Krishna Nagar Vikas Samiti vs Anjana Kothari

This intra court appeal arises out of the judgment of the learned Single Judge dated 6th May, 2011, by which he has allowed the writ petition filed by Mrs. Anjana Kothari against the order of the Divisional Commissioner dated 26.9.2007 allowing the appeal under Section 90-B(7) of the Rajasthan Land Revenue Act, 1956 (for short, "the Act of 1956") setting aside the order of the competent authority dated 12.1.2004 in Case No. 1592/2003 on the application filed by Smt. Anjana Kothari for conversion of 513.88 sq. yards of the alleged agricultural land, purchased by her from "Sagar Family Trust" to revert back the land to the Urban Improvement Trust (UIT), Jodhpur. The Competent Authority, Jodhpur under Section 63(1)(ii) of the Rajasthan Tenancy Act, 1955 (for short, "the Act of 1955"), extinguished the interest of the tenant on the purported surrender or abandonment of tenancy and directed the land to be under the U.I.T., Jodhpur from the date of the decision. The Competent Authority further directed the Tehsildar, Jodhpur to record the land in the name of the U.I.T. after taking of the land reserved for hospital (Dispensary) measuring 513.88 sq. yards from out of Khasra Nos. 61, 63, 64, 65, 404/63, 401/63, 407/61 and 409/61, area 134.66 bighas in the tenancy of Marwar Grah Nirmaan Sahakari Samiti Limited, Jodhpur.

The Krishna Nagar Vikas Samiti, a Society of the residents of Colony developed by Marwar Grah Nirman Sahakari Samiti Limited, filed an appeal against the order dated 12.1.2004 before the Divisional Commissioner under sub-section (7) of Section 90-B of the Act of 1956, alleging that the competent authority could not have passed such an order under sub-section (5) of Section 90-B of the Act of 1956 by which the tenancy rights of a person, who was the purchaser of the land from the original tenant viz. Marwar Grah Nirmaan Sahakari Samiti Limited, were already surrendered under Section 90-B(1) of the Act of 1956, and the land was allotted by the U.I.T. to Krishna Nagar Vikas Samiti. The Sub Division Plan of the Krishna Nagar Vikas Samiti developed by the Marwar Grah Nirman Sahakari Samiti Limited, was approved by the U.I.T. in which the land measuring 513.88 sq. yards was reserved as Dispensary and the adjacent land for the Post Office and park. The appeal filed by Krishna Nagar Vikas Samiti was dismissed for want of prosecution. A Writ Petition No. 5598/2004 was filed by Krishna Nagar Vikas Samiti challenging the order dated 12.1.2004 in which an objection was raised that the Krishna Nagar Vikas Samiti has already availed the remedy of filing an appeal before the Divisional Commissioner, which was dismissed for want of prosecution and in which an application for restoration was pending. Learned Single Judge dismissed the writ petition on 8.2.2005 with the direction that the Appellate Authority i.e. the Divisional Commissioner, Jodhpur will decide the restoration application for restoration of the appeal within fifteen days.

The restoration application was allowed and the Divisional Commissioner, Jodhpur by his order dated 26.9.2007 allowed the appeal. The Divisional Commissioner after considering the entire background of the matter, found that the Addl. District Collector (Land Conversion), Jodhpur by his order dt. 20.5.1982 had converted the land in exercise of powers u/s. 90-B(1) on the application of Marwar Grah Nirman Sahakari Samiti Limited, accepting the surrender and had resumed the land with allotment to Marwar Grah Nirman Sahakari Samiti Limited measuring 2,60,963 sq. yards in which 1,71,690 sq. yards of land was to be utilized for residential purpose, 3800 sq. yards for commercial purpose, 25,473 sq. yards for park and open place and 60,000 sq. yards for roads, totalling 2,60,963 sq. yards. The land conversion charges were not realized for conversion of 25,473 sq. yards, reserved for school and hospital. Out of this 25,473 sq. yards, 2906.94 sq. yards was allotted to Sagar Family Trust by the Marwar Grah Nirman Sahakari Samiti Limited for development. The trustees of the Sagar Family Trust entered into an agreement dated 11.4.1999 for sale of this land to Maharshi Gautam Shikshan Sansthan and on which two different leases for an area of 1452.39 sq. yards and 1454.55 sq. yards were executed on 10.6.2004 by Shri Bhanwarlal and Taja Ram. In the same manner, the Sagar Family Trust sold by registered sale deed executed by trustees Sagar Mai Jangid and Smt. Shashi Sagar the land for hospital to Smt. Anjana Kothari on 26.9.1994. On the strength of this sale deed, Smt. Anjana Kothari had applied for conversion of the land by depositing the allotment fees and got a lease deed executed on 27.2.2004 for 513.88 sq. yards of the land.

