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2002 DIGILAW 1583 (RAJ)

Kanchan Devi v. State of Raj.

2002-09-12

SUNIL KUMAR GARG

body2002
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 28.8.92 with a prayer- that by an appropriate writ order or direction the Rule 9(11) of the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Construction of Cinemas, Hotels and Establishment of Petrol Pumps), Rules 1978 be declared illegal and be struck down and further it may be declared that the petitioner is not liable to pay lease rent again under the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Construction of Cinemas. Hotels and Establishment of Petrol Pumps) Rules, 1978 and further the impugned notice dated 21/24.6.92 (Annex.8) be quashed and set aside. (2). The facts as put forward by the petitioner are as under: (i) That the petitioner a land measuring 3/4 bighas falling in khasra No.618/1 from one Shri Dharam Raj by a registered sale-deed dated 21.6.71. (ii) That the petitioner wanted to construct a cinema hall and, therefore, she applied for conversion of land under the Provisions of Rajasthan Land Revenue (Conversion of Agricultural Land for Residential or Commercial Purposes in Rural Areas) Rules, 1971 (hereinafter referred to as the Rules, of 1971). (iii) That the competent authority, namely the Collector, Bhilwara (respondent No.2) permitted the conversion of petitioners land vide his order dated 19.1.74 (Annex.1). (iv) That the petitioner deposited the amount of premium as ordered by the Collector (respondent No.2) and on payment of the same, the Sanad (Annex.2) was issued to the petitioner on 28.1.74 by which land was converted. (v) That in the meanwhile, no objection certificate for construction of cinema hall was obtained from the Collector, Bhilwara (respondent No.2) and after the construction of the cinema hall, a licence was granted under the Rajasthan Cinemas Regulation Act, 1950 in favour of the petitioner. (vi) The further case of the petitioner is that the State Government in exercise of powers conferred by the provisions contained in Section 90A and Section 102 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the act of 1956) framed the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Construction of Cinemas, Hotels and Establishment of Petrol Pumps), Rules, 1978 (hereinafter referred to as the Rules, 1978). (vii) That after coming into force of Rules of 1978, a notice dated 8.2.83 (Annex.3) was received by the petitioner from the office of Collector, Bhilwara (respondent No.2) directing the petitioner to make further payment of lease rent as per the Rules of 1978. (viii) That aggrieved from the issuance of notice dated 8.2.83 (Annex.3), the petitioner preferred an.appeal before the Revenue Appellate Authority and the Revenue Appellate Authority vide its judgment dated 25.3.83 (Annex.4) quashed the notice dated 8.2.83 (Annex.3) issued by the respondent No.2 and remanded the matter back for fresh decision. (ix) That the Collector again on remand, passed fresh order maintaining his previous order dated 8.2.83 (Annex.3) through order dated 16,4,85 (Annex.5). Thereafter the petitioner again preferred an appeal before the Revenue Appellate Authority, Ajmer and the Revenue Appellate Authority again remanded the matter back to the Collector, Bhilwara (respondent No.2) through its judgment dated 11.11.86 (Annex.6). (x) It may be stated here that in the judgment dated 11.11.86 (Annex.6), the Revenue Appellate Authority observed that the Rules of 1971 stood repealed by coming into force of new Rules of 1978 and because of Rule 9(11) of the Rules of 1978, the lease rent could be charged again. (xi) That thereafter, the Collector (respondent No.2) again issued a notice dated 21/24.6.92 (Annex.8) as to why the conversion order be not cancelled and the land be not reverted back to the State Government. Hence, this writ petition with the above mentioned prayer. Since In this writ petition validity of Rule 9(11) of the Rules of 1978 has also been challenged, therefore, for convenience, Rule 9(11) of the Rules of 1978 is quoted hereunder:- ``19. Conditions of allotment, conversion and Regularisation:- 1...... 