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Jagannath Etc. Etc. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1172 of 1984
Judge
Reported in1985(2)WLN113
AppellantJagannath Etc. Etc.
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Excerpt:
.....of permission.;the grant of the sanad under rule 13 implies that the khatedar who has been granted permission for use of land for non-agricultural purposes under the act and the rules, has certain rights over the land in respect of which permission has been granted and the said rights can be transferred by him to third persons. in my opinion, therefore, it is not possible to hold that the petitioners were not competent to transfer their rights in the agricultural lands in respect of which permission for conversion had been granted to them under order dated 27th march, 1984 and the said transfer does not constitute any breach of the conditions conditions laid down in the said order or the breach of the provisions of rules or section 90a of the act.;(b) rajasthan land revenue act,..........lands for residential purposes and the collector, jhalawar by his orders dated 27th march, 1984 granted permission to the petitioners for conversion of agriculutral land measuring 1000 sq. yds. for the residential purposes. in the said order six conditions were laid down and the applicant was required to pay a sum of rs. 250/- as premium. the petitioners deposited the aforesaid amount of premium. subsequently, the petitioners decided to sell the land in respect of which permission was granted to other persons and submitted the sale-deed for registration before the sub-registrar, khanpur on 17th july, 1984. as the sub-registrar, khanpur refused to register the usaid sale-deeds, the petitioners approached this court by filing writ petitions nos. 930 to 935 of 1984. in those writ.....
Judgment:

Suresh Chandra Agrawal, J.

1. All these writ petitions raise common questions relating to the validity of the order dated 22nd August, 1984 passed by the Collector, Jhalawar and, therefore, they are being disposed of by this common order.

2. The petitioners in these writ petitions hold Khatedari rights in agricultural lands situate in village and Tehsil Khanpur, district, Jhalawar. In Section 90A of the Rajasthan Land Revenue Act, 1956 (here in after referred to as the Act'), provision has been made with regard to the use of agricultural land for non-agricultural purposes after obtaining permission of the State Government. In exercise of the powers conferred by clause (XI-A) of Section 261 read with Section 90A and cluase (a) of Sub-section (1) of Section 260 of the Act, the State Government has made the Rajasthan Land Revenue (Conversion of Agricultural Land for Residential or Commercial Purposes in Rural (Areas) Rules, 1971 (here in after referred to as 'the Rules'). The Rules make provision for grant of permission for conversion of agricultural land for use for residential or commercial purposes in rural areas. In accordance with the said Rules, the petitioners submitted applications before the Collector, Jhalawar for grant of necessary permission for the use of their agricultural lands for residential purposes and the Collector, Jhalawar by his orders dated 27th March, 1984 granted permission to the petitioners for conversion of agriculutral land measuring 1000 Sq. Yds. for the residential purposes. In the said order six conditions were laid down and the applicant was required to pay a sum of Rs. 250/- as premium. The petitioners deposited the aforesaid amount of premium. Subsequently, the petitioners decided to sell the land in respect of which permission was granted to other persons and submitted the sale-deed for registration before the Sub-Registrar, Khanpur on 17th July, 1984. As the Sub-Registrar, Khanpur refused to register the usaid sale-deeds, the petitioners approached this Court by filing writ petitions Nos. 930 to 935 of 1984. In those writ petitions notices were issued by this Court on 10th August, 1984 requiring the respondents in the writ petitions to show cause as to why the writ petitions should not be admitted. The said notices were served on the Tehsildar-cum-Sub-Registrar, Tehsil Khanpur an 16th August, 1984. On 22nd August, 1984, the Collector, Jhalawar passed the impugned order where by the earlier orders by which the agricultural lands of the petitioners were allowed to be converted for use for residential purposes, was cancelled and it was directed that the said land in respect of which order for conversion was passed, shall vest in the State Government. Feeling aggrieved by the aforesaid order, the petitioners have filed these writ petitions.

