National Green Tribunal
Hafiz vs Union Of India Through Its The ... on 20 February, 2020
BEFORE THE NATIONAL GREEN TRIBUNAL
(CENTRAL ZONE) BENCH, BHOPAL
**********
Original Application No. 35/2019
IN THE MATTER OF:
1. HAFIZ
Village Bhuapur Garhi,
Tehsil Nagar,
District Bharatpur,
Rajasthan-321024
2. Sunil Singh,
Maan Mandir,
Manpur, Barsana,
District Mathura,
Uttar Pradesh-281405
....Original Applicants
Versus
1. UNION OF INDIA
Through its Secretary,
Ministry of Environment and Forests and Climate
Change,
Indira Parayavaran Bhawan,
Jorbagh Road, Aliganj,
New Delhi-110003
2. STATE OF RAJASTHAN
Through its Chief Secretary
Government of Rajasthan,
Secretariat, Jaipur-302005
3. THE PRINCIPAL CHIEF CONSERVATOR CHIEF
CONSERVATOR OF FOREST (HoFF)
Government of Rajasthan
Arantya Bhawan,
MG Road, Jhalana Institutional Area,
Jaipur, Rajasthan 302004
4. COLLECTOR OF BHARATPUR DISTRICT
Office of the District Collector & District
Magistrate
Bharatpur (Rajasthan)-321001
5. ENKASA MINES AND MINERALS PVT LTD
Through its Managing Director
Village Nangal and Buapur Garhi
Tehsil Nagar, Bharatpur District
1
Rajasthan ......Respondents
Counsel for Applicant(s):
Mr. Saurabh Sharma and Mr. Sany Antony, Advocates.
Counsel for Respondent(s):
Mr. Nishant Awana, Advocate
Mr. Shrey Raj Saxena, Advocate for Smt. Sapna Aggarwal,
Advocate
Mr. Saurabh Sahni, Advocate for Mr. Shoeb Hasan Khan, Advocate
JUDGEMENT
PRESENT:
Hon'ble Mr. Justice Raghuvendra S. Rathore (Judicial Member) Hon'ble Dr. Satyawan Singh Garbyal (Expert Member) Reserved on: 07.01.2020 Pronounced on: 20.02.2020
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?
RAGHUVENDRA S. RATHORE J
1. This application has been filed under Section 14 and 15 of National Green Tribunal Act, 2010 with the allegation that respondent no. 5 has constructed a road through forest area without obtaining prior permission, as required, from Central Government. Further it is alleged that he has felled trees and widened the gravel road, which was made to connect the villages. Therefore, the applicant has prayed that the respondents be directed to ensure that the forest road is not used for transportation of minerals in Ghoghor Forest Block, Kaman Range in Bharatpur Forest Division, Rajasthan. It has also been prayed to direct respondent no. 2 to restore the forest road at the cost of respondent no. 5. Further, the petitioner has sought directions for 2 respondent to take strict action against respondent no. 5 for constructing road illegally in the Forest Block of Ghoghor, in violation of Forest (Conservation) Act, 1980. Request has also been made for imposing environmental compensation against respondent no. 5 under the 'Polluter Pays' principle.
2. It is submitted in the application that applicant no. 1-Hafiz is resident of village Bhupaurgarhi in district Bharatpur, Rajasthan and applicant no. 2 -Sunil Singh is resident of Manpur, Barsana, District Mathura, Uttar Pradesh. They are said to be directly affected by the pollution caused by the trucks and have been actively involved in conservation of flora and fauna of the Braj area where the road has been illegally constructed.
3. It is stated by the applicants that the area where the road is constructed was declared as Forest, vide Notification dated 13.11.2009 issued by Government of Rajasthan. The road which is alleged to be illegally widened also falls in this Forest Division. It is said that respondent no. 5 is operating a mine in the area and for the purpose of transportation of the minerals he has constructed a road illegally through the forest land. It is alleged that mining company has diverted the gravel road before it reaches Bansoli village, through another patch of forest land, falling in Kharsa no. 5 and 62 (earlier 2/1 and 30/1) of the protected forest block of Ghoghor. Further it is alleged that the road has been constructed without obtaining any Forest Clearance.
4. Further, the case of the applicants is that Kaman Tehsil of Bharatpur District, Rajasthan is also an integral part of sacred 3 hills of Braj area. The area has a tradition of parikrama which has been going on for past several years. The area also has several ancient sites as mentioned in literature. The road illegally constructed is cutting across the parikrama marg of the devotees. The road is also being used for movement of trucks/dumpers, causing huge hardship to the devotees and the residents of the area.
5. It is also the case of the applicant that forest land ad-measuring 0.924 hectares was diverted in favour of Panchayat Samiti, Kaman vide letter dated 20.10.2016 for the purpose of construction of road between Deeg-Sikri to Bansoli Village in Kaman Tehsil. The road was constructed for connecting the two villages-Ulanda and Bansoli of which proposal was for a length of 1540 mtrs. and width 6 mtrs. The letter of diversion issued by the State Government mentions that diversion is done without any permission for felling of trees. Some other conditions were also imposed while granting diversion.
6. It is alleged that respondent no. 5 has been illegally using the gravel road for transportation of minerals, in violation of the condition as contained in the aforesaid diversion letter. He has felled trees and increased the width of the road from 6 mtrs to 8 mtrs.
