Rajasthan High Court - Jodhpur
Ghevar Ram vs State Of Rajasthan ... on 26 September, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:40229-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 16779/2019
1. Ghevar Ram S/o Pabu Ram, Aged About 63 Years, R/o
Gram Panchayat Khokhariya Jodhpur (Raj.)
2. Oma Ram S/o Mangilal, Aged About 49 Years, R/o Gram
Panchayat, Khokhariya, Jodhpur (Raj.).
3. Mukna Ram S/o Shree Ram, Aged About 54 Years, R/o
Gram Panchayat, Khokhairya, Jodhpur (Raj.).
----Petitioners
Versus
1. State of Rajasthan, through the Secretary, Revenue,
Department, Secretariat, Jaipur.
2. District Collector, Jodhpur, Jodhpur,
3. Jodhpur Development Authority, through its Secretary,
4. Gram Panchayat, Khokhariya through its Sarpanch.
----Respondents
For Petitioner(s) : Mr. Bharat Boob
For Respondent(s) : Mr. Vinay Kothari (through V.C.) with
Mr. Mehul Kothari
Mr. Ayush Goyal
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE KULDEEP MATHUR Order 26/09/2024 The present writ petition has been filed by the petitioner seeking the following reliefs:-
"It is, therefore, most respectfully prayed that this petition for writ may kindly be allowed and your lordships may graciously be please to direct:-
i) That by an appropriate writ, order or direction the respondents are directed to set aside illegal allotment of the gochar land which is recorded as khasra no. 119, 121, 122, 253, 253/2, 260, 260/2 ad measuring 191 Bigha, 15 Biswa which is recorded as "gairmumkin gochar" and khasra no. 130, 134, 258/1 ad-measuring 36 Bigha 5 Biswa etc etc. It is further prayed that a further directions may be issued to the respondent authorities to set aside illegal allotment of the same land.(Downloaded on 19/10/2024 at 09:56:55 PM)
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ii) It is further prayed that allotment made to Jodhpur Development Authority on 21-10-2011 (Annx-4) may kindly be quashed and set aside.
iii) It is further prayed that a declaration and restraint order may kindly be passed restraining the respondent state and its authorities to keep the "gochar land" and "Nadi land" intact.
iv) Any other appropriate order which is deemed just and proper in the facts and circumstances of the case may kindly be also passed in favour of the petitioner. "
2. This writ petition has been filed by Ghevar Ram, Oma Ram and Mukna Ram claiming that they are vigilant and responsible citizens of the country and concerned with the constitutional rights of other citizens. The petitioners are agriculturists by profession who claim that the lands comprised under khasra nos. 119, 121, 122, 253, 253/2, 260, 260/2 measuring about 191 Bigha and 15 Biswa are recorded as "gairmumkin gochar". They further claim that the lands comprised under khasra nos.130, 134, 258/1 measuring about 36 Bigha and 5 Biswa are recorded as "gairmumkin Nadi land" and those are "gochar and panchayat lands". They have pleaded that there are about 6000 to 7000 cattle domesticated by the villagers of "Khokhariya". According to the petitioners, the subject lands have been allotted to the Jodhpur Development Authority (in short, JDA) ignoring all statutory requirements. On their representation, the Additional Collector at Jodhpur directed the Tehsildar to cause an inquiry but no report was furnished. Mr. Bharat Boob, the learned counsel for the petitioners referred to the decision in the case of "Gulab Kothari v. State of Rajasthan & Ors." reported in 2017 (2) RLW 1178 (Raj.) to submit that the illegal allotment vide order dated 21st October 2011 is liable to be interfered with by this Court.(Downloaded on 19/10/2024 at 09:56:55 PM)
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3. In its affidavit-in-opposition, the JDA has raised a preliminary objection that the present writ petition suffers from delay and latches. The specific stand of the respondents is that the JDA is a creation of the statute and the subject lands came to be vested in the JDA. In turn, the JDA has also taken a stand that though the pasture land as defined under section 5(28) of the Rajasthan Tenancy Act, 1955 is to be used for the purpose of grazing of the cattle, but, once the land in question came to be vested in the JDA by operation of law under the Jodhpur Development Authority Act, 2009 the same has to be used for development and orderly growth of the city of Jodhpur and its adjoined areas. The JDA has taken a further stand that with the passage of time the number of cattle has considerably reduced and the idea of pasture land in the heart of the city would serve no purpose. The JDA has taken the following stand in its counter affidavit:-
