[2023:RJ-JD:29769]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 16464/2021
1. Jabar Singh S/o Panne Singh, Aged About 70 Years,
Resident Of Village Thakar Kheda, Post Majal, Tehsil
Samdadi, District Barmer.
2. Smt. Sagar Kanwar W/o Prithvi Singh, Aged About 42
Years, Resident Of Village Thakar Kheda, Post Majal,
Tehsil Samdadi, District Barmer.
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Rural Department And Panchayati Raj Jaipur.
2. District Collector, Barmer.
3. Chief Executive Officer, Zila Parishad Barmer.
4. Vikas Adhikari, Panchayat Samiti Samdadi, District
Barmer.
5. Sarpanch, Gram Panchayat Thakar Kheda, Panchayat
Samiti Samdadi, District Barmer
----Respondents
For Petitioner(s) : Mr. Moti Singh
For Respondent(s) : Mr. Manish Patel
Mr. Manish Tak
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Judgment Reserved on <> 14/09/2023
Date of Pronouncement <> 21/09/2023
Reportable
1. The present writ petition has been filed by the petitioners under Article 226 of the Constitution of India with the following prayers:-
"A. By an appropriate writ, order and direction may kindly be issued and the proposal dated 20.08.2020 (Annexure-3) taken by the Gram Panchayat may kindly be declared forged and fabricated.
(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (2 of 13) [CW-16464/2021] B. By an appropriate writ, order and direction may kindly be issued and the order dated 21.11.2020 (Annexure-7) passed by District Collector, Barmer, basis on the proposal of the Gram Panchayat may kindly be declared illegal, arbitrary and against the settle preposition of law and the same may kindly be quashed and set aside.
C. By an appropriate writ, order and direction may kindly be issued and the financial and administrative sanction dated 22.04.2021 (Annexure-8) issued by District Programme Convener Zila Parishad Barmer may kindly be quashed and set aside.
D. That any other relief, which this Hon'ble Court deems fit to protect and maintained the healthy judicial system in State of Rajasthan, by which the petitioner may get full justice may also be allowed."
2. Brief facts of the case are that this petition has been filed against the recommendation dated 20.08.2020 and proposal sent by Tehsildar Samdadi on 13.10.2020 with regard to allotment of the land of Khasra No.592 of village Thakar Kheda, reserved as Gair Mumkin Gochar.
3. That before 16.11.2019 the village Majal and Thakar Kheda both are part of the Panchayat Circle of Gram Panchayat Majal. On 12.06.2019, the Government of Rajasthan issued a notification while exercising the statutory power of Panchayati Raj Act, 1994 and directed to reconstitute the Panchayat Circle of entire Rajasthan.
4. According to the notification dated 12.06.2019, the District Administration, Barmer prepared a proposal for reconstitution of Gram Panchayat Majal and the same was sent to the State Government with a recommendation for constituting a new Gram Panchayat for village Thakar Kheda, which was earlier a part of Gram Panchayat Majal. The District Committee further (D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (3 of 13) [CW-16464/2021] recommended that a headquarter will be established at the Village Thakar Kheda. The Committee also recommended that a Panchayat Building will be constructed within the limit of 3 kms from village abadi. According to the proposal, the State Government issued a notification on 16.11.2019 and a new Gram Panchayat was constituted namely Thakar Kheda and the Village Thakar Kheda and Dev Nagar, were included in the newly constituted Gram Panchayat. Thereafter, election of the Panchayat Body was held in the month of September, 2020 and the voters of Panchayat Circle elected the petitioners as panchas from different wards of Gram Panchayat Thakar Kheda.
5. A land of Khasra No.592 Rakba 65.03 Bigha of Village Thakar Kheda was reserved as Gair Mumkin Gochar and in the year 2010, a land of 1.10 Bigha was set apart as a Gair Mumkin Shamshan, as the old Shamshan was already existing in the nearby Nadi. The land of Khasra No.592 is a catchment of the water body/pond situated at Khasra No.591 of village Thakar Kheda and the water flow of Khasra No.591 also comes from Khasra No.592. The said maps are placed on record as Annexure-1 & 2, respectively.
6. The issue with regard to construction of the Panchayat Bhawan of Gram Panchayat Thakar Kheda, was dealt in a fraud and fabricated manner and the Sarpanch of Gram Panchayat prepared a forged proposal with the signature of the petitioner Sagar Kanwar, however, there was no notice for the general meeting and when the said meeting was held, at that time, guidelines and restrictions of COVID-19 pandemic, were imposed by the Government of Rajasthan and thus, the meeting could not be held.