11. The lease rent shall apply to all conversions effected during the period starting from 16th December, 1960. The amount already paid as premium shall be adjusted against the total amount payable. (3). Reply to the writ petition was filed by the respondents and their main contention is that because of Rule 9(11) of the Rules of 1978, the Collector, had power to issue notice dated 21/24.6.1992 (Annex.8) had further the Collector was also entitled to charge fresh conversion charges as per provisions container in the Rules of 1978 irrespective of the fact that charges were earlier paid under the Rules of 1971 by the petitioner. Hence, this writ petition should be dismissed. (4). Hence, this writ petition should be dismissed. (4). I have heard both and perused the record. (5). There is no dispute in this case on the point that in the beginning agricultural land in dispute was converted by the respondent for use of Cinema and that conversion was made under the provisions of Rules of l971 was paid by the petitioner and thereafter she was given permission through Sanad (Annex.2) dated 28.1.74. (6). Thus, the fact that disputed land was converted under the provisions of Rules of 1971 stands established. (7). There is also no dispute on the point that Rules of 1978 wore framed and they ware made effective with effect from 26.10.78 and Rule 12 of the Rules of 1978 deals with repeal and saving clause and by that Rule, the Rajasthan Land Revenue (Allotment and Conversion of Agricultural Land for Establishment of Patrol Pump) Rules, 1973 (hereinafter referred to as the Rules of 1973) were repealed. (8). There is also no dispute on the point that fresh lease rent is being charged from the petitioner as power has been given to the Collector under Rule 9(11) of the Rules of 1978 as stated above. (9). In my opinion for the following reasons, this writ petition has to be allowed: (i) That when the land of the petitioner was already converted for the purpose of construction of Cinema and for that requisite amount as provided in the Rules of 1971 was deposited by the petitioner and permission was also issued to the petitioner through Sanad (Annex.2) dated 28.1.74, no fresh/revised lease rent could be charged by respondent No.2 for conversion of same land for cinema for which the Petitioner had already paid the premium and the land was duly converted for that purpose. ii) That so far as applicability of provisions of Rules of 1978 is concerned, it may be stated here that Rule 9(11) of the Rules of 1978 would not be applicable in this case as through Rules of 1978, Rules of 1973 were repealed, but the land of the petitioner was converted not under the repealed Rules of 1973, but under the Rules of 1971 and, therefore, the provisions of Rules of 1978 would not be applicable In the case of the petitioner and when this being the position, issuance of notices dated 21/24.6.1992 (Annex.8) by the respondent No.2 is without jurisdiction. (iii) That since in this case provisions of Rules of 1978 are not applicable, therefore, validity of Rule 9(11) of the Rules of 1978 is not being decided in this writ petition. (iv) That the observation made by the Revenue Appellate Authority, Ajmer in its judgment dated 11.11.86 (Annex.6) that Rules of 1971 stood repealed by the Rules of 1978 is basically wrong as as through Rules of 1978, Rules of 1973 stood repealed. Therefore, approach of the learned Revenue Appellate Authority on the applicability of Rule 9(11) of the Rules of 1978 is absolutely wrong, therefore, the findings recorded by the Revenue Appellate Authority in its judgment dated 11.11.86 (Annex.6) may be classified as perverse one. (v) Had the conversion of land of the petitioner would have taken place under the provisions of Rules of 1973, in such case, if fresh lease-rent would have been charged by the respondents under Rule 9(11) of the Rules of 1978, the position would have been different one. Since in the present case, the land was converted under the provisions of Rules of 1.971, therefore, the petitioner could not be asked to pay fresh lease rent under the Rules of 3@978, therefore, issuance of notice dated 21/24.6.92 (Annex.8) has become illegal one and is liable to be quashed and set aside. (9). For the reasons mentioned above, this writ petition is liable to be allowed and notice dated 21/24.6.92 issued by the Collector, Bhilwara (respondent No.2) is liable to be quashed and set aside. Accordingly. the present writ petition is allowed and the notice dated 21/24.6.92 (Annex.8) issued by the Collector, Bhilwara (respondent No.2) is quashed and set aside and it is declared that the petitioner is not liable to pay lease rent again under the Rajas- than Land Revenue (Allotment, Conversion & Regularisation of Agricultural Land for-Construction of Cinemas, Hotels & Establishment of Petrol Pumps) Rules, 1978. Cost made easy.