Rajasthan High Court - Jodhpur
Murlidhar Khadgawat vs State Of Rajasthan on 18 May, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023/RJJD/015384]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10683/2022
1. Murlidhar Khadgawat S/o Late Shri Om Prakash
Khadgawat, Aged About 48 Years, R/o Behind Shiv Mandir
Mahaveer Chowk, Chopra Bari, New Lane, Gangashahar,
Bikaner (Raj.)
2. Mahadev Khadgawat S/o Late Shri Om Prakash, Aged
About 42 Years, R/o 836-G, Mahaveer Colony, Chopra
Bari, Near Shiv Mandir, Ward No. 20, Gangashahar,
Bikaner (Raj.)
3. Smt. Pana W/o Late Shri Om Prakash, Aged About 76
Years, R/o Mahaveer Colony, Chopra Bari, Near Shiv
Mandir, Gangashahar, Bikaner (Raj.)
4. Harish Kumar Khadgawat S/o Late Shri Baijanath
Khadgawat, Aged About 49 Years, R/o Khadgawato Ka
Mohalla, Behind City Kotwali, Bikaner (Raj.)
5. Shiv Kumar Khadgawat S/o Late Shri Baij Nath
Khadgawat, Aged About 56 Years, R/o Khadgawato Ka
Mohalla, Behind City Kotwali, Bikaner (Raj.)
6. Smt. Kanchan Devi Khadgawat W/o Late Shri
Satyaprakash Khadgawat, Aged About 65 Years, R/o
Khadgawato Ka Mohalla, Behind City Kotwali, Bikaner
(Raj.)
7. Gopal Khadgawat S/o Late Shri Satyaprakash Khadgawat,
Aged About 50 Years, R/o Opposite Acharya Shriram
School, Khadgawato Ka Mohalla, Bikaner (Raj.)
8. Jagdish Khadgawat S/o Late Shri Satyaprakash
Khadgawat, Aged About 48 Years, R/o 499 Ward No. 13,
Opposite Acharya Shriram School, Khadgawato Ka
Mohalla, Behind City Kotwali, Bikaner (Raj.)
9. Narayan Khadgawat S/o Late Shri Satyaprakash
Khadgawat, Aged About 45 Years, R/o Khadgawato Ka
Mohalla, Bikaner (Raj.)
10. Raj Kumar Khadgawat S/o Late Shri Satyaprakash
Khadgawat, Aged About 43 Years, R/o Ward No. 13,
Khadgawat Street, Bikaner (Raj.)
----Petitioners
Versus
1. State Of Rajasthan, Through The Joint Secretary-Ii, Urban
Development Department, Ministry Of Urban
Development And Housing, Government Of Rajasthan,
Jaipur 302005 (Raj.)
2. The District Collector, Bikaner (Raj.)
3. The Secretary, Urban Improvement Trust, Bikaner (Raj.)
4. The Additional Chief Engineer, Public Health And
Engineering Department, Bikaner (Raj.)
5. The Sub Divisional Magistrate, Bikaner (Raj.)
(Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (2 of 11) [CW-10683/2022]
----Respondents
For Petitioner(s) : Mr. Sanjeet Purohit
For Respondent(s) : Mr. Pankaj Sharma, AAG a/w
Mr. Rishi Soni.
Mr. J.L. Purohit, Senior Advocate
assisted by Mr. Rajeev Purohit.
Mr. Sheetal Kumbhat
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 15/05/2023
Pronounced on 18/05/2023
1. This writ petition under Article 226 of the Constitution of
India has been preferred claiming the following reliefs:
"It is therefore, most humbly and respectfully prayed that
this petition for writ is the nature of Mandamus may kindly
be allowed. By an appropriate writ, order or direction:
(i) The communication dated 06.04.2022 (Annex-14) issued
by the respondent No.1 may kindly be declared illegal and
same may kindly be quashed and set aside.
(ii) The order dated 31.05.2022 (Annex-15) issued by the
respondent No.3 may kindly be declared illegal and same
may kindly be quashed and set aside.
(iii) The respondent authority may kindly be directed to
comply with the order dated 28.08.2004 passed by the
learned RAA in its true letter and spirit.
(iv) The respondent authority may kindly be restrained from
dispossessing the petitioners or taking over the petitioners'
land in question.
(v) The respondent authorities may kindly be restrained
from taking any coercive action against the petitioners.
(vi) The respondent authorities may kindly be restrained
from utilizing the land of the petitioners for any
Government purpose.
(Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (3 of 11) [CW-10683/2022]
(vii) Any other appropriate order or direction which this
Hon'ble Court deems fit and proper may kindly be passed in
favour of the petitioners.
(viii) Cost of the writ petition may kindly be awarded to the
petitioners."
2. Brief facts of the case, as placed before this Court by learned
counsel for the petitioners, are that the ancestors of the
petitioners and other family members were allotted land of Chak
No. 496-150 (RDL), Chak No. 493-350 (RDL), Chak No. 496-402
(RDL) in total 152 bighas at Village Sharah Kunjia, Tehsil & District
- Bikaner in Vikram Samvat 1980 (Year -1923), by the erstwhile
Princely State of Bikaner.
2.1. After commencement of the Rajasthan Tenancy Act, 1955
and by virtue of the provisions contained in Section 15 AAA
thereof, the ancestors of the petitioners and other family members
continued to be the recorded Khatedars of the land in question.
2.2. The Department of Irrigation and Colonization vide
notification dated 21.12.1958, while exercising the power under
Clause-11 of Section 2 of the Rajasthan Colonization Act, 1954
notified that the provisions of the said Act shall apply to Village
Sarah Kunjiya. Therefore, the land in question came under the
Colonization Department. But de hors the provisions of law, the
Assistant Colonization Commissioner, Bikaner vide order dated
24.11.1976, recorded the land in question as Arajiraj.
2.3. Thereafter, against the aforesaid order dated 24.11.1976
passed by the Assistant Colonization Commissioner, the petitioners
and other family members preferred an appeal (registered as
Appeal No. 23/01) before the learned Revenue Appellate Authority
(Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (4 of 11) [CW-10683/2022]
(RAA), Bikaner. The learned RAA vide the judgment dated
28.08.2004 quashed the order dated 24.11.1976 and remanded
the matter to the learned Sub-Divisional Officer (North) (SDO),
Bikaner for deciding the matter, within a period of three months
from the date of judgment, afresh, after giving an opportunity of
hearing to all the parties concerned.
2.4. In compliance of the aforesaid judgment dated 28.08.2004
passed by the learned RAA, the leaned SDO registered a case
bearing Revenue Application No.163/2006. The learned SDO
thereafter, vide order dated 11.06.2009 decided the application,
while directing the Tehsildar (Revenue), Bikaner to make entries in
the revenue records in favour of non-applicants therein, namely,
Asha w/o Magharam, Kalu Ram s/o Magharam, Heeralal s/o
Magharam, Bulakiram s/o Magha Ram, Dwarka Prasad s/o
Annaram and Sukhdev s/o Mohanlal, as per their respective share
in the land in question; vide the said order, the other persons,
including the petitioners were granted liberty to claim their
khatedari rights by way of filing revenue suit(s) separately.
2.5. In the year 2011, the District Collector, Bikaner directed to
record the land in question in favour of respondent- Urban
Improvement Trust (UIT), Bikaner.
2.6. Thus, being aggrieved by the aforesaid order passed by the
District Collector, Bikaner, whereby the benefit in the form of
khatedari rights accruing out of the order dated 11.06.2009
passed by the learned SDO were denied to the petitioners' family,
an appeal (registered as Appeal No.07/2017) was preferred before
the learned RAA, and that, the petitioners along with other family
(Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (5 of 11) [CW-10683/2022]
members, in view of the aforesaid liberty so granted by the
learned SDO vide order dated 11.06.2009, also filed a separate
Revenue Suit (registered Revenue Suit No.21/2018) before the
leaned SDO, Bikaner, wherein the interim of status quo order was
passed on 18.06.2018.
2.7. Subsequently, the Joint Secretary-II vide the impugned
communication dated 06.04.2022 granted permission to the
Secretary UIT, Bikaner to proceed with allotment of land in
question to the respondent-Public Health & Engineering
Department (PHED). In furtherance of the said communication,
the Secretary UIT, Bikaner vide the impugned order 31.05.2022
has allocated various Chunks of land including the land in question
(Chak 496 RD (L), Chak-1 BSM and BKM) to the PHED.
2.8. Thus, being aggrieved by the aforementioned communication
dated 06.04.2022 and the impugned order dated 31.05.2022, the
present petition has been preferred claiming the afore-quoted
reliefs.
3. Learned counsel for the petitioners submitted that the
petitioners and their family members have been enjoying peaceful
possession of the land in question for last many years, and
therefore, now the respondent-PHED is trying to forcefully take
possession of the land in question from the petitioners, which is
highly illegal and arbitrary.