7. The applicant has submitted that the local people, on being affected by the pollution caused by trucks and blocking of the path for parikrama, had made several complaints to various Government authorities. It is said that all this is in the notice of 4 the Forest Department as well as the Local Administration. A letter was written by Chief Conservator of Forest (CCF) Bharatpur to Principal Chief Conservator of Forest (PCCF), Rajasthan on 04.06.2019 stating the illegalities committed by respondent no. 5 and also about the inability of local Forest Department to take action with limited resources. It is also stated that even after the said letter of CCF, Bharatpur, no action has been taken by the Forest Department and the illegality with regard to construction of road in forest area is continuing till date.
8. Reply to the original application has been filed on behalf of respondent-State and its authorities (respondent no. 2,3 and 4). It has been submitted in the reply that the approach road which passes through khasra no. 5 and 62 (2/1 and 30/1, as per pre- settlement record) of village Bansoli was laid down by the mining company (respondent no. 5) for connecting their mine to the main road without obtaining any permission from Forest Department. Further, it is submitted that on 28.03.2008, Tehsildar, Kaman had handed-over to Range Officer Kaman Khasra nos. 1,31,33,34,35,152,2/1, 30/1, 4/1, admeasuring 49.58 hectares of Village Bansoli and khasra no. 493, 507, 513, 514, 516, 517, 519, 520, 522, 582/518/519 of village Gadhi Jheelpatti, Tehsil, Kaman. The Tehsildar had certified on 27.09.2008 that the said land was mutated in the name of Forest Department. The Forest Block, Ghoghor was notified on 13.11.2009 in the Rajasthan Gazette.
9. The Block Development Officer, Kaman had submitted a proposal (18680/2016) for construction of a gravel road connecting the two 5 villages namely Ulanda and Bansoli of Tehsil, Kaman. The approval of the same was given by the State Government on 26.10.2016.
According to the letter dated 30.03.2017 of District Collector, Bharatpur and the order dated 29.03.2017 of DCF, Bharatpur, a joint survey by Forest and Revenue department Officials was conducted on 31.03.2017.
10. After joint survey it was found that the road was being constructed by the Mining Company in Khasra no. 2/1 and 30/1 (5 and 62 respectively) after the land settlement which was a forest area. On 02.03.2017, the approach road was destroyed in presence of officials of revenue and police departments. Respondent no. 5 had approached the Chief Judicial Magistrate, Nagar, District Bharatpur who granted interim stay order on 04.04.2017.
11. Further it is submitted by the State that in the year 2012, land settlement operation had taken place and post settlement record was available in Tehsil, Kaman from 29.02.2012. Tehsildar, Kaman had verified the records, vide letter dated 04.05.2017, wherein he had also mentioned that after the land settlement, the previous Khasra no. 2 of village Bansoli has been changed to khasra nos. 2,3,4,5, of which khasra no. 5 (9.39 hectares) has been allocated to Divisional Forest Officer, Bharatpur while the rest Khasras have been allocated to private persons. The revenue maps are also said to have been updated and the forest boundary had been demarcated. It is also submitted that previous khasra no. 30 of Village Bansoli had been converted to 59, 60, 61 and 62, 6 after the land settlement. Khasra no. 62 (1.26 hectares), had been allocated to DFO, Bharatpur and the remaining khasras namely 59, 60, 61 were allocated to private persons. In the above letter of Tehsildar, it was mentioned that under Land Revenue Act, 1956, it has been provided, in Section 106, 107 and 126 that till the time the land settlement records are not prepared by the Land Settlement Department, previous records can be used. The post settlement record was provided to the office of Tehsildar, Kaman on 29.02.2012. The Patwari, Ulanda, Revenue Inspector, Barouli of Tehsil Kaman had, on 27.03.2017, done Tarmeen (demarcation) in the pre-settlement record, even though post-settlement record was available in the office. They had converted khasra no. 2/1 to khasra no. 2, 2/1 and 2/2, out of which khasra no. 2 (6.30 hectares), 2/1 (3.08 hectares) were given to the Divisional Forest Officer, Bharatpur, whereas khasra no. 2/2 (1.57 hectares) was given to private persons. Similarly, they had converted khasra no. 30/1 to 30, 30/1 and 30/2, out of which khasra no. 30 (0.83 hectares), 30/2 (0.43 hectares) were given to Divisional Forest Officer, Bharatpur while khasra no. 30.1 (0.32 hectares) was given to private persons.
12. It is submitted by the respondent-State that due to the said illegal Tarmeen (demarcation) the forest land was dissected and road from the middle of the forest area, which hampered the contiguity and integrity of the forest area. In compliance of the order of the High Court, the Collector had issued an order on 06.02.2019 that the Tarmeen (demarcation) done by the Patwari, Ulanda and 7 Revenue Inspector, Barouli on 27.03.2017, in the pre-settlement record, is illegal. The Tarmeen (demarcation) done by Patwari and the Revenue Inspector in the approach road passing through the forest land was challenged by Divisional Forest Officer before the court of SDM, Kaman, who had rejected the claim of the Department vide order dated 22.12.2017. The appeal was then filed before Divisional Commissioner, Bharatpur who had allowed the same on 19.07.2019. Therefore, it has been submitted by the respondent-State that Tarmeen (demarcation) made by Patwari and the Revenue Inspector on the basis of the record of pre- settlement was erroneous and the approach road made was against law.
