TYAGI, J. - (1.) PETITIONER Govind Murari has filed this writ petition under Art. 226 of the Constitution and it arises out of the following circumstances.
(2.) THE petitioner is a member of a Housing Co-operative Society which is known as Ramjipura Housing Co-operative Society Ltd. , Jaipur. It is alleged that this society purchased agricultural lands bearing khasra No 2/196 measuring 17 bighas and 17 biswas and khasra No. 17 measuring 4 bighas and 8 biswas in village Ramjipura. I he mutation of the aforesaid land was effected in the name of the society on 27th of January, 1967 It is said that the society carved out certain plots for the construction of houses out of this agricultural land and allotted plot No. A-21 to the petitioner in the year 1968. on 1st March, 1970 this plot was exchanged with the mutual consent of one Kaluram, another member of the society. THE document showing the exchange of the plot is Annexure 2 on the record. Since there was a house already constructed on that exchanged plot the petitioner had to pay Rs- 10,000/- to Shri Kaluram. THE petitioner thus claims to be the owner of the exchanged plot with a house constructed thereon. THE petitioner's house is situate in a developing colony of Jaipur town known as Shasthri Colony, On 18th of April, 1970 a notice purported to have been issued by the Tehsildar, Sanganer dated 16th April 1970 was found pasted on the house of the petitioner stating that the persons who claim themselves to be the owners of the Kotries may show cause as to why action may not be taken against them to eject from the land under sec. 91 of the Rajasthan Land Revenue Act, 1956. Instead of approaching the Teshildar and putting his case before him the petitioner has knoc-ked the doors of this Court by filing this writ petition whereby he has challenged the authority of the. Tehsildar to issue such a notice under sec. 9! of the Rajasthan Land Revenue Act, by treating the petitioner as a trespasser under S. 90a of that Act. Sec. 90a has been challenged by the petitioner as being repugnant to the provisions of the Rajasthan Tenancy Act of 1955, and has, therefore, prayed that sec. 90a of Rajasthan Land Revenue Act, 1966, be declared void and the notice issued by the Tehsildar on 16th April, 1970 (Ex. 3) be quashed and the Tehsildar or other revenue authority be restrained from taking any action against the petitioner under sec. 91 of the Rajas than Land Revenue Act. No reply has been filed by the respondents Mr. Tiwari learned Deputy Govt, Advocate, has however, appeared on behalf of the respondents, and raised a preliminary objection that the petitioner has no locus standi to file this writ petition because he does not possess any legal right in the land According to Mr Tiwari the agricultural land stands mutated in the name of the society and that society is not entitled to transfer a small portion of that land to the petitioner in violation of the provisions of the Rajasthan Tenancy Act, 1955 which governs the transfer of the agricultural lands. It is also urged that sec. 90a has been enacted by the legislature on a very sound basis that agricultural land should be used ouly for agricultural purpose and not for any other purpose otherwise the economy of the country which largely depends on agricultural resources shall be badly hit I may first of all consider the preliminary objection raised by the learned Government Advocate. It is an established fact that the land in dispute out of which the disputed plot had been carved out is an agricultural land and has been recorded in the khata of the Cooperative Society. There is no document to show that the disputed plot of land has been alienated or disposed of by the society in favour of the petitioner in accordance with the provisions of the Rajasthan Tenancy Act, 1955, and, therefore, the khatedari rights of the Co-operative Society have not yet extinguished from this plot of land The transfer of an agricultural land can be made only in accordance with the provisions contained in Chapter IV of the Tenancy Act of 1955. Sec 42 of the Tenancy Act creates a ban on the transfer of khatedari right by way of sale, gift and bequest by a khatedar tenant of his interest in the whole or part of his holding. The transfer of agricultural land shall be void if it is not of a survey number except when the area of the survey number so sold, gifted or bequeathed is in excess of the minimum area prescribed for the purpose of sub-sec. (1) of sec. 53, in which case also the area not transferred shall not be a fragment, provided that this restriction shall not apply if the area so transferred becomes merged into a contiguous survey number. This provision of law restricts a khatedar tenant to transfer his interest in the agricultural land by way of sale, gift or bequest in part of survey number held by him. It is admitted by the petitioner that plot A-21 and the plot exchanged are parts of the survey number 2/196. These plots which are undoubtedly part of the survey No. 2/196 are alleged to have been sold by the society to the petitioner for the purpose of constructing a house on these parts of the aforementioned khasra number. It is admitted that this agricultural land has not yet been converted into an urban land and still the society is holding that land as khatedar tenant. Therefore, in