Rajasthan High Court - Jodhpur
Smt. Sheela Kothari vs Secretary, Urban Improvement Trust on 11 July, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1378/2023
Smt. Sheela Kothari W/o Dhanraj Kothari, Aged About 67 Years,
R/o 111, Saheli Nagar, Udaipur (Rajasthan).
----Petitioner
Versus
1. Secretary, Urban Improvement Trust, Udaipur.
2. Pankaj Kumar S/o Pawan Bansal, R/o House No. 446,
Maharana Pratap Colony, Sector-13, Udaipur.
3. Shyam Sunder S/o Bhanwar Lal Bhardwaj, R/o Gopal
Marble, Hiran Magri, Sector-14, Udaipur.
4. Niraj Kumar S/o Nali Niranjan Lodha, R/o 170,
Bhopalpura, Udaipur.
5. Smt. Lad Devi W/o Sugan Chandra Chandaliya, R/o
Saraswati Niketan Ka Opposite, University Road, Udaipur.
6. Pankaj Kumar S/o Rajmal Jain, R/o Through Padmavati
Marble, National Highway No. 8, Sukher, Udaipur.
7. Member, Board Of Revenue, Ajmer.
----Respondents
For Petitioner(s) : Mr Sandeep Saruparia with
Mr. Nikhil Ajmera
For Respondent(s) : Mr. Muktesh Maheshwari with
Mr. Aidan Choudhary
Mr. Vijay Purohit
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 04/07/2023 Pronounced on 11/07/2023
1. This writ petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs:
(D.B. SAW/774/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:26:04 AM) (2 of 7) [CW-1378/2023] "1. That the impugned Order dated 10.01.2023 (Annexure
6) be set aside and quashed and the matter be remanded back to Board of Revenue for fresh adjudication.
2. Any other appropriate writ, direction or order which this Hon'ble Court may deem it just and proper in the facts and circumstances of the case, may kindly be issued.
3. That the Cost may kindly be awarded in favour of the Petitioner."
2. As the pleaded facts would reveal, the petitioner is a joint tenant holder of the agricultural land comprising Araji No. 646 admeasuring 0.4450 hectare, Araji no. 647 admeasuring 0.0100 hectare and Araji no. 648 admeasuring 0.1850 hectare, total area 0.6400 hectares situated in Sector 14, Udaipur (hereinafter referred to as 'disputed land'). The disputed land comprises share of 1/2 (one-half) of land between petitioner and respondents no. 2 & 3, and the other half is shared between respondents no. 4 to 6. The respondents no.2 & 3 and the petitioner entered into an agreement and executed a document, whereby the said land was divided into 27 plots and partitioned between them and plot no.7 came in the share of petitioner. An application was preferred before the Urban Improvement Trust (UIT), Udaipur under Section 90B of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'Act of 1956') for conversion of disputed land from agricultural into non-agricultural use. However vide its order dated 06.10.2001, the UIT allotted only one plot to the petitioner, instead of 5 plots.
2.1. Aggrieved of the aforesaid order of UIT, an appeal under Section 90B(7) of the Act of 1956 was preferred by the petitioner before the Additional Divisional Commissioner (ADC), Udaipur; the (D.B. SAW/774/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:26:04 AM) (3 of 7) [CW-1378/2023] same was allowed vide order 19.12.2002 as the division of Co- Khatedari rights should have been in accordance with the Rajasthan Tenancy (Board of Revenue) Rules, 1955, yet the same had not been followed. Thereafter, the respondent filed a revision petition before the learned Board of Revenue (BoR) for Rajasthan, Ajmer, and the learned BoR, while allowing the revision vide order 10.07.2012, held no appeal lies against an order passed under Section 90B(3) of the Act of 1956.
2.2. Subsequently a writ petition was preferred by the petitioner challenging the order of learned BoR before this Hon'ble Court by filing S.B. Civil Writ Petition No.7486/2012 (Smt. Sheela Kothari v. Board of Revenue & Ors.); however the same was dismissed vide order 07.08.2012, so also the D.B. Special Appeal (Writ) No.920/2012 (Smt. Sheela Kothari v. Board of Revenue & Ors.) filed in furtherance of the aforesaid dismissal. Thereafter, the petitioner preferred a revision petition under Section 84 read with Section 9 of the Act of 1956 before learned BoR challenging the order of UIT, yet again it was dismissed vide the impugned order dated 10.01.2023, while holding that the order of the UIT was passed under Section 90B(3) of the Act of 1956, and therefore, revision was not maintainable against such order. Hence, the present petition has been preferred claiming the afore-quoted reliefs.
