HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 2193/2019
Balram S/o Shri Maniram, Aged About 57 Years, By Caste Jat, R/o VPO Bhompura, Tehsil And District Hanumangarh (Raj.).
----Petitioner
Versus
- State Of Rajasthan, Through The Secretary, Department of Rural Development and Panchayati Raj, Secretariat, Rajasthan, Jaipur.
- The District Collector, Hanumangarh, District Hanumangarh.
- The Chief Executive Officer, Zila Parishad Hanumangarh.
- The Vikas Adhikari, Panchayat Samiti Hanumangarh, District Hanumangarh.
- The Secretary, Gram Panchayat Bhompura, Panchayat Samiti Hanumangarh, District Hanumangarh.
----Respondents
For Petitioner(s) : Mr. Jitendra Singh Bhaleria
For Respondent(s) : Mr. Sunil Beniwal, AAG with Mr. Utkarsh Singh
HON'BLE MR. JUSTICE SANGEET LODHAHON'BLE MR. JUSTICE RAMESHWAR VYAS
Order26th August, 2020Per Hon'ble Mr. Sangeet Lodha,J.
1. By way of this writ petition, the petitioner is seeking directions to remove the encroachment on public roads, the land (2 of 6) [CW-2193/2019] reserved for johar paitan, Bus Stand, Panchayat Office and Dispensary in the Village Bhompura, District Hanumangarh.
2. Mr. Sunil Bishnoi, Additional Advocate General submits that pursuant to the order dated 30.1.19 passed by the Division Bench at Jaipur in D.B.C.Writ Petition (PIL) No.10819/18 "Jagdish Prasad Meena & Ors. vs. State of Rajasthan & Ors.", Public Land Protection Cell (PLPC) headed by District Collector has already been constituted for rural areas in every district and therefore, the writ petition preferred can be disposed of with the directions to consider the grievances of the petitioner regarding the encroachment on the public way, the land forming part of johar paitan and the lands allotted to the public institutions.
3. On the other hand, counsel appearing for the respondents submitted that indisputably, there exists encroachment on the public way and the land forming part of johar paitan and therefore, there is no reason as to why the encroachments made should not be straight away directed to be removed. Learned counsel submitted that in this regard, this Court has already issued elaborate directions vide order dated 12.1.17 in the matter of Gulab Kothari vs. State of Rajasthan & Ors.(D.B.C.Writ Petition No.1554/04) and thus, as a matter of fact, inaction on the part of the respondent authorities in taking appropriate action for removal of the encroachments amounts to disobedience of the directions issued by this Court.
4. We have considered the submissions of the learned counsel for the parties and perused the material on record.
5. In Gulab Kothari's case (supra), this Court while dealing with the issue with regard to encroachments on public road and footpath observed:
(3 of 6) [CW-2193/2019] "146. It is well settled that the footpaths and public roads are meant for convenience of public at large and no private person can be allowed to make unauthorised use of the same for personal use. As a matter of fact, every citizen has right to pass over the footpaths and public ways and custody thereof with the State and the Local Authorities is in realm of public trust and therefore, what to say of private individuals even, the State Government and Local Authorities are yoked under an inhibition not to put any structure on footpaths and public ways, which is not necessary for regulating and maintaining the user thereof. Every inch of the land forming part of footpaths and public ways has to be preserved and maintained meticulously and therefore, the State Government and the Local Authorities, who are under an obligation to check growth of unauthorised encroachment made by unscrupulous persons on footpaths and public ways and remove the same, cannot shirk from their responsibility to take the appropriate measures in this regard.
147. This Court takes judicial notice of the fact that the tendency to occupy unauthorisedly the land forming part of footpaths and public ways, is rampant in various cities of the State and one hardly finds enough space on the footpaths and public ways which is creating numerous traffic hazards and the pedestrians are compelled to move in the midst of vehicular traffic endangering their life. We are constraint to observe that this tendency to encroach upon the footpaths and public ways amongst the unscrupulous citizens is flourishing because of deleterious inaction and tacit support of the persons at the helm of affairs in the local authorities.