3.1. Learned counsel further submitted that the land in question
erroneously stood recorded as Arajiraj land by the aforementioned
order dated 24.11.1976 passed by the Assistant Colonization
Commissioner, Bikaner, but the said order was quashed by the
(Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (6 of 11) [CW-10683/2022]
learned RAA vide the aforesaid judgment dated 28.08.2004, while
remanding the matter to the learned SDO, as above. As per
learned counsel, despite of the above, the impugned
communication and the impugned order were issued by the
respondent authorities without even complying with the principles
of natural justice.
3.2. Learned counsel also submitted that the petitioners gave
various representations to the District Collector, Bikaner and UIT,
Bikaner for recording the land in question as Khatedari land in
favour of the petitioners, but instead of doing so, the respondents
have taken the impugned action. It was further submitted that the
petitioners and their family members have been in peaceful
possession of the land in question for so long, and thus, on that
count, amongst others, the impugned action of the respondents is
unsustainable in the eye of law.
4. On the other hand, Mr. J.L. Purohit, learned Senior Counsel
assisted by Mr. Rajeev Purohit; Mr Pankaj Sharma, learned
Additional Advocate General assisted by Mr. Rishi Soni; and Mr.
Sheetal Kumbhat appearing on behalf of the respondents, while
opposing the aforesaid submissions made on behalf of the
petitioners, submitted that land in question and certain lands of
Khasra nos.10, 11, 12, 13, and 14 of Village Sarah Kunjiya were
recorded as Arajiraj lands. The learned SDO vide the
aforementioned order dated 11.06.2009, while giving directions to
make entries in the revenue records in favour of six persons only,
excluded the other persons including the petitioners, as the
excluded persons did not approach the learned RAA at the
(Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (7 of 11) [CW-10683/2022]
relevant time; therefore the remaining lands were stood Arajiraj
lands.
4.1. It was further submitted that the land in question was
mutated and vested in the name of respondent-UIT and the same
vide the impugned order dated 06.04.2022 was allotted to
respondent-PHED, with the prior approval of the State
Government; therefore the petitioners do not have any right and
title in respect of the land in question.
4.2. It was also submitted that the respondent-PHED, in lieu of
such allotment, paid a sum of Rs.30,12,85,602/- at DLC rates to
the respondent-UIT, and the respondents are carrying a large
public project related to Water Conservation and Water Supply
Project for Bikaner City and 32 nearby Villages. It was further
submitted that the respondents also allocated a budget of
Rs.614.92 crore in the year 2019-20. It was also submitted that
the various work packages related to the project are already
issued by the respondents.
4.3. It was further submitted that the petitioners did not file any
suit claiming the khatedari rights and they not even participate in
the proceeding before the learned SDO, at the relevant time. The
land vested in respondent- UIT vide notification dated 21.08.2001
was validly allotted to the respondent-PHED. It was also submitted
that the remedy of challenging such allotment made by the
respondent-UIT is available in the form of statutory remedy, and
thus, this petition is not maintainable.
4.4. During the course of hearing, the learned counsel for
respondents however categorically submitted that in case, the
(Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (8 of 11) [CW-10683/2022]
petitioners file a suit before the competent authority in future and
succeed therein, and their lawful khatedari rights are created
thereby, in respect of the land in question, then the respondents
would allot the petitioners an alternate land, as compensation,
strictly in accordance with law.
4.5. In support of their submissions, they relied upon the
judgment rendered by the Division Bench of this Hon'ble Court in
the case of Narendra Singh Bhati & Ors. Vs State of
Rajasthan & Ors (D.B. Civil Writ Petition No. 6195 of 2020,
decided on 11.01.2023); relevant portion whereof reads as under:
"8. Shri Sunil Beniwal, learned AAG representing the State
authorities, urged that the allotment of land in question has
been made to PGCIL, a Government of India undertaking
which has already started construction of the gird sub station
which is a project of national importance and would subserve
the power requirements by transmitting Solar Energy. This grid
sub station is being established to harness the electricity
generated from the solar farms/ projects being set up in
Western Rajasthan. The purpose of setting up the grid sub
station has great sanctity and importance. ........
......
.....
