and by-laws of the local body S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 5/15 concerned. Learned counsel for the respondents, therefore, supported the impugned orders of courts below since private respondent - Rajendra Kumar Porwal made a rival claim over the same land in question under agreement to sell executed by predecessor in title namely; Hanoota and Rama, in his favour. Similarly, petitioners Smt. Meena Sharma and Smt. Manisha are also claiming under similar agreement to sell executed by one Nirmal Kumar s/o Madan Singh Jain, who purchased the said land from same persons (Hanoota & Rama) and, therefore, such rival claims could only be determined by the civil court in a suit instituted by respondent - R.K.Porwal and application under Order 7 Rule 11 CPC filed by petitioner-defendants Meena Sharma and Manisha were rightly rejected by the learned trial court. Since UIT, Bhilwara issued order dated 20/7/2007 rejecting the application dated 4/4/2007 of Rajendra Kumar Porwal presumably under Section 90-B(3) of the Act in respect of Khasra no. 2397 and 2398, hence he filed the present suit.
6. Having heard the learned counsels and upon careful examination of Scheme of the Act contained in Section 90-B, which is reproduced below, this Court finds considerable force in the submissions made by learned counsels for the respondents.
"90-B- Termination of rights and resumption of land in certain cases: (1) Notwithstanding anything to S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 6/15 the contrary contained in this Act and the Rajasthan Tenancy Act, 1955 (Act No.3 of 1955) where before the commencement of the Rajasthan Laws (Amendment) Ordinance, 1999 (Rajasthan Ordinance No.3 of 1999) any person, holding any land for agricultural purposes in such urbanisable limits, of an urban area, as may be notified from time to time by the State Government by notification in the Official Gazette, has used or has allowed to be used such land or part thereof, as the case may be, for non-agricultural purposes or, has parted with possession of such land or part thereof, as the case may be, for consideration by way of sale or agreement to sell and/or by executing power of attorney and/or will or in any other manner, for purported non-agricultural use, the rights and interest of such a person in the said land or holding or part thereof, as the case may be, shall be liable to be terminated and such land shall be liable to be resumed.
(2) Where any land has become liable to be resumed under the provisions of sub-section (1), the Collector or the officer authorised by the State Government in this behalf, shall serve a notice, calling upon such person to show cause why the said land may not be resumed summarily, and among other things, such notice may contained the particulars of the land, cause of proposed action, the place, time and date, where and when the matter shall be heard.
(3) When the tenant or the holder of such land or any person duly authorised by him, as the case may be, makes an application to the Collector or the officer S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 7/15 authorised by the State Government in this behalf, expressing his willingness to surrender his rights in such land, with the intention of developing such land for housing or commercial purposes, the Collector or officer authorized by the State Government in this behalf, shall upon being satisfied about the willingness of such person, order for termination of rights and interest of such person in the said land and order for resumption of such land.
(4) The proceedings in the matter shall be conducted summarily and shall ordinarily be concluded within a period of sixty days from the first date of hearing specified in the notice served under sub-section (2).
(5) Where, after hearing the parties, the Collector or the officer authorised by the State Government in this behalf, is of the opinion that the land is liable to be resumed, under sub-section (1), he shall after recording reasons in writing, order for termination of rights and interest of such person in the said land and order for resumption of the said land.
(6) The land so resumed under sub-section (3) and (5) shall vest in the State free from all encumbrances and shall be deemed to have been placed at the disposal of the concerned local authority under Section 102-A of this Act with effect from the date of passing such order:
Provided that the land surrendered under sub- section (3) above, shall be made available to the person, who surrenders the land, for its planned development in accordance with the rules, regulation S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 8/15 and by-laws applicable to the local body concerned, for housing or commercial purposes.
(7) the person, aggrieved by the order made under sub-section (5), may appeal to the Divisional Commissioner or the officer authorized by the State Government in this behalf within thirty days of passing of order under sub-section (5).
(8) The Divisional Commissioner or the officer authorised by the State Government in this behalf shall, after hearing the parties, pass appropriate orders in such appeal within a period of sixty days from the date of presentation of appeal before him.
(9) The order passed by the Divisional Commissioner or the officer authorised by the State Government in this behalf in appeal under this Section shall be final.