13. It has been submitted by the respondent that a gravel road was laid down by Panchayat Samiti, Kaman for providing rural connectivity between village Ulanda and Bansoli which had been laid down after approval having been given by the State Government, vide order dated 26.10.2016 under the Forest (Conservation) Act, 1980. Permission was given for laying down a road with a length of 154 mtrs. and width of 6 mtrs. Further it is submitted that a part of the said road is used by the Mining Company -respondent for transporting the mined minerals. The width of the road is more than 6 mtrs. at several places, as noted by the local forest staff during inspection on 27.05.2019.
14. It is also submitted by the respondent-State that several dumpers are used daily for transporting mined minerals to the main road which has caused damage to a certain part of the rural road as the 8 width of the same has become more than 6 mtrs. at several places which is in violation of the condition under which the permission for laying the rural road was given on 26.10.2016.
15. The respondent-State has submitted that the Divisional Forest Officer, Bharatpur had written a letter to the District Collector, Bharatpur on 13.06.2019 to direct Tehsildar, Kaman not to carry out re-survey of the road as it is an established fact that the road passes through khasra no. 2/1 and 30/1 (5 and 62 respectively) after the land settlement. Vide letter dated 17.07.2019, it was written to the District Collector, Bharatpur to do the needful to vacate the stay given by Tehsildar, Kaman, in respect of the approach road. A reminder was also sent on 02.08.2019. The District Collector was informed on 06.09.2019 to provide support to remove the encroachment of the road.
16. With the aforesaid submission, the State Government had prayed that the Tribunal may pass appropriate orders which it deems fit, in the interest of justice and for fair adjudication of the matter.
17. On issuance of notice by the Tribunal, reply was filed by respondent no. 5 to the original application as well as to the stay application. It has been submitted by respondent no. 5 in his reply that original application has been filed on false and fabricated facts in order to play fraud on the Tribunal. It has been submitted that, as on date, alleged Khasra nos. 5 and 62 do not exist in the revenue record. The applicant has alleged that the answering respondent had constructed a road which is said to be situated in Khasra nos. 5 and 62 whereas it is a private road constructed on 9 his Khatedari land which is situated in Khasra nos. 2/1 and 30/1 in village Bansoli. The said road connects the mining lease area on land bearing no. 138/90 situated in village Bhuapaurgarhi and village Begpahari, Tehsil Nagar, District Bharatpur, Rajasthan. Further it is submitted that respondent no. 5 is running mining operations after obtaining all the requisite permissions, including environmental clearance and consents from the competent authority.
According to respondent no. 5, the applicants have knowingly and willfully misrepresented and distorted facts with the soul object of prejudicing the Tribunal. The applicants have been acting maliciously in connivance with several other unknown persons. They have not approached the Tribunal with clean hands.
18. In the reply it is further submitted that in compliance of provision of law, in order to transport the mined minerals from its mining lease on a separate road, the respondents had purchased several pieces of land from the concerning khatedars which included the parcel of lands situated in khasra no. 2/1 and 30/1 in Village Bansoli. The purchase of such land was done through a registered sale deed executed on 13.06.2013.
19. It has also been submitted in the reply by respondent no. 5 that in the year 2012, the State Government had carried out bhu- prabhandan (land settlement).During the settlement of the year 2012, demarcation of Khasra no. 2 and Khasra no. 30 were changed erroneously. Tarmeem (demarcation) was done without 10 verifying the Mauka Kabja (possession) and as such the land settlement, in fact, was never implemented till date. On 12.12.2017, objections were filed by various villagers who had been affected by the land settlement of 2012. A report was submitted by SDO, Kaman on 27.12.2017 to District Collector of Bharatpur wherein the mistakes occurring in land settlement of 2012 were certified. Thereafter, District Collector had submitted a report on 24.01.2018 to the Joint Secretary, Revenue Department, Rajasthan stating about resettlement of the bhu-prabhandan (land settlement) as the same had mistakes.
20. Consequent upon a complaint filed by residents of other village, a detailed report was prepared by Tehsildar Kaman on 15.02.2018 wherein he had highlighted the mistakes in the land settlement of 2012. The Revenue Minister vide its letter dated 07.05.2018, while noting the discrepancies, wrote to District Collector, Bharatpur clearly specifying the mistakes in the land settlement. In furtherance, thereof, the Collector had issued a letter on 18.05.2018 to Tehsildar Kaman to ensure implementation of the earlier existing land settlement and not the one done in the year 2012.
21. It is also submitted by respondent no.5 that Tehsildar Kaman had, vide his letter dated 03.01.2019, sought advice from the office of the District Collector on the work of segregation to be carried out at Village Bansoli, Village Garhijhilpatti and Village Khohra. In response to the letter of Tehsildar, the District Collector, Bharatpur had on 09.04.2019 directed him to carry out the work 11 of segregation as per the current prevailing revenue record, which existed prior to land settlement of 2012.
22. On 04.06.2019, a letter was written by CCF, Bharatpur to Principal Chief Conservator of Forest alleging that mining mafias are damaging forest area by constructing a road. It is submitted by respondent no.5 that prior to said letter of CCF, the mauka parcha (spot inspection report) was prepared by a team of four halka- patwaris which was constituted by the order dated 31.05.2019, issued by the Tehsildar. According to the report, the area in question is a khatedari land of respondent no.5. It has also been observed that the road is situated within private property of respondent no.5 and it does not encroach upon the land of any other owner or the Government land. It has been submitted by the respondent that despite of service of the order of 31.05.2019, by which the aforesaid Committee of Patwaris was constituted, on the Forest Department, they did not attend the spot inspection conducted on 03.06.2019. Instead of it, the Forest Department preferred to write a letter on 04.06.2019 levelling baseless and frivolous allegation against respondent no.5.
