IN THE HIGH COURT OF RAJASTHAN
D.B. Civil Writ Petition No. 12587 of 2019
Decided On: 17.03.2021
Mohan Ram and Ors.
Vs.
State of Rajasthan and Ors.
Hon'ble Judges/Coram:
Sangeet Lodha and Rameshwar Vyas, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Hapu Ram, Advocate
For Respondents/Defendant: Rekha Borana, AAG, Saransh Vij and Suniel Purohit, Advocates
DECISION
Sangeet Lodha, J.
1. By way of this writ petition, the petitioners are seeking directions to the respondent to remove the encroachments made on the land comprising khasra no. 509 & 299 of Village-Dhandhaniya Bhayala, Tehsil-Balesar, District-Jodhpur recorded in the revenue record as 'pasture land' and 'gair mumkin nadi' respectively.
2. Precisely, the case set out by the petitioners is that the Gram Panchayat, Dhandhaniya Bhayala in its meeting held on 22.5.2017 resolved to remove the encroachments made on the pasture land comprising khasra no. 509 and agore land of Gawai Nadi comprising khasra no. 299. Pursuant thereto, while taking proceedings under Section 91 of the Rajasthan Land Revenue Act, 1956 (for short "the Act of 1956"), the Tehsildar, Balesar passed the order for removal of the encroachments and recovery of the fine from the persons in unauthorised occupation. However, the order passed was not enforced and the encroachers have raised unauthorised constructions. It is submitted that the sanction was issued for development work of Gawai Nadi but the work sanctioned could not be executed on account of existing encroachments.
3. A reply to the writ petition has been filed on behalf of the State taking the stand that as per the report of Patwari Halka, there were 26 encroachments over the land comprising khasra no. 509 and 2 encroachments on the land comprising khasra no. 299 of Village-Dhandhaniya Bhayala. The Tehsildar, Balesar after taking proceedings under Section 91 of the Act of 1956, passed an order dated 6.9.2017, directing removal of the encroachments made as aforesaid. However, out of 28 encroachers, 4 persons namely, Hadman Ram s/o Shri Harcharan Ram, Kalu Ram s/o Shri Munna Ram, Nara Ram s/o Shri Chuna Ram and Munna Ram s/o Shri Bhiya Ram preferred appeal against the order passed by Tehsildar, Balesar, under Section 75 of the Act of 1956, which was partly allowed by the Additional Collector, Jodhpur vide order dated 21.12.2017, remanding the matter to Tehsildar, Balesar with the direction to give sufficient time to the respondents to file reply and then pass appropriate orders in accordance with law. After the remand, the matter is alleged to be pending before Tehsildar, Balesar. It is submitted that out of remaining 24 encroachments, 10 kachha constructions were removed by the encroachers themselves. It is submitted that 2 encroachments on khasra no. 299 have been removed by the encroachers after mutual agreement. Thus, according to the respondents, besides the 4 encroachments in respect whereof, the proceedings are pending before the Tehsildar, Balesar, pursuant to the remand order passed by the Appellate Authority, 14 encroachments are still there. It is submitted on behalf of the State that Gram Panchayat, Dhandhaniya Bhayala had adopted a resolution for expansion of Abadi area in khasra no. 509 and it was proposed to convert 3 bighas of pasture land comprising khasra no. 509 into abadi land, which was forwarded to SDO, Balesar, who vide order dated 12.12.2019 remanded the matter back to the Gram Panchayat with the directions to submit a draft proposal in consonance with the circular of the State Government dated 7.9.2017. It is averred that the Gram Panchayat submitted the fresh proposal and proposed that in exchange of 3 bighas pasture land of khasra no. 509, 3 bighas land comprising khasra no. 633 of Village-Kanasar, Gram Panchayat, Nimbo, be reserved as pasture land. According to the respondents, the said proposal has been forwarded by the District Collector, Jodhpur to the State Government in exercise of the power conferred under Rule 7 of Rajasthan Tenancy (Government) Rules, 1955, which is pending consideration. It is pertinent to note that the land proposed to be reserved as pasture in lieu of proposed diversion of 3 bighas land comprising khasra no. 509 is situated 20 kms. away from the Village-Dhandhaniya Bhayala.
4. A reply to the writ petition has been filed on behalf of the respondent no. 5-Gram Panchayat, Dhandhaniya Bhayala as well, taking the specific stand that the land comprising khasra no. 509 is the major source of grazing of the cattle of the villagers and due to encroachments upon the land, the development work of Gawai Nadi could not be undertaken. It is specifically averred that the proposal dated 5.9.2020 passed by Gram Panchayat, Dhandhaniya Bhayala is not proper inasmuch as, if the said land is converted into abadi then the nature of the Gawai Nadi land will be changed and the said pond will be of no use. It is submitted that Gram Panchayat is having 34.0 bighas of abadi land in khasra no. 477 which is situated nearby the pasture land, out of which 20 bighas of land is still lying vacant, where the landless persons can be rehabilitated.
