Rajasthan High Court - Jodhpur
Keshar Singh vs State Of Rajasthan on 10 March, 2022
Bench: Sandeep Mehta, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 12119/2021
1. Keshar Singh S/o Shri Momata Ram, Aged About 72
Years, By Caste Rajpurohit, R/o 840, Purohiton Ka
Ugamana Vas, Rewatra, Tehsil Jalore, District Jalore,
Rajasthan.
2. Bhanwarlal Purohit S/o Sardarmalmoorthji, Aged About
58 Years, By Caste Rajpurohit, R/o Uchimahakali Koil
Street, Near Swamy Natha Lodge, Meenakshipuram,
Nagerciol, District Kanniyakumari, Tamilnadu.
3. Mishrimal S/o Dhuka Ji, Aged About 61 Years, By Caste
Rajpurohit R/o Purohit Ka Bas, Revtara, District Jalore.
4. Hari Shnkar Ji S/o Sava Ji, Aged About 63 Years, By Caste
Rajpurohit R/o Rewatra, District Jalore, Rajasthan.
5. Jugaraj S/o Dhukaji, Aged About 58 Years, By Caste
Rajpurohit, R/o Purohito Ka Bas, Doni, Tehsil Sayala,
Rewatra, District Jalore, Rajasthan.
6. Parshu Ram Rajpurohit S/o Tikma Ji, Aged About 54
Years, By Caste Rajpurohit, R/o Purohitol Ka Vas,
Rewatra, District Jalore, Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan, Through The Secretary, Revenue,
Department, Secretariat, Jaipur.
2. The District Collector, District Jalore.
3. The Sub Divisional Officer, Tehsil Sayla, District Jalore.
4. Chief Medical Officer (Cmho), Jalore.
----Respondents
For Petitioner(s) : Mr. Kamlesh Rawal
For Respondent(s) : Mr. Rajesh Joshi, Sr. Advocate with
Mr. Chandraveer Singh
Mr. Ramdayal
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE REKHA BORANA Order 10/03/2022 The matter comes upon an application under Order 1 Rule 10 CPC filed on behalf of 48 villagers of the village Rewatra for (Downloaded on 25/12/2022 at 11:37:06 PM) (2 of 14) [CW-12119/2021] impleadment in the present petition as party respondents on the ground that the present public interest litigation has been filed by the petitioners within an ulterior motive to somehow hinder the development proceedings in the village.
For the reasons stated in the application, same is allowed. With the consent of the parties, the present PIL petition itself is heard finally.
The present public interest litigation has been filed against the order dated 28.07.2021 passed by the District Collector, Jalore whereby 1.60 hectares of land falling in khasra No.856, village Rewatra, District Jalore recorded in the revenue records as gair mumkin gochar has been allotted for construction of a Community Health Center.
It has been averred by the petitioners in the present petition that khasra No.856 originally comprised of 13.66 hectares out of which some land was allotted in the year 1973 and again in the year 2011 for construction of a government school. Now again 1.60 hectares land has been allotted for Community Health Center which would mean the reduction in gochar land and resultantly only 10 hectares of land would now remain for the purposes of gochar. It has further been averred that the land which has been set apart in khasra No.1054 in lieu of the said gochar land is not appropriate for the said purpose as most of the land is having ditches and babool trees are standing in maximum part of it. The action of the government in allotting the land out of the present gochar land and setting apart compensatory chunk of land in some other khasra would clearly amount to fragmentation of the existing gochar land.
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(3 of 14) [CW-12119/2021] A reply to the petition has been filed on behalf of the State and it has been averred that the land allotted in khasra No.1054 in lieu of the gochar land is perfectly appropriate for gochar purposes and the said fact has also been duly verified by the Gram Panchayat of the village. It has further been averred on behalf of the State that as of date, 25.47 hectares of land is still available in the village in the nature of gochar and the same is enough for the cattle in the revenue village Rewatra which number stands at 1382.
On behalf of the newly added respondents i.e. the other villagers of village Rewatra, it has been argued that there is no medical facility available in the village which comprises of a population of 8000-10000 people. Therefore, the construction of the Community Health Center in the village is totally in the interest of the village. It has also been averred that a donor is ready and willing to contribute Rs.1 Cr. for the purpose of construction of the Community Health Center but the offer could not be acted upon because of the interim order passed in the present PIL. It has also been argued that adequate gochar land is available in the village and the villagers have no objection and would rather insist that the Community Health Center should be constructed on the allotted land. Even a representation to that effect has been averred to be given by the said villagers to the Collector.