3. In the writ petitions, the case of the petitioners is that the Collector had no power to pass the impugned order revoking the earlier order granting permission to the petitioners for conversion of agricultural land for use for residential purposes and further that the petioners had not committed any breach of any of the conditions that were imposed in the order dated 27th March, 1984 or the provisions of Act or the Rules.

4. The writ petitions have been contested on behalf of the respondents, but no reply to the writ petitions has been filed.

5. In order to appreciate the contentions urged by Shri Pareek, it would be convenient to take note of the provisions contained in Section 90A of the Act as well as the Rules. Section 90A of the Act reads as under:

90A. Use of agricultural land for non agricultural purposes--(1) No person holding any land for the purpose of agriculture, and no transfer of such land or any part thereof, shall use the same or any part thereof, by the construction of buildings thereon or otherwise for any other purpose except with the written permission of State Government obtained in the manner here in after laid down and otherwise than in accordance with the terms and conditions of such permission.

(2) any such person desiring to such land or any part thereof for any purpose other than that of agriculture shall apply for the requisite permission in the prescribed manner and to the prescribed officer or authority and every such application contain the prescribed particulars.

(3) The State Government shall, after making or causing to be made due inquiry in the prescribed manner, either refuse the permission applied for or grant the same subject to the prescribed terms and conditions.

(4) When any such land or part thereof is permitted to be used for any purpose other than that of agriculture, the person to whom such permission is granted shall be liable to pay to the State Government in respect thereof:

(a) an urban assessment levied at such rate and in accordance with such manner as may be laid down in rules to be made in this behalf by the State Government; or

(b) such amount by way of premium as may be prescribed by the State Government; or

(c) both

(5) If any such land is so used:

(a) without the written permission of the State Government being first obtained, or

(b) otherwise than in accordance with the terms and conditions of such permission, or

(c) after such permission having been refused under Sub-section (3); or

(d) without making of the payments referred to in Sub-section (4), the person originally, holding the land as aforesaid for the purpose of agriculture as well as all subsequent transferees, if any, shall be deemed to be a trespasser or trespassers as the case may be, and shall be liable to ejectment from such land in accordance with s. 91 as if he or they had occupied or continued to occupy such land without lawful authority and to every such proceeding the provisions of Section 212 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) shall apply if such lands were in the danger of being wasted, damaged on alienated:

Provided that the State Government may, in lieu of having such person and the subsequent transferees so ejected from the land in question, allow him or them, as the case may be, to retain such laud, use the same for any purpose other than that of agriculture on payment to the State Government, in addition to the urban assessment and premium payable under Sub-section (4), of such fine by way of penalty as may be prescribed.

6. Rule 3 of the Rules lays down that agricultural land may be permitted to be used for construction of a residential house or for any commercial purpose and requires that no land shall be converted to any non-agricultural purposes unless necessary permission from the competent authority has been obtained and a 'Sanad' as provided in the Rules, has been obtained. Rule 4 lays down that agricultural land permitted to be used for residential or commercial purposes under the Rules shall be used by the applicant strictly for the purpose for which he is so permitted and for no other purpose. Rule 5 prescribes that conversion of the lands mentioned therein cannot be permitted. Rule 6 provides for making of the application for permission in the prescribed form. Rule 8 provides for scrutiny of the applications. Rule 9 prescribes the mode of disposal of the applications. Rule 10 lays down the conditions subject to which the permission may be granted. The said rule reads as under:

10. Conditions of permission--Permission to use agricultural land for non-agricultural purposes under these rules shall be given on following conditions:

(1) The applicant shall pay to the State Government the amount of premium specified in Rule 12;

(2) Construction of buildings for residential or commercial purposes shall be started only after a Sanad has been issued to be applicant.

(3) In making constructions on his land so permitted, the applicant shall abide by bye-laws, if any, of the Panchayat or Panchayat Samiti having jurisdiction over the local area;

(4) The lease shall abide by any rules made by the State Government Under Section 99 of the Act, regulating construction, maintenance, demolition, repairs, and extension of building.

