Rajasthan High Court - Jodhpur
Smt. Sheela Kothari vs Board Of Revenue, Ajmer & Ors on 27 February, 2013
Author: Amitava Roy
Bench: Amitava Roy
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
1. D.B.Civil Special Appeal No.920/2012
Smt.Sheela Kothari V/s Board of Revenue & ors.
2. D.B.Civil Special Appeal No.919/2012
Smt.Sheela Kothari V/s Board of Revenue & ors.
Date of judgment ::- 27.2.2013
PRESENT
Hon'ble the Chief Justice Mr.Amitava Roy
Hon'ble Mr.Justice V.K.Mathur
Mr.Ranjeet Joshi )
Mr.Vishwajeet Joshi )-for the appellant.
Mr.Manish Shishodia for the respondents.
JUDGMENT
BY THE COURT (Per Hon'ble Mr.Amitava Roy, CJ)
Both these appeals arise out of the common judgment and order dated 7.8.2012 whereby the appellant's assailment of the adjudication made by the learned Board of Revenue, Rajasthan, Ajmer (for short, hereafter referred to as "the Board") vide its order dated 10.7.2012 rendered in revision petitions no.138/03 and 140/03, has been rejected.
We have heard Mr.Ranjeet Joshi, learned counsel for the appellant-writ petitioner and Mr.Manish Shishodia, learned counsel for the respondents.
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The facts, in brief, necessary for adequately comprehending the rival arguments are that the appellant-writ petition and the private respondents, who as joint khatedars of the disputed land comprising khasra no.646 to 648 ad-measuring .6400 hectares submitted an application under section 90B of the Rajasthan Land Revenue Act, 1956 (for short, hereafter referred to as "the Act") before the Authorized Officer and Secretary, Urban Improvement Trust, Udaipur (for short, hereafter referred to as "the Authorized Officer") expressing their willingness to surrender their rights therein with the intention of developing the same for the residential purposes. Vide order dated 6.10.2001, the Authorized Officer accepted the surrender and finding the land to be suitable for conversion for non-agricultural purposes, terminated their rights therein. As a consequence thereof, the land vested in the State Government under section 102-A of the Act free from all encumbrances and remained at the disposal of the UIT, Udaipur.
Being aggrieved, the appellant-writ petitioner preferred an appeal before the Additional Divisional Commissioner, Udaipur contending that after the surrender, proportionate shares of the land ought to have been made available to the applicants and the same having not been done, the decision of the Authorized Officer was not sustainable on facts and in law. The Additional Divisional Commissioner, Udaipur by taking note of the fact that the appellant-writ petitioner in terms of the registered sale deed dated 30.11.1996 held half share in the two plots separately with 3 the private respondents, she was entitled to one third of the 15 plots drawn up by the UIT as per its scheme following the surrender. In this regard, this appellate forum also considered the allegation of the appellant-writ petitioner that she was being illegally and unfairly allotted only one plot acting on the representation of the private respondents that she was not entitled to any more plots, on the basis of a forged deed of partition/settlement. It was, thus, urged on her behalf that the denial of proportionate number of plots to her was in violation of Section 90B(6) of the Act.
This authority with reference to Section 53 of the Rajasthan Tenancy Act, 1955 (for short, hereafter referred to as "1955 Act") and Rules 18 to 21 of the Rajasthan Tenancy (Board of Revenue ) Rules, 1955 (for short, hereafter referred to as "1955 Rules") sustained these contentions of the appellant-writ petitioner and observing that the allotment of the plots has not been made in accordance with these legal provisions, interfered with the order dated 6.10.2001 and remanded the matter for distributing the plots on conversion of the land proportionate to the shares of the khatedars. The private respondents being aggrieved, on their turn, approached the learned Board with revisions no.138/2003/LR/Udaipur and 140/2003/LR/Udaipur impugning this determination of the Additional Divisional Commissioner, Udaipur principally contending that the appeal preferred by the appellant- writ petitioner before that forum was mis-conceived and on the 4 face of it being not maintainable in law, the judgment and order dated 6.10.2001 ought to be annulled. They pleaded further that this appeal was barred by time as well and that without condoning the delay, the same had been disposed of on merits. It was asserted as well that the learned Additional Divisional Commissioner, Udaipur erred in law in not considering their application under Order 41 Rule 27 of the Code of Civil Procedure (for short, hereafter referred to as "the Code") read with Section 151 for taking additional evidence on record and that this also did render the impugned adjudication non est in law.
The appellant-writ-petitioner refuted these pleas and instead questioned the maintainability of the revision petitions. The learned Board by its verdict dated 10.7.2012 sustained the oppugnment of the determination made by the learned Additional Divisional Commissioner, Udaipur principally holding that the appeal of the appellant-writ-petitioner before him was not maintainable in law. It, however, endorsed its jurisdiction to hear the revision petitions filed by the private respondents. The learned Single Judge having, as adverted hereinabove, negated the assailment of this determination of the learned Board, the appellant writ-petitioner seeks redress in the present intra-court appeals.
