HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 808/2018
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
----Appellants
Versus
1. The District Collector, Churu.
2. Block Development Officer, Panchayat Samiti Churu.
3. Gram Panchayat, Jhariya Through Its Sarpanch,
Panchayat Samiti Churu, District Churu.
4. Surendra Kumar S/o Ram Kumar, By Caste Meghwal,
Resident Of Somasi, Tehsil And District Churu.
----Respondents
Connected With
D.B. Spl. Appl. Writ No. 752/2018
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
----Appellants
Versus
1. The District Collector, Churu.
2. Block Development Officer, Panchayat Samiti Churu.
3. Gram Panchayat, Jhariya Through Its Sarpanch,
Panchayat Samiti Churu District Churu.
4. Ashok Kumar S/o Shri Sanwata Ram, By Caste Meghwal,
Resident Of Village Somasi, Tehsil And District Churu.
----Respondents
D.B. Spl. Appl. Writ No. 753/2018
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu.
----Appellants
Versus
1. The District Collector, Churu.
2. Block Development Officer, Panchayat Samiti Churu.
3. Gram Panchayat, Jhariya Through Its Sarpanch,
Panchayat Samiti Churu, District Churu.
4. Sanwat Ram S/o Lekhu Ram, By Caste Meghwal, Resident
Of Somasi, Tehsil And District Churu.
----Respondents
D.B. Spl. Appl. Writ No. 780/2018
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
----Appellants
Versus
1. The District Collector, Churu.
2. Block Development Officer, Panchayat Samiti Churu
3. Gram Panchayat, Jhariya Through Its Sarpanch,
Panchayat Samiti Churu District Churu.
4. Sanjay Kumar S/o Ram Kumar, By Caste Meghwal,
Resident Of Somasi, Tehsil And District Churu.
----Respondents
D.B. Spl. Appl. Writ No. 781/2018
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat,
Resident Of Village Somasi Tehsil And District Churu.
----Appellants
Versus
1. The District Collector, Churu.
2. Block Development Officer, Panchayat Samiti Churu.
3. Gram Panchayat, Jhariya Through Its Sarpanch,
Panchayat Samiti Churu District Churu.
4. Ajeet Kumar S/o Sanwanta Ram, By Caste Meghwal,
Resident Of Somasi, Tehsil And District Churu.
----Respondents
For Appellant(s) : Mr. R.S.Choudhary with Mr. S.S.Gour
For Respondent(s) : Mr. Sunil Beniwal, AAG with
Mr. Utkarsh Singh
Mr.K.R.Saharan for Gram Panchayat,
Jhariya
Mr.R.P.Singaria, for private
respondents.
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order
7th April, 2021
PER HON'BLE MR.SANGEET LODHA,J.
1. These intra-Court appeals are directed against common order dated 20.12.17 passed by the learned Single Judge of this Court, whereby the writ petitions preferred by the appellants herein, assailing the order dated 11.10.17 passed by the District Collector, Churu under Section 97 of the Rajasthan Panchayati Raj Act, 1994 (for short "the Act of 1994"), in Revision Petition Nos. 3/2017, 4/2017, 5/2017, 6/2017 & 7/2017, have been dismissed.
2. The appellants challenged the legality of the pattas issued in favour of the private respondents herein by the Gram Panchayat, Jhariya of residential land inter alia on the ground that the respondents already having the residential plots were not entitled for allotment of the land under the provisions of Rajasthan Panchayati Raj Rules, 1996 (for short "Rules of 1996"). That apart, it was contended that the land in question forms part of the land of johar paitan ad measuring 114 bighas 18 biswas, comprising khasra no.95, which on account of prohibition contained in Section 16 of the Rajasthan Tenancy Act, 1955 (for short 'the Act of 1955') could not have been divested for expansion of abadi.
3. The revision petitions were dismissed by the revisional authority vide order dated 11.10.17 observing that the material on record is not sufficient to arrive at the conclusion that the respondents were already having the residential land in their possession and therefore, they were not entitled to further allotment. Regarding the land being part of the land categorised in the revenue record as johar paitan, the revisional authority opined that the land measuring 3 bighas & 10 biswas forming part of the land johar paitan, has already been divested for expansion of abadi by the State Government vide order dated 28.9.02 and thus, the pattas of the land already entered in the revenue record as abadi land, issued by the Gram Panchayat, cannot be cancelled. The revisional authority further observed that it would not be justified to cancel the pattas issued in the year 2004 after a lapse of about 12 years.
