JUDGMENT :

1. This writ petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs:

“It is therefore, most respectfully and humbly prayed that the instant writ petition may kindly be ordered to be allowed and a writ, order or direction in the appropriate nature may kindly be issued in favour of the humble petitioner; and

i) The impugned order 10.01.2023 (Annex.10) may kindly be ordered to be quashed and set aside.

ii) The application so preferred by private respondents herein may kindly be ordered to be rejected with cost throughout.

Any other order of direction, which this Hon’ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the humble petitioner.”

2. As the pleaded facts would reveal, a land (admeasuring 4 Bighas) comprising Khasra No.2698/1253 at revenue Village Rajmathai was being utilized for the purpose of Abadi, Panchayat Bhawan, Rajiv Gandhi Kendra, Patwar Bhawan etc., and adjacent to the said land, there was an Agore land comprising Khasra No. 2699/1253. A resolution was taken by the petitioner-Gram Panchayat to get the land set-apart for the purpose of Gair Mumkin Abadi, and further resolved to transfer a land of the equal measurement for development of the Agore land.

2.1. In pursuance of the said resolution, an application was submitted before the Sub-Divisional Officer (SDM), Bhaniyana District Jaisalmer, that the land in Khasra no. 1253 on which government buildings are built was recorded as Gair Mumkim Agore land, whereupon, vide order 30.07.2021 passed by the SDM, the Tehsildar, Bhaniyana was directed to set apart the land comprising Khasra No. 1656/2458 measuring 0.6474 hectare as Agore land and land comprising Khasra no. 1253 as Abadi land. Subsequent to the conversion into Abadi land, the Gram Panchayat issued various pattas in regard to the land in question and the patta holders also started residing thereafter.

2.2 Subsequently, an application under Section 9 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as ‘Act of 1956’) was preferred by the private respondent herein before the learned Board of Revenue (BoR) for Rajasthan, Ajmer against the aforementioned order of the SDM, whereupon, vide the impugned order dated 10.01.2023 passed by the learned BoR, while allowing the said application, the order passed by the SDM was set aside. Thus, aggrieved by the impugned order passed by the learned BoR, the present petition has been preferred, claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that in the application preferred by the private respondent before the BoR, other than the Tehsildar, neither the present petitioner nor the SDM concerned was impleaded as a party respondent, and without summoning of the record, the learned BoR had proceeded to pass the impugned order.

3.1. It was further submitted that in its order dated 04.08.2021, the Tehsildar, mentioned that after looking into the report of the Patwari concerned and the application of the Gram Panchayat, even if the land is set apart for development of the Abadi, no loss would be caused to the Government Exchequer, in any manner.

3.2. In furtherance, it was submitted that as per the notification issued by the State Government on 17.01.1966, in exercise of powers conferred by clause (d) of Section 26 (1) of Act of 1956, the Government of Rajasthan conferred on all Sub Divisional Officers of the State, the power of a Collector under Section 92 of the said Act, to set apart the land for development of Abadi, and thus the SDM in the present matter had power to set apart the land.

3.3. In support of the submissions, reliance was placed on the judgment rendered by the Hon’ble Apex Court in the case of The State of Rajasthan and Anr. v. Ultratech Cement Ltd. (Civil Appeal No. 5841/2022, decided on 26.08.2022) wherein the Hon’ble Apex Court opinionated that the judgment rendered in the case of Abdul Rehma