The Divisional Commissioner, Jodhpur found that in the conversion of 25,473 sq. yards of land on 20.5.1982 by the Competent Authority, reserved for facilities of the public place and park, the conversion fee was not taken, as it was reserved for public purpose. It was found that the UIT had executed the lease deeds for School and hospital and, thus, the acceptance of conversion fees was not in accordance with law. The Sagar Family Trust could not be allotted the land by the Marwar Grah Nirman Sahakari Samiti Limited, as the land was reserved for school and hospitals. If the Sagar Family Trust was for any reason not successful in utilizing the land for school and hospital for which it was reserved, they should have surrendered the land to Marwar Grah Nirman Sahakari Samiti Limited. The transfer made by the Sagar Family Trust was illegal and on which the UIT without discussing the facts and perusing the record, had issued lease deeds. The Divisional Commissioner allowed all the three appeals filed by Krishna Nagar Vikas Samiti and directed the UIT to pass fresh orders on the observations made by her after hearing both the parties.

It is submitted by learned counsel for the appellant that the learned Single Judge has erred in law in holding that the appeals filed by Krishna Nagar Vikas Samiti against the orders dated 14.5.2004 in the matter of Maharshi Gautam Shikshan Sansthan (Revenue Appeals No. 8/2005 and 9/2005), and the appeal filed in the matter of Smt. Anjana Kothari (Revenue Appeal No. 10/2005) were not maintainable. He has incorrectly relied on the judgment of this court in the case of Gajendra Singh vs. Divisional Commissioner, Jodhpur, 2009 (1) DNJ 301 , in which it was held that the appeal under sub-section (7) of Section 90-B of the Act of 1956 is not maintainable at the instance of any person other than the party in proceedings under sub-section (5) of Section 90-B. An order under sub-section (5) can only be challenged in appeal under sub-section (7) of Sec. 90-B of the Act of 1956 by a person, who had applied under Section 90-B for resumption of the land. The Krishna Nagar Vikas Samiti, the allottee of the land, had successfully challenged the order of the competent authority in which the Divisional Commissioner had clearly held that the land, which was already surrendered, resumed and allotted and in which the portion of the land was left out for public utility, could not have been reallotted by the tenant (Marwar Grah Nirmaan Samiti) on the ground that it was left out and for which the conversion charges were not paid. In any case, the excess land left out for public utilities, could not be sold for a private hospital to a private individual by Sagar Family Trust, which was allowed to develop the land for public utilities and for which the land was left in the Sub Division Plan of the U.I.T.

