1 Dilip Tak Vs. State of Rajasthan & Ors. (D.B. Civil Special Appeal(W) No.139/2009) Date of Order :: 04.02.2009 HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE SANGEET LODHA Mr. J.P. Joshi, for the appellant. 1. This special appeal is directed against order dated 4.01.2008 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant assailing the validity of notice dated 31.5.96 issued by the Tehsildar, Abu Road, directing the appellant to remove the illegal construction in execution of order dated 6.12.95 passed in proceedings under Section 90A, 91 of the Land Revenue Act, 1956 (in short 'the Act of 1956' hereinafter), stands dismissed. 2. The appellant is khatadar tenant of agriculture land ad measuring 0.01 biswa comprising khasra no.22 situated at Manchgaon, Mount Abu. The appellant raised construction over the land in question of a residential house without obtaining prior permission from the competent authority. In this view of the matter, the proceedings under Sections 90A & 91 of the Act of 1956, was initiated by the Tehsildar, Abu Road, for his ejectment treating him to be trespasser so also for removal of construction. In response to the notice, the appellant appeared before the Tehsildar, Abu Road and by way of reply stated that he has transferred the land and building in question to one Shri Naveen Kumar 2 Tak by way of agreement dated 30.4.94 and he is not in possession of the land. After due consideration of the reply filed on behalf of the appellant and the material on record, the Tehsildar, Abu Road, arrived at the finding that in the revenue record the land exists in the name of the appellant and on the basis of the alleged agreement the same cannot be treated to be transferred to the alleged transferee Shri Naveeen Kumar. Admittedly, the appellant had raised the construction over the land in question without obtaining the written permission from the State Government, therefore, holding the appellant as trespasser on the land in question vide order dated 6.12.95, the Tehsildar, Abu Road, directed the appellant to remove the construction within a period of fifteen days. It was further ordered that if the construction is not removed within the stipulated time, the appropriate order will be issued for removal of the construction. It was observed that the construction shall be demolished after obtaining the sanction from District Collector, Sirohi. That apart, a penalty of Rs.50/- was also imposed upon the appellant in terms of Section 91(2) of the Act of 1956. 3. It appears that the appellant did not remove the construction as directed vide order dated 6.12.95, therefore, vide notice dated 31.5.96, issued by the Tehsildar, Abu Road, District Sirohi, the appellant was informed that the illegal construction may be removed within a period of 24 hours, failing which the appropriate action for removal of the construction shall be taken. At this stage, the appellant assailed the 3 validity of notices dated 31.5.96 and 26.4.95, by way of writ petition before this Court, without assailing the validity of the order dated 6.12.95. As a matter of fact, the appellant neither produced the order dated 6.12.95 on record nor any reference of the proceedings concluded as aforesaid, was made in the writ petition. 4. It was contended on behalf of the appellant that his application for conversion of agriculture land for residential purpose is pending before the competent authority, therefore, the proceedings initiated for removal of the alleged illegal construction is not justified. The learned Single Judge after due consideration of the submissions made on behalf of the appellant and the material on record, found that while executing the order the court cannot go behind the question raised in the writ petition and in absence of any challenge to the order dated 6.12.95, no fault can be found with the notice dated 31.5.96(Annexure-7). Regarding the pendency of the conversion application, the learned Single Judge observed that the same is not the subject matter for consideration of this Court to be adjudicated on merits. That apart, the learned Single Judge observed that in view of prohibition against the construction imposed by the Hon'ble Supreme Court in the relevant area of the Mount Abu, it would not be appropriate for the Court to go into the question of appellant's entitlement to regularisation or conversion etc. Accordingly, the writ petition preferred by the appellant has been dismissed. Hence, this appeal. 4 5. Relying upon order dated 6.12.95 placed on record by the appellant, it is contended by the learned counsel that in terms of said order, no proceedings for the removal of the construction can be initiated by the Tehsildar, Abu Road, without obtaining requisite sanction from the District Collector, Sirohi. However, on being pointedly asked by the Court, the learned counsel has not been able to point out any averment in the writ petition showing that the proceedings vide notice dated 31.5.96 (Annexure-7) has been initiated by Tehsildar, Abu Road, without obtaining prior sanction from the District Collector, Sirohi, in terms of order dated 6.12.95, therefore, the contention raised by the learned counsel without there being any factual foundation in the writ petition is devoid of any merit and cannot be entertained by this Court at this stage. 6. Relying upon the provisions of Section 90A and Rajasthan Land Revenue (Allotment, Conversion & Regularisation of Agricultural for Residential and Commercial purposes in Urban Area) Rules, 1981, the learned counsel submitted that since the application of the appellant for conversion of the land for residential purpose is pending before the competent authority, therefore, the proceedings initiated for removal of the construction in execution of the order dated 6.12.95 is not sustainable in the eye of law. The learned counsel submitted that on payment of requisite charges the appellant's land is bound to be converted from agriculture to residential purpose, therefore, the 5 proceeding initiated for removal of the construction, treating the appellant as trespasser is not justified. 7. It is not disputed before us by the learned counsel for the appellant that order dated 6.12.95 passed by the competent authority, in exercise of power conferred under Section 90A read with Section 91 of the Act of 1956, has attained finality. As per the provisions of sub- section (1) of Section 90A of the Act of 1956, no person holding any land for the purpose of agriculture or transferee of such land or any part thereof shall use the same or any part thereof by construction of the building thereon or otherwise for any purpose except with the written permission of the State Government in the manner laid down and in accordance with the terms and conditions of such permission. As per sub-section (4), the person holding the land or subsequent the transferee uses the land in defiance of the provisions of Section 90A (1) is deemed to be a trespasser. In this view of the matter, the proceedings of removal initiated by the competent authority in execution of order dated 6.12.95 which has attained finality, cannot be faulted with. 8. We are in agreement with the learned Single Judge that the application alleged to have been submitted by the appellant for the change of the land use from agriculture to residential purpose is not subject matter of the consideration of this Court. There is nothing on record to show that what further proceedings were taken on the 6 application alleged to have been preferred by the appellant for conversion of the land way back in the year 1993. Moreover, the conversion of the land from agriculture to non agriculture purpose in terms of the relevant Rules cannot be claimed as a matter of right, therefore, on account of alleged pendency of the application for conversion, the proceedings concluded as aforesaid by passing of the order dated 6.12.95, cannot be said to be illegal in any manner. That apart, as noticed by the learned Single Judge in view of the prohibition against the construction imposed by the Hon'ble Supreme Court in relevant area of the Mount Abu, this Court cannot go into the question of appellant's entitlement to regularisation or conversion, which otherwise also does not arise for consideration in the present matter. 9. For the aforementioned reasons, we do not find any error in the order passed by the learned Single Judge, warranting interference by us in this intra court appeal. 10. In the result, the appeal fails, it is hereby dismissed. No order as to costs. [SANGEET LODHA],J. [A.M. KAPADIA],J. vijayant