Rajasthan High Court - Jaipur
Smt Kusum Sharma vs State Of Raj Revenue And Ors on 10 February, 2022
Author: Sameer Jain
Bench: Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 20354/2013
Smt. Kusum Sharma W/o Shri Brahmanand Sharma, aged about
52 years, resident of Laxmi Niwas, Mandrayal Road, Old Truck
Union, Karoli Rajasthan.
----Petitioner
Versus
1. State of Rajasthan through Principal Secretary,
Department of Revenue, Secretariat, Jaipur.
2. District Collector, Karoli.
3. SDO, Karoli.
4. Tehsildar, Karoli.
----Respondents
For Petitioner(s) : Mr. Ashwani Chobisa through VC For Respondent(s) : Mr. Akshay Sharma, Add. G.C. through VC HON'BLE MR. JUSTICE SAMEER JAIN Judgment / Order Reserved on 06/01/2022 Pronounced on 10th /01/2022
1. The present Writ Petition is filed with following prayer:-
"(a) by issuance of a writ of mandamus certiorari or any other appropriate writ, order or direction the respondents be directed to grant thoroughfare so as to have ingress and egress over the khasra No.148/3 which has been converted for industrial purposes and;
(b) Any other writ order or direction which may be deemed proper in the facts and circumstances of the case may also be issued in favour of petitioner."(Downloaded on 24/12/2022 at 12:38:35 PM)
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2. The facts of the case are that the petitioner is khatedar tenant of khasra No. 148/3 ad-measuring 15 bigha situated in Gram Anandgarh, District Karauli. The petitioner has filed an application for conversion of 12,500 Square metre of land for the purpose of establishment of Cement Poll factory under the Rajasthan Land Revenue (Conversion of Agricultural Land for Non Agricultural Purposes in Rural Areas) Rules, 1992. On 30.07.2012, Sub Divisional Officer, Karauli passed order of conversion subject to conditions that the applicant is to utilise the land for the intended purpose within a period of two years from the date of issuance of order.
3. The conversion was made for industrial purposes. The petitioner desired to set up Cement Poll industry, however, the petitioner was not allowed thoroughfare so as to have ingress in the proposed industrial premises. In this regard, the petitioner has displayed the site map of the property along with a conversion order. The petitioner made representations in this regard from time to time to the respondents and concerned authorities so as to allow her suitable ingress and egress over the land/ proposed site for the factory so that the land can be utilised for industrial purpose within time.
4. When the petitioner was not heard by different authorities, she was compelled to serve a notice for demand of justice on 07.01.2013 through registered AD but was not heard, hence the present petition.
5. In the present matter, the contention of the petitioner's counsel is that when once vide order dated 30.07.2012, conversion orders were passed, the competent authorities were duty bound to assign her right to way to use the land for desired (Downloaded on 24/12/2022 at 12:38:35 PM) (3 of 7) [CW-20354/2013] purpose as its an implied presumption. Secondly, learned counsel for the petitioner has submitted that Rule 7 of the Rajasthan Tenancy Government Rules, permits the competent authority to convert pasture land for agricultural/ non-agricultural purposes. Thirdly, the judgment cited by the respondents' counsel Jagpal Singh vs. State of Punjab, (2011) 11 SCC 396 does not restrict rather specifically permits that Charagah land can be converted to other nature of land in public interest and the said view is also reiterated in celebrated judgment of Gulab Kothari, Editor, Rajasthan Patrika, Jaipur vs. State of Rajasthan, 2017 (1) WLC (Raj.) 562 in para 187-194, which is quoted as under:-
"187. 'Pasture land' as defined by Section 5(28) of the Act of 1955, means land used for grazing of the cattle of a village or villages or recorded in settlement records as such at the commencement of the Act or thereafter reserved as such in accordance with the Rules framed by the State Government.
188. As per provisions of Section 92 of the Rajasthan Land Revenue Act, 1956( for short "the Act of 1956"), subject to general or special 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 the purpose without the previous sanction of the Collector.
189. Section 16 of the Act of 1955 prohibits accrual of khatedari rights in pasture land. Rule 4 of Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970 which specifies the categories of the land not available for allotment for agriculture purposes includes the lands mentioned in Section 16 of the Act of 1955 which includes the pasture land as aforesaid.(Downloaded on 24/12/2022 at 12:38:35 PM)
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190. Section 93 of Act of 1956 mandates that the right of grazing on pasturage land shall extend only to the cattle of the village or villages for which such land has been set apart and shall be regulated by the Rules made by the State Government.
191. To give effect to inter-alia the provisions of Clause 28 of Section 5 of the Act of 1955 and regulate the user of the pasture land in exercise of the power conferred under Section 257 of the Act of 1955, the State Government has framed Rajasthan Tenancy (Government) Rules, 1955 ("the Rules of 1955").