23. It is also submitted by respondent no. 5 that the main allegation of the applicant is that the road constructed by him forms part of a land falling within the forest area, whereas the reality is that the road is in his khatedari land.
In respect of the issue raised by the applicant with regard to diversion of forest land admeasuring 0.924 ha. in favour of Panchayat Samiti (Kaman), no condition whatsoever has been 12 infringed by the respondent no. 5and the applicant has not impleaded the concerning Gram Panchayat, Ulanda as party respondent which clearly reflects the malafide intention of the applicant to misguide the Tribunal, in absence of necessary party.
As regards the letter issued by CCF, Bharatpur, the respondent has submitted that the same has been written with malafide intention to cause harm to the respondent. The vagueness of the letter can be depicted from para 2 of the same wherein it has been mentioned that the area has to be same of previous khasra no. 2/1 and 30/1 and the new khasra no. 5 and 62, whereas the khasra of land in question have never been changed till date and khasra no. 2/1 and 30/1 still exist. This reflects the falsity of the letter and the motive behind it.
Moreover, the letter had been issued one day later to the report of Tehsildar filed on 03.06.2019 wherein he had clarified the land bearing khasra no. 2/1 and 30/1 belongs to the respondent no. 5 who are the Khatedars and no part of it forms part of any other Khatedar or Forest Department.
24. It has also been submitted by respondent no. 5 that he had filed Applications under RTI on three different occasions seeking information as to which land settlement is applicable in village Bansoli and the same were responded to vide letters dated 01.08.2017, 29.09.2017 and 19.01.2018, categorically stating that old revenue records are in existence which implies that Land 13 Settlement, 2012 is not enforced till date. Therefore, khasra no. 5 and 62 which have been highlighted by the applicant is not even in existence.
25. In so far as construction and use of private road in the sacred Braj area is concerned, according to respondent no. 5, it stands answered by a bare perusal of mauka parcha dated 03.06.2019 which had been prepared by the Committee of Tehsildars.
26. Respondent no. 5 has further submitted that in pursuance of order dated 29.08.2017 and 19.09.2017 passed by Central Bench of the Tribunal in O.A. no. 12/2017 (CZ), a map of Chaurasi-kos- parikrama was prepared. A perusal of the map shows that mining lease of the respondents is situated approximately 4 kms away from 1500 mtr line of parikrama marg and as such private road of respondent does not encroach or cut the parikrama of Aadi-badri Hills, as alleged by the applicant.
Therefore, the respondent has prayed that the original application be dismissed with cost.
27. During the course of these proceedings, the Tribunal had called for a status report from Regional Officer of Ministry of Environment and Forest, Lucknow, in respect of the site in question. Accordingly, the site inspection was conducted by Deputy Inspector General (Central) of the Regional Office (Central Region) on 12.12.2019. The report was submitted before the Tribunal on 27.12.2019 wherein, after reiterating the facts which are given in the reply filed by State of Rajasthan, it has been observed that the Mining Department while sanctioning the mining lease did not 14 take into consideration the issue of transportation of material. Some of the conditions of Environmental Clearance were not compliant, by assuring site visit before grant of mining lease. The Mining Department had granted mining lease without ascertaining about right of way.
28. The applicant no. 2-Sunil Singh has also filed rejoinder to the reply filed by respondent no. 5 wherein he has reiterated the facts given in the original application and the facts given by the State Authorities in their reply. He has also made preliminary submissions in the rejoinder which is reiteration of the facts given earlier. In the later part of the rejoinder, the applicant has made an attempt to give para-wise reply to the contentions raised by respondent no. 5. As we would be mentioning hereafter, the applicant has not clearly met out certain facts which goes to the root of the dispute between the parties and the issues arising in this case.
29. We have brooded over the contentions of the rival parties and have carefully perused the material on record. The issues for consideration which arises in this case are as under:
1. Whether the road constructed by respondent no. 5 passes through a forest area and no permission had been obtained from Central Government for construction of the same?
2. Whether respondent no. 5 has felled trees and widened the gravel road which is connecting the villages?15
30. The case of the applicants is that respondent no. 5 had constructed a road which is situated in khasra no. 5 and 62. On the other hand, it has been submitted on behalf of respondent no.5 that he had constructed a road on private land which is situated in khasra no. 2/1 and 30/1 in village Bansoli. The road connects to mining lease of respondent no. 5 on the land bearing no. 138 of 19, situated in village Bhuapaurgarhi and village Begpahari in Tehsil Nagar, District Bharatpur, Rajasthan. The case of the respondent further is that for the purpose of transporting minerals from his mines he had constructed a separate road by purchasing several pieces of land from khatedars which includes land situated in khasra 2/1 and 30/1 in village Bhansoli. The said land was purchased through a registered sale deed executed on 13.06.2013 which is annexed R-5/1(Colly) on record.
