Writ petition challenging regularisation of land in favour of other brothers via sale deed. Court held transaction valid and Divisional Commissioner's order legal.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. CIVIL WRIT PETITION NO. 1577/2010
Jitendra Narchal son of Late Shri Tilakraj Narchal, aged
44 years, Caste Punjabi, resident of Narchal Poultry
Farm, Haribhau Upadhyay, Puskar Road, Ajmer.
....Petitioner
Versus
Urban Improvement Trust, Ajmer.
Punjabi, resident of 50, Haribhau Upadhyay Extension
Scheme, Pushkar Road, Ajmer.
Caste Punjabi, resident of 73, Haribhau Upadhyay
Extension Scheme, Pushkar Road, Ajmer.
of 456-B, Railway Bungalow, Johns Ganj, Ajmer.
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[CW-1577/2010]
resident of Village Peepliya, Tehsil Degana, District
Nagaur.
....Respondents.
_____________________________________________________ For Petitioner(s) : Mr Amit Kuri for Mr Lokesh Sharma For Respondent(s) : Mr JP Gupta Mr BR Rana Mr Kapil Prakash Mathur Mr Dhanraj Bhaskar for Mr Devendra Raghav
HON'BLE MR. JUSTICE M.N. BHANDARI
Judgment
06/01/2017
By this writ petition, a challenge is made to the order dated 18.1.2010 passed by the Divisional Commissioner, Ajmer and the order dated 5.6.2003 passed by the Urban Improvement Trust, Ajmer (UIT).
Learned counsel submits that by the aforesaid orders, land belonging to the petitioner was regularised in favour of the private respondent No.3-Vinod Narchal. It was without authority of law and otherwise the land regularised in favour of the private
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respondent is for bigger area than surrendered by him. It was in violation of provisions of law and to benefit private respondent. On regularisation of the land under section 90B of the Rajasthan Land Revenue Act, 1956 (for short ‘the Act of 1956’), petitioner preferred a revision before the Divisional Commissioner, however, it was dismissed ignoring the fact that an order under section 90B of the Act could not have been passed without an application by the petitioner for the land belonging to him. It is more so when private respondent came out with two documents i.e. power of attorney and sale deed though the power of attorney was disputed rather an FIR was lodged against the private respondent alleging forgery on his part for creation of power of attorney. Ignoring the aforesaid, impugned order has been passed thus both the impugned orders deserve to be set aside with a direction to the respondents No.1 and 2 not to regularise the land belonging to the petitioner in Khasra No.817 and 818 of Village Nausar, Ajmer.
Learned counsel for respondents have contested the writ petition. It is submitted that the land of khasra No. 817 and 818 was existing in the name of the brothers. A poultry farm was constructed by the petitioner and another brother Ravindra Narchal after taking loan from the bank. They failed to satisfy the loan amount thus the bank filed case against them for recovery. The private respondents No.3 and 4 were guarantor to the loan thus they were also made party in the suit. The civil suit was decreed for a sum of Rs.12 lakh. The petitioner and his brother
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Ravindra Narchal were unable to satisfy the aforesaid amount thus the land belonging to Ravindra Narchal and the petitioner was sold to to private respondents No.3 and 4. A power of attorney and sale deed was executed for the aforesaid. The private respondents No.3 and 4 satisfied the loan amount of the bank and receipt was obtained for it.
The acquisition proceedings were initiated by the government for the said land. In pursuance to the sale deed executed in favour of private respondent by Ravindra Narchal and the petitioner, they challenged acquisition proceedings of the land before this court by maintaining a writ. An interim order was passed in their favour. The UIT came out with the proposal for settlement in pursuance of the circular issued by the government in the year 2002. The proposal was accepted and, accordingly, writ petition was disposed of on the aforesaid. The UIT thereupon regularised the land in favour of the private respondents after its surrender. It was not under section 90B of the Act of 1956 but pursuant to the acquisition proceedings and the circular issued by the government in the year 2002. It was not for an area greater than surrendered.
