Rajasthan High Court - Jodhpur
Kheem Singh Rathore vs State Of Rajasthan on 11 January, 2023
Bench: Sandeep Mehta, Kuldeep Mathur
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. CIVIL WRIT PETITION (PIL) No.1579/2021
Kheem Singh Rathore S/o Shri Prem Singh Rathore aged about
46 years, R/o 521 DH Behind Border Home Guard, Indira Nagar,
Barmer, Rajasthan 344001 (Aadhar Card No.5991 7518 8948).
----Petitioner
Versus
1. State of Rajasthan through Secretary, Department of
Revenue, Government of Rajasthan, Jaipur.
2. District Collector, Barmer.
3. Commissioner Municipal Council, Barmer.
----Respondents
For Appellant(s) : Mr. Moti Singh
For Respondent(s) : Mr. Sunil Beniwal, AAG.
Dr. Sachin Acharya, Sr. Advocate with
Mr. Chayan Bothra.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
Judgment pronounced on ::: 11/01/2023
Judgment reserved on ::: 19/12/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. This writ petition in the nature of PIL has been preferred by the petitioner for assailing the order dated 29.10.2020 passed by the District Collector, Barmer whereby, the land admeasuring 49 Bighas 5 Biswas from Khasra No.3241/1650 Mauja Barmer has been set apart/allotted/transferred to the Municipal Council, Barmer for Aabadi development.
2. While entertaining the writ petition, this Court passed an ex- parte ad interim stay order dated 08.02.2021 staying the effect and opration of the order dated 29.10.2020.
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(2 of 7) [CW-1579/2021] The foundation of the petitioner's challenge to the impugned order is that the land in question is reserved as pasture land and thus, the District Collector, Barmer had no authority under the Rajasthan Tenancy Act so as to set apart the same for Aabadi development. It is further stated that Section 7 of the Rajasthan Tenancy Act does empower the District Collector to set apart Gochar land for the purposes mentioned in the Section but, in such a situation, the District Collector has to set apart an equal area of land to compensate the deficiency caused in the Gochar area. The petitioner has referred to certified copies of the Jamabandis and on the strength thereof, it is submitted that as there is a categoric entry in the revenue records that the land in question is hilly area (पह ड़ तथ परत) reserved for grazing purposes and on the strength theeof, it is alleged that the District Collector acted well beyond jurisdiction while setting apart the land in question for Aabadi expansion and that too without offsetting the loss caused to the Gochar land.
3. Reply on behalf of the State Government's revenue department has been filed wherein, the case set up by the petitioner regarding the land in question being of pasture category has been refuted. Copy of the Jamabandi for the Samvat 2012- 2039 has been annexed with the reply as Annexure-R/1 wherein, the entire Khasra No.1650 admeasuring 260 Bighas is classified as "Gair Mumkin Bhakar".
At para No.13 of the reply filed by respondent No.3 Municipal Council, Barmer, it has been asserted that the disputed Khasra No.3241 is a part of the original Khasra No.1650 which was entered as "Gair Mumkin Bhakhar" (a hillock) in the revenue (Downloaded on 11/01/2023 at 11:35:48 PM) (3 of 7) [CW-1579/2021] record at the time of settlement. Assertions made in para No.3 of the reply are reiterated herein below for the sake of ready reference:
"3. That even otherwise, the petitioner did not approach with clean hands to this Hon'ble Court and he has concealed material facts from this Hon'ble Court. In this respect, it is respectfully submitted that basic grievance of the petitioner is that nature of land of Khasra No.-3241/1650 is pasture land and such land cannot be set-apart for any other purposes; however, there is having no substance in such plea of the petitioner. Land in question i.e. Khasra No.-3241/1650 was earlier part of Khasra No.-1650 and Khasra No.-1650 is recorded as germumkin bhakhar in the revenue record. At the time of settlement, nature of Khasra No.-1650 was recorded as germumkin bhakhar in the revenue record, however later on at the time of preparation of computerized jamabandi of Samvat 2057-2060, inadvertently nature of Khasra No.-1650 mentioned as Pahadi & Parvat (charagah hetu). However, facts remain that nature of land of Khasra No.-1650 is germumkin bhakhar and only due to inadvertent mistake, word "for pasture usage" mentioned in the jamabandi. Merely on the basis of inadvertently entering some wrong entry in respect of nature of land, the petitioner cannot be permitted to take advantage. Answering respondent vide letter dated 06.09.2022 has sought factual report of Khasra No.-1650 from the Tehsildar, Barmer. The Tehsidlar, Barmer vide its letter dated 15.09.2022 has informed to the answering respondent that nature of land of Khasra No.-1650 is germumkin bhakhar and inadvertently in computerized jamabandi of Samvat-2057- 2060, nature of Khasra No.-1650 was mentioned as Pahadi & Parvat (charagah hetu). From above factual position and documentary evidence, it is ex-facie clear that nature of land of Khasra No.-1650 is germumkin bhakhar and the District Collector, Barmer did not committed any kindly of irregularity in setting-apart of the land in question in the interest of public at large for the welfare development of Barmer City."