3. Learned counsel for petitioner submitted that respondents no. 2 & 3 prepared a fabricated, forged, unstamped and unregistered agreement, and thereafter, in collusion with UIT, Udaipur, only one plot was allotted to the petitioner by the (D.B. SAW/774/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:26:04 AM) (4 of 7) [CW-1378/2023] conversion order dated 06.10.2001, when instead he was entitled to 5 plots. It was further submitted that the appeal preferred before the Additional Divisional Commissioner was allowed wherein it was held that Rajasthan Tenancy (Board of Revenue) Rules, 1955 are applicable for the division of co-khatedari rights of Araji land, and for implementation of Section 53 of Rajasthan Tenancy Act,1955, provision from Rule 18 to 21 of the Rules of 1955 have been made, and thus the division of land between the petitioner and respondents no.2 & 3 was not done in a lawful manner.
3.1. In furtherance it was submitted that learned BoR erred in viewing the scope of Section 84 read with Section 9 of the Act of 1956 as the provision clearly stipulated that in case no appeal provided under the Act, then the learned BoR had the power to exercise its jurisdiction over such matters, which were dealt with in illegal manner and had material irregularity in exercise of the jurisdiction.
3.2. It was further submitted that at present, the petitioner is left remediless, as in the present case, it was held that an order passed under Section 90B(3) the Act of 1956 is not appealable.
4. On the other hand. learned counsel for the respondents submitted that the pattas were issued by the UIT under Section 90B of the Act of 1956; however no appeal was provided, if an order was passed under sub-section 3 of Section 90B of the Act of 1956 before the Divisional Commissioner under sub-section 7 of Section 90B of the Act of 1956. It was further submitted that the learned BoR had allowed the revision petition preferred by the (D.B. SAW/774/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:26:04 AM) (5 of 7) [CW-1378/2023] respondents and set aside the order of Additional Divisional Commissioner.
4.1. In furtherance, it was submitted that not only the writ petition i.e. S.B. C.W.P. No. 7486/2012 (supra) was decided on 07.08.2012, but also the Special Appeal Writ i.e. D.B. Civil Special Appeal No. 920/2012 (supra) decided on 27.02.2013 preferred by the petitioner was dismissed by the Hon'ble High Court and the order of learned BoR was upheld. It was also submitted that the revision petition preferred before the learned BoR by the petitioner under Section 84 read with Section 9 of the Act of 1956 was also dismissed.
5. Heard the learned counsel for the parties as well as perused the record of the case.
6. This Court observes that the petitioner purchased the disputed land and is a joint tenant holder of the same; an application was preferred before UIT for conversion of the disputed land from agricultural to non agriculture use and vide order 06.10.2001 only one plot was assigned to the petitioner instead of 5 plots; an appeal preferred by the petitioner before the Additional Divisional Commissioner though was allowed however the same was set aside by the learned BoR and the decision of learned BoR was upheld by the Hon'ble High Court in both the writ petition as well as the Special Appeal Writ preferred by the petitioner. The petitioner filed a revision petition before the learned BoR under Section 84 read with Section 9 of the Act of 1956 challenging the order of the UIT, yet again was dismissed vide the impugned order 10.01.2023.
(D.B. SAW/774/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:26:04 AM) (6 of 7) [CW-1378/2023]
7. This Court further observes that this Hon'ble Court in the S.B. C.W.P. No. 7486/2012 (supra) decided on 07.08.2012 upheld the decision of the learned BOR, held that under sub-section 7 of Section 90B of the Act of 1956, appeal can be preferred before the Additional Divisional Commissioner only against an order passed under sub-section 5 of Section 90B within 30 days of passing such order; the relevant portion of the said order dated 07.08.2012 is reproduced as hereunder:
"9. A bare perusal of sub-section (7) of Section 90B reveals that only the person aggrieved by an order passed under sub-section (5) of Section 90B may appeal to be Divisional Commissioner or the Officer authorised by the State Government in this behalf within 30 days of passing of the order. The order passed under sub-section (3) of Section 90B is not made appealable. Needless to say that the right to appeal is a statutory right and no person can claim it as a matter of right if not provided for under the relevant statute. The parties cannot confer jurisdiction upon the authority to entertain the appeal de hors the provisions of the statute. Thus, the order passed by the Additional Divisional Commissioner while entertaining the appeal illegally is ex facie without jurisdiction and therefore, the same has rightly been set aside by the Board of Revenue."
8. This Court also observes that the Division Bench of this Hon'ble Court in D.B. Civil Special Appeal No. 920/2012 (supra) decided on 27.02.2013, had taken a similar view; the relevant portion of the same is also reproduced as hereunder:
" . . . . 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 (D.B. SAW/774/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:26:04 AM) (7 of 7) [CW-1378/2023] by this forum in this regard cannot ensure to the benefit of the appellant-writ petitioner. In any view of the matter, the order dated19.12.2002 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.
..... . . . . ."
9. This Court is thus of the opinion that the issue in the present matter has already been dealt extensively by a Coordinate Bench of this Hon'ble Court in S.B. C.W.P. No. 7486/2012 (supra) and by the Division Bench of this Hon'ble Court in D.B. Civil Special Appeal No. 920/2012 (supra) even on merits, and therefore, does not require any further indulgence.
10. In light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition.
11. Consequently, the present petition is dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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