Rejoinder to the reply filed by the State has been preferred by the petitioners and it has been submitted that for the purpose of allotment of gochar land by the Collector, prior permission by the State Government is mandatory and in the present case no (Downloaded on 25/12/2022 at 11:37:06 PM) (4 of 14) [CW-12119/2021] permission from the State Government before allotment of the land has been obtained by the Collector.
Heard the parties and perused the material available on record.
Before adverting to the facts of the present case, it is essential to consider the provisions of law and the precedent law pertaining to the "gochar/pasture land."
Sections 5(28) of the Rajasthan Tenancy Act, 1955 defines pasture land:
"Section- 5(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;"
Section 92 of the Land Revenue Act, 1956 provides for the land to be set apart for certain purposes:
"92. Land may be set apart for special purposes -
(1) Subject to the general orders of the State Government, the Collector may set apart land for any special purpose, such as, for free pasturage of cattle, for forest reserve, for development of abadi or for any other public or municipal purpose; and such land shall not be used otherwise than for such purpose without the previous sanction of the Collector.70
[(2) xxx]"
Rule 4 of the Rajasthan Tenancy (Government) Rules, 1955 (hereinafter referred to as, 'Rules of 1955') reads as under:
"4. (1) In villages where settlement operations are in progress, the Settlement Officer shall take action for the demarcation of pasture land after making a summary enquiry from the villagers with regard to the area in which the cattle of the village are usually grazed and after consultation with the Village Panchayat.
(2) In cases where the village Birs are used exclusively for the grazing of village cattle free of charge and no grass is cut out of it, it shall be (Downloaded on 25/12/2022 at 11:37:06 PM) (5 of 14) [CW-12119/2021] recorded as "ghair Mumkin Charagah" and excluded from assessment.
(3) In cases where a Bir is used by the Jagirdar as a grass preserve and let out for grazing only after grass is cut and removed with or without any grazing fee, such area shall be recorded as 'Bir Maqbooza'.
(4) deleted by notification dated 02.05.81 (5) In cases where there is dearth of common grazing areas, part or whole of the above noted 'Maqbooza Birs' can also be turned into 'Charagah'.
Rule 6 of the Rajasthan Tenancy (Government) Rules, 1955 (hereinafter referred to as, 'Rules of 1955') reads as under:
"6. In all villages, which have been surveyed and in which no pasture lands have been earmarked the Tehsildar shall proceed to earmark such land from the unoccupied area of Maqbooja Birs of the village in consultation with the Village Panchayat. In doing so he shall have regard to the total number of the cattle in the village and adopt roughly a scale of one-half bigha per head of cattle and also take into consideration not only the cattle population of the village but also its total unoccupied area under cultivation and the demand for land for cultivation. The Tehsildar shall announce to the villagers the proposal that he intend to make; and the S.D.O. shall give an opportunity to the villagers to adduce any objection to the proposals that they may wish to before he finally sanctions the Tehsildar proposals."