Learned counsel appearing for the respondent-Smt. Anjana Kothari submits that the appeal was not maintainable under sub-section (7) of Section 90-B of the Act of 1956. He has relied on the judgments in the case of Gajendra Singh (supra) and two Division Bench judgments of this court in Smt. Sheela Kothari vs. Board of Revenue and Ors. "D.B. Civil Special Appeal No. 920/2012" decided on 27.2.2013 and Rajesh Agarwal vs. Divisional Commissioner, Jaipur and Ors. "D.B. Civil Special Appeal (Writ) No. 222/2012" decided on 11.6.2014, in which it was held that the appeal under sub-section (7) of Section 90-B is maintainable only at the instance of a person aggrieved viz. the person who is aggrieved by the order under sub-section (5) of Section 90-B of the Act of 1956. He further submits that respondent-Smt. Anjana Kothari made an application to find out the status of the land and when she found that the land is still recorded as khatedari land in revenue records, she made an application under section 90-B(1) of the Act of 1956 for surrender and resumption of land for the same purpose for which it was reserved mainly for the purpose of Dispensary, which also means a Hospital. The competent authority after verifying the fact that the land is still recorded as tenancy, allowed the conversion by the order dated 12.1.2004. Even if she was not the tenant of the land, since she had purchased the land from Sagar Family Trust, which was allotted the land by the original tenant, she had a right for conversion of the land.

Learned counsel for the respondent-Jodhpur Development Authority (Erstwhile UIT) had defended the order of the competent authority dated 12.1.2004 on the ground that the land, which was still recorded as tenancy land, could be converted by the competent authority under Section 90-B(1) of the Act of 1956 for the same purpose for which it was reserved in the Sub Division Plan of the UIT.

We have carefully examined the order passed by the competent authority dated 12.1.2004 in which he had proceeded to decide the application under Section 90-B of the Rajasthan Land Revenue Act, 1956 and under Section 63(1)(ii) of the Rajasthan Tenancy Act, 1955 and recorded the finding that the land had been converted under Section 90-B, and from the report of the Patwari, it is clear that the land is vacant and does not come under the purview of Section 90-B(11) and (12). He then referred to the lease deed dated 20.5.1982 executed in favour of Marwar Grah Nirman Sahakari Samiti Limited in which the land was reserved for Dispensary. He has also referred to the order of this court dt. 11.9.2003 passed in S.B. Civil Writ petition No. 3372/2002 in which directions were issued for conversion of land under Section 90-B, on which the land was resumed, on which the rights of the tenant under Section 63(1)(ii) of the Act of 1955 were extinguished and consequently, the land will be treated from the date of the order to be under the UIT, Jodhpur, which could regularize the possession of the plot in accordance with law after realizing the requisite amount. The order was directed to be sent to Tehsildar for recording the land in the name of the U.I.T.

Learned counsel for the respondent-J.D.A. (Erstwhile UIT) was directed, on which he has produced a Sub Division Plan and the lease deed dated 20.5.1982 in which the areas of residential and commercial use and the areas left out for public purpose, are clearly demarcated and defined. He submits that there is no ambiguity either in the conversion order or in the lease deed in which the area left out for commercial purpose is 3800 sq. yards only, which is determined as follows:

Learned counsel for the respondent-J.D.A. (Erstwhile UIT) demonstrated from the Sub Division Plan that the area in the commercial complex ''A'' measuring 1242 sq. yards and area in the commercial complex ''B'' of 1242 sq. yards, is a different area in which shops have been delineated. These are not the areas in which Dispensary and Post office have been shown in the Sub Division Plan. He has clearly in unequivocal terms stated that the information given by the Sub Town Planner, UIT, Jodhpur dated 20.11.2004 to the SHO, Police Station, Kudi Bhagtasni, Housing Board, Jodhpur with reference to letter No. 709 dated 18.11.2004 is incorrect and cannot be substantiated on the basis of the records and Sub Division Plan. In this letter, the Sub Town Planner, has written to the police that there is some dispute regarding the ownership of the land area of 513.88 sq. yards, reserved for Dispensary in the sanctioned Sub Division Plan of Krishna Nagar, which is a part of commercial complex "B" measuring 1242 sq. yards, as mentioned in the Clause 4(b) of the Schedule attached with the lease deed dated 20.5.1982 and that this land is not included in the public park and Dispensary left out in the Sub Division Plan.

