Nirmaljit Kaur, J. - The petitioner purchased a total of 1.2300 Hectares of land situated in village Barapal, Tehsil Girwa, District Udaipur through various sale deeds numbering almost 14. The said land was purchased after the same already stood converted from agricultural to residential purpose. After purchase of aforesaid lands and certificate in the name of the petitioner-Company, the petitioner Company applied to the District Industries Centre, Government of Rajasthan, Udaipur on 12.12.2012 for the purpose of service to be rendered as hotel service which is placed on record as Annexure 2. For the aforesaid purpose, the petitioner also moved an application for sanction to the respondent No. 2. In pursuance thereto, the District Collector, Udaipur wrote letter No. 2253 dated 25.09.2013 to the relevant authorities for conversion of the aforesaid lands from residential to commercial i.e. hotel purpose. The aforesaid letter was also forwarded to the respondent No. 3 i.e. the Tehsildar, Girwa for report by the District Collector, Udaipur, who on dated 26.09.2013 forwarded it to the authority subordinate to report within three days. For the purpose of aforesaid construction, the petitioner in the year 2013 applied for loan to Cholamandalam Investment and Finance Limited, who financed an amount of Rs. 1,49,74,842/-. In pursuance of seeking conversion from residential to commercial i.e. hotel purpose, an official amount was asked by the respondent No. 2. The amount so demanded for conversion from residential to commercial was duly deposited. However, the said application was kept pending. The said application was required to be decided within 30 days but for the reasons best known to the respondents, the same was never decided. Instead, the respondent No. 4 registered a case under Sections 90(A) and 5(kha) of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as " the of 1956) against the petitioner by mentioning that the lands in question have been converted for residential purpose but is being used for commercial purpose and the petitioner was issued notice on 01.04.2015 to appear on 15.04.2015 and was ordered to vacate the premises. It is contended by learned counsel for the petitioner that the petitioner never came to know about the said notice till the respondent No. 4 passed an order dated 15.04.2015 for dispossessing the petitioner from the land and the building constructed thereon. The Land Revenue Inspector, the concerned Patwari and the SHO, Police Station Gordhan Vilas together with the respondent No. 3 were requested to comply with the order and the respondent No. 2 was directed to dispose of the property in question. Vide letter Nos. 04 & 35 dated 17.04.2015, the SHO, Police Station Gordhan Vilas informed that the properties of the petitioner has been seized, thus, care of lands and buildings aforesaid be taken adequately. Thereafter, a Parcha Moka and Supurdginama was prepared in presence of brother of the petitioner regarding taking of the possession of the lands and buildings in question. Vide a letter dated 22.04.2015, the respondent No. 2 was requested by the respondent No. 4 regarding disposal of the aforesaid lands so seized. Thereafter, on 05.05.2015 a notice regarding vesting of the land and buildings in the State was issued.

2. While issuing notices on 19.02.2016, status quo as it existed on the said date was ordered.

3. Reply has been filed. As per the reply and learned counsel for the respondents, the lands in question were converted in favour of persons named in the conversion orders for residential purposes and not for commercial purposes. Condition No. 1 of the conversion order is clear and specific to the effect that the lands in question will not be used for any other purpose without prior sanction and approval of the competent authority. Since the petitioner raised the construction of the hotel building and started commercial activities even prior to the approval and any conversion from residential to commercial, the proceedings under Section 90A of theof 1956 were rightly initiated and thereafter an appropriate order dated 03.06.2015 was passed by the respondent No. 3 after taking into account the order dated 25.05.2015 passed by the respondent No. 2 vide which it was opined to forfeit the land in favour of the State with a further direction to also withdraw the conversion from residential to commercial.

4. While praying for setting aside the various impugned orders, learned counsel for the petitioner raised two fold arguments:

Firstly, Section 90A of theof 1956 could not be invoked as the land in question was admittedly a non-agricultural land and Section 90A of thepertains to agricultural lands only. Therefore, the proceedings as initiated by the authorities are void ab initio.

Secondly, as per the Rule 9(3) and 9(4) of the Rajasthan Land Revenue (Conversion of Agricultural land for Non-Agricultural Purposes in Rural Areas) Rules, 2007, the Collector ought to have decided the application of the petitioner for conversion of land from residential to commercial within a period of 30 days from the receipt of such application but in utter disregard of the Rules of 2007, the application of the petitioner was rejected in the year 2015 i.e. after nearly 2 years of applying for the same. Hence, the constructions raised by the petitioner after the expiry of 30 days is legal and deserve to be regularized.

5. Heard.

6. In order to adjudicate as to whether Section 90A of theof 1956 could be invoked in the facts of the present case, it would be appropriate to reproduce the relevant portion of Section 90A of theof 1956.