(10) No civil court shall have jurisdiction to entertain or decide any suit or proceeding questioning the order made under sub-section (5) by the Collector or the officer authorised by the State Government or an order made under sub-section (8) by the Divisional Commissioner or the officer authorised by the State Government.
(11) Nothing in this section shall apply to any land belonging to Deity, Devsthan Department, any public trust or any religious or charitable institution or a wakf.
(12) No proceedings or orders under this section shall be initiated or made in respect of lands for which proceedings under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (Central Act No.33 of 1976), the Rajasthan Imposition of Ceiling on S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 9/15 Agricultural Holdings Act, 1973 (Act No.11 of 1973) and the Rajasthan land Reforms and Acquisition of Land Owners Estate Act, 1963 (Act No.11 of 1964) are pending.
Explanation: I. part use of the land for purposes sub- servient to the agriculture such as residential house of the tenant 9subject to the limit of 1/50th part of his holding or 500 sq. yards whichever is less) cattle breeding, dairy farming, fodder storage, poultry farming, horticulture, forestry development, water tank, well, pasturage, grove land and such other purposes ancillary thereto or connected therewith shall not be construed to mean non-agricultural purposes.
II. for the purpose of sub-section(1), urban area shall mean an area for which a municipality is constituted under the Rajasthan Municipality Act, 1959 (Act. No.38 of 1959) or Urban Improvement Trust is constituted under Rajasthan Urban Improvement Act, 1959 (Act No.35) of 1959) or the Jaipur Development Authority Act, 1982 (Act no.25 of 1982)."
7. The remedy of appeal to the Divisional Commissioner under sub-section (7) of Section 90-B is only against an order made under sub-section(5) of the Act. Sub-section (5) clearly refers to sub-section (1) only and not sub-section (3) and stipulates that where, after hearing the parties, the Collector or the officer authorized by the State Government in this behalf, is of the opinion that the land is liable to be resumed, under sub-section(1), he shall after recording reasons in S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 10/15 writing, order for termination of rights and interest of such person in the said land and order for resumption of the said land. Thus, sub- section (5) of Section 90-B of the Act does not refer to channel of surrender and regularization in favour of tenant or land holder resorting to sub-section (3) of Section 90-B of the Act. Of course, sub-section (6) provides that the land so resumed under sub-section (3) and sub-section (5) shall vest in the State Government free from all encumbrances and shall be deemed to have been placed at the disposal of local body with effect from the date of passing of such order. Proviso to sub-section (6) of Section 90-B further provides that the land surrendered under sub-section (3) shall be made available to the person, who surrendered the land for its planned development in accordance with rules, regulation and by-laws applicable to the local body concerned for housing or commercial purposes.
8. It is clear that sub-section (3) has to be read with sub-section (6), whereas, sub-sections (1), (2), (4) and (5) have to be read together as these are two separate streams for operating Section 90-B of the Act. The remedy by way of appeal to the Divisional Commissioner under sub-section (7) is available to a `person aggrieved' only. If the land is resumed under sub-section (1) read with sub-sections (2), (4) and (5) of the Act any person aggrieved of such resumption can file appeal before Divisional Commissioner under Section 90-B(7) of the Act. The purpose of providing such remedy of appeal to the S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 11/15 Divisional Commissioner and excluding the jurisdiction of civil court in such cases is obvious. When the State Government initiates such action an inhouse departmental remedy of appeal appears to have been provided under sub-section (7) of the Act. However, if such surrender takes place at the instance of tenant or land holder under sub-section (3), the land is made available to such person himself for planned development and there cannot be any question of such person being aggrieved of such order.
9. However, it if is not so made available to him as per proviso to sub-section (6) then such land holder himself can be an aggrieved person and can file appeal under Section 90-B(3) of the Act, but no third party or a stranger is allowed to file appeal under sub-section (3) of Section 90-B of the Act.
