Diversion for Non-Agricultural Use

In Rajasthan, a khatedar who holds land “for the purpose of agriculture” cannot, on a whim, raise a colony, a factory or a petrol pump on it. The land was settled, assessed and recorded as agricultural; converting it to a building site changes its very character, its assessment and the State's revenue interest in it. Section 90A of the Rajasthan Land Revenue Act, 1956 is the gateway through which this change—called diversion or conversion for non-agricultural purposes—must pass. It requires written permission of the State Government, payment of urban assessment and premium, and compliance with master-plan land-use in urban areas. Diversion done without permission renders the holder a trespasser liable to ejectment, though the State may regularise it on payment. This note traces the scheme of Section 90A, the rules framed under it, and the case law that disciplines the discretion to permit and to regularise.

What “Diversion” Means and Why Permission Is Needed

Land in Rajasthan is held under tenures classified by the use to which it is put. A khatedar tenant holds agricultural land subject to payment of rent and revenue assessed on its agricultural value. “Diversion” (the working term for what Section 90A calls “use for non-agricultural purposes”) is the act of putting that agricultural land to a use it was never assessed for—residence, commerce, industry, a brick-kiln, a road, or any built structure. Because the land's character, its assessment and the State's revenue stake all change, the law does not treat diversion as an ordinary incident of ownership. It treats it as a privilege the State must sanction.

The conceptual link is to the definitions of land-holder and khatedar: it is precisely because a khatedar's interest is tied to agricultural use that he must seek leave to abandon that use. Section 90A therefore opens by prohibiting any person holding land for agriculture, or any transferee of such land, from using it for non-agricultural purposes “except with the written permission of the State Government obtained in the manner provided” and “in accordance with the terms and conditions” prescribed. Permission is thus the rule's central pivot; everything else—application, premium, regularisation, penalty—flows from whether it was obtained.

The Scheme of Section 90A: Prohibition, Application and Grant

Section 90A is the operative provision. Sub-section (1) imposes the prohibition: no holder of agricultural land, and no transferee of such land, may use it for non-agricultural purposes without the State Government's written permission obtained in the prescribed manner and on the prescribed terms. Sub-section (2) requires a person desiring such use to apply in the prescribed manner to the prescribed officer or authority, the application carrying the prescribed particulars. Sub-section (3) empowers the State Government, after due inquiry in the prescribed manner, either to refuse permission or to grant it subject to such terms and conditions as may be prescribed or specified.

The architecture is deliberately a permission-and-conditions one rather than a mere registration one. The authority does not rubber-stamp; it inquires, and it may refuse. The breadth of permissible non-agricultural uses—residential, commercial, industrial, institutional, a factory or mill, a small-scale industry, brick or lime kilns—is wide, but each is hedged by conditions tied to the land's location and the planning regime over it. The powers to receive, inquire into and decide these applications are exercised by revenue officers (Tehsildar, Sub-Divisional Officer or Collector) according to the area of the land and the rules in force.

Premium and Urban Assessment: The Price of Conversion

Sub-section (4) of Section 90A is the fiscal heart of diversion. Where permission is granted, the land becomes liable to urban assessment levied at the prescribed rate, or to a premium, or to both, as the rules provide. The premium is, in substance, the State's charge for releasing the land from its agricultural tenure and conferring on the holder the far more valuable right to build. The quantum is computed on the converted area and the category of use, and a challan evidencing its deposit must ordinarily accompany or follow the application.

Where conversion charges are not deposited within the time fixed, the defaulter is liable to pay interest—commonly at twelve per cent per annum—from the expiry of that period. The premium-and-assessment mechanism distinguishes a lawful, paid-for diversion from an unauthorised one, and it is the same mechanism through which the State recovers its dues when it chooses to regularise an unauthorised conversion rather than eject the holder.

Unauthorised Conversion: The Trespasser Consequence

The teeth of Section 90A lie in sub-section (5). A person who uses agricultural land for non-agricultural purposes without permission, or who breaches the conditions of a permission granted, is deemed a trespasser in respect of the land and is liable to ejectment under Section 91 of the Act. The provision attracts the summary apparatus of Section 212 of the Rajasthan Tenancy Act, 1955, as though the land were in danger of being wasted, damaged or alienated—enabling protective and dispossessory action against the defaulter.

