- (1.) THIS is a revision preferred against the order of the Additional Commissioner, Kota dated 15th September, 1961 by which he rejected an appeal preferred against the order of the Additional Collector, Bharatpur dated 20th April, 1961.
(2.) BRIEFLY, the facts of the case, which are not in dispute, are : The applicant Sri Durga Prasad was given the disputed land forming part of Khasra No. 343 on rent for keeping his cattle with the clear stipulation that he would not raise any construction including the enclosure also thereon. This was so let out in the year 1954 before the commencement of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the Act ). The applicant, however, not only built an enclosure thereon but also erected some structure. On report from the Patwari he was given notice under sec. 91 of the Act. He contested the same with the allegation that he had raised the construction with the proper permission of the Municipality concerned. This contention was naturally rejected and his ejectment was ordered. An appeal preferred by the applicant against that order to the Additional Collector was also not successful. Sometime thereafter, however, probably when he (the applicant) was being ejected in compliance of that order, the Tehsildar accepted a compromise with the applicant on payment of Rs. 2943/1/6. The opposite party, who were interested in the land as they wanted to have it by way of compensation for certain land of their taken over by the Government, took the matter in appeal to the Additional Collector against this order of the Tehsildar. The learned Additional Collector, vide his order dated 19th May, 1960, very rightly accepted the appeal and held that the learned Tehsildar had no authority to order the allotment of land to the applicant at the rate of Rs. 12/- per square yard. He, therefore, set aside that order. An appeal preferred by the applicant to the Additional Commissioner met also with the same fate. It is how this revision comes to the Board. The learned counsel for the applicant, Sri Amar Singh Chaturvedi, has very vehemently contended that the provisions of sec. 95 (4) of the Act have been completely ignored in this case. The argument is that the disputed land was a "abadi land" in terms of sec. 103 (b) of the Act and that as the applicant was holding it lawfully at the commencement of the Act, the provision of sec. 95 thereof did not apply and he could not have been ordered to be ejected under sec. 91 of the Act. In the first place this is not a revision against the order of ejectment, which has become final with the order of the Additional Collector in appeal confirming it. Secondly the disputed land cannot also be said to be a "abadi land" in terms of sec. 103 (b) of the Act. A bare perusal of this sub-section will go to show that a land shall be 'abadi land" only if it is situated in a "populated area of a village town or city" and at the same time if it is "held therein for building purposes". The contention of the learned counsel for the applicant that as buildings have been constructed all round it since the taking of the disputed land on rent, it has become "populated area" and therefore an 'abadi' is not tenable. Simply because a land is situated in an area that is "populated" cannot make it "abadi" or "abadi land". For being termed so it must very clearly be also "land held therein for building purposes". The learned counsel for the applicant has not been able to repel this interpretation of subsection (b) of sec. 103, although he has not been able frankly to concede it. Obviously and admittedly the disputed land was held by the applicant not "for building purposes" but only "on rent" for keeping his cattle with the clear stipulation to erect nothing thereon, as stated above, and which is undisputed. This seems to be the reason why the learned counsel appearing for him is not conceding that the expression "abadi land" can be applied to the disputed land only if it was "held for building purposes". Vide sec. 95 (1) of the Act the State Government has got the right to make Rules for the reservation of lands to be set apart for the development of "abadi". Vide sub-sec. (2) no person is to occupy any land in the "abadi area" without first paying the premium fixed therefor. Sub-sec. (3) of sec. 95 again lays down that complete rights may be acquired in the "abadi" only by paying premium. It is with reference to this context above that sub-sec. (4) of this section relied upon so much by the learned counsel for the applicant says that "nothing in this section shall apply to the land in the Abadi area which is in the lawful occupation of any person at the commencement of this Act. " It only means that premium was not required to be paid, even though the restriction of not occupying without payment of premium any land in the 'abadi' had been enforced for the land in the "abadi area" which had already been occupied lawfully by any person at the commencement of the Act. Now, a person taking a land on rent and that also not included at the time into "abadi" but assessed to land revenue cannot be held to be occupying such land at the commencement of this Act within the meaning of this sub-sec. (4) This would be clear even by a reference to sub-sec. (5) of this section which says that if any person is in occupation of any land in the Abadi area at the commencement of Act "with limited rights", he may acquire full proprietory rights over such land upon payment of such premium as may be fixed under this Act. The occupation of the applicant was obviously. not with full rights but only as a lessee on rent "with limited rights" alone. 5ub-sec. (6) of this very section again lays down that a person making any construction except under a proper authority on any land referred to in sub-sec. (5) or "on such land and other land" in his occupation lawfully or otherwise shall for the scheme of the Act be regarded as a trespasser and dealt with as if he were a person occupying or continuing to occupy land without lawful authority". Sub-sec. (7) of this very section makes provisions of sec. 91 apply to the "person, land and construction" referred in sub-sec. (6 ). The provisions of law advanced therefore, by the learned counsel for the applicant instead of helping his case only go against him. The learned counsel has at this stage somehow been persuaded to accept this position in law, but still he does not concede it fully. He has, therefore, pleaded that the order of the Tehsildar directing the ejectment being itself unlawful, he could question it during the course of execution out of which alone the present proceedings started. In the first place nowhere he has been able to point out to us even though asked pointedly and repeatedly to show us from the record, that the applicant has ever contested the legality of the order being executed against him. In the second place no revision having been preferred against that order, nor it being necessary for us to examine the legality or otherwise thereof, can we be called upon to deal with this argument. Besides from the discussion made in the preceding paragraphs about the provisions of sec. 95 of the Act, prima facie the order of the Tehsildar ordering the ejectment of the applicant from the disputed land even could not be called to have been passed without jurisdiction or in any other manner unlawfully. In the third place, this is a revision only against the appellate order setting aside the order of the Tehsildar entering into a compromise with the applicant and allowing him to keep the possession of the disputed land on payment of certain sum. The Tehsildar was obviously not at all authorised to pass such an order. The learned Additional Collector was competent to examine in appeal and set it aside. The learned second appellate court was clearly competent to examine the order of the officer below and confirm it. No question of our interference by way of revision, therefore, arises. A further attempt has been made on behalf of the learned counsel for the applicant to urge that a Government decision had been taken that all cases of erecting unauthorised construction on agricultural land shall be finalised on payment of penal rates. It is not, however, a case of this type. The disputed land was neither held by the applicant as an agricultural land nor has he ever applied for regularising the unauthorised construction made by him. The present is the case, as has been discussed above, pure and simple of examining whether the Tehsildar could authorise the occupying of the disputed land by the applicant on payment of any amount. This was obviously wrong, and has been rightly held so by the learned lower appellate courts. There is no force in this revision which is hereby rejected. . ;