Learned counsel for the respondent-J.D.A. (Erstwhile UIT) has clearly stated that the land sold to Smt. Anjana Kothari measuring 513.88 sq. yards is not a part of the commercial land, as the commercial land was not given to Sagar Family Trust from which she has purchased the land. Sagar Family Trust had sold the land of public utility under the terms of the lease deed dt. 20.5.1982. The land left out for public utility could not have been transferred to Sagar Family Trust and that in any case, it could not have been sold either by Marwar Grah Nirman Sahakari Samiti Ltd. or the Sagar Family Trust to which the land is alleged to have been given for improvement of public utilities.

We find that the Divisional Commissioner had reached to a correct conclusion, as the order passed by the Competent Authority was not sustainable nor he had authority to get the land re-surrendered to extinguish tenancy rights of a tenant in the land under Section 63(1)(ii) of the of the Act of 1955. When the land was already surrendered by the khatedar under the Rajasthan Land Revenue Act, 1956, under Section 90-B and the lease deed was executed in favour of Marwar Grah Nirmaan Sahakari Samiti Limited and on which the lessee after obtaining the lease deed had developed a colony in the name of Krishna Nagar Vikas Samiti of which the residents are concerned about the land reserved for public utilities viz. Dispensary, Post Office and Park, it was wrongly transferred to the Sagar Family Trust. Neither the lessee nor the Sagar Family Trust had any right to exploit the land and to sell it by alleging it to be the excess land left out in the Sub Division Plan, or as commercial land.

We do not agree with the findings recorded by the learned Single Judge that an appeal under sub-section (7) of Sec. 90-B of the Act of 1956 was not maintainable before the Divisional Commissioner, inasmuch as in the peculiar facts and circumstances of the case, the land could not have been subjected to either surrender, resumption or extinguishment of the tenancy rights. The order was passed by the competent authority with reference to sub-section (5) of Section 90-B of the Act. In the present case, the tenant and the State Government were not the only parties interested in the land. The residents of Krishna Nagar Vikas Samiti for whom the colony was developed by the lessee, were substantially interested in the proceedings and were not only necessary parties in the proceedings under sub-section (5) of Section 90-B, but also party aggrieved against an illegal order to file an appeal under sub-section (7) of Section 90-B of the Act. In the present case, considering the nature of the order passed by the competent authority under sub-section (5) of Section 90-B of the Act of 1956 in which any of the parties viz. the lessee Marwar Grah Nirman Sahakari Samiti Ltd., Krishna Nagar Vikas Samiti, Smt. Anjana Kothari, the State Government and the J.D.A. (Erstwhile UIT) could be the parties to file an appeal under sub-section (7) of Section 90-B of the Act of 1956.

The judgment in the case of Gajendra Singh (supra) and two Division Bench judgments, cited by the learned counsel for the respondent-Smt. Anjana Kothari are based on the facts of their own cases and are not applicable to the facts of the case at hand.

In any case, we find that the order was passed by the Divisional Commissioner for correcting the records in which the land which was already surrendered and in respect of which the lease deed was executed and it could not have been the subject matter of the extinguishment of the tenancy rights or the surrender of tenancy rights all over again on the ground that the conversion charges in respect of the part of the land was not realized by the State Government and that any subsequent purchaser could have applied for extinguishment of tenancy rights or surrender of the tenancy rights under the provisions of the Rajasthan Tenancy Act, 1955 and the Rajasthan Land Revenue Act, 1956.

For reasons given as above, and the findings recorded by us on perusal of the record, which was produced before us, the lease deed and the Sub Division Plan, the order of the Divisional Commissioner did not require any interference by learned Single Judge. In any case, we find that the Divisional Commissioner had passed the impugned order dated 26.9.2007 remanding the matter to the competent authority in the J.D.A. (Erstwhile UIT) to decide the matter with regard to transfer and user of the subject plots on the observations made in her judgment.

Since we have upheld the observations and reasonings given by the Divisional Commissioner in her judgment on the basis of the original record, we allow the Special Appeal, set aside the judgment of the learned Single Judge and direct the competent authority to pass fresh orders in accordance with law and in accordance with the observations made by us after giving an opportunity of hearing to the parties. The fresh order will be passed within a period of three months from the date, the certified copy of this order is produced before the Competent Authority.