State of Rajasthan vs Kailash Kumar and Others

Arun Bhansali, J.—This matter comes up on an application filed by the respondents No. 1 to 4 under Article 226(3) of the Constitution of India seeking vacation of ad-interim order dated 30.05.2014 passed by this Court.

The writ petition has been filed by the petitioners aggrieved against the judgment dated 08.10.2013 passed by the Board of Revenue (''the Board''), whereby the revision petition filed by the respondents against the judgment dated 19.03.2008 passed by the Additional Divisional Commissioner, Udaipur (''the Commissioner'') was allowed.

Facts in brief may be noticed thus: the respondents No. 1 to 4 filed suit before the SDO, Chittorgarh under Section 88 and 188 of the Rajasthan Tenancy Act, 1955 (''the Act of 1955'') seeking declaration of their tenancy rights and permanent injunction against the State and the defendants. The suit was decreed by the SDO by its judgment and decree dated 03.09.2001. The appeal filed by the State before the Revenue Appellate Authority (''the RAA'') against the judgment and decree dated 03.09.2001 was dismissed on 31.10.2013. It is claimed that the second appeal filed by the State is pending before the Board.

In the meanwhile, pursuant to the judgment and decree dated 03.09.2001, the land was mutated in the name of respondents No. 1 to 4 vide mutation No. 770 dated 05.11.2001. Against the said mutation, the State filed an appeal and the Collector, Udaipur by his order dated 30.03.2003 allowed the appeal and set aside the mutation.

In the meanwhile i.e. before the mutation was set aside by the Collector, Udaipur by its order dated 30.09.2003, by order dated 03.01.2002, the land in question was converted under the provisions of Section 90-B of the Rajasthan Land Revenue Act, 1956 (''the Act of 1956'') by the Authorized Officer, Agriculture Land Conversion, SDO, Chittorgarh and the SDO issued Patta dated 10.01.2002 regarding the land in question. The State filed an appeal under Section 75 of the Act of 1956 on 05.03.2008 before the Commissioner against the orders dated 03.01.2002 passed under Section 90-B of the Act of 1956 converting the land in question. By order dated 19.03.2008, the orders dated 03.01.2002 were set aside by the Commissioner.

Feeling aggrieved, the respondents No. 1 to 4 filed revision petition before the Board, the Board relying on the judgments of this Court and certain judgments of the Board, held that the revision petition under Section 90-B(7) of the Act of 1956 before the Commissioner was not maintainable and, consequently, set aside the order.

It is, inter alia, contended by learned counsel for the respondents that the issue decided by the Board is squarely covered by judgments of this Court in Anjana Kothari Vs. State of Rajasthan and Others, and Smt. Sheela Kothari v. Board of Revenue and Ors.: WLC 2013 (Raj.) UC 331 and therefore as the issue is no more res integra, the interim order passed by this Court on 30.05.2014 staying the effect and operation of the order dated 08.10.2013 passed by the Board and for maintaining status quo deserves to be vacated.

Learned counsel for the petitioner-State vehemently submitted that the entire conduct of the respondents in getting the land converted during the pendency of the appeal before the RAA has been wholly illegal and that judgment and decree passed by the SDO dated 03.09.2001 is itself contrary to law and, therefore, the Commissioner was justified in setting aside the orders of conversion.

Learned counsel for the respondents No. 1 to 4 applicants in rejoinder vehemently submitted that the validity of the judgment passed by the SDO is pending consideration before the Board and the consequences thereof would follow, however, the only issue presently before this Court is that whether the appeal entertained by that the Commissioner against the order of conversion under Section 90-B(7) of the Act of 1956 was maintainable and in view of the law laid down by this Court, the Board was justified in setting aside the order passed by the Commissioner and, therefore, the interim order passed by this Court deserves to be vacated.

I have considered the rival submissions.

There is substance in the submissions of learned counsel for the respondents that the issue before this Court presently is the validity of the order passed by the Commissioner and the Board and the validity of judgment and decree passed by the SDO cannot be examined in the present proceedings.

So far as the maintainability of the appeal under Section 90-B(7) of the Act of 1956 is concerned, this Court in the case of Anjana Kothari (supra) observed and held as under:-

"14. Sub-section (7) of Section 90-B of the Act, therefore, is a limited remedy provided to person aggrieved (land owner) only. This is not an appeal provided where land is vested back by the local body in the person concerned, who surrendered the land under the provisions of sub-section (i), (2) and (3) of the said Section 90-B. Sub-section (9) provides that order passed by the Divisional Commissioner on such appeal of the person aggrieved shall be final and sub-section (10) provides that no civil court shall have jurisdiction to entertain any suit with respect to such order.

On a plain reading of these provisions as per Golden Rule of interpretation, and the scheme of Section 90-B of the Act 1966, 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 is 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."

Again the Division Bench in the case of Smt. Sheela Kothari (supra) reiterated the above aspect as under:-

"10. 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 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) thereof."

In view of the legal position as settled by this Court, any contrary view thereof having not been presented by learned counsel for the petitioner, there is essentially lack of any prima facie case in favour of the petitioner; and therefore the application filed by the respondents No. 1 to 4 is allowed, the ex parte interim order dated 30.05.2014 passed by this Court is vacated.

The stay petition filed by the petitioner is dismissed.