JAIN, J. - (1.) HEARD learned counsel for the parties.
(2.) PETITIONER has preferred this writ petition challenging the order dated 18th February, 2005 (Annexure-4), passed by the Divisional Commissioner, Jaipur, dismissing his appeal against the order dated 23rd June, 2001 (Annexure-3) passed by the Authorized Officer, Zone-B-1, Jaipur Development Authority, Jaipur, whereby, the Authorized Officer passed an order under Section 90-B of the Rajasthan Land Revenue Act, 1956 (hereinafter shall be referred to as the Act of 1956') read with Section 63 (1) (ii) of the Rajasthan Tenancy Act, 1955 (hereinafter shall be referred to as 'the Act of 1955') terminating the tenancy rights and resumption of the disputed land. The Tehsildar, posted for Zone-B-1 of Jaipur Development Authority and duly authorized by the State Government, vide Notification dated 23. 09. 1999, filed an application with affidavit before the Authorized Officer that over the land situated in village Manoharpura, Tehsil Sanganer bearing Khasra Nos. 194 to 202, 204 to 210, 244, 247, 249, 259, 260, 104 to 107, 138, 139, 127 to 131, 135, 136, 203a, 118 to 122, 114/681, 116/682, 117/683, 123, 126, 261 to 264, 132 to 134, 137, 143, belonging to non-applicants No. 1 to 8, the recorded tenants, a residential scheme in the name of Siddharth Nagar "h" has been chalked out by the New Pinkcity Grah Nirman Sahakari Samiti (hereinafter shall be referred to as 'the respondent No. 2 housing society') and the said land is being used for nonagricultural purpose, therefore, the rights and interest of these persons in the said land may be terminated and the said land may be resumed under Section 90-B of the Act of 1956 read with Section 63 (1) (ii) of the Act of 1955. The respondent No. 2 housing society also submitted copies of the agreements whereby it is clear that the recorded tenants of the land are not in possession of the land. Case was registered and notices were issued by the Authorized Officer to the recorded tenants of the land. The notices were published in a daily newspaper 'dainik Navjyoti' dated 10th May, 2001. The non-applicants/recorded tenants, namely, Laxman Singh, Nopat Singh, Onkar Singh, Shivraj Singh (All sons of Daulat Singh) appeared through Laxman Singh and admitted that their land is being used for non-agricultural purpose; they have also constructed five houses and also got the entire payment of their lands from the housing society, and at present the housing society is in possession of the land; the housing society has constructed boundary wall on the land and they have no objection in case the land is regularized by the JDA. The other non- applicants - Kana, Ramgopal (both sons of Shri Nanga), Laxminarain S/o Baksharam, Lekhraj S/o Lallu, Moolchand S/o Bannaram, Damodar S/o Baksharam did not appear in spite of service of notice, therefore, ex-parte proceedings were ordered to be drawn against them. The non-applicants - Tejaram S/o Baksharam and Moolya S/o Kalu (present writ petitioner) appeared through their Advocate Arvind Kumar Sharma and contested the matter. Application dated 17. 05. 2001 was filed on their behalf to summon inspection-report of the site again. The housing society filed its reply to the said application on 24th May, 2001 contending therein that Tehsildar had already inspected the site and prepared a site- report on 16th April, 2001, which clearly shows that the land is being used for non-agricultural purpose. The land was sold by Moolchand S/o Baksharam adopted S/o Kaluram (present petitioner) vide agreement dated 18th May, 1988; the entire amount of sale- consideration was paid mostly by Cheques and it was also agreed upon that the land measuring 2302 square yard will also be allotted by the housing society to the members of the khatedar families. The Authorized Officer, after hearing the parties, rejected the application of Moolchand vide order dated 31st May, 2001.
(3.) THEREAFTER arguments were heard in respect of application under Section 90-B of the Act of 1956. The Authorized Officer, vide its order dated 23rd June, 2001 (Annexure-3) recorded a finding that recorded tenants of the lands had sold their lands to the respondent No. 2 housing society and handed over the possession thereof to the said housing society; the recorded tenants have already received the entire payment of sale consideration from the housing society and the housing society is in possession of the land at the spot; the housing society has also constructed boundary wall, chalked out a residential scheme and plots have been allotted to its members, who are in possession of the land; the land is not being used for agricultural purpose but it is being used for non-agricultural purpose, therefore, the khatedari rights are liable to be extinguished and the land is liable to be resumed under Section 90-B of the Rajasthan Land Revenue Act, 1956 read with Section 63 (1) (ii) of the Rajasthan Tenancy Act, 1955. The Authorized Officer directed to open mutation in the name of the JDA, which shall have all powers under Section 54-B of the Jaipur Development Authority Act for allotment, regularization, etc. of the land. Being aggrieved with the same, only two persons, namely, Tejaram S/o Baksharam and Moolchand S/o Baksharam preferred two separate appeals before the appellate authority i. e. the Divisional Commissioner under sub-section (7) of Section 90-B of the Act of 1956. The Divisional Commissioner dismissed both the appeals vide judgment dated 18th February, 2001 (Annexure-4 ). Learned counsel for the petitioner, Shri Rajendra Prasad, contended that the petitioner is in possession of his land and the said land is being cultivated by him. He has not sold the land to anyone. He also contended that original agreement to sell was not produced by the housing society before the Authorized Officer. He moved an application for site inspection, which was wrongly rejected by the Authorized Officer. He also contended that the application under Section 90-B of the Act of 1956 was filed by the Tehsildar and not by the land-holder. He, therefore, contended that the impugned orders passed by the Authorized Officer as well as the Divisional Commissioner may be set-aside. ;