Komal Kumar vs Divisional Commissioner, ...
2022 Latest Caselaw 11680 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

S.B. Civil Writ Petition No. 1807/2011 Komal Kumar, aged about 34 years S/o Sh. Banshi Lal, B/c Baregma, R/o Near Bus Stand, Kapasan, Tehsil Kapasan District Chittorgarh (Raj.).

----Petitioner Versus

1. Divisional Commissioner, Udaipur (Raj.).

2. Authorized Officer (Municipality) - cum- Sub Divisional Officer, Kapasan, District Chittorgarh (Raj.).

3. Smt. Gheesi Bai, aged about 36 years, W/o Sh. Champa Lal Meghwal, R/o Charliya, Tehsil Bhadesar, District Chittorgarh.

4. Uda, aged about 35 years, S/o Sh. Narayan Meghwal, R/o Charliya, Tehsil Bhadesar, District Chittorgarh (Raj.).

5. Smt. Premi Bai, aged about 35 years, W/o Sh. Chandmal Meghwal, R/o Charliya, Tehsil Bhadesar, District Chittorgarh (Raj.).

6. Champa Lal, aged about 40 years, S/o Sh. Mangu Meghwal, R/o Charliya, Tehsil Bhadesar, District Chittorgarh (Raj.)

7. Narayan, aged about 40 years, S/o Sh. Bheru Lal Meghwal, R/o Charliya, Tehsil Bhadesar, District Chittorgarh (Raj.).

8. Arjun Lal, aged about 48 years, S/o Sh. Nand Lal Jeengar, R/o Rashmi, Tehsil Rashmi, District Chittorgarh (Raj.).

9. Municipality, Kapasan, District Chittorgarh (Raj.) through its Executive Officer.

10. Tehsildar, Kapasan, District Chittorgarh (Raj.).

----Respondent

For Petitioner(s) : Mr. Narpat Singh Charan.

Mr. Om Singh Charan.

For Respondent(s) : Mr. Rajesh Parihar, AGC.

Mr. Naresh Singh for Mr. Rakesh Arora.

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Order 20/09/2022

Heard learned counsel for the parties.

The present writ petition has been filed by the petitioner

against the order dated 07.10.2010 passed by the Authorized

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Officer (Municipality)- cum Sub Divisional Officer, Kapasan District

Chittorgarh, whereby the objections raised by the petitioner

against conversion of land of the private respondents from

agricultural to non-agricultural was rejected as well as the order

dated 11.11.2010 passed by the Divisional Commissioner, Udaipur,

whereby the appeal preferred by the petitioner against the order

dated 07.10.2010 was not heard and returned to the petitioner.

Briefly the facts necessary to be noted are that the petitioner

having entered into an agreement to sale of one forth part of the

share with one Narayan Lal with respect to the subject piece of

land for which an application for conversion of the said land was

filed by the private respondents. The agreement to sale entered

into between the petitioner and said Narayan Lal could not be

given effect to on account of the fact that Narayan Lal died before

the agreement to sale could be made effective. The legal heirs of

Narayan Lal entered into an agreement to sale with the private

respondents and the said land was sold to private respondents

after paying due consideration. The private respondents having

purchased the said land from the legal heirs of Narayan Lal

preferred an application for conversion of agricultural land to non-

agricultural land and proceedings under section 90-B of the

Rajasthan Land Revenue Act, 1956 were undertaken. In the

proceedings pending before the competent authority, the

petitioner preferred number of objections opposing conversion of

land from agricultural to non agricultural purpose. These

objections raised by the petitioner were discussed and rejected by

the respondent No.2 by a detailed order dated 07.10.2010. In

these circumstances, the petitioner filed an appeal before the

respondent No.1-Divisional Commissioner, Udaipur assailing the

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validity of the order dated 07.10.2010 passed by respondent No.2.

The respondent No.1 did not hear the appeal and returned the

same to the petitioner on 11.11.2010 on the ground that final

order whereby the application of the private respondents was

allowed under section 90-B of the Act of 1956 was not challenged

by the petitioner. Aggrieved against the orders dated 07.10.2010

and 11.11.2010, the petitioner has preferred the present writ

petition before this court.

Learned counsel for the petitioner vehemently submits that

the objections raised by the petitioner were decided by the

respondent No.2 by passing a judgment and therefore, as far as

the petitioner is concerned, the same is final order against him

and thus, the petitioner rightly preferred an appeal before the

respondent No.1 assailing the validity of the order dated

07.10.2010. Learned counsel further submits that the respondent

No.1 committed an error by treating the order dated 07.10.2010

as an interim order, returned the appeal to the petitioner. He

submits that as far as the petitioner is concerned, since the

objections raised before the respondent No.2 were already

decided, therefore, the order passed by the respondent No.2

should have been treated as a final order for the purpose of filing

an appeal in the present case.