"At this juncture, it would not be out of place to mention here to refer Section 5(28) of the Rajasthan Tenancy Act, 1955, which provide for definition of 'pasture land'. It is submitted that a bare perusal of the said definition would go on to show that pasture land is to be used for the purpose grazing of cattle of the village or villages recorded in the settlement record. By creation of the Act of 2009 since the land in question came to be vested with respondent JDA, and since the same had to be used for development and orderly growth of the Jodhpur city and its contiguous areas, having of pasture land in between the heart of the city, wherein with passage of time the cattle has also considerable reduced and does not exist per se, there pasture land would suffice no purpose and more so over the land having vested with respondent JDA, it was at the disposal of the respondent authority for it to be used in accordance with aims and objects of the Act. It would be also important here to refer Rule 7 of the Rajasthan Tenancy Rules, 1995, which provide for allotment or setting apart of the pasture land. A bare perusal of the second proviso of the said Rule shaken the submission of the respondent authority wherein it (Downloaded on 19/10/2024 at 09:56:55 PM) [2024:RJ-JD:40229-DB] (4 of 10) [CW-16779/2019] has been provided that land falling within the boundary limit of Jodhpur region, as defined under the Jaipur Development Authority Act, 1982, shall not be allotted except for the purpose of public utility institution for expansion of Abadi' in the case in hand as well the land as vested in JDA and same is being used for public utility institution being created for Gram Nyayalaya which has already been constructed on the land in question. Thus, the respondent authority was well within its power to allot the land in question and for the same to be used in accordance with aims and objects of the Act on the land being vested within it. The aforereferred provisions are reproduced hereunder:
(28) "Pasture land" shall mean land used for the grazing of the cattle of a village or villages or recorded in settlement records as such at the commencement of this Act or thereafter reserve as such in accordance with rules framed by the State Government;
16. Land in which Khatedari rights shall not accrue- Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in
(i) pasture land;
(ii) land used for casual or occasional cultivation in the bed of river or tank;
(iii) land covered by water and used for the purpose of growing Singhara or other like produce;
(iv) land under shifting or unstable cultivation;
(v) land comprised in gardens owned and maintained by the State Governments;
(vi) land acquired or held for a public purpose or a work of public utility.
(vii) land which, at the commencement of this Act or at any time thereafter, is set apart for military encamping grounds;
(viii) land situated within the limits of cantonment,
(ix) land included within railway or canal boundaries;
(x) land within the boundaries of any Government forest;
(xi) municipal trenching grounds;
(xii) land held or acquired by educational institutions for purposes of instruction in agriculture or for play- ground; and
(xiii) land within the boundaries of a Government agricultural or grass farm (Downloaded on 19/10/2024 at 09:56:55 PM) [2024:RJ-JD:40229-DB] (5 of 10) [CW-16779/2019]
(xiv) land which has been set apart or is, in the opinion of the Collector, necessary for flow of water thereon in to any reservoir or tanka for drinking water for a village or for surrounding villages:
Provided that the State Government may, by notification in the Official Gazette declare that any land which is under shifting or unstable cultivation, shall cease to be a land for such cultivation and thereupon such land shall be available for the grant of Khatedari rights and the State Government may by a like notification, declare that any land which was not at the commencement of this Act under shifting or unstable cultivation shall at any time after such commencement be under such cultivation from such date as may be specified in the notification and thereupon such land shall be available for such cultivation.
Rule 7 of Rules of 1955
7. Allotment or setting apart of Pasture Land-
(1) the Collecor may, in consultation with the Panchayat, change the classification of any pasture land, as defined in sub- section (28) of Section 5 of the Act or any pasture land set apart under section 92 of the Rajasthan Land Revenue Act. 1956 (Rajasthan Act of 1956) as unoccupied culturable Government land (Sawai Chak), for allotment for agricultural or any non-
agricultural purposes. Provided that in case where the area of the land sought to be so allotted or sei- apare exceeds 4 hectares, the Collector shall obtain prior permission of the State Government 7 [XXX Second proviso deleted - XXX] Provided also that any such land, falling within the boundary limits of the Jaipur Region as defined in the Jaipur Development Authority Act. 1982 (Act No. 25 of 1982 within the periphery of 2 km. of a municipality, shall not be allotted except for the purpose of a public utility institution or for expansion of abadi. (2) Where classification of any pasture land is changed under sub-rule - (1). the Collector may set-apart an equal area of unoccupied culturable Government land, if available as pasture land in the same village.]