(5) Upon sanction of conversion of land under these rules, all Khatedari rights of the applicant in such land, including his Khudkast rights, if any, under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) shall come to an end and the land shall vest in the State Government free from all encumbrances, and upon such vesting no land revenue shall be payable in respect of that portion of the holding.

7. Rule 11 prescribes the maximum area of land which may be permitted to be converted for non-agricultural purposes. Rule 12 provides for the rate of premium and Rule 13 deals with payment of premium and grant of Sanad to the applicant.

8. Shri Pareek has submitted that the petitioners have complied with the conditions that were imposed in the order dated 27th March, 1984 whereby permission was granted to each of the petitioners for conversion of l000sq.yds. of agricultural land for residential purposes and they have also paid the amount of premium fixed under the said order. The submission of Shri Pareek was that the petitioners have not committed any breach of any of the conditions laid down in the said order and that the Collector is not correct in holding in impugned order that they have failed to comply with condition No. 6 of the order dated 27th March, 1984. The submission of Shri Pareek was further that in any event, the failure to comply with the conditions laid down in the order dated 27th March, 1984 does not entitle the Collector to revoke the order granting permission and the only consequence for breach of conditions is as prescribed in Sub-section (5) of Section 90A of the Act, namely, to treat the petitioners or their transferees as trespassers so as to render them liable to ejectment Under Section 91 of the Act. The submission of Shri Pareek was further that the sale of the land in respect of which permission has been granted, does not involve any breach of the conditions laid down in the order dated 27th March, 1984. The learned Addl. Government Advocate on the other hand, has submitted that it was not permissible for the petitioners to transfer the lands in respect of which permission had been granted under order dated 27th March, 1984 and the said permission had been granted only for the construction of a residential house for the use of the petitioners themselves and that by transferring the said agricultural lands to third persons, the petitioners had violated the conditions of the order dated 27th March, 1984 and since the petitioners had committed breach of the conditions hid down in the order dated 27th March, 1984 the Collector was justified in passing the impugned order whereby he revoked the permission that was granted to the petitioners for conversion of the agricultural lands for residential purposes.

9. In my opinion the contentions urged by Shri Pareek must be accepted. I am unable to find any condition laid down in the order dated 27th March, 1984 whereby the petitioners were prohibited from transferring the land in respect of which permission was being granted for use for residential purposes. All that condition No. 6 of the order dated 27th March, 1984 prescribes is that the permission for conversion was being granted only for residential purposes in respect of 1000 Sq. Yds. and that the land could not used for any other purpose. From the aforesaid condition laid down in the order dated 27th March, 1984, it is not possible to infer a restriction on the right of the petitioners to transfer their land to third persons. Nor can such a restriction with regard to transfer of the land for which permission is granted be inferred from Section 90A of the Act or the Rules. On the other hand sub-s (5) of Section 90A includes within its ambit subsequent transferees which indicates that the conditions which are laid down at the time of grant of permission for conversion of agricultural land for non-agricultural purposes are binding on subsequent transferees also. This shows that transfer of the land in respect of which permission has been granted, is not prohibited under the Act and the Rules.

10. The learned Additional Government Advocate has referred to Sub-rule (5) of Rule 10 which provides that upon sanction of conversion of land under the Rules, all Khatedari rights of the applicant in such land, including his khudkasht rights, if any, under the Rajasthan Tenancy Act, 1955 came to an end and the land shall vest in the State Government free from all encumbrances. The submission of learned Addl. Government Advocate was that since the Khatedari rights of the petitioners in the agricultural lands in respect of which permission was granted by order dated 27th March, 1984 had come to an end and the said lands had vested in the State Government, it was not permissible for the petitioners to transfer the said lands. In my opinion the aforesaid provision in Sub-rule (5) of Rule 10 cannot be construed to mean that the rights of the petitioners in the lands in respect of which permission has been granted for use for non-agricultural purposes are extinguished because after the permission is granted and the premium is paid a 'Sanad' is. issued to the applicant under Rule 13. The grant of the Sanad under Rule 13 implies that the Khatedar who has been granted permission for use of land for non-agricultural purposes under the Act and the Rules, has certain rights over the land in respect of which permission has been granted and the said rights ran be transferred by him to third persons. In my opinion, therefore, it is not possible to hold that the petitioners were not competent to transfer their rights in the agricultual lands in respect of which permission for conversion had been granted to them under order dated 27th March, 1984 and the said transfer does not constitute any breach of the conditions laid down in the said order or the breach of the provisions of Rules or Section 90A of the Act.

