HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 8423/2008
Smt. Radha Devi ----Petitioner
Versus
State And Ors. ----Respondent
S.B. Civil Writ Petition No. 8511/2008
Smt. Sunita Bai ----Petitioner
Versus
State And Ors ----Respondent
S.B. Civil Writ Petition No. 8512/2008
Smt. Lalita ----Petitioner
Versus
State And Ors ----Respondent
S.B. Civil Writ Petition No. 8519/2008
Shiv Narayan ----Petitioner
Versus
State And Ors ----Respondent
S.B. Civil Writ Petition No. 8542/2008
Smt. Geeta Bai ----Petitioner
Versus
State And Ors ----Respondent
S.B. Civil Writ Petition No. 8543/2008
Smt. Sushila Bai ----Petitioner
Versus
State And Ors ----Respondent
(D.B. SAW/1100/2008 has been filed in this matter. Please refer the same for further orders)
For Petitioner(s) : Mr. Chaitanya Gahlot on VC.
For Respondent(s) : Mr. K.K. Bissa on VC.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
24/01/2022
1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from coming to the Courts.
2. Learned counsel for the petitioners, at the outset, has drawn the attention of this Court towards the order dated 23.10.2008 passed by this Hon'ble Court, individually in all these petitions, whereby the petitions were dismissed; the operative portion of the said order dated 23.10.2008 reads as under:
"In my opinion, if no record was maintained with regard to the auction proceedings by the Panchayat, then it can be said that whole proceedings were illegal, therefore, the finding given by the District Collector in the order dated 12.08.2008 does not require interference. Accordingly, the writ petition is dismissed."
However, learned counsel furnished before this Court the order dated 02.05.2018 passed by a Division Bench of this Hon'ble Court in S.A.W. Nos.1041/2008, 1044/2008, 1042/2008, 1139/2008, 1043/2008 & 1100/2008 arising out of the present writ petitions i.e. S.B. C. W.P. Nos.8423/2008, 8511/2008, 8512/2008, 8519/2008, 8542/2008 & 8543/2008, respectively. Learned counsel further submits that vide the said order, the Hon'ble Division Bench, while disposing of the aforementioned appeals and restoring the present petitions, issued a direction for deciding the same afresh on merits.
The operative portion of the said order dated 02.05.2018 reads as under:
"11. In our opinion the learned Single Judge ought to have looked into the material placed by the writ petitioners before the District Collector Chittorgarh who was the Revisional Authority and keeping in view that the revision was filed after 24 years the effect of the time period qua the Panchayat was not being able to produce the relevant record and evidence had to be weighted.
12. The appeals are disposed of setting aside the impugned order dated 23.10.2008. The writ petitions filed by the appellant-writ petitioners are restored, to be decided by the learned Single Judge afresh on merits."
3. Thereafter, learned counsel for the petitioners submits that in SBCWP Nos.8511/2008, 8512/2008, 8519/2008 & 8542/2008, this Hon'ble Court had passed the following interim order on 12.07.2018 (SBCWP No.8511/2008):
"The matter has been listed before this court pursuant to directions given by Hon'ble Division Bench of this Court vide order dated 02.05.2018. The Hon'ble Division Bench has directed the court to reconsider the controversy in detail and decide the writ petitions on merits.
Let notices be issued to the respondents. Mr. Manish Patel accepts notice on behalf of all the respondents and prays for time to complete instructions. Thus, notice need not be issued. In the meantime, status quo shall be maintained regarding disputed land in question. Henceforth the name of Mr. Manish Patel be shown in the cause list.
List after six weeks.
Connect with S.B. Civil Writ Petition Nos.8512/2008, 8519/2008 & 8542/2008."
Learned counsel thus, prays that the aforequoted interim order may also be passed in the remaining petitions i.e. SBCWP No.8423/2008 & 8543/2008.
However, looking to the fact that the present petitions pertained to the year 2008, this Court instead of making any interim adjudication, as prayed by learned counsel for the petitioner, deems it appropriate to decide the matter finally.
4. In the aforesaid backdrop and the fact that since all these petitions involve a common controversy, therefore, with the consent of learned counsel for the parties, the same have been heard together and are being decided by this common judgment.
5. For the purpose of the present adjudication, the prayer clauses and the facts are being taken from SBCWP No.8423/2008, while treating the same as lead case.
6. These writ petitions have been preferred claiming, in sum and substance, the following reliefs:
"I. by an appropriate writ, order or direction the order dated 12.8.2008 (Annex.9) passed by the respondent No.2 in Revision-Panchayat No.15/2007 (All Villagers Vs. Jagdish & Anr.) may kindly be quashed and set aside declaring it to be illegal qua the petitioner; II. by an appropriate writ, order or direction the respondents may kindly be restrained to not to interfere in the sole title, peaceful possession over the property hold by the petitioner in view of sale-deed dated 26.2.1983 (Annex.1)."
7. For the purpose of brevity, this Court observes the facts in brief which are that in 1983, the concerned Gram Panchayat planned and prepared a residential scheme for the development of the village land adjacent to the township of Chittorgarh, and that in doing so an auction was made and a subsequent sale deed was executed in the favour of the present petitioners by respondent no. 8, the concerned Gram Panchayat. However, the said land in question was sanctioned to be entered as 'abadi land' instead of 'charaga land' through the requisite procedural formalities, before the sale deed was executed. However, the present petitioners continued to enjoy the possession of land, however, subsequently when a new sarpanch was elected, the gram panchayat sought to rectify the erroneous allotment of land to the present petitioners. The petitioner, after availing of the legal recourse, under the concerned provisions of the Rajasthan Panchayati Raj Act of 1994 and the Rajasthan Panchayat Rules of 1961, comes before this Court seeking quashing of impugned order issued by respondent no. 2 in favour of respondent no. 8.