2. That it is humbly submitted that the said submission as made above, was also submitted by the then learned Additional Advocate General before this Hon'ble Court in the case of Gulab Kothari vs. State of Rajasthan & Ors.
(Downloaded on 19/10/2024 at 09:56:55 PM)[2024:RJ-JD:40229-DB] (6 of 10) [CW-16779/2019] The relevant part of the said submission is extracted herein above for kind perusal of the Hon'ble Court as infra:
"Learned AAG would submit that setting apart of an equal area of unculturable Government land in lieu of pasture land put to other use in terms of sub-Rule (2) of Rule 7, is not mandatory. Learned AAG submitted that the restriction imposed under the provisions of Section 16 of the Act of 1955, do not apply to the land falling within Jaipur Region, Jodhpur Region and Ajmer Region, the development wherein is governed by the provisions of Act No.25 of 1982, the Act No.2 of 2009 and Act No.39 of 2013"
Thus, the State had made its submission before this Hon'ble Court clear with regard to development authorities being created in the region of Jaipur, Jodhpur and Ajmer by virtue of respective Acts and on the land being vested in respect authorities for development of the respective regions, was free to be utilized for the purpose of meeting the aims and objects of the Act and restriction as provided for by way of Section 16 of the Act of 1955, do not apply to said authorities. It would not be out of place to state here that said submission was not negatived by this Hon'ble Court in the order dated 12.01.2017. Thus the land in question having vested in the respondent authority, was free to be utilized and was at the disposal of the respondent JDA for it to be used in accordance with aims and objects of the Act of 2009. The incorrect usages of the terminology is well reflected by order dated 16.12.2019, wherein it has been submitted that the petitioners had sought time to place on record the orders whereby disputed land forming part of pasture had been allotted to the JDA, Jodhpur. At the cost of repetition, it is submitted that the land in question was never allotted to respondent JDA, rather it came to be vested within respondent authority by virtue of Section 48 of the Act of 2009 and by virtue of order dated 06.01.2011, the land which had already vested with the respondent JDA, was only transferred by way of a formal order being issued by the Collector: thereby formally transferring the possession of the land in question to the respondent authority."
4. After hearing the learned counsels for the parties, this Court has formed an opinion that the argument raised on the basis of (Downloaded on 19/10/2024 at 09:56:55 PM) [2024:RJ-JD:40229-DB] (7 of 10) [CW-16779/2019] the provisions under section 48 of the Jodhpur Development Authority Act, 2009 does not rescue the situation. In the first place, the petitioner has challenged the very allotment of gochar land and labelled this allotment as illegal. Quite apparently, only if such allotment is found legal the question of vesting the land under section 48 shall arise which situation has yet not arrived.
5. Section 48 of the Jodhpur Development Authority Act, 2009 which reads as under, provides that the land as defined in section 103 of that Act shall vest in the JDA on behalf of the State and the JDA may use the same for the purpose of the Act:
"48. Land to vest in the Authority and its disposal.- (1) Notwithstanding anything contained in the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956), the land as defined in section 103 of that Act, excluding land referred to in sub-clause (ii) of clause (a) of the said section and nazul land placed at the disposal of a local authority under section 102 A of that Act in Jodhpur Region shall, immediately after establishment of the Authority under section 3 of this Act, be deemed to have been placed at the disposal of and vested in the Authority which shall take over such land for and on behalf of the State Government and may use the same for the purposes of this Act and may dispose of the same by way of allotment, regularisation or auction subject to such conditions and restrictions as the State Government may, from time to time, lay down and in such manner, as it may, from time to time, prescribe:
Provided that the Authority may dispose of any such land-
(a) without undertaking or carrying out any development thereon; or
(b) after undertaking or carrying out such development as it thinks fit, to such person, in such manner and subject to such covenants and conditions, as it may consider expedient to impose for securing development according to plan. (2) No development of any land shall be undertaken or carried out except by or under the control and supervision of the Authority.