Rules of 1955 grants power to the Collector for allotting or setting apart of the pasture land. The provision of Rule 7 as of date (after the latest amendment vide notification 03.11.2020) reads as under:
7. Allotment or setting apart of pasture land. -
(1) The Collector may, in consultation with the Panchayat, {after obtaining prior permission of the State Government,} 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 15 of 1956), as unoccupied culturable Government land (Sawai Chak), for allotment for agricultural or any non- agricultural purposes:(Downloaded on 25/12/2022 at 11:37:06 PM)
(6 of 14) [CW-12119/2021] {Provided that prior permission of the State Government is not required for change of classification of pasture land where such land is proposed to allot for the purpose of the Government Office or Government Buiding, [....]} {Provided further that the classification of pasture land shall not be changed as unoccupied culturable government land (Sawai Chak) for mining purposes without the prior permission of the State Government. The permission by the State Government shall be granted only if applicant has surrendered equal area of khatedari land in favour of the State Government in the same village or nearby village within the same Panchayat, if applicant is not able to surrender khatedari land in the same village or nearby village within the same Panchayat, the equal area of khatedari land may be surrendered in the nearby village of adjoining Panchayat and if the land is not available even in the adjoining Panchayat for such purpose, it may be surrendered, in exceptional cases from the other Panchayat of the District and has deposited development charges for the development of such surrendered land as pasture land. The development charges for the year 2017-2018 shall be rupees fifty thousand per bigha or part thereof and for subsequent year it shall be increased by five percent every year. The Development charges so deposited may also be used for the welfare of the cattle of the village by the village Panchayat with prior approval of the District Collector. The land so classified as unoccupied culturable government land (Sawai Chak) shall always remain and treated as government land for all purposes;} 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) or within the periphery of 2 kms. 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 or nearby village within the same Panchayat}:
{Provided that where land is required for infrastructure projects viz air strip, Irrigation Schemes, Water Supply Schemes, government buildings, government offices, shamshan, kabristan, gaushala, rehabilitation purpose, Industrial Development Authorities/Companies set (Downloaded on 25/12/2022 at 11:37:06 PM) (7 of 14) [CW-12119/2021] up by the State Government, Krishi Upaj mandis, Rajasthan State Warehouse Corporation, National Highways, State Highways, major District Roads and for laying Railway Lines and unoccupied culturable government land is not available in the same village or nearby village within the same Panchayat and the necessity is absolute necessity and absence of alternative means is proved, the equal area of unoccupied culturable land may be set apart in the nearby village of adjoining Panchayat. If land is not available in the adjoining Panchayat for such purpose, it may be set apart, in exceptional cases, from the other Panchayat of the District with the prior approval of the State Government.} It is relevant to note that Rule 7 of the Rules of 1955 underwent changes from time to time and in terms of the latest amendment dated 29.06.2020, the permission of the State Government is not required for change of classification of pasture land where such land is proposed to be allotted for the purpose of a government office or government building.
The issue pertaining to the gochar land was in consideration before the Hon'ble Apex Court in the matter of State of Jharkhand and Ors. vs. Pakur Jagran Manch and Ors;
(2011) 2 SCC 591 decided on 12.01.2011. The core issue in the said matters was almost akin to the controversy in question in the present matter. The issue involved therein was:
"9. The core issue is whether Section 38(1) of the Tenancy Act was violated by the State Government, in using the gochar for constructing a hospital, after de-reserving it from its status as gochar."
After considering the law governing the pasture land, the Hon'ble Apex Court observed as under:
"If the State Government has the power to dereserve or denotify gochar (village grazing land) under any other law, and such power is validly exercised, then the land will cease to be gochar and the prohibition under Section 38(1) of the (Downloaded on 25/12/2022 at 11:37:06 PM) (8 of 14) [CW-12119/2021] Tenancy Act in regard to non-grazing use will not apply."
The Hon'ble Apex Court ultimately concluded as under:
"16. In this case the urgent need for de-reserving the gochar of 4.40 acres and diversion of its use for the public purpose of hospital is not in dispute. The village headman and all the Jamabandi Raiyats have consented to the de-reservation and use of the land in question for hospital. The land in question was found to be most suitable for housing the hospital. Alternative land was immediately notified as gochar. The Hospital has already been constructed in the land. Any delay would come in the way of health care of the villagers/tribals. In the circumstances, the notification dated 31.5.2007 of the Government is upheld. It is needless to say that Respondents 6 and 9 will carry out necessary amendments in the Record of Rights of the village, showing Plot No.1061 as used non-grazing public purpose and record Plot Nos.62, 199 and 427 as gochar.
18. ....... If the alternative lands notified as gochar were unsuitable, they would have raised the objection. When the village headman and Raiyats have agreed for the alternative area as gochar, such a contention is not available to the first Respondent."