11. Further more it may be mentioned that the only consequence that has been provided for the breach of the conditions imposed at the time of granting permission for conversion of agricultural land for use for non-agricultural purposes is that laid down in clause (b) of Sub-section (5) of Section 90A of the Act. Clause (b) of Sub-section (5) of Section 90A prescribes that if the land in respect of which permission has been granted for use for non-agricultural purposes is used otherwise than in accordance with the terms and conditions of such permission, then the person originally holding the land as aforesaid for the purpose of agriculture as well as all subsequent transferees, if any, shall be deemed to be trespasser or trespassers, as the case may be, and shall be liable to ejectment from such land in accordance with s. 91 as if he or they had occupied or continued to occupy such land without lawful authority. This would mean that in cases where the person to whom permission was granted for use of agricultural land for non-agricultural purposes fails to comply with the terms and conditions subject to which permission was granted, then the said person is to be treated as a trespasser and he can be ejected under Section 91 of the Act. The same would apply to the transferee from the original holder and if such transferee violates the terms and conditions subject to which the permission was granted, he can also he treated as a trespasser and he can be evicted under Section 90A of the Act. This shows that breach of the terms and conditions subject to which permission was granted, cannot be a ground for revoking the permission.

12. In the present case it cannot be said that the petitioners have used the agricultural lands in respect of which permission was granted by order dated 27th March, 1984 for purposes other 'than residential purposes because in the impugned order reference has been made to the letter of Tehsildar, Khanpur, dated 11th July, 1984 wherein it is stated that lands which have been converted are being sold for construction of houses. In case the petitioners or their transferees use such land other that for residential purpose it would be open to take appropriate action against them in accordance with Sub-section (5) of Section 90A of the Act. In the circumstances the Collector was not justified in law in passing the impugned order revoking his earlier orders granting permission to the petitioners for converting their agricultural lands for use for non-agricultural purposes and the said order cannot, therefore, be upheld.

13. Before concluding, it may be mentioned that the learned Addl. Government Advocate has also raised a preliminary objection with regard to the maintainability of the writ petition on the grounds that the alternative remedy of an appeal against the impugned order was available to the petitioners under Section 75 of the Act and that in view of the aforesaid alternative remedy of an appeal, the writ petitions cannot be entertained. Under Section 75 of the Act, an appeal lies to the Revenue Appellate Authority from an original order passed by the Collector in matters not connected with settlement or land records. Shri Pareek has submitted that no appeal lies against the impugned order passed by the Collector under Section 75 of the Act because the said order cannot be said to have been passed under the provisions of the Act or the Rules and that the Collector in passing the said order has acted wholly without jurisdiction. I have carefully perused the provisions of Section 90A of the Act and the Rules. I do not find any provision which empowers the Collector to revoke the permission granted under the said Section and the Rules on the ground of breach of conditions laid down in the order granting permission. In the circumstances the impugned order passed by the Collector was an order passed without jurisdiction and the existence of remedy of appeal under Section 75 of the Act will not stand in the way of the petitioners invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution.

14. In the result the writ petitions are allowed and the order (Annexuro 4) dated 22nd August, 1984 passed by the Collector, Jhalawar revoking permission to the petitioners for use of their agricultural lands for non-agricultural purposes, namely, residential purpose, is set aside and further proceedings taken in pursuance of that order are quashed. No order as to costs


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