Learned counsel for the petitioner further submits that as per

sub- section 7 of section 90-B of the Act of 1956, the word used

as "aggrieved by the order" which includes even interim order and

any order made during the course of the proceedings of

conversion of the land, appeal can be filed. He submits that the

respondent No.1 committed an error while returning the appeal

preferred by the petitioner. He, therefore, prays that the writ

(4 of 6) [CW-1807/2011]

petition filed by the petitioner may be allowed, the order dated

11.11.2010 passed by the respondent No.1 may be quashed and

set aside and the respondent No.1 may be directed to pass fresh

order on the merit of the appeal.

Per contra, learned counsel for the respondents submits that

the cause for filing objections against conversion of land by the

petitioner is simply on the ground that the agreement to sale

between the petitioner and Narayan Lal could not be made

effective in his favour and that land was thereafter purchased by

the private respondents, therefore, such objections were raised.

Learned counsel further submits that after rejection of the

objections by the respondent No.2, the order for conversion was

also passed on the same date and that was placed on record by

the respondents along with the reply to the writ petition as

Annexure-R3/5. He further submits that the order by which the

subject piece of land was converted from agricultural to non-

agricultural was actually passed by the respondent No.2 on

07.10.2010, therefore, if at all, the petitioner was aggrieved of

such conversion, that order should have been challenged before

the respondent No.1 by way of filing an appeal. Learned counsel

submits that no error has been committed by the respondent No.1

while passing the order dated 11.11.2010. He, therefore, prays

that the writ petition filed by the petitioner may be dismissed.

I have considered the submissions made at the bar and gone

through the relevant record of the case including the orders

impugned.

So far as the objections raised by the petitioner with respect

to the conversion of land from agricultural to non agricultural is

concerned, this court feels that the provisions of section 90-B of

(5 of 6) [CW-1807/2011]

the Act of 1956 clearly mention that any person who is objecting

to such conversion may file objections before the competent

authority with respect to the conversion of the land which is being

proposed at the hands of a person by the State. Therefore, in view

of provisions of section 90B of the Act of 1956, the petitioner was

competent to raise such objections, therefore, he could also prefer

an appeal as per sub section 7 of section 90-B of the Act of 1956.

For brevity, sub-section 7 of section 90-B of the Act of 1956 is

reproduced as under:-

"The person, aggrieved by the order made under sub-section (5), may appeal to the Divisional Commissioner or the officer authorised by the State Government in this behalf, within thirty days of passing of order under sub- section (5)".

In view of provisions of sub section 7 of section 90-B of the

Act of 1956, the petitioner was competent to raise objections as

well as file an appeal on being aggrieved by the order under sub

section 5 before the competent authority.

So far as disposal of the appeal by the respondent No.1 is

concerned, it appears that the respondent No.1 passed the order

treating the order dated 07.10.2010 passed by the respondent

No.2 as an interim order whereby the objections raised by the

petitioner were rejected. The order dated 11.11.2010 is not

happily worded and actually as per the provisions of sub section 7

of section 90-B of the Act of 1956, an appeal is preferred against

the order passed under sub section 5 which says that if the

Collector or the authorized officer of the State Government in this

behalf after hearing the parties is of the opinion that the land is

liable to be resumed under sub section 1, he shall after recording

the reasons in writing, order for termination of rights and interest

of such person in the said land and order for resumption of the

(6 of 6) [CW-1807/2011]

said land. A Plain reading of sub section 5 & 7 of Section 90-B of

the Act of 1956 prescribes that if an order is passed in terms of

sub section 5, then recourse of filing an appeal under sub section

7 is amenable to such person.

In the instant case, since, in compliance of sub section 5 of

section 90-B of the Act of 1956, such order was already passed by

the respondent No.2 on 07.10.2010 whereby after hearing both

the parties, he has terminated the rights and interest of such

person and ordered for resumption and the same is placed on

record as Annexure-R3/5 and since this order has not been

assailed by the petitioner before the respondent No.1 by way of

filing an appeal under sub section 7, learned Divisional

Commissioner, Udaipur was right in returning the appeal.

It is also noted that merely decision of the prescribed

authority while deciding the objections of the petitioner in the

present case, cannot be treated as an order passed under sub

section 5 of section 90-B of the Act of 1956.

Thus, in the opinion of this court, no illegality has been

committed by learned Divisional Commissioner, Udaipur in passing

the order dated 11.11.2010 and the appeal was rightly returned to

the petitioner.

In view of the discussions made above, the writ petition filed

by the petitioner is dismissed being bereft of merit.

(VINIT KUMAR MATHUR),J 51-Anil Singh/-

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