Rajasthan High Court - Jaipur
Bhairav Grih Nirman Sahakari Samiti Ltd vs Ghashi Son Of Jagannath ... on 10 January, 2025
[2025:RJ-JP:1504]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 19466/2024
Bhairav Grih Nirman Sahakari Samiti Ltd, Registration No.
3122/L through Mantri Shri Maliram Raigar Son Of Shri
Dungaram Raigar, Resident Of 197, Subhash Colony, Shastri
Nagar, Jaipur.
----Petitioner
Versus
1. Ghashi Son Of Jagannath,
2. Bhainru Son Of Beeja,
3. Nanga Son Beeja,
4. Kalyan Son Of Beeja,
5. Prabhu Son Of Beeja,
6. Maliram Son Of Birda,
7. Rajendra Son Of Birda,
8. Mangli W/o Of Birda,
All resident of Village Labana, Tehsil Amer, District Jaipur.
9. Arjun Singh Son of Goverdhan Lal,
10. Jitendra Son Of Arjun Singh,
11. Amil Son Of Arjun Singh,
12. Kamlesh D/o Arjun Singh,
13. Santosh D/o Arjun Singh,
14. Sunita D/o Arjun Singh,
15. Kavita D/o Arjun Singh,
All Resident Of House No. 3-Cha-20, Jawahar Nagar,
Jaipur.
16. Shri Roopnarain Raigar Son Of Mahadev Raigar, Resident
Of Harvanshpura, Tehsil Sanganer, District Jaipur.
17. Deputy Commissioner Zone -13, Jaipur Development
Authority, Jaipur JLN Marg, Jaipur.
18. State Of Rajasthan, Through Tehsildar, Jaipur
19. Pearl Spytech Realtors LLP, Office At 501, Geetansh Class
Of Pearl, Plot No. K-48-49, Income Tax Colony, Durgapura
Through Partner Ashutosh Paliwal Son Of Sudhir Kumar
Paliwal, Resident Of 404, Pearlgreen Acre, Gopalpura,
Jaipur.
20. Arvind Singh Son Of Sumer Singh, Resident Of Plot No.9,
Officer's Campus, Vaishali Nagar, Jaipur.
----Respondents
For Petitioner(s) : Mr.O.P. Mishra, Adv.
For Respondent(s) :
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HON'BLE MR. JUSTICE AVNEESH JHINGAN
Order
RESERVED ON :: :: :: 02/01/2025
PRONOUNCED ON :: :: :: 10/01/2025
1. This petition is filed seeking quashing of orders dated 17.10.2017, 16.05.2024 and 07.11.2024 allowing the application of M/s Pearl Spytech Realtors LLP and Arvind Singh (hereinafter referred to as 'respondent Nos.19 and 20'), for conversion of the land use and dismissing the appeal & revision filed by the petitioner respectively.
2. The facts are that the petitioner is a society registered with the Registrar, Cooperative Societies. The petitioner for developing a residential scheme, entered into the agreements to sell dated 19.08.1998 with Pushpa Devi W/o Arjun Singh and Ghasi S/o Jagannath for purchasing their shares in the property mentioned in the agreements to sell. The supplementary agreements to sell dated 15.09.2003 and 24.01.2004 were executed by Ghasi and legal representatives of Pushpa Devi. Petitioner on 12.01.2003 under Section 90-A of the Rajasthan Land Revenue Act, 1956 (hereafter 'the Act of 1956') applied to Jaipur Development Authority for conversion of the land. On 05.04.2004 Ghasi and legal representatives of Pushpa Devi executed power of attorney in favour of Sohan Lal Bairwa. Through power of attorney holder the land in question was sold to Roop Narain Raigar s/o Mahadev Raigar by a registered sale deed dated 26.06.2008. The respondent Nos.19 and 20 applied under Section 90-A of the Act of 1956 for conversion of land. After inviting objections by publishing a notice in two daily newspapers, order for land conversion dated 17.10.2017 was passed. It would be appropriate (Downloaded on 11/01/2025 at 12:44:38 AM) [2025:RJ-JP:1504] (3 of 9) [CW-19466/2024] to note that the petitioner chose not to raise objection in pursuance to the notice. The appeal filed by the petitioner against the order of conversion was dismissed on 16.05.2024. The petitioner failed in revision and hence, the present writ petition.