Section 90A. Use of agricultural land for non-agricultural purpose - (1) No person holding any land for purpose of agriculture, and no transferee of such land or any part thereof shall use the same or any part thereof by the construction of buildings thereon or otherwise, for any other purpose except with written permission of the State Government obtained in the manner hereinafter laid down and otherwise than in accordance with the terms and conditions of such permission.

(2) Any such person desiring to use such land or any part thereof for any purpose other than that of agriculture 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 than that of agriculture, the person to whom such permission is granted shall be liable pay to the State Government in respect thereof -

(a) ..................

(b) ................

(c) .........................

(d) without making any of the payments referred to in 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 or 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 subsection (4) of fine by way of penalty as may be prescribed.

7. A perusal of the proviso to Section 90A of theof 1956 makes it clear that the same is to be invoked in case the agricultural land is used for non-agricultural purpose. In the present case, it is not disputed that the land already stood converted from agricultural to non-agricultural and the original allottees were granted the permission to use the same for residential purposes. Hence, the land was no more an agricultural land. Therefore, any action under Section 90A of theof 1956 cancelling the conversion to non-agricultural, declaring the land of the petitioner as Bilanam and seizing the amount deposited by the petitioner in lieu of the conversion application of the land and thereafter seizing the property and handing it over to the State is without jurisdiction.

8. A similar view was also taken by another Single Bench of this Court in the case of Madan Lal and Another v. State and Another reported in RLW 1998(1) Raj. 562. In this case, the allottee was permitted conversion of agricultural land to other purposes but subsequently a notice for ejectment was issued as the land was being used for lime kiln i.e. for industrial purposes instead of commercial. In these circumstance, the Court set aside the very notice by holding that the Tehsildar had no power or jurisdiction to go into the use of the land which had already converted and that too by invoking Section 90A of theof 1957 as the same was applicable only to the agricultural land and not to a land which stood converted for use of other purposes. Para 5 of the said judgment reads as under:

"5. From the bare reading of Section 90A, it is very clear that the Tehsildar may have certain jurisdiction in the case where the agricultural land is utilized for non-agricultural purposes and in the contingencies provided in Section. 90A itself when there is no permission sought by any such defaulter. In the present case much before issuing of the notice Annex.5 or appointment of the Receiver, the land in question stood already converted under the Rules of 1981 and the conversion charges had already been deposited. Keeping in view of the consequences of conversion which culminates in execution of the lease deed u/R 16 of the Rules of 1981, the provisions of Section 90A of the Rajasthan Land Revenue Act were not available to the Tehsildar for issuing any such notice or for appointment of any Receiver. Once the land stands converted the provisions of Section 90A cannot be invoked for the reason that from the bare reading of Section 90A, its provisions are applicable to the agricultural land which is used or misused without any permission for the purposes mentioned in the itself. The action of the Tehsildar was void ab initio and without jurisdiction and cannot be sustained in the eyes of law. With the result the order Annex.5 is liable to be quashed and is quashed."

9. In view of the admitted position that the land already stood converted from agricultural to non-agricultural, the impugned notices and the subsequent orders could not have been passed by invoking the provisions of Section 90A of the.

10. However, there is merit in the argument of the learned counsel for the respondents that the petitioner was running the hotel without even awaiting the permission. Although, the learned counsel for the petitioner at the first instance had raised the argument that the said permission was deemed to have been granted because the application was required to be decided in accordance with Rule 9(3) and 9(4) of the Rajasthan Land Revenue (Conversion of Agricultural land for Non-Agricultural Purposes in Rural Areas) Rules, 2007 within the stipulated period but soon gave up the said argument in view of the favourable proviso to Section 90A of theof 1956 which allows a "..........transferee 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 other purpose other than that of agriculture on payment to the State Government prescribed. It was stated at bar by the learned counsel for the petitioner that the petitioner may be allowed to use the land at least for the residential purpose or liberty be granted to him to file a fresh application for its use as a hotel i.e. from non-commercial to commercial.

11. In view of the above, the present writ petition is allowed and the orders dated 15.04.2015 and 27.04.2015 and all the subsequent proceedings including letter dated 25.05.2015 and 03.06.2015 pursuant thereto are set aside. The land shall revert back to the petitioner but he shall not use the same for any other purpose than for residential for which it was originally granted subject to his undertaking to the said effect. However, he will be at liberty to file a fresh application for conversion of the same for any other purpose as permissible in law and till as such time the said application is allowed subject to Master Plan etc. and in accordance with law. He will not put the land to use for any other purpose except for which it was originally allotted.