Alok Sharma, J. - (1.) THIS appeal under Sec. 54 of the Land Acquisition Act, 1894 (hereinafter 'the Act of 1894') has been filed against the order dt. 06.03.2013, passed by the Civil Judge (Sr. Division), Alwar in case No. 38/101/2006, whereby the reference at the instance of the applicant -respondent under Sec. 18 of the Act of 1894 was allowed and the award dt. 10.04.2006, passed by the Land Acquisition Officer (hereinafter 'LAO') for a sum of Rs. 51,26,766/ - enhanced to Rs. 1,32,80,000/ - plus solatium amount @ 30% thereof in terms of Section 23(2) of the Act of 1894 and an additional amount @ 12% p.a. from the date of the notification i.e. 12.09.2005 till the date of payment in terms of Section 23(1A) of the Act of 1894. The facts of the case are that the State Government issued a notification under Sec. 4 of the Act of 1894 on 12.09.2005 for acquisition of about 431.82 hectare land for extension of Industrial Area Nimrana, in villages Janksinghpura, Madhosinghpura, Kali Pahadi, Majrakath in Tehsil Behror, District Alwar. Due compliances having been made with the procedural provisions under the Act of 1894, an award came to be passed by the LAO on 10.04.2006. The award included the land of the respondent as it was recorded as the owner and in possession of 0.83 hectare land in village Majrakath. Thus sum found payable to the respondent as compensation was Rs. 51,26,766/ - payable on all count under the Act of 1894. On an application made by the respondent to the LAO expressing dissatisfaction with the amount of compensation and seeking enhanced compensation, a reference under Sec. 18 of the Act of 1894 was made to the competent civil Court. By the impugned order dt. 06.03.2013, the compensation has been enhanced as detailed hereinabove. Hence this appeal.
(2.) MR . Ajeet Bhandari, appearing for the appellant -RIICO, has made twofold submissions. The first contention is that the impugned order dt. 06.03.2013 passed by the Civil Judge (S.D.), Alwar is vitiated on account of the fact that the land acquired by the appellant -RIICO has been considered to be residential in nature and not agricultural as was found by the Land Acquisition Officer. It was submitted that albeit vide order dt. 24.01.1996 (Ex -2) and order dt. 31.01.1996 (Ex -3) as also another order dt. 30.01.1996 (Ex -4), the land in the ownership of the respondent was converted from agricultural to residential, yet the conversion was conditional upon the land being put to residential use within a period of two years. He submits that the land was not so used within two years and even till the date of the notification i.e. 12.09.2005 and its ultimate acquisition. Consequently the land in issue should have been deemed to have reverted to its original nature and character of agricultural land. Counsel has invoked Section 90A of the Rajasthan Land Revenue Act, 1956 (hereinafter 'the Act of 1956') in support of his argument and submitted that breach of condition of the conversion to residential user in fact entailed the respondent rendered a trespasser in his own land and for from enhanced compensation as granted by the lower Court, the respondent was entitled to any compensation whatsoever. That argument however overlooks the fact that the respondent was not so treated even by the LAO in his award dt. 10.04.2006 and indeed granted a lower compensation and in fact granted compensation of Rs. 51,26,766/ -. That aspect aside, as the argument has been made, it would be appropriate to reproduce Sub -sections 2, 3, 4, & 5 of Section 90A of the Act of 1956. 90A - Use of agricultural land for non -agricultural purpose: (1) .......... (2) Any such person desiring to use such land or any part thereof for any purpose other than that of agricultural shall apply for the requisite permission in the prescribed manner and to the prescribed officer or authority and every such application shall contain the prescribed particulars. (3) The State Government shall, after making or causing to be made due inquiry in the prescribed manner, either refuse the permission applied for or grant the same subject to the prescribed terms and conditions. (4) When any such land or part thereof is permitted to be used for any purpose other that than of agriculture, the person to whom such permission is granted shall be liable to pay to the State Government in respect thereof - - (a) an urban assessment levied at such rate and in accordance with such manner is may be laid down in rules to be made in this behalf by the State Government; or (b) such amount by way of premium as may be prescribed by the State Government; or (c) both. (5) If any such land is so used - - (a) without the written permission of the State Government being first obtained, or (b) otherwise than in accordance with the terms and conditions of such permission, or (c) after such permission having been refused under sub -Section (3), or (d) without making any of the payments referred to sub -Section (4), the person originally, holding the land as aforesaid for the purpose of agriculture as well as all subsequent transferees, if any, shall be deemed to be a trespasser or trespassers, as the case may be, and shall be liable to ejectment from such land in accordance with Section 91 as if he or they had occupied or continued to occupy such land without lawful authority and to every such proceeding the provisions of Section 212 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) shall apply as if such land were in danger being wasted, damaged or alienated: Provided that State Government may, in lieu of having such person and the subsequent transferees so ejected from the land in question, allow him or them, as the case may be, to retain such land, use the same for any purpose other than that of agriculture on payment to the State Government, in addition to the urban assessment and premium payable under sub -Section (4) of such fine by way penalty as may be prescribed. Reference has also been made to the Rajasthan Land Revenue (Conversion of Agricultural Land for Non -Agricultural Purposes in Rural Areas) Rules 1992 (hereinafter 'the Rules of 1992'), more particularly to Rule 13 thereof which reads as under: 13. Use of land after conversion - -Any agricultural land, converted for a non agricultural purpose, shall be used for such converted purpose within a period of two years from the date of issue of the conversion order failing which the conversion order shall be withdrawn and the amount of premium deposited shall be forfeited to the State Government: Provided that the said period of two years may be extended by one year by the next higher authority, if such higher authority is satisfied. Provided further that an opportunity of being heard shall be given before passing an order of forfeiture of the premium. Provided also that if such land could not be used for non -agricultural proposes within the period as prescribed above, the State Government may extend the period further as deemed proper. In such cases the applicant shall move application through the Divisional Commissioner who after examination of the case, forward the same to be State Government with his comments.
(3.) THE submission of Mr. Bhandari is that the non -user or delay in user of the converted land as per time period set out in the conversion order falls under clause (b) of Section 91A(5) of the Act of 1956 consequent to which in terms of clause (d) thereof, the respondent was rendered a trespasser even over his/own land. He submits that even though Rule 13 of the Rules of 1992, promulgated by the State Government in the exercise of its power conferred by clause (xi -A) of Sub -Section (2) of Section 261 read with Section 90A of the Act of 1956, provides that the period of two years for user of land for the purposes it was converted for could be extended by one year by the next higher authority and beyond that by the State Government and no forfeiture could follow without an opportunity of being heard to the beneficial of the conversion, the said Rule is of little avail to the respondent as it stand in derogation of the substantive provisions of Section 90A of the Act of 1956. He submits that consequently the respondent ought to have been deemed as a trespasser and so treated with no rights over the land acquired. He reiterated that what of enhanced compensation, even the award of Rs. 51,26,766/ - to the respondent was unwarranted and contrary to law in respect whereof RIICO will take proceedings for recovery of amount as wrongly paid.;