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2012 DIGILAW 1947 (RAJ)

Kamruddin v. State of Rajasthan

2012-09-13

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—All these matters relate to passing of an order under Sec. 90B(5) of the Rajasthan Land Revenue Act, 1956 (hereinafter to be referred in short as 'the Act of 1956') in the first instance by the SDO (Autho-rized Officer) Nagar Parishad, Tonk, and thereafter to orders in appeal passed by the Divisional Commissioner Ajmer under Sec. 90-B(7) of the Act of 1956. 2. The facts in S.B. Civil Writ Petition No. 8440/2008 are being taken into consideration for the determination of the dispute/legal issues which arise in the writ petitions. 3. It is an admitted fact that the order dated 27th March, 2008 was passed by the SDO (Authorized Officer) Nagar Parishad, Tonk, either without issuing of any notice to the petittioner or without him giving an opportunity of hearing. In the instant case, notice had in the first instance been issued by the Tehsildar to the petitioner under Section 90-A of the Act of 1956. On or about 25th March, 2008, it however, transpired that the land in respect of which notice had been issued to the petitioner under Section 90-A of the Act of 1956 fell outside the jurisdiction of the Tehsildar but within the jurisdiction of Nagar parishad Tonk, consequent to which the Tehsildar finding himself lacking in jurisdiction, forwarded the file to jurisdictional Sub-Divisional Officer, (Authorized Officer), Nagar Parishad, Tonk for proceedings under Section 90-B of the Act of 1956. 4. Sub-section (2) of 90-B provides that where any land is liable to be resumed under the provisions of Sub-section (1) of Section 90-B, the Collector or the Officer authorized by the State government in his behalf shall serve a notice upon the person concerned calling upon such person to show cause as to why the said land may not be resumed summarily. The Sub-Divisional Officer (Authorized Officer) Nagar Parishad, Tonk however admittedly did not issue any notice but proceeded on the file as received from the Tehsildar, on proceedings under Section 90-B of the Act of 1956 against the petitioner. The file was received from the Tehsildar on 26th March, 2008. The matter was decided the following day itself i.e. on 27th March, 2008 without issuing notice to the petitioner or in terms of Sub-section (2) Section 90-B of the Act of 1956 or hearing the petitioner as warranted under sub-sec. (5) of the Section 90-B. 5. The file was received from the Tehsildar on 26th March, 2008. The matter was decided the following day itself i.e. on 27th March, 2008 without issuing notice to the petitioner or in terms of Sub-section (2) Section 90-B of the Act of 1956 or hearing the petitioner as warranted under sub-sec. (5) of the Section 90-B. 5. Aggrieved of the order dated 27th March, 2008 passed by the Sub-Divisional Officer, (Authorized Officer) Nagar Parishad, Tonk, the petitioner preferred an appeal under Section 90-B(7) of the Act of 1956 to the Divisional Commissioner, Ajmer. The Divisional Commissioner, Ajmer, held that notice had been issued to the petitioner by the Tehsildar and the petitioners having filed reply, there was no occasion for the Sub-Divisional Officer (Authorized Officer), Nagar Parishad, Tonk to issue notice afresh under Section 90-B(2) to the petitioner or hear the petitioner inasmuch as that the Sub-Divisional Officer was able to evaluate the worth of the petitioners defence from the reply to the notice issued under section 90-A by the Tehsildar. 6. I have heard Mr. Z.A. Naqvi Senior Counsel with Mr. Majahar Alam appearing for the petitioners and Mr. Jinesh Jain Addl. Government Counsel for the respondent. 7. In view of provisions of Sub-section (2) of Section 90-B and Sub-section (5) of Section 90-B, Mr. Jinesh Jain Addl. Government Counsel has very fairly admitted to the fact that proceedings under Section 90-B of the Act of 1956 can be initiated only by the Collector or the officer authorized by the State Government for the purpose. He submits that quite obviously the Tehsildar was not an officer authorized under Section 90-B of the Act of 1956 and as such proceedings before Tehsildar in respect of land falling within the territorial jurisdiction of Nagar Parishad, Tonk were without jurisdiction. For the purpose, the Tehsildar had rightly forwarded the file for consideration to the Sub-Divisional Officer (Authorised Officer), Nagar Parishad, Tonk for exercise of powers under Section 90-B of the Act of 1956, as Sub-Divisional Officer was the 'Authorized Officer' authorized by the State Government. He admits that the Sub-Divisional Officer (Authorized Officer), Nagar Parishad, Tonk had not issued any notice to the petitioner under Section 90-B of the Act of 1956 nor had granted him an opportunity being heard. 