10. This Court has already taken a similar view in the case of Anjana Kothari vs. Divisional Commissioner & Ors. (SBCWP No.1389/2009) decided on 6/5/2011 relying upon another judgment of coordinate bench of this Court in the case of Gajendra Singh vs. The Divisional Commissioner & Ors. (SBCWP No. 42/2008) decided on 22/12/2008. The relevant portion of the said judgment is quoted below for ready reference:
"15. On a plain reading of these provisions as S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 12/15 per Golden Rule of interpretation, and the scheme of Section 90-B of the Act of 1956, it is clear that appeal filed by said respondent- Krishna Nagar Vikas Samiti before the learned Divisional Commissioner was incompetent and was not filed by the person aggrieved because it was not the land owner who surrendered the land in question to the State Government. Since, the order dated 12.01.2004 in Case No.1592/2003 was neither passed in favour of said Krishna Nagar Vikas Samiti, nor against it, therefore, the question of said Krishna Nagar Vikas Samiti being an aggrieved person against such order dated 12.01.2004 under sub-Section (7) of Section 90-B of the Act does not arise. It is only the land owner against whom an adverse order is passed under sub-Section (5) vesting such land in State instead of it being revested in such land owner under proviso to sub-section (6) who can file an appeal under sub-Section (7) before the Divisional Commissioner.
Neither the competent authority who himself grants such conversion order under the said Proviso to sub-section (6) nor any third party can file such appeal under sub- Section (7) of Section 90-B of the Act. Therefore, the appeal itself was not maintainable and the order passed by the learned Divisional Commissioner on 26.09.2007 was wholly without jurisdiction and passed on an incompetent appeal and the same, therefore, deserves to be quashed.
16. This is what was held by the Coordinate Bench of this Court in the case of Gajendra Singh Vs. The Divisional Commissioner & Ors., while deciding SBCWP No.42/2008 on 22.12.2008. However, it would S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 13/15 be appropriate to reproduce the relevant part from the said judgment here-under: -
"..........In this case the main question raised by the petitioner that pattas were under Section 90-B of the Act of 1956 by the U.I.T. to the petitioner on the basis of order passed by competent authority under sub-Section (3) of Section 90-B of the Act of 1956 but no appeal is provided before the Divisional Commissioner under sub-section (7) of the Section 90- B of the Act of 1956. According to the petitioner the Divisional Commissioner, Jodhpur has wrongly exercised its jurisdiction while entertaining such appeal because as per sub-section (7) of Section 90-B of the Act of 1956, appeal can be filed against the order made under sub-section (5) of Section 90-B and not against the order passed under sub-section (3) of Section 90-B of the Act of 1956 because under sub-section (3) of Section 90-B, agricultural land can be surrendered for resumption by the tenant or the holder of such land whereas under sub-section (5) of Section 90-B of the Act of 1956, land can be resumed upon surrender by any interested party and for which the Collector or the officer authorized by the State Government in this behalf can form opinion that the land is liable to be resumed under sub-section (1) and they can resume the land after recording the reasons in writing, meaning thereby according to sub-section (7) of Section 90-B of the Act of 1956, appeal can be filed against the order made under sub-section (5) of Section 90-B of the Act of 1956 but there is no provision for filing any appeal S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 14/15 against the order made under sub-section (3) of Section 90-B of the Act of 1956. Therefore, the Divisional Commissioner has illegality entertained the appeal against the order so made by the authorized officer for resumption of the land under sub-section (3) of Section 90-B of the Act of 1956.
In this view of the matter on the basis of above discussion, it is abundantly clear that the order passed by the Divisional Commissioner is totally without jurisdiction...."
11. In the present case, since application made by Rajendra Kumar Porwal stood rejected vide Annex.2 dated 20/7/2007, he filed the present suit but he cannot be said to be a `person aggrieved' of the order made in favour of present petitioners, Meena Sharma and Manisha and, therefore, his civil rights viz-a-viz that of defendant petitioners could be determined only by the civil court and not by the Divisional Commissioner. Thus, the learned counsel for the petitioner has wrongly contended that Rajendra Kumar Porwal could have filed appeal before the Divisional Commissioner and suit filed by him was barred under sub-section (10) of Section 90-B of the Act.
12. In view of this position, the rejection of the application under Order 7 Rule 11 CPC filed by the defendant petitioners, Meena Sharma and Smt. Manisha cannot be validly assailed, therefore, the S.B.CIVIL WRIT PETITION NO. 3670/2008 Smt. Meena Sharma VS Rajendra Kumar Porwal & anr. & 3 connected matters.
Order dt: 25/7/2011 15/15 impugned orders dated 24/8/2007 and 28/11/2007 are found to be just and proper and the present writ petitions and revision petitions filed by the present petitioners-defendants are found to be devoid of merit and same are liable to be dismissed and are dismissed accordingly. No costs.
(DR.VINEET KOTHARI),J.
Item no. 82-85 baweja/-