(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (4 of 13) [CW-16464/2021]
7. According to the proposal, the land which is a part of catchment and water flow of the pond/water body, was selected and was proposed as a part of Khasra No.592, which is situated at 7 kms distance from the village Abadi Circle as well as other public utility buildings i.e. School, Anganwadi, Sub-health Centre, Sahakari Samiti Offce etc. of village Thakar Kheda.
8. According to the proposal of the Gram Panchayat and the report of Patwari, Patwari Majal on 09.09.2020, prepared a site report of Khasra No.592 and recommended that a land of Khasra No.796, will be given as a compensation of the pasture and thereafter, the Tehsildar Samdari sent a recommendation to the Sub-Division Officer, Siwana. The learned District Collector vide order dated 21.11.2020 (Annexure-7), passed an allotment order from Khasra No.592 Rakba 2.10 Bigha (One Acre) under the provision of Rajasthan Land Revenue (Construction of School, College, Hospital, Dharamshala and other Public Utility Building) Condition, 1963 and in pursuance of the order dated 21.11.2020 (Annexure-7), the District Programme Coordinator issued a financial and administrative sanction to the tune of Rs.43,96,000/- for construction of the Panchayat Bhawan on 22.04.2021 (Annexure-8).
9. On 15.11.2021, the contractor started the work upon the land of Khasra No.592 and on nearby pond situated at the land of Khasra No.591 & 592. The petitioners made a query about the ongoing work and the contractor informed them that the land has been allotted according to the proposal of the Gram Panchayat for construction of Panchayat Bhawan. The petitioners obtained a copy of the proceedings as well as entire file from the office of (D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (5 of 13) [CW-16464/2021] Tehsildar Samdari on 15.11.2021 and then, they came to know that a meeting was held on 20.08.2020 in absence of the petitioner No.1 and forged signature of petitioner No.2 were taken on the document. Thereafter, the petitioner No.2 submitted a report to the Police Station Samdari (Annexure-10) and lodged a criminal case against the Sarpanch of Gram Panachayat and other members.
10. The petitioners also submitted a representation (Annexure-
11) to the District Collector, Barmer and the Chief Executive Officer, Barmer for cancellation of the order dated 21.11.2020 as well as sanction issued by the Zila Parishad dated 22.04.2021, but no heed was paid to the petitioners by the Sarpanch and the Gram Vikas Adhikari, as the proposal of building Gram Panchayat Bhawan on the said land in question was sent without putting up the matter before the General Meeting of the Gram Panchayat.
11. Being aggrieved of the proposal dated 20.08.2020 (Annexure-3) and the order dated 21.11.2020 (Annexure-7) issued by the District Collector, Barmer and the sanction issued by the Zila Parishad, Barmer dated 22.04.2021 (Annexure-8), the petitioners have preferred the present writ petition.
12. Learned counsel Mr. Moti Singh, appearing for the petitioner submitted that:-
(a) The proposal sent by the Sarpanch and Gram Vikas Adhikari, was not based upon any decision of the Gram Panchayat and the signatures of the petitioner No.2 have been forged upon the said proposal and thus, the impugned orders deserve to be quashed and set aside.
(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (6 of 13) [CW-16464/2021]
(b) Prior to taking the said proposal, there was no notice served upon the elected Panch and the petitioner No.1 was never intimated by the Office of the Gram Panchayat for the meeting that was held.
(c) The allotment of 2.10 Bigha land is in contravention to the provision of "Rajasthan Land Revenue Condition for (Allotment of Unoccupied Govt. Agricultural Lands for the Construction of Schools, Colleges, Dispensaries, Dharamshalas and other building of public utility), 1963" (hereinafter referred to as "the Conditions of 1963). As per Clause No.4 of the Conditions of 1963, the Allotting Authority is the Sub Divisional Officer having jurisdiction to allot the land in question for the purpose of construction of Panchayat Ghar, however, in the present case, the District Collector has passed the impugned order dated 21.11.2020 vide allotting a piece of land from Khasra No.592 Rakba 2.10 Bigha. As per Clause No.1 of the Conditions of 1963, the land in question could not have been allotted for the purpose of Panchayat Ghar, as it was a catchment area which is evident from the Jamabandis and Revenue Maps, (Annexure-1) and (Annexure-2).