5. Learned counsel appearing for the petitioners submits that the encroachments made on the land forming part of pasturage and gair mumkin nadi is not in dispute. The Gram Panchayat has already adopted a resolution for removal of the encroachments and the competent authority i.e. Tehsildar, Balesar has already passed the order for removal of the encroachments and thus, the failure on the part of the State Authorities in removing the encroachments deserves to be taken seriously and dealt with sternly. Learned counsel submitted that though, the Gram Panchayat had earlier adopted a resolution for diversion of pasture land for the purpose of abadi but now since, abadi land is available with the Gram Panchayat, there is no reason as to why the pasture land should be divested for any other use. Learned counsel submitted that the proposal for providing compensatory pasture land 20 kms. away from the village is of no use and thus, the proposal for diversion of the pasture land made by the Gram Panchayat cannot be acted upon moreso when, the Gram Panchayat has already adopted a fresh resolution proposing rehabilitation of the landless persons on the land comprising khasra no. 477, which is abadi land. Learned counsel submitted that as a matter of fact, non removal of the encroachments by the respondents is clearly violative of the directions issued by this Court vide order dated 12.1.2017 passed in the matter of Gulab Kothari vs. State of Rajasthan: D.B. Civil Writ Petition (PIL) No. 1554/2004 and Abdul Rahman vs. State of Rajasthan, (2004) 4 WLC (Raj.) 435.
6. On the other hand, learned AAG reiterating the stand taken in the reply to the writ petition noticed above, submitted that the matter with regard to change of the land use of the pasture land measuring 3 bighas is under consideration of the State Government. Learned AAG submitted that the proceeding for conversion of the pasture land into abadi land was initiated at the instance of the Gram Panchayat and thus, the stand sought to be taken by the Gram Panchayat in reply to the writ petition, is absolutely unjustified. Learned AAG submitted that in respect of 4 encroachers, the proceedings are pending before the Tehsildar, Balesar, pursuant to the remand order passed by the Appellate Authority and therefore, till the conclusion of the proceedings, their encroachments cannot be removed.
7. Mr. Suniel Purohit, learned counsel appearing for the Gram Panchayat submitted that when the sufficient abadi land is available with the Gram Panchayat, there is absolutely no reason as to why the pasture land should be divested to any other use. Learned counsel submitted that if the encroachments over the pasture land are not removed, the development work of Gawai Nadi already sanctioned cannot be undertaken and therefore, it is absolutely necessary that the encroachments made over the pasture land are directed to be removed forthwith.
8. We have considered the rival submissions and perused the material on record.
9. In Gulab Kothari vs. State of Rajasthan & Ors.(D.B.C. Writ Petition No. 1554/04), this Court vide order dated 12.1.2017 issued directions to the State Authorities to remove all the encroachments over the pasture land in the following terms:
"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 sub-serve 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."
10. That apart, pending consideration of the said 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).
11. In the matter of Gulab Kothari (supra), the Court has also directed the State Authorities to take effective steps for conservation and preservation of natural resources i.e. rivers, and other water bodies. 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.
12. Indisputably, Section 16 of the Rajasthan Tenancy Act 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 vs. State" 2005 RRT 59, a Bench of this court has issued direction to the State Government to remove encroachment in the catchment area of the water bodies.
13. In view of the directions already issued by this Court in Gulab Kothari's case (supra), the respondents are under an obligation to remove the encroachments made on the pasture land and the land forming part of the nadi forthwith. The matter pending before the Tehsildar, Balesar in respect of 4 persons named above also deserve to be disposed of expeditiously, keeping in view, the directions issued by this Court in Gulab Kothari's case (supra).
14. Accordingly, the writ petition is disposed of with the directions to remove all encroachments over the pasture land and the land forming part of the nadi comprising khasra no. 509 & 299 of Village-Dhandhaniya Bhayala, Tehsil-Balesar, expeditiously, in any case, within a period of four weeks from the date of this order. The Tehsildar, Balesar is directed to conclude the proceedings pending before it pursuant to the remand order passed by the Additional Collector, expeditiously, in any case, within a period of six weeks from the date of receipt of certified copy of this order. Needless to say that if the persons in occupation of the land are found to be in unauthorised occupation of pasture land, their encroachments shall be removed forthwith. It is made clear that the directions issued as aforesaid shall not preclude the respondents authorities from taking action for rehabilitation of the landless persons over the abadi land offered by the Gram Panchayat, if permissible under the relevant allotment rules.
15. The respondents shall file the compliance report within a period of two months from the date of this order.
16. The petition stands disposed of accordingly, however, the same shall be listed before the Court for perusal of the compliance report on 21.5.2021.
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