Crucially, the same sub-section gives the State a choice. Instead of ejecting the trespasser, the State Government may allow him to retain the land for the non-agricultural purpose on payment of urban assessment and premium (and, where prescribed, penalty) to the State. Thus unauthorised diversion is not irredeemable: it is a wrong the State may either punish by ejectment or convert into a lawful, paid-up holding. This duality—trespass on the one hand, regularisation on the other—drives much of the litigation discussed below.

Two points are worth pressing for an examinee. First, the trespasser fiction is a deeming provision: the holder does not cease to be the recorded khatedar, but for the purpose of the unauthorised use he is treated as one who has no right to occupy in that character, which is what unlocks Section 91 ejectment. Second, the option to retain is a discretion of the State, not a right of the defaulter; the holder cannot demand regularisation as of course, and—after Gulab Kothari v. State of Rajasthan—the discretion cannot be exercised so as to bless a use that violates the master plan. The penalty layer, calibrated above the ordinary premium, exists precisely so that an unauthorised converter does not gain a fiscal advantage over one who applied and paid in advance.

Diversion in Urban Areas and the Master-Plan Discipline

Diversion inside towns is more tightly controlled than in the countryside. Under sub-section (6), permission for land in an urban area may be granted only for a use that conforms to the development plan or master plan in force for that area. Sub-section (7) provides that on the grant of such permission the agricultural tenancy rights are extinguished and the land passes to the jurisdiction of the local authority for assessment and management. Sub-sections (8) and (9) deal, respectively, with conversions effected before 17 June 1999 and with a right of appeal to a Collector-rank authority, to be disposed of within the prescribed period.

The master-plan fetter was given decisive content in Gulab Kothari v. State of Rajasthan (Raj HC, order dated 12 January 2017). Treating a letter from the editor of Rajasthan Patrika as a PIL, the Court held that Master Development Plans are statutory instruments meant to secure planned development, and that peripheral control belts, green belts and ecological zones form the “basic character” of such plans—the “lung spaces” of a city—which cannot be arbitrarily altered. Change of land use diverting such zones to residential, commercial or industrial purposes was held impermissible unless it genuinely served a demonstrable public interest rather than private profit, and the Court directed that change of land use be sanctioned in a guarded manner through the competent committees and not granted merely for the asking. The judgment invoked the public trust doctrine to hold that ecological resources cannot be diverted to private use.

Rules Framed Under Section 90A

Section 90A is a skeleton fleshed out by subordinate legislation, since the section repeatedly delegates the “manner” and “terms and conditions” to rules. The principal sets are the Rajasthan Land Revenue (Conversion of Agricultural into Non-Agricultural Land) Rules, 1961; the urban-focused Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential, Commercial and Public Utility Purposes in Urban Areas) Rules, 1981; and the Rajasthan Land Revenue (Conversion of Agricultural Land for Non-Agricultural Purposes in Rural Areas) Rules, 2007.

The 2007 Rules govern rural diversion and prescribe the application form, the documents and the premium challan, and they distribute jurisdiction by area—broadly, the Tehsildar for smaller parcels (up to about 2,000 sq m), the Sub-Divisional Officer for intermediate areas, and the Collector for larger ones (above about 4,000 sq m). They also recognise that certain modern uses—such as putting khatedari land to solar or wind power generation—may be permitted without full conversion under specific clauses, reflecting the State's energy policy. The rule-making structure mirrors the wider scheme of the Rajasthan Land Revenue Act, under which detailed administration is left to delegated legislation.

Because the substantive command lives in the section and the detail in the rules, two interpretive consequences follow. First, a rule cannot enlarge the field of permissible diversion beyond what Section 90A contemplates, nor can it dispense with the master-plan conformity that sub-section (6) imposes on urban land; a rule purporting to do so would be ultra vires the parent section. Second, the prescribed premium and the prescribed manner of inquiry are mandatory, not directory—an applicant cannot bypass the challan or the inquiry by pleading long, peaceful non-agricultural use. The rules therefore operationalise, but never override, the statutory prohibition; and where the rural Rules of 2007 and the urban Rules of 1981 both touch a parcel, the controlling question is whether the land lies within an urban area, for that triggers the stricter planning fetter and the extinguishment of tenancy under sub-section (7).