31. In order to resolve the dispute between the parties that the road constructed by respondent no. 5 is situated in khasra no. 2/1 and 30/1 or in khasra no. 5/62, it would be relevant to mention here that in the year 2012 the State Government had carried out bhuprabhandan (land settlement). Thereafter, tarmeem (demarcation) was done in respect of khasra no. 2 and khasra no. 30 but without verifying the mauka kabja (possession). Therefore, objections were filed by various villagers on 12.12.2017. A report was then submitted by Sub Divisional Officer, Kaman on 27.12.2017 to the District Collector Bharatpur, wherein the mistakes occurring in the settlement were certified. Complaints 16 were also sent by the villagers to the Chief Secretary Government of Rajasthan who issued a letter along with the complaints to the Joint Secretary Revenue on 10.01.2018. Thereafter the Joint Secretary had referred the matter to District Collector Bharatpur vide his letter dated 11/01/2018, who had submitted a report on 24.01.2018 to the Joint Secretary, Revenue Department Rajasthan which reads as under:
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32. It has been clearly stated in the letter that resettlement be done as there had been mistakes in the earlier one. In respect of complaints filed by the villagers a detailed report had also been prepared by Tehsildar Kaman on 15.02.2018 wherein he had pointed out the mistakes in the land settlement of 2012.
Subsequently the issue had reached upto Hon'ble State Minister (Independent Charge) Department of Revenue who had issued a letter to District Collector Bharatpur on 07.05.2018 directing that the old record should not be, in any manner, disturbed until a new settlement takes place. The letter of the Hon'ble Minister dated 07.05.2018 is as follows:
jktLFkku ljdkj dk;kZy; jkT;ea=h ¼Lora= izHkkj½ jktLo- mifuos'ku] lSfud dY;k.k ,oa iquokZl foHkkx Øekad % dkea@jktLo@2018@1151 fnukd % 7@5@18 ftyk dyDVj] 18 HkjriqjA fo"k; % xzke x<h>hyiV~Vh] ckWlksyh ,oa [kksgjk rglhy dkeka ftyk Hkjriqj dk iqu% Hkw&izcU/k djokus ckorA vke turk xzke x<h>hyiV~Vh] ckalksyh ,oa [kksgjk us mDr fo"k;d izkFkZuk&i= izLrqr dj ys[k fd;k gS fd Hkjriqj ftys dh rglhy dkeka dk Hkw&izcU/k dk;Z lSVyesVa foHkkx }kjk fd;k x;k Fkk] ftlesa ekSds ,oa vfHkys[k esa dkQh la[;k esa =qfV;ka ikbZ xbZ gSA ekSdk ,oa fjdkWMZ dh fLFkfr fHkUu&fHkUu gksus ds dkj.k dk'rdkjksa ds chp vk;s fnu >xM+s mRiUu gks jgs gSa rFkk fnu&izfrfnu ekgkSy@fLFkfr [kjkc gksrh tk jgh gSA mDr ds laca/k esa vkids }kjk jktLo foHkkx dks izsf"kr i= Øekad jktLo@ifjokn ¼255½ 2017@1021 fnukad 24-01-2018 esa mYys[k fd;k x;k gS fd mDr xkaoksa ds u;s o iqjkus uD'kksa dk feyku ugha gksrk gSA [kkrsnkjksa ds [ksr ekSds ds vuqlkj uohu uD'kk esa ugha gS rFkk iqjkus o uohu iSekus esa varj gksus ls nksuksa 'khVksa dk feyku ugha gksrk gSA dqN [kljk uEcjksa ds jdcs esa fHkUurk gS ftlls jktLo fookn c<+us dh laHkkouk gSA rglhynkj dkeka dh fjiksVZ ls ge larq"V gSaA vr% flQkfj'k dh tkrh gS fd lSVyesVa foHkkx ls iqu% losZ djk;s tkus ds vkns'k QjekosaA ;gka ;g Hkh mYys[kuh; gS fd fMftVy bf.M;k yS.M fjdkWMZ ekWMZukbZts'ku izksxzke ds vUrxZr Hkw&izcU/k foHkkx }kjk 22 ftyksa esa losZ{k.k djok;s tkus gsrq Hkkjr ljdkj