148. To conclude, it is high time that the menace of encroachment and unauthorised construction over the footpath and public way is viewed seriously and dealt with strictly."
6. Coming to the issue regarding land forming part of johar paitan, indisputably, Section 16 of the Rajasthan Tenancy Act 1955 (for short "the Act of 1955"), puts restriction on khatedari right being accrued in respect of the land covered by the water or the land acquired or held for a public purpose or a work of public utility. In "Abdul Rahman v. State" 2005 RRT 59, a Bench of this court has issued direction to the State Government to remove (4 of 6) [CW-2193/2019] encroachment in the catchment area of the water bodies. In the matter of "Suo Motu v. State of Rajasthan"(S.B.C.Writ Petition No.11153/11), disposed of by Jaipur Bench of this court vide order dated 29.5.12, specific directions are issued restraining allotment of the land falling in catchment areas of water reservoirs like Johar, Nala, Tank, River, Pond etc. 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.
7. In this view of the matter, the respondents are under an obligation to remove the encroachments made by the unscrupulous persons on the land forming part of johar paitan.
8. In Jagdish Prasad Meena's case (supra), a Bench of this Court at Jaipur with a view to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc., issued directions as under:
" In order therefore to provide a pan-Rajasthan solution to this ever persisting problem, we deem it appropriate to direct the Chief Secretary of the State to devise a permanent mechanism, which should be operational in every District of the State where the concerned District Collector should be required to periodically notify for the information of the general public to lodge the complaints/representations with regard to such encroachments with a specially designated Public Land Protection Cell (for short 'PLPC') for rural areas. The PLPC should be head by District Collector and function under his direction and supervision. The PLPC shall get such complaints/representations enquired into by deputing concerned Sub Divisional Officer/Tehsildar/Naib Tehsildar so as to verity whether or not such encroachments have actually taken place on such land. If the allegations are found to be substantiated, appropriate steps in accordance with law be immediately taken for removal of the encroachments and appropriate penal action be also taken against the trespassers. The complaints/representations received in the PLPC should be decided by passing speaking order, informing the (5 of 6) [CW-2193/2019] respective complainant/representationist about the action taken. This would obviate the necessity of such complainants/representationists approaching this Court directly by way of public interest litigation. If this practice is put in place, this Court would not be inclined to directly entertain such public interest litigation or would do so only in the event of inaction on the part of the concerned PLPC.
The PLPC aforementioned shall also keep in view the guidelines issued by the Supreme Court in Jagpal Singh & Others vs. State of Punjab & Others, (2011) 11 SCC 396 wherein all the State Governments of the country were directed that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and the same must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. The said scheme should provide for the speedy eviction of illegal occupants, after giving them a show cause notice and a brief hearing. It was further held therein that long duration of the illegal encroachment/occupation of land or huge expenditure in making construction thereon or political connections of trespassers are no justification for regularising such illegal occupation. Regularisation should be permitted only in exceptional cases where lease has been granted under some government notification .e.g. to landless labourers or members of Scheduled Castes/Scheduled Tribes or where there is already a school, hospital, dispensary, 'shamshan', 'kabristan' or other public utility of the like nature on the land.
Observations of the Supreme Court in Jagpal Singh (supra) thus leave no manner of doubt that removal of encroachment on all such land is a rule and regularisation an exception and that too in extremely limited number of cases, which only the Government can do by appropriate notification of the government and no other authority."
9. In view of the discussion above, the writ petition is disposed of with the directions to the respondents to treat the writ petition preferred by the petitioner as representation, which shall be considered and decided by the Public Land Protection Cell of District Hanumangarh within a period of eight weeks from today by passing a speaking order. If any encroachments are found on the public road, the land forming part of johar paitan or the lands allotted to the public institutions, the same shall be removed (6 of 6) [CW-2193/2019] within a period of four weeks thereafter. Needless to say that while deciding the representation, the PLPC shall take into consideration the directions issued by the Supreme Court in Jagpal Singh's case and by this Court in Gulab Kothari's case and Abdul Rahman's case (supra).
(RAMESHWAR VYAS),J (SANGEET LODHA),J
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