Khushal Singla & Ors. v. State of Rajasthan & Ors. [02.11.2020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 

D.B. Civil Writ Petition No. 11157/2020

1. Khushal Singla S/o Shri Veer Chand, Aged About 27 Years, B/c Agarwal, R/o Ward No. 12, Sadul Shahar, District Sriganganagar.
2. Virendra Kumar S/o Shri Hansraj Goyal, Aged About 57 Years, R/o Ward No. 9, Sadul Shahar, District Sriganganagar.
3. Narendra Kumar S/o Shri Amarnath, Aged About 40 Years, B/c Agarwal, R/o Ward No. 9, Sadul Shahar, District Sriganganagar.

----Petitioners 

Versus

1. State of Rajasthan, through Secretary, Urban Development And Housing Department, Food Building, Secretariat, Jaipur - 302005
2. The Executive Officer, Municipal Council, Sadul Shahar, District Sriganganagar.
3. The District Collector, Sriganganagar.
4. The Tehsildar, Sadul Sahar. 

----Respondents 

For Petitioner(s) : Mr. Abhinav Jain 

HON'BLE MR. JUSTICE SANGEET LODHA 

HON'BLE MR. JUSTICE RAMESHWAR VYAS 

Order 

02/11/2020

1. By way of this writ petition, the petitioners are seeking directions to remove the encroachments made over the land forming part of public way & roads and no permission be granted for raising commercial buildings in the residential colonies in Sadul Sahar, District Sri Ganganagar.

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 on public road and footpath, observed:

"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."

3. 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 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 (4 of 4) [CW-11157/2020] 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."

 

4. In view of the directions already issued by this Court as aforesaid, no further directions are required to be issued in the instant case. The petitioners may approach the Public Land Protection Cell (PLPC) of District Sri Ganganagar 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 petitioners shall be considered by the PLPC in accordance with law and the encroachment on the land forming part of the road or the public area is found, the same shall be removed expeditiously.

5. The petition stands disposed of with the observation as above. 

                (RAMESHWAR VYAS),J                         (SANGEET LODHA),J