The Division Bench of this Court while dealing with the other issues of public interest in Gulab Kothari, Editor, Rajasthan, Patrika, Jaipur Vs. State of Rajasthan And Ors.; 2017(1) DNJ(Raj.) 147 decided on 12.01.2017 also dealt with the issue of 'gochar/pasture land' and concluded as under:
"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."(Downloaded on 25/12/2022 at 11:37:06 PM)
(9 of 14) [CW-12119/2021] The issue pertaining to the allotment of pasture land for the construction of a Super Speciality Hospital also arose before the High Court of Karnataka in the case of Sri T.V. Narayanasamy & Ors. vs. The State of Karnataka & Ors.; Writ Petition No.14857 of 2018 (KLR-LG) PIL decided on 26.06.2018 wherein the Court has held:
"True it is that the Act of 1964 and the Rules of 1966 ensure providing of the land for special purposes and it is, inter alia, enjoined upon the revenue authorities to set apart the land for free pasturage but then, the Deputy Commissioner of the area is especially empowered to determine the extent of land necessary to be set apart for free pasturage in any village and he could also reduce the extent thereof.
In the face of the provisions aforementioned, it cannot be said that if a parcel of land is set apart for cattle grazing, the extent thereof could never be reduced. It needs hardly any emphasis that in multifaceted and myriad public welfare activities, several of the requirements need to be balanced by the authorities in an appropriate manner. Even when the necessity of cattle grazing land in the context of a village settlement cannot be gainsaid, the requirements of medical and health care facilities are also of unquestionable necessity and significance. It is not open for the petitioners to contend that the requirements of cattle grazing override the requirements of appropriate health care facilities.
On the facts averred by the petitioners, it appears that out of 134.17 acres reserved as gomal, 25 acres of land has been taken out for the purpose of construction of Super Speciality Hospital. The very purpose for which the cattle grazing land has been reduced and the extent of reduction ex facie show that the respondents have attempted to balance the requirements of cattle grazing and those of health care facilities and then, have taken only 25 acres of land for Super Speciality Hospital, out of 134.17 acres. The action so taken by the respondents is neither unreasonable nor unauthorised in view of the powers reserved under Section 71 and Rule 97 ibid.(Downloaded on 25/12/2022 at 11:37:06 PM)
(10 of 14) [CW-12119/2021] As noticed, in the present case, the impugned orders have been issued to subserve an essential public requirement i.e., of health care facilities. We are unable to find that setting up of a Super Speciality Hospital by the Government would be operating against any public cause; rather, such setting up of the hospital is of undeniable necessity."
The issue pertaining to the allotment of pasture land for the purpose of a government building also arose before the Division Bench of this Court in the case of Krishna Ram & Ors. vs. State of Rajasthan & Ors.; D.B. Civil Special Appeal (W) No.424/2012 decided on 09.07.2012. In the said matter the Court observed and directed as under:
"The land has been set apart for the purpose of construction of building of Bharat Nirman Rajeev Gandhi Seva (IT) Centre. The District Collector, Nagaur sent report for setting apart the aforesaid portion of land comprised in survey no.170 recorded as "Gair-mumkin Gochar" duly considering the decision of Apex Court in Jagpal Singh & Ors. vs. State of Punjab & Ors. The State Government has passed the impugned order alloting the piece of land for the aforesaid purpose. The Single Bench has dismissed the writ application on the ground that Gair-mumkin gochar land could not ordinarily be used for any other purpose than pasture and the State Government has passed the order in exercise of powers under the Rules of 1963. The State Government after duly considering, has set apart a small piece of land measuring 0.04 bighas for the purpose of construction of I.T. Centre in Villege Kherat on certain terms and conditions. It is not the case of the appellant that the State is not competent to set apart Gair- mumkin gochar land for allotment under the Rules of 1963.
After hearing learned counsel for the appellant, we find that no ground is made out to interfere in the intra court appeal. It is not the case of the appellant that the gochar land fall short of the requirement. Apart from that, the Rules of 1963 clearly provide conversion of such land for the purpose the allotment has been made."(Downloaded on 25/12/2022 at 11:37:06 PM)
(11 of 14) [CW-12119/2021] Yet another issue of allotment of pasture land for the purposes of Panchayat Bhawan was raised before the Division Bench of this Court in the matter of Baragat Khan & Ors. vs. State of Rajasthan & Ors.; D.B. Civil Writ Petition (PIL) No.14391/2021 decided on 25.10.2021. The Division Bench of this Court, after considering the relevant provisions of law, held as under:
"Essentially, where should the Panchayat Bhawan be located, cannot be a subject matter of consideration by the High Court in exercise of writ jurisdiction. Section 102 of the Rajasthan Land Revenue Act, 1956 pertains to the power of Government to allot land for purposes other than agricultural as well as on special terms. This section provides that notwithstanding anything hereinforce contained, the State Government shall have power to allot land for the purposes of an industry or for any purpose of public utility on such conditions as it deems fit. Essentially, this retains the power of the Government to divest the Government land for the purpose of industry or any other purpose of public utility. It is under this section that the Conditions of 1963 have been laid down. These conditions are in the nature of guidelines for exercising the power divesting its lands for the aforementioned purposes. Substantial compliance of these provisions, therefore, would be sufficient to pass the test of legality. The order itself provides for compensating the Gram Panchayat with commensurate area of gochar land to the extent the same is used for other purposes. This order, therefore, cannot be seen as one changing the use of the Gochar land into some other purpose."