(3) If any land vested in the Authority is required at anytime by the Municipal Corporation, Jodhpur for (Downloaded on 19/10/2024 at 09:56:55 PM) [2024:RJ-JD:40229-DB] (8 of 10) [CW-16779/2019] carrying out its functions, or by the State Government for any other purpose, the State Government may, by notification in the Official Gazette, place such land at the disposal of the Municipal Corporation, Jodhpur or any Department of the State Government on such terms and conditions, as may be deemed fit.
(4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in sub-section (1)."
6. Section 5(28) of the Rajasthan Tenancy Act, 1955 mandates that the pasture land is to be used for the purpose of grazing of cattle of a village or villages. Section 16 further provides that the khatedari rights shall not accrue for the pasture land.
Furthermore, Rule 7 of the Rajasthan Tenancy Rules, 1955 restricts the power of the Collector to set apart the pasture land for agricultural or any non-agricultural purposes, inasmuch as, the Collector only in consultation with the Punchayat can change the classification of any pasture land as defined under section 5(28) of the Rajasthan Tenancy Act, 1955 or any pasture land set apart under section 92 of the Rajasthan Land Revenue Act, 1956. In "State of Jharkhand & Ors. v. Pakur Jagran Manch & Ors."
reported in (2011) 2 SCC 591 a challenge was laid to the proposed construction of a hospital building over gochar land. The Hon'ble Supreme Court answering the issue whether section 38(1) of the Tenancy Act was invalidated by the State Government in using the gochar land for construction of a hospital, held that any Government land reserved as gochar land should only in exceptional circumstances and for valid reasons be used for other purposes. This direction in "Pakur Jagran Manch" was rendered with specific reference to and having regard to importance of the gochar lands in every village. In the said case, the Hon'ble (Downloaded on 19/10/2024 at 09:56:55 PM) [2024:RJ-JD:40229-DB] (9 of 10) [CW-16779/2019] Supreme Court issued a direction to the State Government to consider the request for sanction for a hospital keeping in view the importance of the gochar land and the need for maintaining a minimum of 5% of the village area as gochar. The Hon'ble Supreme Court issued a further direction that the respondent-
Authority should call for suggestions/objections from the villagers before granting sanction. We may also refer to "Jagpal Singh & Ors. v. State of Punjab & Ors." reported in (2011) 11 SCC 396 wherein Hon'ble Supreme Court, taking note of the ponds in the villages being filled with earth and many ponds being auctioned off at throw away prices, held that the Gram Sabha/ Gram Panchayat/ Poramboke/Shamlat land must be restored for the common use of the villagers.
7. Quite apparently, the allotment of "gairmumkin gochar, Nadi and Panchayat" lands to the JDA vide allotment dated 21 st October 2011 was in the teeth of statutory provisions and in breach of the decisions in "Gulab Kothari", "Pakur Jagran Manch" and "Jagpal Singh". The State authorities have no powers to make use of gochar lands for any other purposes on the ground that the number of cattle has reduced and there is no need for having a grazing ground in the heart of the city. Interestingly, no study was conducted and no data has been produced in the present proceeding that the number of cattle has gone down.
8. In the present proceeding, an interim order was passed by this Court on 25th November 2020 directing the parties to maintain status-quo. Thereafter, an application for modification of the said order was moved by the JDA on the ground that there was an urgent need to construct the sewage treatment plant. The (Downloaded on 19/10/2024 at 09:56:55 PM) [2024:RJ-JD:40229-DB] (10 of 10) [CW-16779/2019] concerned authority of Rajasthan Urban Infrastructure Development Project (RUIDP) had written a letter to the JDA on 28th July 2022 for allotment of the land pertaining to Khasra No.119 in the village Khokhariya. The JDA further pleaded that in its meeting held on 24th September 2013 it had reserved lands for construction of the said STP at various locations in the Jodhpur region. Now the proposed STP has been constructed and over a part of the subject land the Gram Nyayalaya has been built.
Therefore, this Court while disproving the allotment of gochar land without following the statutory provisions in this regard declines to interfere with the said allotment dated 21st October 2011.
However, in the present fact-situation, this writ petition is partly allowed to the extent that the Collector at Jodhpur shall identify, set apart and allocate about 25 Bighas of suitable government land for being utilized as gochar land.
9. D.B. Civil Writ Petition No. 16779/2019 is disposed of in the aforesaid terms.
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J 8-divya/mohit (Downloaded on 19/10/2024 at 09:56:55 PM) Powered by TCPDF (www.tcpdf.org)