3. Learned counsel for the petitioner submits that the application filed by the petitioner for conversion of land for non agricultural purposes is still pending. The contention is petitioner being in possession of land was entitled for allotment of the land and order of conversion of land should have been passed. Sub- sections (7) and (8) of Section 90-A of the Act of 1956 are relied upon to argue that on the basis of agreement to sell the conversion of land is permissible. The argument is that the appellate and revisional authorities erred in holding that the khatedari rights cannot be transferred by an unregistered agreement to sell.
4. On a pin pointed query during course of arguments, counsel for the petitioner fairly stated that the petitioner has neither challenged the sale deed in favour of Roop Narain Raigar nor the steps were taken for specific performance of the agreements to sell.
5. Section 90-A of the Act of 1956 deals with the use of agricultural land for non-agricultural purpose and prescribes the procedure to be followed for doing so. Sub-Sections (7) and (8) being relied upon are reproduced :-
"(7) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, when an order granting permission under this section is passed with respect to a land situated in an urban area, on and from the date of such order,-(Downloaded on 11/01/2025 at 12:44:38 AM)
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(a) tenancy rights over such land of the person to whom permission under this section is granted shall stand extinguished, and
(b) the land shall be deemed to have been placed at the disposal of the local authority under section 102-A and shall be available for allotment to the person to whom permission is granted under this section, or to the successors, assignees or transferees of such person, by the local authority for any permissible non-agricultural purposes in accordance with the rules, regulations or bye- laws made under the law applicable to the local authority, subject to the payment to the local authority of urban assessment or premium or both leviable and recoverable under sub-section (4).
(8) Notwithstanding anything to the contrary contained in this Act and the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) [where before 31st December, 2021 any person, holding any land for agricultural purposes in an urban area or within the urbanisable limits or peripheral belt of an urban area, has used or has allowed to be used such land or part thereof for non-agricultural purposes or, has parted with possession of such land or part thereof 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 person in the said land or holding or part thereof, as the case may be, shall be liable to be terminated and the officer authorized by the State Government in this behalf, shall, after affording an opportunity of being heard to such person and recording reasons in writing for doing so, order for termination of his rights and interest in such land and thereupon the land shall vest in the State Government free from all encumbrances and be deemed to have been placed at the disposal of the local authority under section 102-A and shall be available for allotment or regularization by the local authority for any permissible non-agricultural purposes in accordance with the rules, regulations or bye- laws made under the law applicable to the local authority to the persons having possession over such land or part thereof, as the case may be, on the basis of allotment (Downloaded on 11/01/2025 at 12:44:38 AM) [2025:RJ-JP:1504] (5 of 9) [CW-19466/2024] made, or Patta given, by a Housing Co-
operative Society or on the basis of any document of sale or agreement to sell or power of attorney or a Will or any other document purporting transfer of land to them either by the person whose rights and interests have been ordered to be terminated under this sub-section or by any other person claiming through such person, subject to the payment to the local authority of urban assessment or premium or both leviable and recoverable under sub-section (4):
Provided that-
(i) nothing in this sub-section shall apply to any land in respect of which any allotment has been made or Patta given by a Housing Co- operative Society after 16th June, 1999;
(ii) nothing in this sub-section shall apply to any land belonging to deity, Devasthan Department, any public trust or any religious or charitable institution or a wakf;
(ii) no proceedings or orders under this sub-
section shall be initiated or made in respect of lands for which proceedings under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act No.33 of 1976), the Rajasthan Imposition of Ceiling on 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."
6. Sub-section (7) starting with non obstante has overriding effect over the provisions of the Act of 1956 or any other law in force. It prescribes that on or from the date of passing of the order granting permission under this section in respect of the land situated in urban area:- (a) the tenancy rights of the person to whom such permission is granted shall be extinguished over the land and (b) the local authority shall be deemed to have land at its disposal under Section 102-A for allotment to the person to whom permission is granted or to successors, assignees or transferees of such person, for non-agricultural purposes permissible as per (Downloaded on 11/01/2025 at 12:44:38 AM) [2025:RJ-JP:1504] (6 of 9) [CW-19466/2024] rules, regulations or bye-laws made under law applicable to the local authority. The allotment shall be subject to payment to local authority of urban assessment or premium or both leviable and recoverable.