ds Hkw&lalk/ku foHkkx dks fy[kk x;k gS] ftlesa Hkjriqj ftyk Hkh 'kkfey gSA mDr lEiw.kZ fLFkfr dks ns[krs gq, ;g Li"V gS fd orZeku esa tkjh lSVyesaV fjdkWMZ esa Hkkjh =qfV;ka gSa rFkk fo'ks"k :i ls rglhy dkeka ds xzke x<+h>hyiV~Vh] ckalksyh ,oa [kksgjk esa vke turk ,oa dk'rdkj izHkkfor gks jgs gSaA izkFkZuk&u= ds lkFk layXu rglhynkj dkeka }kjk lwpuk ds vf/kdkj vf/kfu;e ds vUrxZr tkjh i= fnukad 19-01-2018 ds voyksdu ls izdV gksrk gS fd mDr xzkeksa esa vHkh rd lSVyesaV ls igys dk fjdkWMZ gh izpyu esa gSA vr% tc rd u;k lSVyesaV ugha gksrk gS] rc rd iqjkus fjdkWMZ ls fdlh Hkh izdkj dh NsM+NkM+ u dh tk;sA Sd/-
¼vejkjke pkS/kjh½ jkT; ea=h ¼Lora= izHkkj½
33. In consequence thereof the District Collector issued a letter to Tehsildar Kaman on 18.05.2018 directing that until a new settlement takes place the old revenue record should not be disturbed in any manner. Further he had directed to proceed in accordance to prevailing record, that is to say the old record. The said letter issued by Collector Bharatpur on 18/05.2018 is as under.19
dk;kZy; dyDVj ,oa ftyk eftLVªVs ] Hkjriqj Øekad % jktLo@ifjokn ¼255½2017@5438 fnukd % 18&5&2018 rglhynkj dkekaA fo"k; % rglhy dkek ds xzke ckalkSyh] x<h>hyiV~Vh ,oa [kksgjk dk lsVyesVa foHkkx }kjk iqu% lsVyesVa djok;s tkus ckorA çlax % ekuuh; jkT; ea=h] jktLo] mifuos'ku] lSfud dY;k.k ,oa iquokZl foHkkx jktLFkku ljdkj t;iqj dk i=kad 1151 fnukad 07-05- 2018 mijksDr fo"k;kUrxZr ys[k gS fd rglhy dkeka ds xzke ckalkSyh] x<h>hyiV~Vh ,oa [kksgjk dk lSVyesVa foHkkx }kjk iqu% lSVyesVa djok;s tkus ds lEcU/k esa xzkeokfl;ku xzke ckalkSyh] x<h>hyiV~Vh ,oa [kksgjk rglhy dkeka ds }kjk ifjokn izkFkZuk i= ekuuh; jkT; ea=h egksn; jktLFkku ljdkj dks izLrqr fd;s x;s FksA mDr lanHkZ esa ekuuh; jkT; ea=h] jktLo] mifuos'ku] lSfud dY;k.k ,oa iquokZl foHkkx jktLFkku ljdkj t;iqj }kjk izklkafxd i= }kjk funsZ'k iznku fd;s x;s gSa fd orZeku esa tkjh lSVyesaV fjdkMZ esa Hkkjh =qfV;ka gSa rFkk fo'ks"k :i ls rglhy dkeka ds xzke ckalkSyh] x<h>hyiV~Vh ,oa [kksgjk esa vke turk ,oa dk'rkdj izHkkfor gks jgs gSaA lkFk gh mDr xzkeksa esa vHkh rd lSVyesVa ls igys dk fjdkMZ gh izpyu esa gSA vr% tc rd u;k lSVyesaV ugha gksrk gS rc rd iqjkus fjdkMZ ls fdlh Hkh izdkj dh NsM+NkM+ ugha dh tkosA lkFk gh orZeku izpfyr fjdkMZ vFkkZr~ iqjkus fjdkMZ ds vuqlkj dk;Zokgh dh tkosA ea=h egksn; }kjk izsf"kr izklafxr i= dh izfr mDr lanHkZ esa ikyuk gsrq izsf"kr gSA layXu mijksDrkuqlkj Sd/-
ftyk dyDVj Hkjriqj Øekad % jktLo@ifjokn ¼255½2017@5439&5443 fnukad 18@5@2018 izfrfyfi % 1- Jheku vfr- eq[; lfpo] jktLo foHkkx] 'kklu lfpoky;] t;iqjA 2- vk;qDr- Hkw izca/k foHkkx] jkt0 t;iqjA 3- la;qDr lfpo] eq[; lfpo dk;kZy;] 'kklu lfpoky;] t;iqjA 4- fof'k"B lgk;d] ekuuh; jktLo ea=h ¼Lora= izHkkj½ jktLFkku ljdkj t;iqjA 5- mi[k.M vf/kdkjh dkekaA Sd/-
vfr0 ftyk dyDVj Hkjriqj
34. Tehsildar Kaman by his letter dated 03.01.2019 had sought guidance from the office of the District Collector in respect of the work of segregation to be carried out at village Bansoli, village Gahijhilpatti and village Khohra. In response to it the District 20 Collector directed the Tehsildar on 09.04.2019 to carry out the work of segregation as per a current revenue record, which existed prior to land settlement Act 2012.