(d) The land in question is a part of catchment area of the pond/ water body which is situated at Khasra No.591 of Village Thakar Kheda.
(e) The land in question which is a part of Khasra No.592, is situated at a distance of about 7 kms from the village Abadi circular and other Public Utility Buildings, Schools, Aanganwadi, Health Centers, Sahakari Samiti Office of Village Thakar kheda and thus, the same cannot be said to be in the interest of the residents of the said village.
(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (7 of 13) [CW-16464/2021]
(f) The impugned order dated 21.11.2020 (Annexure-7) passed by the District Collector, Barmer, deserves to be quashed and set aside, as it has been passed in grave violation of the conditions of 1963, as under Clause No.4 of the Conditions of 1963, the jurisdiction for allotment of the land for the Panchayat Bhawan rests with the Sub-Divisional Officer, however, in the present case, the land in question has been allotted by the District Collector, Barmer.
(g) In accordance with Clause No.1(1) of the Conditions of 1963, any unoccupied Government land except land recorded as catchment land, may be allotted for any of the purpose as mentioned in Clause (2) and as the present land in question being a part of catchment area could not have been allotted by the respondents authorities.
(h) As per Clause No.2 of the Conditions of 1963, the land for the construction of Panchayat Ghar can be allotted for one acre area only and if the land is of the nature of pasture, then the provision of Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955 (hereinafter referred to as "the Rules of 1955), is required to be followed. The Gram Panchayat sought the area of 3 acre land and the same could not have been allotted by the District Collector, Barmer, without prior approval of the State Government.
(i) The change of the classification of pasture land shall have to be processed according to the rule, as there is a clear provision that where the land is required for government offices and buildings and unoccupied culture level, government land is not available in the same village and the necessity is an absolute necessity and in the absence of any alternative means, an equal (D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (8 of 13) [CW-16464/2021] area of the unoccupied culture level land may be set apart in exceptional cases, however, in the present case, huge chunk of land which is recorded as Reteeli (रे तीली) land in the village boundaries are available.
(j) The respondents have not complied with the provisions of Rule 7 of the Rules of 1955, as the Collector was required to take prior permission of the State government for the purpose of allotment on setting apart of the pasture land as in the instant case, no such permission of the State government has been taken for the purpose of setting apart of the pasture land in question.
(k) Apparently, the land in question is a catchment area as it is adjoining Khasra No.591 of Village Thakar Kheda and the water flows from Khasra No.592 which is reflected from the revenue map and a Jamabandi placed on record as (Annexure-1 and 2), respectively.
13. Learned counsel for the respondents Mr. Manish Patel and Mr. Manish Tak, jointly submitted that:-
(a) The petitioner has not set up a case in the writ petition that the respondents have not adhered to the Clause 4 of the Conditions of 1963, as in the pleadings, it has nowhere been submitted that the District collector does not have the authority or the power to allot the land and the land in question could be allotted by Sub-Division Officer and thus, the petitioners' contention that the respondents have not adhered to Clause 4 of the conditions of 1963 may not be accepted by way of oral submissions.
(b) In the Conditions of 1963, it has been specifically laid down that if the land is recorded as pasture land and is required to be (D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (9 of 13) [CW-16464/2021] allotted, then the procedure as laid down in Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955 shall be followed.
(c) As per the amended provisions of Rule 7 of the Rules of 1955, the Collector is empowered or competent with the purpose of allotment on setting apart the pasture land.
(d) The Sub Divisional Officer is only authorized for allotment of the land which is not reserved land and therefore, the provision has been inserted in the Clause 1 of the Conditions of 1963 and power has been conferred to the District collector only for allotment or setting apart the pasture land.
(e) The petitioners who are the elected Panchas of the Gram Panchayat, did not raise any objection at the time when the resolution was passed in the meeting which was held on 20.08.2020. The said meeting with the resolution was passed and the petitioners had also put in their signatures.
(f) On 10.03.2021 even a special Gram Sabha was called for the purpose of calling objections on the said resolution so passed by the Gram Panchayat, however, the petitioners did not raise any objection at the time even when they had an opportunity.
(g) The petitioners have not placed any document in order to show that the land in question is a catchment area and the petitioners have misled the court while submitting on 10.03.2021 before this Court that the said land is a part of the catchment area of Village Pond situated at land in question.