In order to ensure smooth transmission of clean and green electricity generated from the solar power plants of national and universal importance, grid stations would be required. Hence, the purpose of the allotment in question is very pious and has great sanctity because it facilitates installation of the grid station which is essential for onward transmission of green energy which is the need of the hour. Use of fossil fuels and other similar sources for generating energy are creating havoc upon the earth's atmosphere because greenhouse gases are emitted as a result which contribute to global warming. The disastrous consequences of this evil phenomenon are impacting the entire population of this world. Hence, each (Downloaded on 23/05/2023 at 09:02:10 PM) [2023/RJJD/015384] (9 of 11) [CW-10683/2022] miniscule attempt to bring about reduction in emission of green house gases has to be encouraged at every cost. The efforts of harnessing solar power to generate electricity is one such laudable effort which has to be appreciated and nurtured.
13. A perusal of the impugned order of allotment (Annexure-4) dated 28.08.2019 which is assailed in this writ petition, would reveal that initially when the proposal to establish the grid sub station was received, the SDO, Bap made an enquiry and forwarded the recommendation with the NOC letter dated 02.05.2019 to the District Collector, Jodhpur. The Tehsildar, Bap also forwarded a recommendation to the District Collector as per which, it was proposed to declassify 451 Bighas of land from Khasra No.491 (Gair Mumkin Magra) for compensating the reduction in the Gochar area on account of proposed allotment to the PGCIL. Acing on these recommendations, the District Collector forwarded the matter to the State Government for approval vide letter dated 21.05.2019. The State Government thereafter, issued an order dated 12.07.2019 approving the proposal of the District Collector and directed declassification of 451 Bighas (73 Hectares) land from the pasture area of Khasra No.240 and at the same time, land of equal dimension from Khasra No.491 was allotted for compensating the Gochar land. As mentioned supra, the total available pasture area after the allotment in question, is 15 times of the requirement as per Rule 6 of the Rules of 1955. Apparently thus, the mandate of the Rules has been duly satisfied. Resultantly, the allotment order in question cannot be held invalid on account of non-compliance of any provision of the Rules of 1955 so as to call for interference of this Court in this public interest litigation writ petition."
5. Heard learned counsel for the parties as well as perused the record of the case along with judgment cited at the Bar. (Downloaded on 23/05/2023 at 09:02:10 PM) [2023/RJJD/015384] (10 of 11) [CW-10683/2022]
6. This Court observes that the respondent- UIT vide impugned order approved the allotment of 243.16 Bighas comprising Chak 496 (RDL), Chak 1-BSM and 3-BKM to respondent- PHED for water supply public project (as per earlier revenue records, comprised in Khasra No.10 (70 Bigha 03 biswas), Khasra No.11 (80 Bigha 09 biswas), Khasra No.12 (171 Bigha 02 biswas), Khasra No.13 (139 Bigha 09 biswas), and Khasra No.14 (152 Bigha) - in total 613 Bighas of village Sharah Kunjiya, Distt- Bikaner).
7. This Court further observes that the learned SDO vide order 11.06.2009 directed making of the revenue entries of khatedari rights in favour of 6 persons only, while the remaining persons, including the present petitioners, were only given liberty to file a separate suit for claiming their khatedari rights. The persons having khatedari rights are not in conflict in the present writ petition and the other persons, who were given liberty, have not established any final rights over the land in question, and therefore, have no right to contest this lis.
8. This Court also observes that the land in question was vested in the respondent-UIT on 21.08.2001 and the same was further transfer to the respondent-PHED for public projects. The respondent-PHED is carrying a huge public project of water conservation and water supply for Bikaner City and 32 nearby villages, and for the purpose of the said projects, the respondent- PHED allocated various packages.
9. This Court further observes that the aforesaid projects are projects of public importance, as the same would provide huge water facility to the residents of Bikaner city and nearby villages; (Downloaded on 23/05/2023 at 09:02:10 PM)
[2023/RJJD/015384] (11 of 11) [CW-10683/2022] the huge amount has already been sanctioned by the State Government as well as respondent-PHED for the said purpose. Therefore, the land in question was clearly recorded in the name of respondent -UIT and further lawfully transferred to the respondent -PHED for undertaking the projects of the larger public interest. Thus, such public projects cannot be stopped under any circumstances whatsoever.
10. This Court observes that the petitioners have granted the liberty to file a suit by learned SDO regarding the claim of khatedari rights in respect of the land in question, but despite the same, for a long time, the petitioners did not avail any remedy, as provided under the law, for claiming their khatedari rights in the land in question, and thus, have lost every claim whatsoever on this land.
11. In light of the above observations and the judgment rendered in Narendra Singh Bhati (Supra) as also looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petition.
12. Consequently, the present petition is dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI),J SKant/-
(Downloaded on 23/05/2023 at 09:02:10 PM) Powered by TCPDF (www.tcpdf.org)