35. The Tehsildar had on 31.05.2019 ordered for constituting a team of halka-patwaris to prepare mauka parcha (spot inspection report). The inspection was conducted on 03.06.2019. The forest department did not attend the spot inspection despite of service of the order. The said inspection report reads as under:
ekSdk ipkZ fnukad 3@6@19 vkt fnukad 3@6@19 dks Jheku~ rglhynkj lkgc ds vkns'k Øekad@Hkw- vf/k@19@1166&72 fnukad 31@5@19 dh ikyuk esa Jh 'kSysUnz xksre iVokjh i-e- vdkrk Jh tljke xwtj iVokjh i-e- mnkdk Jh tkosn [kku iVokjh i-e- x<h>hyiV~Vh ds gejkg ekSds ij igq¡pkA ekSds ij vkjkth [k-ua- 103 okds xzke&vkSyUnk o vk-[k-u- 434] 437] 438] 493@1 okds xzke x<+h>hyiV~Vh rFkk vjkth [k-u- 2@1] 26@1] 24@1] 30@1 okds xzke oklkSyh dh jktlo fjdkMZ o uD'kk yV~Bk dh lgk;rk ls tjhc pykdj lhekKku djk;k x;kA mijksDr vkjkth [kljk uEcjku~ es vkosnd ,udka'kk ekbUl feujYl izk- fy- e- u- 802 jk;y CGHS IykV ua- 23 lsDVj 43 xqMxkok gfj- ds funs'kd Jh fouksn dqekj lksuh ekSds ij mifLFkfr jgsA mijksDr [kljk uEcjku~ us ,udka'kk ekbUl feujYl izk- fy- jkg [kkrsnkj ntZ fjdkWMZ gSA mDr dEiuh us vius fgLls dh [kkrsnkjh Hkwfe ij mijksDr [kljk uEcjksa esa ekSds ij jkLrk cuok;k gqvk gSA ekSds ij [kljk uEcjku~ esa fufeZr jkLrk eqrkfcd uD'kk o jktLo fjdkMZ ds vkosnd dh futh [kkrsnkjh esa fLFkr gSA leLr jkLrs dk dksbZ Hkh Hkkx fdlh vU; [kkrsnkj o vU; fdlh foHkkxh; Hkwfe esa ugha vkrk gSA mDr lhek Kku ds nkSjku iqfyl tkLrk Fkkuk dSFkokjk ekSds ij mifLFkfr jgkA ekSds ij ekSdk ipkZ rS;kj dj i<+dj lquk;k x;k rFkk mifLFkfr yksxksa ds gLrk{kj o vaxwBk fu'kkuh yxok, x,A Sd/- Sd/- Sd/-
iVokjh vksyank iVokjh vdkrk
Sd/- Sd/-
i- x<+h>hyiV~Vh
Sd/- Sd/-
fouksn dqekj lksuh
21
According to the report the area in question is a khatedari land of respondent no. 5. Further it has been observed that the private road is situated within the private property of respondent no. 5. The report also states that there is no encroachment upon the government land. Chief Conservator of Forest, Bharatpur had then written a letter to Principal Chief Conservator of Forest on 04.06.2019, a day later to the spot inspection of the team of four patwaris, alleging that mining mafia are damaging forest area by constructing a road.
36. From the aforesaid facts and circumstances, the dispute between the parties boils down that the road constructed by respondent 5 is situated in khasra no. 2/1 and 30/1 in village Bansoli. In order to resolve the question as raised by CCF Bharatpur that previous khasras no. 2/1 and 30/1 are the same as the new khasra no. 5 and 62, it has been ordered, not only by District Collector, Bharatpur but the highest authority of the Revenue Department namely Hon'ble Minister for Revenue (Independent Charge) that until resettlement is done the previous record would be considered. This had been ordered after considering the complaints of the villagers; reports submitted by tehsildar, SDO, Collector and observation made by Joint Secretary Department of Revenue Government of Rajasthan.
37. Now we may also look into the question as to what is the position of law in respect of revenue entries when the present land settlement is not to be executed and there is a need of 22 resettlement. The relevant provisions of law, as given under the Rajasthan Land Revenue Act, are as follows:
106. Survey or re-survey - The State Government may direct, by notification in the 82[official Gazette] that the survey or re-survey of any local area shall be made and every such local area shall, from the date of the said notification, be held to be under survey and record operations until the issue of another notification declaring such operations to be closed therein.
107. Record Operations - The State Government may likewise direct, in respect of any local area which has already been surveyed, that a general or partial revision of the records of such local area shall be made and thereupon such local area shall be held to be under record operations until such operations are similarly closed.
126. Existing records to be acted upon - Until a new map and a field book are prepared under Section 112 or until a new record of rights is framed under Section 114, the existing map, field book and record of rights, if any, shall be the map, field book and record of rights of the area concerned.
38. In other words until a new map, field book, record of rights are prepared, the existing one shall prevail and would continue to be in force. Accordingly, the Hon'ble Minister of Revenue Department had issued directions that until new settlement takes place, the record existing prior to it shall remain in practice. Therefore khasra no. 2/1 or 30/1 which were in existence in the revenue record prior to the settlement 2012 shall remain and do not stand changed to khasra no. 5 and 62. This leaves no room of doubt that the road constructed by respondent no. 5, in khasra no. 2/1 and 30/1, is his private land. This is further fortified by the report submitted by the tehsildar on 03.06.2019. Moreover, the three separate applications filed under right to Information Act, seeking 23 Information as to which land settlement is applicable in village Bhansoli, were replied vide letters dated 01.08.2017, 29.09.2017 and 19.01.2018 (R-5/13) wherein it was categorically stated that old record would remain in existence. Therefore it is crystal clear that settlement of the year 2012 has not been enforced till date. Meaning thereby khasra no. 5 and 62, referred to by the applicant, has still not come into existence.
39. For the aforesaid reasons and as ordered by the competent authority, the settlement operation of the year 2012 has not come into effect. A resettlement would be done of the area. Consequently, the revenue record as in existence prior to settlement of 2012 shall hold the field. Therefore, the stand taken by the applicant and the view taken by the officer of the forest department that khasra no. 2/1 and 30/1 have been changed to khasra no. 5 and 62 and the land bearing no. 2/1 and 30/1 is not a khatedari land of respondent no.5 is not correct. In the result, we hold that road constructed by respondent no. 5 does not pass through a forest area and no permission for construction of the road was required. The said land was purchased by respondent no. 5 through registered sale deed and he is the owner of the same. It has been placed on record as Annexure no.
