- (1.) These writ petitions are directed against the order of the Board of Revenue dated 20/1/2010 (Ann.1) whereby the revision petition submitted by the petitioner against the order of the SDO dated 31/8/2009 has been dismissed and the order dated 31/8/2009 (Ann.2) passed by Sub Divisional Officer, Ramganj Mandi, Kota whereby, application of the petitioner moved under Order 7 Rule 11 CPC has been rejected.
(2.) Learned counsel for the petitioner has submitted that case of the defendant-petitioner is that he has not been paid compensation in terms of Section 89(4) of the Rajasthan Land Revenue Act, 1956 (for short, "Act of 1956") and his remedy is to approach the mining authority under the mining lease against grant of the mining lease. In case, the mining lease was granted with the consent of khatedar, a review under Section 188 would not be maintainable. It was contended that availability of appeal or other remedy against the grant of lease to the defendant would be an implied bar for maintainability of the revenue suit under Section 188. Learned counsel for the petitioner has cited the judgment of Bombay High Court in Khetan Industries Pvt.Ltd. and others v. Manju Ravindraprasad Khetan, 1995 AIR(Bom) 43 and judgment of Supreme Court in I.T.C. Limited v. Debts Recovery Appellate Tribunal and others, 1998 2 SCC 70. It is argued that in all the aforesaid judgments, the objection of implied bar has been upheld.
(3.) Learned counsel for the respondent has opposed the writ petition and submitted that the suit under Section 188 of the Act of 1956 would be maintainable because the land was and continue to be recorded in the khatedari of the plaintiff. There is no question of implied bar of such a suit. Consent may not be inferred because Section 89(4) requires determination of compensation of the land.;