such circumstances the only inte est that can be alienated by the society is its khatedari interest and that too of the entire survey number and not any part thereof. If any part of the agricultural land is sold by the society to its members without getting it converted as urban land then such sale is void as being violative of the provisions of sec. 42 of the Rajasthan Tenancy Act of 1955. The very name of the society shows that it was formed with a view to raise a housing colony and it was probably to fulfill that object that portion of the land appears to have been sold to the petitioner. Unless the land was urbanised the transfer of the khatedari land and that too of a portion of one survey number would violate the provision of sec 42 of the Rajasthan Tenancy Act and shall, therefore, be void. The transfer of one plot in favour of the petitioner by the society does not create any right in the petitioner and as such a transferee has no right in the plot of land. In this view of the matter the petitioner cannot claim any legal right in the agricultural land held by the society and as such he cannot invoke the extraordinary jurisdiction, of this Court. The preliminary objection raised by learned counsel for the respondent therefore, prevails. Mr. Bajranglal learned counsel for the petitioner urged that the possessory right is also a right recognised by the courts and while exercising their jurisdiction under Art. 226 they have sate guarded such right also. It is true that sometimes when the possession of a person is disturbed by an authority in clear violation of the recognised rules of procedure then the court does come for the rescue of such persons who are the victims of the arbitrary action of the executive and have to lose their possession without observing the due process of law, but the present case of the petitioner stands on a different footing;. The petitioner cannot have a grouse against the Tehsildar for any high handed action and it cannot be said that the Tehsildar, in this case, is trying to dispossess the petitioner in violation of any provision of law. On the contrary, the Tehsildar in order to dispossess the petitioner is taking resort to the process of law available in the Land Revenue Act and has issued a notice u/s. 91 to the owner of the 'kotri' to show cause why he should not be dispossesed from the land. The petitioner if he feels, that he has any right to keep the possession of this agricultural land under any law he can show cause to the Tehsildar and it is for the Tehsildar to take the decision while considering the contention raised by the petitioner before him. Instead of taking the proper course the petitioner has preferred to come to this Court without exhausting his remedy under the provision of the Rajasthan Land Revenue Act 1956, and therefore, under such circumstances petitioner cannot be permitted to invoke the extraordinary jurisdiction of this Court as his possession is not being disturbed by the Tehsildar in a highhanded manner or in violation of the provisions of law. As regards the contention of the petitioner that sec. 90a of the Rajasthan Land Revenue Act of 1956 is repugnant to the provisions of the Tenancy Act I can say only this much that sec. 90a is based on a very sound principle that the agricultural land must be used only for agricultural purposes and not for any other purpose without the permission of the revenue authorities. In this connection learned counsel for the petitioner drew my attention to the provisions of sec. 2 of the Land Revenue Act which lays down that nothing in this Act shall be construed so as to affect or restrict the operation of the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. . . . . . . . . or the Rajasthan Tenancy Act, 1955. . . . . . . . . . . . The argument of learned counsel for the petitioner is that if a person, who constructs any building on an agricultural land without the permission of the proper authorities is deemed a trespasser as is described in sec. 90a of the Rajasthan Land Revenue Act then it would effect the provisions of sec. 177 and sec. 183 of the Tenancy Act as the Tehsildar would take action against such a trespasser without going through the procedure laid down in the aforesaid two sections of the Tenancy Act, and it also affects the definition of a trespasser as is given in the Rajasthan Tenancy Act 1955. I feel that the argument of Mr. Sharma is misconceived The trespasser as envisaged in sec. 90a does not in any manner affect the definition of trespasser of the Tenancy Act. The trespasser as contemplated by sec. 90 A has nothing to do with the definition of trespasser given in sec. 5, cl. 44 of the Tenancy Act. Sec. 90a creates a new category of trespasser for the purposes of taking action under sec. 91 of that Act. Sec. 177 and 183 of the Tenancy Act have nothing to do with the trespasser as is envisaged in sec. 90a of the Land Revenue Act and therefore, this section cannot be taken to be repugnant to the provisions of sec. 5, cl. 44 and sec 12 undies of the Rajasthan Tenancy Act. The principle on the basis of which sec. 90a has been enacted by the legislature is a very sound principle, and therefore, sec. 90a cannot, in this view of the matter, be declared void. The position, therefore, fails and is dismissed with costs. . ;