7. Sub-section (8) starts with non-obstante clause and is despite the provisions of the Act of 1956 and the Rajasthan Tenancy Act, 1955. It stipulates that in case of land situated in an urban area or within urbanizable limits or peripheral belt of an urban area had been used by a person holding the land or allowed the land or part of it to be used for non-agricultural purposes or for purported non-agricultural use having parted with the possession before 31st December, 2021 for consideration by way of sale or agreement to sell and/or by executing the power of attorney and or WILL or in any other manner, the right and interest of such person shall be liable to be terminated. The authorized officer before terminating the rights and interest shall have to afford an opportunity of hearing and pass a reasoned order. Thereafter, the land vests in the State Government free from all encumbrances. By deeming fiction the land shall be at disposal of the local authority under Section 102-A of the Act of 1956 for allotment or regularization for non-agricultural purposes permitted by the rules, regulations or bye-laws made under the law applicable to the local authority. The land shall be available for allotment or regularization to a person having possession over the land or part thereof on the basis of the document to sell or agreement to sell or power of attorney or WILL or on the basis of allotment made or patta given by Housing Cooperative Society or any document purporting transfer of land by the person whose (Downloaded on 11/01/2025 at 12:44:38 AM) [2025:RJ-JP:1504] (7 of 9) [CW-19466/2024] rights have been terminated or any person claiming rights through such person. The allotment or regularization shall be subject to payment to local authority of urban assessment or premium or both leviable.
8. Proviso provides three instances to which the sub-section shall not apply:- first, where allotment has been made or patta given by a Housing Cooperative Society after 16th June, 1999; secondly, the land belonging to deity, Devasthan Department, any Public Trust or religious or charitable institution or Wakf; and lastly, that the proceeding or order under Sub-section (8) cannot be initiated or passed for a land in which the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976, the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 and the Rajasthan Land Reforms and Acquisition of Land Owners Estate Act, 1963 are pending.
9. Reliance on Sub-Section (7) and (8) of Section 90-A of the Act of 1956 does not enhance the case of petitioner.
10. Sub-section (7) of Section 90-A shall come into operation after passing of order granting permission under Section 90-A of the Act of 1956. Thereafter eventualities mentioned in clause (a) and (b) shall come into play. In the present case no order was passed on the application filed by the petitioner and there was no occasion for applicability of clauses (a) & (b).
11. Under Sub-section (8) of Section 90-A in case of the use of the agricultural land for non-agricultural purposes by the person holding the land or parting with the possession of land or part thereof for consideration by way of sale or agreement to sell and the modes mentioned therein, the authorized officer after (Downloaded on 11/01/2025 at 12:44:38 AM) [2025:RJ-JP:1504] (8 of 9) [CW-19466/2024] affording opportunity of hearing has to pass a reasoned order terminating the rights and interest of such person in the land holding. In the present case no order was passed by the authorized officer terminating the khatedari rights of Ghasi and Pushpa Devi or her legal representatives. The derivative being that there is no deeming fiction of the land being vesting with the public authority for disposal under Section 102-A of the Act of 1956 and for allotting or regularizing it to the petitioner.
12. The filing of application for conversion of land on the basis of unregistered agreement to sell shall not create a vested right in favour of petitioner considering that the respondent Nos.19 and 20 applied for conversion on the basis of registered sale deed.
13. It would not be out of place to mention here that in spite of public notice published in the newspapers inviting objections against the application for conversion filed by respondent Nos.19 and 20, the petitioner chose not to file objections. While dismissing the appeal and the revision it was taken into account that:-(i) the agreement to sell was unregistered; (ii) khatedari rights cannot be transferred on the basis of unregistered agreement to sell and (iii) as per the revenue record, the land in question is recorded in the name of Roop Narain (wrongly typed in the Board of Revenue order as Jai Narain S/o Mahadev).
14. The contention that the conversion under Section 90-A of the Act of 1956 can be permitted on the basis of an agreement to sell has been rendered academic after the grant of approval for conversion to respondent Nos.19 & 20.
15. The pending application of the petitioner for conversion of land on the basis of unregistered agreement to sell has been (Downloaded on 11/01/2025 at 12:44:38 AM) [2025:RJ-JP:1504] (9 of 9) [CW-19466/2024] rendered infructuous after passing of conversion order on the application filed by respondent Nos.19 and 20, which was on the basis of a registered sale deed. Pendency of the application filed by petitioner does not effect the legality of the impugned conversion order, moreso when the sale in favour of the Roop Narain was not challenged and no legal remedies were availed by the petitioner for specific performance of the agreements to sell.
16. The impugned orders call for no interference and are upheld for the additional reasons recorded here-in-above.
17. The writ petition is dismissed.
(AVNEESH JHINGAN), J Himanshu/163 Reportable: Yes (Downloaded on 11/01/2025 at 12:44:38 AM) Powered by TCPDF (www.tcpdf.org)