8. Heard learned counsel for both parties.
9. In support of his contention that the limitation period to challenge allotment of the said land in question was over, the learned counsel for the petitioner cites at the bar, the following judgments, rendered by this Court in Murali and Anr. Vs. Addl. Collector, Nagaur and Ors. D.B. Civil Special Appeal No. 522 of 2002 and Panna Lal and Anr. Vs. Smt. Sushila Devi and Ors. D.B. Civil Special Appeal (W) No. 108 of 2006.
10. Learned counsel for the respondent cites the judgment of Chiman Lal Vs. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 1688 of 1983 in stating that the period of limitation, when not expressly determined by the concerned statute, has to be reasonably fixed keeping in view the facts and circumstances of each case.
11. This Court observes, as is evident from the order, dated 12.08.2008, passed by the concerned District Collector, Chittorgarh, that the land in question was only entered into as 'abadi land' on 04.06.1986 while the auction was conducted on 23.09.1981, the land was still recorded as'charaga / gauchar land'. Further, no proper documents viz. sale deed, receipt book, cash book, of the auction proceedings are available with the concerned Gram Panchayat.
12. Further, the patta issued through the procedure undertaken by way of auction, through which the petitioner claims to have right to land emanates, is also not traceable. And, the learned counsel for the petitioner, although places reliance on the sale deed document, at Annexure 1 of the record, this Court observes that this document was created on 26.2.1983, while the auction proceedings were carried out two years prior, in 1981.
13. It is therefore clear as crystal, that the land in question on the purported date of sale was in fact 'charaga / gauchar land' and record reflects, as this Court has observed above, that the land in question got converted into 'abadi land' only much after, on 05.06.1986 i.e. after a period of about 5 years from the date on which the auction proceedings were carried out, three years from the purported sale deed.
14. This Court also observes that it is also not the case of the petitioner that land in question was converted into 'abadi land' from 'charaga land' before the auction proceedings were carried out or the sale deed entered into.
15. With respect to the objection raised by the learned counsel for the petitioner that the period of limitation to challenge the allotment of the land in question has long passed, this Court does not find merit in this submission so made.
16. In arriving at this conclusion, this Court observes the succinct reasoning laid down in Chiman Lal (supra) by the Hon'ble Special Bench of this Hon'ble Court, wherein it was observed that when a statute omits to fix any period of limitation, then the power has to be exercised within reasonable time depending on facts of the given case, though in cases of fraud, misrepresentation, collusion, lack of jurisdiction, violation of statutory provisions and orders being void or against public interest, power can be exercised at any time.
17. This Court also observes the ratio decidendi laid down by the Hon'ble Division Bench of this Court in Gulab Kothari Vs. State of Rajasthan and Ors. D.B. Civil Writ Petition No.1554/2004 at Paras. 197 - 199:
"197. We are of the considered opinion that keeping in view the mandate of the provisions of the Act of 1955 and the Rules made thereunder, the preservation and development of the pasture land by the State Authorities is the rule and diversion of user thereof is an exception and therefore, the power conferred upon the Collector under Rule 7 of the Rules of 1955, to change the classification of the pasture land should be exercised sparingly only in the larger public interest and not so as to subserve the interest of any individual.
198. At this stage, it is to be noticed that in the Writ Petition No.5907/08, the petitioner has given the details of some of the orders passed by the JDA converting the land set apart as pasture land in the rural areas of Jaipur Region but there is no details available in respect of the rural areas falling within the Jodhpur Region, Ajmer Region and various districts of the State and therefore, before further dilation of the issue, it would be appropriate that the directions are issued to the State to furnish the complete details regarding the availability of the pasture land in various districts of the State of Rajasthan as on the date of commencement of the Act of 1955, the diversion of the user of the pasture land permitted after the commencement of the Act of 1955, and the land set apart as pasture land after the commencement of the Act of 1955. The State should also furnish the district-wise details of unauthorised occupation over the pasture land.
199. But in any case, pending consideration of the issue, as mandated by the Hon'ble Supreme Court in Jagpal Singh's case (supra), the indiscriminate diversion of the pasture land for other purposes needs to be checked and any unauthorised occupation over the pasture land by unscrupulous persons needs to be dealt with strictly." (emphasis added)"
18. In Abdul Rahman Vs. State of Rajasthan D.B. Civil Writ Petition No. 1536/2003 judgment dated 02.08.2004, on an issue regarding encroachment on public utility land, the Hon'ble Division Bench of this Court observed that encroachment of the said lands, even by the Gram Panchayat, through the Sarpanch for the construction of a school, and the subsequent submission of a proposal to convert the said land into 'abadi land', on the ground that it may be utilized to construct a school as there were already a number of government buildings viz. anganwadi, a health centre, G.L.R. building, etc. and a number of residential homes constructed on the said lands, would not be in the larger public interest of preserving the land in question on the grounds that through the 42nd Amendment to the Constitution of India, it was the duty of the State, under Article 48A and Article 51A to protect the natural environment; and that under Article 21, every person has the right to a safe and healthy environment.
19. This Court therefore, observes that under no circumstances it may be permitted that the 'charaga/gauchar' land i.e. pasture land be taken away by someone on the pretext of sale, purchase or through a patta.
20. This Court, after a perusal of the record, and hearing learned counsel for both parties, and observing the judgments rendered in the aforementioned cases finds that the concerned authority rightly exercised its power in passing the impugned order, and that the issue in the present case warrants the exercise of the power of revision of the concerned authority.
21. In light of the aforesaid observations, the present petitions are dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI),J.
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