HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Civil Writ Petition No. 12447/2020
Jasa Ram S/o Shri Rawta Ram, Aged About 30 Years,
R/o Godaron Ka Tala, Leelsar, Barmer.
----Petitioner
Versus
- State Of Rajasthan, Through The Secretary, Revenue Department, Government Of Rajasthan, Secretariat, Jaipur.
- The District Collector, Barmer.
- The Tehsildar, Chohtan, District Barmer.
- Sub Divisional Officer, Chohtan, Barmer.
----Respondents
For Petitioner(s) : Mr. D.K.Godara, through VC
For Respondent(s) : ------
HON'BLE MR. JUSTICE SANGEET LODHAHON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order 25/11/20201. This petition is filed by the petitioner seeking directions to the respondents to remove encroachments on the land comprising Khasra Nos. 144, 252, 289, 249 and 148 of Gram Panchayat Leelsar, Chohtan, Barmer alleged to be recorded in the revenue record as 'Gair Mumkin Gochar, Gair Mumkin Rasta and Gair Mumkin Bera'.
2. In Gulab Kothari vs. State of Rajasthan & Ors.(D.B.C.Writ Petition No.1554/04), this Court while dealing with the issue with regard to encroachments inter-alia on public road, footpath and Pasture land, observed:
(2 of 5) [CW-12447/2020] "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."
"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 (3 of 5) [CW-12447/2020] 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)
3. That apart, pending consideration of the matter, the directions have been issued to the State Authorities in the following terms:
"(xxviii) The State is directed to furnish complete details regarding 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 commencement of the Act of 1955 and the land set apart as pasture land after commencement of the Act of 1955. The State shall also furnish the district wise details of unauthorised occupation over the pasture land.
(xxix) Pending consideration of the issue with regard to the diversion of the pasture land for other uses by this court, the State Government is directed to take appropriate steps to check and remove unauthorised occupation over the pasture land by unscrupulous persons in various villages of the State forthwith." (emphasis added).
4. In D.B.C.Writ Petition (PIL) No.10819/18 "Jagdish Prasad Meena & Ors. vs. State of Rajasthan & Ors.", 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 (4 of 5) [CW-12447/2020] 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 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 (5 of 5) [CW-12447/2020] 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."
5. In view of the directions already issued by this Court as aforesaid, no further directions are required to be issued in the instant case. It is open for the petitioner to make an appropriate representation for redressal of the grievance before the Public Land Protection Cell (PLPC) of District Barmer constituted pursuant to the directions of this Court in Jagdish Prasad Meena's case (supra). Needless to say that the representation to be made by the petitioner shall be considered by the PLPC objectively and if any encroachment on the land forming part of Gair Mumkin Gochar, Gair Mumkin Rasta and Bera is found, the same shall be removed expeditiously in accordance with law.
6. The petition stands disposed of with the observation as above.
(DEVENDRA KACHHAWAHA), J. (SANGEET LODHA),J
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