Regularisation of Unauthorised Conversions: The Litigation

The State's power to regularise unauthorised conversions—rather than eject—has been repeatedly tested. In a judgment of February 2022, a Division Bench of the Rajasthan High Court (Chief Justice Akil Kureshi and Justice Sudesh Bansal) upheld the Government's authority to regularise unauthorised conversions, locating that power in Section 90B of the 1956 Act as it stood at the relevant time and in Section 90A as it stands today. The Court identified two broad categories: (a) agricultural land put to non-agricultural use without permission, and (b) lands of non-agricultural character put to uses other than those specified in the development plans. As to the first category, the Court found no illegality in a regularisation policy, since the statute itself contemplates retention on payment under Section 90A(5).

The boundary between permissible regularisation and impermissible legitimisation of planning violations is what Gulab Kothari polices. Read together, the two strands hold that the State may forgive the absence of permission where the use is otherwise lawful and the dues are paid, but it may not use regularisation to convert protected green belts, ecological zones or public-utility reservations into private built-up plots in defiance of the master plan. Regularisation cures a revenue and procedural default; it does not cure a land-use violation that strikes at the basic character of the plan.

Section 90B and Its Omission

Section 90B, now omitted from the Act, once dealt with land in the urbanisable limits and peripheral belts of urban areas. It empowered the Collector, on the holder's voluntary surrender or otherwise, to terminate tenancy rights and resume agricultural land that had been converted, sold or transferred (including by power of attorney or will) for non-agricultural use, so that the State could develop or allot it for housing, commercial, industrial, infrastructure or community purposes. It was, in design, a resumption-and-development provision rather than a regularisation one, with an express exemption for lands of religious institutions, public trusts and charitable bodies.

Although Section 90B no longer survives, it remains analytically important. As the 2022 Division Bench recognised, the regularisation power that once travelled partly through Section 90B now resides in Section 90A. For an aspirant, the lesson is that the diversion regime has been consolidated: Section 90A is today the single doorway for permission, premium, the trespasser consequence and regularisation alike, with the urban planning fetter supplied by the master-plan sub-sections.

Procedure: From Application to Patta

A diversion application begins with an application in the prescribed form to the officer competent for the area—Tehsildar, Sub-Divisional Officer or Collector—accompanied by the title documents, a site plan and the premium challan. The officer makes “due inquiry” into the title, the proposed use, the location vis-à-vis any master plan, and objections, before refusing or granting permission on conditions under sub-section (3). On grant, urban assessment or premium (or both) under sub-section (4) is recovered, and in urban areas the tenancy is extinguished and the land migrates to the local authority's roll under sub-section (7).

Two record-keeping consequences follow and tie diversion to the rest of the Act. First, the change of use and tenure must be reflected through mutation so that the record-of-rights truthfully shows the land as converted. Second, because the assessment changes, the entries flowing from revenue survey and settlement are superseded for that parcel. An aggrieved applicant has the statutory appeal under sub-section (9) to a Collector-rank authority within the prescribed period—typically thirty days—with the appeal to be decided within the time the section fixes.

Exam Takeaways and Common Pitfalls

For judiciary and CLAT-PG candidates, the safe anchors are: Section 90A is the diversion provision; permission is mandatory under sub-section (1); premium and urban assessment fall under sub-section (4); the trespasser-and-ejectment consequence plus the option to retain on payment is sub-section (5); and the master-plan conformity requirement for urban land is sub-section (6) with extinguishment of tenancy under sub-section (7). Section 90B is now omitted, and the regularisation power it once carried has shifted to Section 90A—a point the 2022 Division Bench made expressly.

The recurring pitfall is to assume regularisation is automatic or unlimited. Gulab Kothari shows it is not: green belts, ecological zones and public reservations cannot be converted away under the guise of regularisation, and change of land use must be guarded, committee-vetted and public-interest justified, not granted for the asking. A second pitfall is forgetting that diversion is a revenue act with downstream consequences—mutation, altered assessment and migration to the local authority—so the topic connects to the wider object and history of the Act and to the duties of revenue officers, not just to a single section read in isolation.