192. As per Rule 7 in Chapter II of the Rules of 1955, the Collector is empowered to change the classification of any pasture land as defined u/s 5(28) or any pasture land set apart u/s 92 of the Act of 1956 as unoccupied culturable government land (Siwai Chak), for allotment for agriculture or any non agricultural purposes. However, as per first proviso to Rule 7, in case where land sought to be allotted or set apart exceeds 4 hectares, the Collector is under an obligation to obtain prior permission of the State Government. As per second proviso to Rule 7(1) of the Rules of 1955, the pasture land falling within the boundary limits of the Jaipur Region as defined under the Act No.25 of 1982 or within the periphery of 2 kms. of the municipality shall not be allotted except for the purpose of public utility institution or for expansion of abadi. Further, sub-rule (2) of Rule 7 mandates that where classification of any pasture land is changed under sub- Rule (1), the Collector may set apart an equal area of unculturable government land if available as pasture land in the same village.
193. That apart, Section 53 of Rajasthan Panchayati Raj Act, 1994, empowers the Government to make over the management of pasture lands belonging to the Government situated within the panchayat area (Downloaded on 24/12/2022 at 12:38:35 PM) (5 of 7) [CW-20354/2013] to the Gram Panchayat. Further, Rule 169 of the Rajasthan Panchayati Raj Rules, 1996 ('Panchayat Rules,1996'), in case, the common grazing ground in any village has not been placed at the disposal of any Panchayat, casts obligations upon the Gram Panchayat to send proposal for the taking over or establishing a new grazing ground to the Tehsildar and on the receipt of the proposal, the Tehsildar is required to take action forthwith and intimate to the Panchayat about the decision taken within a period of three months from the date of receipt of proposal from the Panchayat. To check the possible inaction on the part of the Tehsildar, it is further provided that if the sanction is not received by the Panchayat within a period of three months of the submission of the proposal, it may move the Vikas Adhikari, who shall take steps for allotment of grazing grounds. Sub-rule (6) of Rule 169, empowers the Panchayat to extend the area of grazing ground in case of increase of cattle heads by adopting the procedure provided in case of establishing a new grazing ground. As per sub-rule (8) of Rule 169, if the pasture land has been occupied unlawfully by a person on the basis of the survey conducted under Rule 165 of the Panchayat Rules, 1996, the Panchayat is mandated to make an application in this regard to the concerned Tehsildar. Thus, besides the provisions being incorporated for preservation of pasture land, the provisions are incorporated for extension of the area of pasturage so as to ensure vegetation in abundance to feed the livestock.
194. Thus, to sum up, the pasture land is meant for grazing of the cattles of the village or villages and once the land is categorized as pasture land, it cannot be divested to use for any other purposes, unless and until on existence of special circumstances, its classification as pasture land is changed by the competent authority in accordance with the procedure laid down as aforesaid. Further, it is statutory obligation of the state authorities to (Downloaded on 24/12/2022 at 12:38:35 PM) (6 of 7) [CW-20354/2013] ensure that the land set apart for pasturage is not divested to be used for any other purpose unauthorisedly."
6. Per contra submissions of respondents' counsel is that there is no vested right created on the part of the petitioner for allotment of thoroughfare as otherwise all the applicants will plan out in such fashion that in agricultural land, industrial conversion will take place and the government will be duty bound to provide way from Charagah or other connected lands. Learned counsel for the respondents has further opposed the petition that the petitioner had not approached with clean hands and his own land can be used for creating the way/ingress in the proposed factory. Further contention of the respondents is that the referred judgment of Jagpal Singh (supra) and Gulab Kothari (supra), only permits conversion from charagah land in public interest and not for any private interest or to grant thoroughfare to the industrial unit in agricultural area.
7. On perusal of submissions of the respective counsels, scanning record of the Writ Petition, analysing the statutory provisions and judgment cited at Bar, this Court is of the opinion that the present petition involves disputed questions of fact. No finding upon the representation is given by the competent authority and therefore, this Court is of the view that it will be in the interest of justice that if the petitioner makes the representation before the competent authority i.e. respondent No.2 within a period of four weeks pertaining to his grievance, the same shall be considered by learned District Collector within a time period of three months on its merits, relying upon the judgments of the Court, provisions of law, facts of the case and in (Downloaded on 24/12/2022 at 12:38:35 PM) (7 of 7) [CW-20354/2013] public interest. The respondent No.2 is also directed to give personal hearing to the petitioner before adjudication of the case so that he can put forth his defence. After consideration of the submissions of the petitioner, by a reasoned order, respondent No.2 can adjudicate the claim of the petitioner independently as per his own wisdom in accordance with law without being influenced by any observation of this Court.
8. In light of the above, the present Writ Petition is disposed of.
9. All pending applications also stand disposed of.
(SAMEER JAIN),J Simple Kumawat /41 (Downloaded on 24/12/2022 at 12:38:35 PM) Powered by TCPDF (www.tcpdf.org)