4. The learned Single Judge has dismissed the writ petitions preferred by the appellants, observing that the appellants having failed to prove the fact that at the time of issuance of the pattas in question, some other residential plots had already been allotted to the private respondents, the revisional authority has rightly refused to cancel the pattas. The learned Single Judge observed that the District Collector, Churu vide order dated 13.11.02 had already converted 3 bighas & 10 biswas of land of khasra no.95 from johar paitan to abadi after approval of the State Government and therefore, the contention raised by the appellants that pattas of land forming part of johad paitan were issued by the District Collector, Churu, is without any merit.
5. Learned counsel appearing for the appellants contended that the learned Single Judge has not examined the matter in correct perspective. The pattas of the land in question have been issued by the Gram Panchayat in favour of the members of one family, who were already in possession of residential plots and as a matter of fact, in the garb of the allotment made, they have encroached upon entire 3 bighas & 10 biswas land set apart for expansion of abadi by the District Collector, Churu. Learned counsel submitted that from bare perusal of the material on record, it is apparent that the plots have been allotted to the respondent no.4-Sanwata Ram and his other family members whereas, while setting apart the land for abadi purposes vide order dated 13.11.02, a specific condition was imposed that the plot of the size more than 500 sq. yard, shall not be allotted to one family, the families which are already having residential plots shall not be allotted the plots and preference shall be given to the families of SC/ST. Learned counsel submitted that it is settled law that the land forming part of johar paitan cannot be divested for expansion of abadi and thus, keeping in view the directions issued by this Court in the matters of Abdul Rahman vs. State of Rajasthan: (2004) 4 WLC (Raj.) 435 and order dated 12.1.17 passed in Gulab Kothari vs. State of Rajasthan & Ors.: D.B.C.Writ Petition No.1554/2004, the land in question deserves to be restored to its original use i.e. johar paitan.
6. On the other hand, Mr. Sunil Beniwal, learned AAG submitted that the contention sought to be raised by the appellants that the family members of respondent-Sanwata Ram have been allotted the plots of the area more than 500 sq. yard is factually incorrect. Learned AAG submitted that 3 pattas were issued; one in favour of Sanwata Ram and two in favour of his major sons of the land measuring 150 sq. yard each, which comes to total 450 sq. yard. Similarly, two other persons were allotted land measuring 150 sq. yard each. It is submitted that all the allotments are made in favour of the persons belonging to SC category and thus, the contention sought to be raised by the appellants regarding violation of the conditions of the order dated 13.11.02, is devoid of any merit. Learned AAG submitted that while allotting the land already divested for residential use, the procedure prescribed under the Rules of 1996 has been duly followed and thus, the revisional authority has committed no error in dismissing the revision petitions. Learned AAG submitted that if the respondents have encroached upon the land , the same shall be dealt with by the competent authority in accordance with law but on that account, the allotment made in favour of the private respondents cannot be said to be illegal.
7. Mr. R.P.Singaria, learned counsel appearing for the private respondents submitted that the plots were allotted in favour of the private respondents in accordance with the procedure laid down under the Rules of 1996. Learned counsel submitted that neither the conditions of the order setting apart the land for abadi purposes nor the provisions of the Rules of 1996 have been violated. Drawing the attention of the Court to the order dated 13.11.02 issued by the District Collector, setting apart the land for abadi purposes, learned counsel submitted that the private respondents had applied for and allotted the plots in abadi area and thus, they cannot be penalized for no fault on their part.
8. We have considered the rival submissions and perused the material on record.
9. Section 16 of the Act of 1955, specifies the lands in respect whereof no khatedari rights shall accrue, which inter alia include the land used for casual and occasional cultivation in the bed of a river or tank, land covered by water and used for the purpose of growing Singhara or other like produce, land acquired or held for a public purpose or a work of public utility and land which has been set apart or is, in the opinion of the Collector necessary for the flow of water therein into any reservoir or tank of drinking water for a village or for the surrounding villages. Thus, the land falling within the perimeter of tank or pond of the village, its boundary or the catchment area being the land of public utility, is not available for allotment for the purpose of expansion of abadi or any other use.
