Likhama Ram Choudhary vs State Of Rajasthan
2022 Latest Caselaw 14746 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 16081/2021

1. Likhama Ram Choudhary S/o Chima Ram, Aged About 48 Years, By Caste Jat, Resident Of Village Patasar, Tehsil Pachpadra, Tehsil Pachpadra, District Barmer, Rajasthan And Currently Residing At Plot No.211 A, Balaji Nagar, Near Green Enclave, Pal Bypass Road, Pal (Rural), Jodhpur-342001, Rajasthan.

2. Lalu Ram S/o Chanda Ram, Aged About 66 Years, By Caste Jat, Resident Of 186, Pattasar, Bagawas, Barmer - 344026, Rajasthan.

3. Mahendra Dhaka S/o Lumba Ram, Aged About 47 Years, Village Patasar, Barmer - 344026, Rajasthan.

4. Nema Ram S/o Kesaram, Aged About 33 Years, By Caste Jat, Resident Of Village Patasar, Barmer - 344026, Rajasthan.

5. Khiya Ram S/o Jetha Ram, Aged About 56 Years, By Caste Jat, Resident Of Uchli Dhani, Village Patasar, Bagawas, Barmer 344026, Rajasthan.

----Petitioners Versus

1. State Of Rajasthan, Through The Secretary, Revenue Department, Government Of Rajasthan, Secretariat, Jaipur

2. The District Collector, Barmer

3. The Tehsildar Pachpadra, District Barmer

4. The Public Land Protection Cell Barmer, Through District Collector, Barmer.

5. Gram Panchayat Patasar, Tehsil Pachpadra, District Barmer-344026

6. Gram Panchayat Baniyawas, Tehsil Pachpadra, District Barmer - 344026

----Respondents

For Petitioner(s) : Mr. L.D. Khatri For Respondent(s) : Mr. Sunil Beniwal, AAG Mr. I.R. Choudhary

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

15/12/2022

(2 of 3) [CW-16081/2021]

Through this writ petition in the nature of public

interest litigation, the petitioners herein have approached this

court for assailing the legality and validity of the order dated

11.07.1992 passed by the District Collector, Barmer, whereby land

admeasuring 5 bighas from Khasra No.155 of Mauja Patasar

categorized as Gair Mumkin Agore was set apart for Aabadi

extension of the Village Gram Bagawas and the consequential

attempt of the Gram Panchayat in trying to raise construction of

permanent structures on this land.

Learned counsel Mr. L.D. Khatri, representing the

petitioners, placed reliance upon the judgment dated 01.04.2021

rendered by a Division Bench of this court in the case of

Shambhu Ram Vs. State of Rajasthan & Ors. [D.B. Civil Writ

Petition No.10457/2018] and urged that land forming part of

Gair Mumkin Agor, i.e. catchment, cannot be permitted to be

divested to any other use and such allotment of part of this land

for extension of Aabadi is grossly illegal.

In the reply filed on behalf of the State Government,

the fact that the 5 bighas of land for extension of Aabadi of Gram

Panchayat Patasar was carved out from a restricted category land,

i.e. Gair Mumkin Agore, is not disputed. However, an objection is

raised that the writ petition has been filed after significant delay

and hence the same should be dismissed.

To this objection of delay, learned counsel Mr. L.D.

Khatri, representing the petitioners, submitted that as the

construction activities by way of digging up the foundations was

started only in the year 2021, the petitioners applied for the

relevant record and for the first time, they came to know of the

order dated 11.07.1992. He submitted that other than digging up

(3 of 3) [CW-16081/2021]

a few foundation trenches, no civil construction work has been

made on the land in question, which is prohibited for any other

use except catchment. Thus as per Mr. Khatri, construction

activities on such land is prohibited by law and delay cannot be a

ground to throw out the genuine challenge laid by the petitioners

to the impugned order, which is void in the eyes of law.

Mr. Sunil Beniwal, learned AAG, and Mr. I.R. Choudhary,

learned counsel representing the Gram Panchayat, are not in a

position to dispute the fact that law is well-settled by catena of

decisions rendered by Division Bench of this court including the

judgment in the case of Shambhu Ram, wherein it has been

affirmatively held that the land categorized as Gair Mumkin Agor

cannot be divested for any other purpose.

In this background, there is no option, but to declare

that the impugned allotment order dated 11.07.1992 is de hors

the provisions of law and void on the face of the record. Hence,

the same is quashed and set aside. No construction activity shall

be allowed on the land in question. At the same time, the District

Collector, Barmer is directed to consider allotment of a fresh chunk

of 5 bighas land to the Gram Panchayat concerned from

permissible category land, which would include Gair Mumkin

Gochar (after due accountance for compensation as per the Rules)

so as to facilitate Aabadi extension and construction of the public

service utility institutions.

The writ petition is allowed, accordingly.

No order as to costs.

(KULDEEP MATHUR),J (SANDEEP MEHTA),J 43-Pramod/-

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