Mr.Joshi has emphatically argued that it being evident from the scheme of Section 90B of the Act and more particularly the constituents thereof in the form of sub-sections (3) and (5) that 5 the appeal before the Additional Divisional Commissioner, Udaipur was maintainable in terms thereof, the view taken contrary thereto ought to be reversed. According to Mr.Joshi, it being a matter of record that the appellant-writ petitioner is a holder of half share in the plots involved alongwith her co-khatedars following the conversion of the land surrendered by them, she was entitled to five plots proportionate to her interest therein and this apparently having not been done due to misrepresentations made by the private respondents before the UIT, Udaipur, the learned Additional Divisional Commissioner was perfectly justified in remanding the matter for fresh apportionment of plots in accordance with law. While contending that this order of remand in the facts and circumstances of the case does not adversely affect the interest of the private respondents in any manner whatsoever, the learned counsel has insisted that the learned Board has grossly erred in holding that the appeal filed by the appellant-writ petitioner before the Additional Divisional Commissioner was not maintainable under section 90B of the Act. He has reiterated that it (Board) lacked jurisdiction to entertain the revision petitions filed by the private respondents. As the learned Single Judge did not correctly appreciate these legal and factual aspects, interference with the impugned judgment and order is warranted, he implored.
Controverting the above, Mr.Shishodia has urged that as admittedly the parties had voluntarily surrendered their land as 6 contemplated under sub-section(3) of Section 90B of the Act, the order dated 6.10.2001 passed in terms thereof was not appealable. According to him, it being apparent from sub-section (7) of Section 90B of the Act, such an appeal is envisaged only against an order rendered under sub-section (5) thereof, the learned Board was perfectly right in dismissing the appeal of the appellant-writ petitioner as not maintainable in law. Mr.Shishodia argued that with the surrender of the land and the acceptance thereof for conversion, there is no further scope for reopening the said issue and thus, the appeal filed before the Additional Divisional Commissioner, Udaipur was clearly misconceived. He argued further that as a civil suit between the parties is pending on related issues touching upon amongst others the partition deed specifying their shares in the land to determine their entitlements for the pklots, no interference with the adjudication made in the writ proceedings is called for. In support of his contentions, he has placed reliance on the decision amongst others of the Single Judge of this Court in a batch of writ petitions lead case being S.B.Civil Writ Petition No.3670/2008 Smt.Meena Sharma V/s Rajendra Kumar Porwal & anr. (decided on 25.7.2011).
We have analyzed the pleadings and the documents available on record as well as the competing arguments advanced. The pleaded facts demonstrate in unequivocal terms that the parties had in-fact applied before the Authorized Officer expressing their willingness to surrender their rights in the land involved with the 7 intention of developing the same for non-agricultural purposes and that the said authority on being satisfied of the genuineness and acceptability of their offer as well as the suitability of the land for such conversion, acceded to the request and resultantly, the said land vested in the State Government free from all encumbrances and was deemed to be at the disposal of the UIT, Udaipur under section 102A of the Act. In terms of the proviso to sub-section (6) of Section 90B of the Act, however, the land so surrendered was to be made available to the parties for its planned development as contemplated therein.
Be that as it may, the conspectus of attendant facts unmistakably testifies that the order dated 6.10.2001 of the Authorized Officer had been passed under sub-section (3) of Section 90B of the Act. Sub-section (7) thereof, however, permits appeal to the Divisional Commissioner or the officer authorized by the State Government in that behalf only against the order passed under sub-section (5). On a conjoint reading of sub-sections (1), (2) and (5) of Section 90B, it is irrefutable that the decision as contemplated in sub-section (5) is one in which no element of surrender is involved and the land is resumed when any person holding any land for agricultural purposes in urbanisable limits or peripheral belt of an urban area has used or has allowed to be used the same 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 8 agreement to sell and/or by executing power of attorney and/or will or in any other manner, for non-agricultural use. In this view of the matter, the appeal filed by the appellant-writ petitioner before the Additional Divisional Commissioner, Udaipur purportedly under sub-section (7) of Section 90B of the Act is clearly not maintainable as held by the learned Board and rightly sustained by the learned Single Judge. Consequently, the contention of mismatch of the shares of the co-khatedars in the context of the proviso to sub-section (6) of Section 90B of the Act fades into insignificance. The appeal before the Additional Divisional Commissioner being not permissible, the observations made by this forum in this regard cannot enure to the benefit of the appellant- writ petitioner. In any view of the matter, the order dated 19.12.2002 of the Additional Divisional Commissioner having been passed by him in the assumed jurisdiction of appellate authority, the revisions filed by the private respondents before the learned Board under section 84 of the Act, in our view, are competent and do not suffer from any legal bar.
We thus find ourselves in complete agreement with the observations and findings recorded in the impugned judgment and order which noticeably made reference amongst others to the decision of this Court in Meena Sharma (supra) in endorsement of the view that appeal under sub-section (7) of Section 90B of the Act is contemplated only against the order passed under sub- section (5) thererof.
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The appeals in the wake of above lack in merit and the same are dismissed. No costs. A copy of this judgment be placed in both the files (V.K.Mathur)J. (Amitava Roy)CJ.
Parmar