After regularisation of the land, petitioner preferred a revision petition before the Divisional Commissioner though it was not even maintainable. The Divisional Commissioner considered the issue about maintainability of the revision in reference to
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section 90B of the Act of 1956 as well as Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 ( for short ‘the Rules of 1974’). The revision petition was not found maintainable under section 90B of the Act of 1956 and rule 30 of the Rules of 1974. The Divisional Commissioner yet considered the matter on merit. It was found that the petitioner had executed power of attorney and the sale deed in favour of the private respondents though the issue of power of attorney was not thereupon considered as a criminal case was pending. The Divisional Commissioner, however, found that no challenge to the sale deed executed by the petitioner has been made either before the civil court or before any other competent court thus, considering the sale deed in favour of the private respondent, the claim of the petitioner in khasra No.817 and 818 of Village – Nausar, Ajmer was not accepted. It was also held that dispute regarding sale deed cannot be decided by the Divisional Commissioner and, accordingly, revision petition was rightly dismissed. The prayer is accordingly made to maintain impugned orders without calling for any interference.
I have considered rival submissions of the parties and perused the record. ‘
This case has a checkered history. The facts have been narrated in the preceding paras. It is not in dispute that khasara No. 817 and 818 of Village Nausar, Ajmer was held by the brothers
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jointly. The petitioner was having half share in those khasra numbers along with other brothers. A poultry farm was constructed by the petitioner and other brother on the said land. The land remained subject matter of acquisition thereupon. Prior to the acquisition of the land, petitioner and his brother Ravindra Narchal obtained loan from the bank for construction of poultry farm. They failed to discharge their loan amount thus bank filed a civil suit for recovery of the loan amount. A decree was passed for recovery of Rs.12 lakh. At that stage, petitioner and his brother Ravindra Narchal executed a sale deed in favour of private respondents No.3 and 4 with the understanding to satisfy the loan amount of the bank. The loan amount was satisfied by the private respondents with a receipt in their favour. After satisfaction of the loan amount pursuant to the sale deed, private respondents preferred a writ petition to challenge acquisition and an interim order was passed in their favour. The UIT, thereafter, offered compromise in pursuance of the circular of the government issued in the year 2002. The writ petition was disposed of on the aforesaid. The UIT, thereupon, considered the case of the private respondents for regularisation of the land in reference to the circular. After getting a survey report, regularisation of the land was made in favour of the private respondent. It was not for a greater area than surrendered. It was not by invoking section 90B of the Act of 1956 but independently, rather, in pursuance to the circular of the year 2002. The petitioner yet challenged the order aforesaid treating it to be under section 90B of the Act of 1956
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though, for challenge to the order under section 90B, an appeal lies and not the revision.
The Divisional Commissioner considered the issue about maintainability of the revision petition in reference to section 90B of the Act of 1956 and rule 30 of the Rules of 1974. the revision petition was not found maintainable yet the issue was considered and decided on merits. The learned Divisional Commissioner found that while the power of attorney has been challenged by the petitioner but no challenge was made to the sale deed. In view of above, sale deed executed in favour of the private respondent was taken into consideration for decision on merit. In terms of the sale deed by the petitioner, regularisation of the land in favour of private respondent was held to be legal. I do not find any illegality in the order passed by the Divisional Commissioner for the aforesaid. In view of above, no reason exist to cause interference therein, rather, I do not find any merit in the writ petition. Hence, it is dismissed.
(M.N. BHANDARI)J.
bnsharma
3 issues framed by the court
Whether the Divisional Commissioner was correct in holding the revision petition not maintainable under section 90B of the Rajasthan Land Revenue Act, 1956.
Whether the regularisation of land in favour of private respondents pursuant to a sale deed and government circular was legal.
Whether the writ petition challenging the regularisation order deserves interference.
2 provisions across 2 enactments
Jitendra Narchal
Divisional Commissioner, Ajmer
Prescribed Authority and Authorized Officer (Land), Urban Improvement Trust, Ajmer
Vinod Kumar
Rajendra Kumar
Sumlesh Mathur
M.N. Bhandari
As recorded by the court registry
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