8. He admits that the Sub-Divisional Officer (Authorized Officer), Nagar Parishad, Tonk had not issued any notice to the petitioner under Section 90-B of the Act of 1956 nor had granted him an opportunity being heard. 8. In my considered opinion, the proceedings under Section 90-B had to be initiated afresh and could not sustain on proceeding earlier taken without jurisdiction by the Tehsildar under Section 90-A of the Act of 1956. Consequently, it was for the Sub-Divisional Officer to comply with the provisions of Sub-section (2) of Section 90-B and issue notice to the petitioner. All this admittedly was not done, as evident from the record that Sub-Divisional Officer decided the matter on 27th March, 2008 the day immediately following the date of receipt of the file from the Teshildar. Apart from the denial of principles of natural justice and a clear contravention of mandate of Sub-section (2) of Section 90-B, it is also an admitted position and ex-facie evident from the order dated 27th March, 2008 that the petitioner was not given any opportunity of being heard as mandated under Section Sub-section (5) of Section 90-B of the Act of 1956. 9. Further, in my considered opinion, the Divisional Commissioner committed a gross error in upholding the order dated 27th March, 2008 passed by the Sub-Divisional Officer (Authorized Officer) Nagar Parishad, Tonk in wrongly construing proceedings before Tehsildar as proceedings related to the provisions of Section 90-B. The Tehsildar having no jurisdiction over the land in issue in view of it falling within the notified limits of the Nagar Parishad, Tonk, proceedings before him were non-est. No cognizance of such proceedings could have been taken of by the Sub-Divisional Officer (Authorized Officer) Nagar Parishad, Tonk and he had to initiate processes afresh under Section 90-B of the Land Revenue Act. This important aspect of the matter has been overlooked by the Divisional Commissioner, who has conflated contrary to law proceedings under Section 90-A with those under 90-B of the Act of 1956. The Divisional Commissioner also erred in holding that in view of the reply filed by the petitioner before Tehsildar in proceedings under Section 90-A, there was no occasion to either issue notice under the hand of the Sub-Divisional Officer to the petitioner or with reference to Sub-section (5) of Section 90-B to provide him an opportunity of hearing. The Divisional Commissioner also erred in holding that in view of the reply filed by the petitioner before Tehsildar in proceedings under Section 90-A, there was no occasion to either issue notice under the hand of the Sub-Divisional Officer to the petitioner or with reference to Sub-section (5) of Section 90-B to provide him an opportunity of hearing. It is trite that the principles of natural justice are central to the administration of justice and even where there is no specific provision, the courts have consistently held that unless circumstances of grave emergency obtain which brook no delay principles of natural justice have to be complied with and an opportunity of hearing given. In the instant case, apart of breach of general principles of natural justice, Sub-section (2) of Section 90-B and Sub-section (5) of Section 90-B of the Act of 1956 have been breached which mandate notice at the hands of the 'Authorized Officer' and hearing to the party against whom an order of resumption is proposed under Section 90-B of the Act of 1956. Quite evidently, both the mandatory requirements before passing an order of resumption are missing in the present case. 10. Consequently, the writ petitions are allowed and the order dated 27th March, 2008 passed by the Sub-Divisional Officer (Authorized Officer), Nagar Parishad, Tonk as also the order dated 6th August, 2008 passed by the Divisional Commissioner are quashed and set aside. Stay application similarly disposed of. 11. It is however, made clear that in the event the petitioner is in user of the land under consideration in the writ petitions, contrary to the permitted user in law, the jurisdictional authorities will be at liberty to take all lawful action against him. It is also made clear that if petitioner has any right for consideration of regularization of unauthorized land user, he will be free to take his remedy in accordance with law. A copy of this order be kept on the file of each of connected case for record.