It is asserted in the reply that when the revenue record was computerized, owing to an inadvertent error, it was mentioned that the land in question is meant for grazing. At para No.4 of the reply, it is stated that the Khasra No.1650 was originally admeasuring 270 Bighas. It is located in the heart of Barmer city and time and again, the competent authorities have set apart portions of the said Khasra for use in public interest. The order (Downloaded on 11/01/2023 at 11:35:48 PM) (4 of 7) [CW-1579/2021] dated 29.10.2020 is defended as having been passed in the public interest for the welfare and development of Barmer city. It is also stated that Khasra No.3241/1650 is falling under the periphery of Ward No.21 of Barmer City and population is already settled on 16-17 Bighas of the said land. The Municipal Council has already provided basic amenities viz. road, light, sanitary facilities, etc. on the said land. The restraint order passed by this Court is hampering the development of the Municipal area and is constraining the Municipal Body from proceeding with its lawful development activities.
4. Pursuant to the reply being filed on behalf of the State Government, the petitioner's counsel has submitted an additional affidavit wherein, a new case has been set out that the diversion of the land of Bhakhri/Pahar by the impugned order is contrary to the Master-Plan and on this totally new ground, legality of the order under is being questioned.
5. Application No.1/2022 has been filed on behalf of the Municipal Council, Barmer for vacating the ad interim stay order dated 08.02.2021 on the ground that that the petitioner has failed to make out any case for interference in the impugned order because the land in question is not recorded as Gochar in the revenue record and is rather entered as "Gair Mumkin Bhakhar"
and thus, there is restriction on the power and authority of the District Collector to allot the same to the Municipal Council for Abadi expansion.
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6. Shri Moti Singh, learned counsel representing the petitioner, while addressing the Court on the application for station vacation, initially submitted that the land in question is classified as Gochar and thus, the District Collector could not have changed its classification the same without compensating the loss caused to the grazing area as per Section 7 of the Rajasthan Tenancy Act. However, to counter this submission of Shri Moti Singh, learned AAG Shri Beniwal has presented the original revenue record and on a perusal thereof, this Court is duly satisfied that the Khasra in question was entered as "Gair Mumkin Bhakhar" in the records maintained by the Revenue Department right from the time of settlement. It seems to be a sheer inadvertent mistake whereby, at some point of time, it came to be mentioned in the records that this land is meant for grazing purposes.
We are also of the view that as the State Government has formulated a policy of not allowing any cattle breeding or Animal Husbandry activities to be undertaken inside the city limits and since, there are plans in place to shift all the domestic cattle to designated dairy areas developed as "Milkman Colonies", there would be no requirement of substantial grazing lands within the city limits and consequently, the grazing lands located inside the cities, would lose their utility because it causes a grave public hazard. Hence, the argument advanced by Shri Moti Singh that the land in question is of Gochar category has no substance whatsoever. In the entire pleadings of the writ petition, there is not an iota of assertion that the impugned action is in contravention of the Master-Plan of Barmer town. The petitioner has tried to mould his stand in the rejoinder by claiming that as per the Master-Plan of Barmer city notified on 02.08.2013, the (Downloaded on 11/01/2023 at 11:35:48 PM) (6 of 7) [CW-1579/2021] land in question is not categorized as a residential area. However, this submission of the petitioner's counsel has been vehemently and fervently controverted by learned AAG Shri Beniwal and it is submitted that there is no absolute prohibition in the Master-Plan that the land in question can never be used for developing the Aabadi area. This assertion of the petitioner's counsel is further disputed as the same involves seriously disputed questions of facts.
7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record.
8. At the outset, we may note that the assertion made by the petitioner in the writ petition regarding the order impugned being illegal on the ground that it is in contravention of Section 7 of the Rajasthan Tenancy Act has no legs to stand. On a perusal of the original record produced for the Court's perusal during the course of hearing, it becomes clear that the land in question was, at the time of settlement, entered as 'Gair Mumkin Bhakhar', and a part thereof was also reserved for mining purposes. There is a specific assertion in the reply of the Municipal Council that Aabadi is already settled on 16-17 Bighas of the same chunk of land which fact has not been disputed by the petitioner. The case set up by the petitioner in the rejoinder affidavit that the land in question is not meant for Aabadi use as per the Master-Plan of Barmer city is entirely a new case which was never a part of the petitioner's original pleadings. Thus, we are not convinced about the bonafides of this assertion made in the rejoinder affidavit. Furthermore, (Downloaded on 11/01/2023 at 11:35:48 PM) (7 of 7) [CW-1579/2021] having perused the Master-Plan and point No.9 thereof as highlighted by Shri Moti Singh, learned counsel representing the petitioner during the course of arguments, we find that there is no absolute prohibition of allotment of the land in question for Aabadi purposes. This clause only acts as a word of caution that there are some mining activities going on in the western side of this chunk of land and thus, the area may be unsuitable for population expansion and the use thereof will be decided keeping in view of the steps of security and safety, etc. It can be presumed that even after the land in question is allotted for Aabadi expansion, further development thereof will unquestionably be required to be made in view of the guidelines laid in the Master-Plan.
9. In any event, having regard to overall facts and circumstances as available on record, we are of the view that the impugned order does not infringe any mandatory requirement of law nor the same can be said to be against the public interest. Thus, we are not inclined to continue the ex-parte ad interim stay order dated 08.02.2021 which is hereby vacated.
10. The application (1/2022) under Article 226(3) of the Constitution of India is allowed accordingly.
11. List the writ petition for final disposal.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Tikam Daiya/-
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