In Prem Singh and Ors. vs. State of Rajasthan & Ors.; S.B. Civil Writ Petition No.5078/2007 decided on 02.07.2019 the issue before the Single Bench of this Court was whether allotment of certain portion of the pasture land on lease of 30 years for the establishment of Nursing college, Dental college and other educational institutions was valid or not. The Court, after considering all the earlier judgments passed by the Hon'ble Apex (Downloaded on 25/12/2022 at 11:37:06 PM) (12 of 14) [CW-12119/2021] Court and the provisions of law governing the subject in issue, held as under:
"8. We are of the opinion that the cause projected in the writ petition may be with a substance but keeping in view the nature of the allotment we are not inclined to interfere with the allotment made, notwithstanding the fact that the Gram Panchayat appears not to have passed any resolution for allotment of the land in question."
To summarize, the ratio as laid down pertaining to the "gochar land" can be broadly summed up as under:
1. It cannot be said that if a parcel of land is set apart as 'gochar', it can never be used for any other purpose.
2. If the State Government has the power to denotify or deserve 'gochar' under any other law and the said power is validly exercised, the land would cease to be 'gochar'.
3. If a 'gochar' land is allotted for any other purpose permitted under law, that is to say, the classification of any pasture land is changed in terms of law, an equal area of land is mandatorily required to be set apart as pasture land.
4. The nature of the land being set apart in lieu of pasture land is also to be kept in consideration. The land to be set apart in compensation should also be adequate and suitable for gochar purposes.
5. The power of the Collector in setting apart the gochar/pasture land has to be in consultation with the Gram Panchayat.
6. The permission of the State Government is not mandatory in the cases where the gochar/pasure land is sought to be allotted for the purpose of government officer of government building.(Downloaded on 25/12/2022 at 11:37:06 PM)
(13 of 14) [CW-12119/2021] Now coming to the factual matrix of the present matter. A perusal of the record makes it clear that in khasra Nos.1439, 626, 844, 845, 856, 866, 888, 897, 902, 903, 934 & 935 of the village, pasture land is available. As stated on behalf of the State, the total number of cattle in the village is about 1382 and the gochar land available in the village ad measures 25.47 hectares which, in terms of the Rules is sufficient for the said number of cattle. As submitted on record, it is clear that no other adequate medical facility is available in the village. A bare perusal of the representation as submitted by the villagers to the Collector shows that the land allotted for construction of Community Health Center is on the main road which according to the villagers would be most suitable for setting up the medical facility of immense public importance. It has specifically been stated in the said representation that the villagers have no objection against the construction of the Community Health Center on the allotted land and the hindrance thereto, is being caused by the people who have some personal grievance against the same. The certificate as issued by the Sarpanch of the Gram Panchayat also specifically states that there is sufficient pasture land available in the village and even the land set apart in khasra No.1054 is adequate for the purpose. A perusal of the record also clarifies that the construction of the Community Health Center is a part of the budget declaration by the Chief Minister of the State and in pursuance to the same, the construction of the same has been taken up.
Therefore, in view of the ratio as laid down in the judgments discussed above and in view of the factual matrix of the matter, the allotment in question cannot be termed to be in violation of (Downloaded on 25/12/2022 at 11:37:06 PM) (14 of 14) [CW-12119/2021] any provision of law. The present writ petition (PIL) is hence dismissed.
(REKHA BORANA),J (SANDEEP MEHTA),J
47-T.Singh, Abhishek/-
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