(h) The said land in question has been mutated in favour of the current Gram Panchayat Thakar Kheda and the Jamabandi dated 10.03.2021 has also been placed on record as Annexure-R/1 and the petitioner has not challenged the said mutation entry in the (D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (10 of 13) [CW-16464/2021] revenue records and thus, the present writ petition is not maintainable on this ground itself.
(i) Since more than 75% of the Abadi is situated near the land in question including the middle school, thus, the said allotment of the disputed land in question has been made looking to larger interest of the residents of the village.
(j) A tender proceeding had been initiated by the government for supplying the material and thereafter, one firm had been selected for supplying the material which had duly been supplied and thereafter, an amount of Rs.4,00,000/- had also been released in their favour for the work completed to that extent, which is placed on record as Annnexure-R/3.
14. Heard learned counsel for the parties as well as perused the material available on record.
15. This Court finds that the petitioners in their pleadings as well as in the prayer have not set up a case that under Clause No.4 of the Conditions of 1963, the District Collector is not empowered to allot the land in question and the land in question ought to have been allotted by the Sub-Divisional Officer, therefore, the said submission of the petitioner cannot be accepted by way of making oral submissions and setting up a different case then, what has been pleaded in the writ petition.
16. As far as the contention of the learned counsel for the petitioners that the land in question is a part of the catchment area is concerned, the same is devoid of any merit, as the petitioners have not demonstrated before this court by way of any document that the land in question was a part of the catchment (D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (11 of 13) [CW-16464/2021] area. The revenue record which is placed on record, very clearly reflects that the land in question is a pasture land.
17. The contention of the learned counsel for the petitioner that Rule 7 of the Rules of 1955 has not been adhered, is also not acceptable as the provision of Rule 7, clearly reflects that if the land is proposed to be allotted for the purpose of government office or government building then, the prior permission of the State Government is not required for change of classification of the pasture land and thus, it cannot be said that the District Collector, Barmer, while passing the order dated 21.12.2020 (Annexure-7) has failed to adhere to the provision of Rule 7 of the Rules of 1955. Rule 7 of the Rules of 1955 is reproduced hereunder:-
"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 (Sawal Chak), for allotment for agricultural or any non-agricultural purposes:
{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, [...]}"
18. Also under Clause 1 of the Conditions of 1963, the proviso specifically lays down that for the purpose of allotment of pasture land, the procedure as laid down in Rule 7 of the Rules of 1955, shall be followed and the respondents while allotting the land in question, which is duly recorded as pasture land in the revenue record, have followed the procedure laid down in Rule 7 of the (D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (12 of 13) [CW-16464/2021] Rules of 1955, as discussed above. Clause 1 of the Conditions of 1963 is reproduced hereunder:-
"[1. Class of land to be allotted. - Any unoccupied Government land may be allotted for any of the purposes mentioned in clause 2. if the allotting authority is satisfied that no suitable un-culturable land is available.] Provided that if land recorded as pasture (Gochar) is to be allotted, the procedure of consultation with panchayat as laid down in Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955 framed under the Rajasthan Tenancy Act, 1955 (Act 3 of 1955) shall be followed:
Provided further that lands which are irrigated by any source or are recorded as public path, beds of river or tank shall not be allotted without prior approval of the State Government:
Provided also that no allotment shall be made without prior consultation of Town Planning Department in case of cities and towns for which Master Plan has been approved or is under preparation."
19. This fact cannot also be ignored that the petitioners had an opportunity to raise objection when a special Gram Sabha was called on 10.03.2021 (Annexure-R/1) inviting objections upon the resolution under challenge dated 20.08.2020, but the petitioners chose to remain silent and did not raise any objection whatsoever.
20. This Court is not inclined to grant indulgence to the petitioners in the instant case for the reason that the petitioners have failed to demonstrate before the court that the land in question is a part of the catchment area and also that the provisions of Rule 7 of the Rules of 1955 were not adhered by the respondents while allotting the land in question for construction of the Gram Panchayat Bhawan.
(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) [2023:RJ-JD:29769] (13 of 13) [CW-16464/2021]
21. As a consequence, the instant writ petition being devoid of merit, is dismissed. Stay application as well as all other pending applications, if any, also stand rejected.
(DR. NUPUR BHATI),J /-Devesh Thanvi/-
(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 06:24:55 AM) Powered by TCPDF (www.tcpdf.org)