40. Coming to the second issue, regarding felling of trees by respondent no. 5, it would suffice to say that there is no material on record to support such contention. Material 24 particular as to when the trees were felled, their species, quantity etc. are absent from the pleadings and no supporting evidence whatsoever has been placed on record. So far as gravel road is concerned Block development officer, Kaman had submitted a proposal, as back as, in the year 2016 for construction of it connecting village Ulanda and Bhansoli in tehsil Kaman. The State Government had given its approval on 26th October, 2016. The said road is undisputedly still in use. The only allegation of the applicant is that at some places the width of the road has increased from 6 meters to 8 meters. The road is meant for connecting to two villages and the same is being used by public. So far as increase in the width of the gravel road is concerned with passage of time and it being continuously in use by general public there is all possibility that such road may at some places has variance in size. To say that width of the road has increased at some places, from 6 meters to 8 meters, because of respondent no. 5, does not appear to be logical or convince us. Consequently the allegation levelled by the applicant in respect of the felling of trees and widening of gravel road at some places has to be rejected.
41. Another contention of the applicant that private road constructed by respondent no. 5 cuts across the parikrama marg cannot be accepted, rather it is contrary to the material on record. Respondent no. 5 has placed on record a map regarding Chaurasi-Kos-Parikrama prepared in compliance of order dated 29th August 2017 and 19th September, 2017 passed 25 by Central Zonal Bench in the case of Hari Bol Das Baba vs. State of Rajasthan and 52 others (O.A. no. 12/2017) (Annexure 5/14 along with reply to the original application). A perusal of said map goes to show that the mine of respondent no. 5 is situated far away from 1500 meters line of parikrama marg. Therefore, private road constructed by respondent no. 5 neither encroaches nor cuts across the parikrama of Aadi-Badri-Hills.
42. From the aforesaid facts and circumstances, it emerges that there is a land bearing Khasra No. 2/1 and 30/1 in Village Bhansoli which was purchased by respondent no. 5 through registered sale deed on 13.06.2013. On the said land, a road was constructed for transporting minerals from mines situated in Village Bhuataurgarhi and Village Begpahari in Tehsil Nagar, District Bharatpur. Grievance raised by the applicant is regarding construction of road in Khasra no. 5 and 62 by the opposite party. The land is said to be a forest land. Bhu- prabhandan (settlement) was carried out in the area by the State Government in the year 2012. Subsequently, demarcation was done in respect of Khasra no. 2 and Khasra no. 30 without verifying the possession.
Therefore, objections were filed by people belonging to various villages. The matter was looked into at various levels of the Revenue Department, as a complaint had also been sent to the Chief Secretary of the State who had issued appropriate instructions to his subordinates. Report was prepared by Tehsildar, which was submitted to the Sub-Divisional Officer. 26 District Magistrate, Bharatpur and Joint Secretary, Department of Revenue had also looked into the grievances raised. Ultimately, it was revealed that there had been mistakes in the settlement operations in 2012.
Hon'ble Minister of State, Department of Revenue had then issued orders to the District Collector in May, 2018 with the direction that old revenue record should not be disturbed until a new settlement takes place. Accordingly, the District Collector had issued directions to all concerned to proceed in accordance to the record which was available before the settlement operations. In furtherance thereof, the Revenue record in respect of Khasra no. 2/1 and 30/1 in Village Bansoli was to continue and the record of post settlement, according to which the road was constructed in Khasra no. 5 and 62, were not to be considered valid. In such view of the matter, it cannot be said that respondent no. 5 had constructed the road in forest land or that Khasro no. 2/1 and 30/1 in Village Bansoli is not his khatedari land, which he had purchased through registered sale deed. Until resettlement takes place and there is a finalisation of Khasra numbering, the respondent no. 5 is a bonafide purchaser with consideration of agriculture land, including Khasra no. 2/1 and Khasra no. 30/1.
43. It is pertinent to mention here that the orders passed by the authorities including the competent authority i.e. Ministry of State, Revenue, Government of Rajasthan is very much in accordance to the provision of Rajasthan Land Revenue Act. The 27 relevant provisions, reproduced hereinabove, provides that until new map, field book, record of register etc. are prepared, the revenue record which is in existence prior to settlement shall continue to be in force and applicable until resettlement operation takes place and are concluded. When the settlement operation of 2012 have not been implemented, it cannot be said that Khasra no. 5 and 62 have come in existence or that land belongs to a Forest Department. Thus, the inevitable conclusion is that the road constructed by respondent no. 5 does not passes through a forest area.
44. Similarly, in respect of the gravel road which had been constructed for the villagers and being used by them since the year 2016, it cannot be said that respondent no. 5 is responsible for variance in width at some places. Apart from the fact that nothing has been placed on record by the applicant in support of his contention, a gravel road by itself cannot retained as it is for long and it is bound to have changes of its width. Moreover, respondent no. 5 is not the only person using the gravel road and any change in its shape cannot be made accountable to respondent no. 5 alone. Likewise, the applicant has alleged in respect of felling of trees by respondent no. 5 which has no basis to support, as the applicant has totally failed to corroborate the same, in any manner.
45. For the reasons mentioned hereinabove, we have no hesitation in holding that instant application has no merit and the same deserved to be rejected.
28 Accordingly, Original Application is dismissed with no order as to cost.
.............................................. Justice Raghuvendra S. Rathore (Judicial Member) .............................................. Satyawan Singh Garbyal (Expert Member) 46.
Dated: 20th February, 2020 29