Rajasthan High Court - Jodhpur
Hema Ram vs State & Ors on 20 July, 2017
Bench: Govind Mathur, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Special Appeal (Writ) No. 604 / 2007
Hema Ram S/o Shri Dayala Ram, by caste Jat, aged 70 years, R/o
Ratau, Tehsil Ladnu, District Nagaour, At present R/o Chak 13
DKD, Tehsil Pungal, District Bikaner.
----Appellant
Versus
1. State of Rajasthan through the Secretary (Revenue),
Government of Rajasthan, Jaipur.
2. Forest Settlement Officer, Bikaner.
3. Collector, Bikaner.
4. Divisional Commissioner, Bikaner Division, Bikaner.
5. Deputy Conservator of Forest, Indira Gandhi Nahar Project,
Chhatargarh.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. O.P. Punia
Ms. Kuber Choudhary
For Respondent(s) : Mr. S.R. Paliwal
_____________________________________________________
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment 13/07/2017 Being aggrieved by the order dated 01.08.2006 passed by learned Single Bench, this appeal is preferred.
The order passed by the learned Single Bench in entirety reads as follows:
"Heard.
On the day when the land was allotted to the petitioner in the year 1989 admittedly the land was a forest land which according to the petitioner was released by the Forest Department in the year 1991.
(2 of 5) [SAW-604/2007] The initial allotment order, therefore, was not legal. The allotment cannot be sustained. The order of the Commissioner, Bikaner is liable to be maintained as on the date of allotment the land was not available for the same being forest land.
The petition is disposed of accordingly."
The arguments advanced by learned counsel appearing on behalf of the appellant is that learned Single Bench disposed of the writ petition without looking into the essential facts of the case, specially the fact that the land in question is now available for allotment as per the provisions of Rajasthan Colonization (Allotment and Sale of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 (for short, "the Rules of 1975").
In brief, the facts of the case are that Allotting Officer under the Rules of 1975 made allotment of land in question to the appellant-petitioner after examining his entitlement as per the rules aforesaid and that acquired finality on depositing the consideration settled. The allotment of the land in favour of the appellant-petitioner in the year 1988 was challenged by the Regional Forest Officer, Satasar Range by way of filing an application before the Forest Settlement Officer, Sikar, but failed as the Forest Settlement Officer excluded the land allotted from the forest being a command land.
The State of Rajasthan through the Deputy Conservator of Forest, Indira Gandhi Nahar Project, Chhatargarh, being aggrieved by the order passed by the Forest Settlement Officer, preferred an appeal before the Collector Bikaner as per provisions (3 of 5) [SAW-604/2007] 17 and 18 of the Rajasthan Forest Act, 1953. The Collector, Bikaner under the order dated 22.01.2002 accepted the appeal by arriving at the conclusion that the day on which the land was allotted that was part of forest and thus was not open for allotment. While arriving at such conclusion the Collector, Bikaner remanded the matter to the Forest Settlement Officer to reconsider the entire issue. The appellant-petitioner, being aggrieved by the order passed by the Collector, Bikaner, preferred a revision petition as per Section 22 of the Rajasthan Forest Act, 1953 before the Divisional Commissioner, Bikaner that came to be dismissed vide order dated 28.01.2004. Being aggrieved by the order passed by the Divisional Commissioner, Bikaner the appellant-petitioner preferred a petition for writ that came to be dismissed under the order dated 01.08.2006.
At the threshold, it is submitted by learned counsel appearing on behalf of the appellant that though the land in question was part of forest at the time of its allotment but in the year 1991 itself, the same was re-surrendered by the forest Department to the Department of Colonization and as such, the date on which the Regional Forest Officer raised the dispute before the Forest Settlement Officer, the land in question was not a part of forest.
It is asserted that the appellant-petitioner put hard labour and money to develop the land in question and from last several years he is cultivating there and, as such, the interest of justice demands for retaining the land with him.
Per contra learned counsel appearing on behalf of the (4 of 5) [SAW-604/2007] Department of Forest submits that though the land under the order dated 13.09.1991 stands transferred to the Department of Colonization but the allotment of the land suffers from a fundamental error and that cannot be cured by subsequent events. According to learned counsel, admittedly the land in question on the date of its allotment was part of forest and, therefore, the allotment itself was erroneous, as such, learned single Bench rightly dismissed the same by affirming the order passed by the Divisional Commissioner, Bikaner, exercising power under Rule 22 of the Rajasthan Forest Act, 1953.
Heard learned counsels for the parties.
True its, the land was allotted to him on 02.06.1989 by the competent authority of the Colonization Department but at that time the land was a part of forest. It is also not in dispute that under the order dated 13.09.1991 the Commissioner, Colonization, Bikaner reoccupied the land being surrendered by the Department of forest to the Colonization Department. Under the order dated 13.09.1991, it is specifically mentioned that the land in question is not suitable to develop a forest being not having any vegetation, being at a distant place from canal and also being not fenced. Technically learned counsel for the respondent Forest Department is right that on 22.12.1988 the land could not be transferred to the appellant-petitioner as that was part of forest but he does not dispute the entitlement of the appellant-petitioner for allotment of land at any other place or for a land which would have not been a part of the forest and the land in question at present is not a part of forest. It is not in dispute that the land in question is yet under (5 of 5) [SAW-604/2007] the possession of the appellant-petitioner. The petitioner being a cultivator of the land in question from the last about three decades, we are of the considered opinion that interest of justice would be well served if he is allowed to retain possession of land with him. In view of it, we deem it appropriate to accept the appeal by setting aside the order passed by the learned single Bench as well as order passed by the Collector, Bikaner and the Divisional Commissioner, Bikaner.
Accordingly, the order dated 01.08.2006 passed by learned single Bench as well as order dated 22.01.2002 passed by the Collector, Bikaner and order dated 28.01.2004 passed by the Divisional Commissioner, Bikaner are set aside. The allotment of the land made in favour of the appellant-petitioner is made absolute and he is entitled to retain the same with him.
No order as to costs.
(VINIT KUMAR MATHUR) J. (GOVIND MATHUR) J.
Ramesh/10