10. In Kanti Lal Vs. State of Rajasthan & Ors.: D.B.Civil Writ Petition No.7509/2016, decided on 13.11.18, this Court while considering the issue regarding protection of the land forming part of catchment area in terms of provisions of Section 16 of the Act of 1955, observed:
"16.Under the law if the tank, nadi or talab is required to be protected, then obviously, its boundary and catchment area are also required to be protected and thus, nothing turns on the question that according to the private respondents earlier in the revenue record the land alleged to have been regularised in their favour, comprising Khasra No.407 was shown in the revenue record as 'Talab Ki Pal' and not 'gair mumkin nadi' as such. As a matter of fact in the order dated 31.7.85 passed by the Tehsildar, Aburoad, regualrising possession of father of the private respondents over the land measuring 755 sq. yard comprising Khasra No.529, it is specifically observed that land sought to be regularised forms part of 'gair mumkin nadi'. (emphasis added)
11. In Abdul Rahman's case (supra), a Bench of this Court has already issued directions to the State Government to remove encroachment in the catchment area of the water bodies and in 'Suo Moto Vs. State of Rajasthan' (supra), decided by Jaipur Bench of this Court vide order dated 29.5.12, specific directions have been issued restraining the allotment of the land falling in catchment areas of water bodies like Johar, Nala, Tank, River, Pond etc. and it is further directed that the appropriate action shall be taken for cancellation of the allotment made in defiance of Section 16 of the Act of 1955.
12. In Jagpal Singh & Ors. vs. State of Punjab & Ors.: 2011 ACR SCW 990, while declining to interfere with the order of the High Court, dismissing the writ petition preferred against the order of the Commissioner, setting aside the order of the Collector, whereby the directions were issued to the Gram Panchayat to transfer the land forming part of the pond to the occupants thereof, the Hon'ble Supreme Court issued directions to all the State Governments in the country in the following terms :
"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthoized occupants of Gram Sabha /Gram Panchayat/ Poramboke/ Shmlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
13. In Gulab Kothari's case (supra), this Court has issued directions to the State Authorities to take effective steps for conservation and preservation of natural resources i.e. rivers, other water bodies and catchment area. Further, the State Authorities have been directed to undertake a drive to remove all encroachments made over the natural resources operating thereon and restore such natural resources by taking appropriate action.
14. Thus, in view of the position of law settled as above and directions already issued by this Court time and again, the land forming part of johar paitan, cannot be permitted to be divested to any other use.
15. Admittedly, in the instant case, the land ad measuring 3 bighas 10 biswas comprising khasra no.95 forms part of the land of the johar paitan (catchment area of the pond), a land of public use and thus, the same could not have been set apart for expansion of abadi. In this view of the matter, the order dated 13.11.02 passed by the District Collector setting apart the land of johar paitan for the purpose of expansion of abadi is ex-facie illegal and void and consequently, the pattas of the plot forming part of the said land, issued by the Gram Panchayat in favour of the private respondents were not sustainable in the eyes of law.
16. A perusal of the order passed by the revisional authority reveals that the contention raised on behalf of the appellants regarding the land of johar paitan being not available for allotment for abadi, has been rejected merely on the ground that the land already stands converted for abadi purposes by the State Government on the recommendation made by the Gram Panchayat. The position of law already settled by this Court regarding the non-availability of land of johar paitan for diversion to any other use, has altogether been ignored by the District Collector.
17. It is pertinent to note that it was specifically contended by the appellants that the respondents already having the residential plots, were not entitled for further allotment in defiance of the conditions of the order dated 13.11.02, however, the contention has been rejected by the revisional authority by recording the conclusion without any basis that the land shown in patta issued adjoining to the plot allotted may be the land in unauthorized occupation of the private respondents herein. It is not understandable as to why the Gram Panchayat will show the land in unauthorized occupation of any person as the land belonging to the said person in a patta of yet another plot issued under the Rules of 1996 and thus, the assumption of the revisional authority that the neighbourhood land shown in the pattas may be the land unauthorizedly occupied by the private respondents herein, is absolutely unjustified. Moreover, under Section 97 of the Act of 1994, the revisional authority is even empowered to examine the legality of the proceedings of Panchayat Raj Institution suo moto and thus, nothing prevented the revisional authority to requisition the record of the Panchayat to verify the correct factual position.
18. In view of the discussion above, the order impugned passed by the learned Single Judge as also the order impugned in the writ petition dated 11.10.17 passed by the revisional authority, deserves to be set aside and the revision petitions preferred by the appellants deserve to be allowed.
19. In the result, the intra-Court appeals are allowed. The order impugned passed by the learned Single Judge dated 20.12.17 is set aside. The writ petitions preferred by the appellants are allowed. The order dated 11.10.17 passed by the revisional authority is set aside. The order dated 13.11.02 issued by the District Collector, Churu shall be treated to be non est. The pattas issued in favour of the private respondents of the land forming part of johar paitan shall stand set aside and the said land shall stand restored to its original use. The encroachments made on the land of johar paitan comprising khasra no.95, if any, shall be removed expeditiously, in any case, within a period of three months from the date of this order. No order as to costs.
(DEVENDRA KACHHAWAHA),J (SANGEET LODHA),J
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